No. 23-ICA-409 – West Virginia Mutual Insurance Company v. Steven R. Matulis, M.D. FILED December 12, 2024 LORENSEN, JUDGE, concurring in part and dissenting in part: ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
I concur in the majority’s opinion to reverse in part the circuit court’s May 4,
2021, order granting Matulis’ motion for partial summary judgment on the issue of
Mutual’s duty to defend. I agree with the majority that the underlying complaints filed in
Kanawha County Case Nos. 17-C-1057, 18-C-575, 18-C-578, 18-C-576, 16-C-1709, 16-
C-1738, 18-C-985, and 18-C-205, at their essence, allege claims of intentionally tortious
sexual misconduct barred by the Policy’s intentional acts exclusion, and that the circuit
court erred in finding Mutual had a duty to defend Matulis in those cases.
I respectfully dissent from the majority’s decision to affirm in part the circuit
court’s May 4, 2021, order. The majority concludes that Mutual had a duty to defend
Matulis in Kanawha County Case Nos. 18-C-15, 17-C-1579, 18-C-176, 16-C-497, 16-C-
1723, as well as against the claim alleged in the Notice of Claim filed by plaintiff L.B. I
disagree, because these complaints (and notice of claim) also essentially allege claims of
intentionally tortious sexual misconduct. The basis of plaintiffs’ claims is that Matulis
intentionally and nonconsensually touched plaintiffs’ breasts or vaginal areas (together
“intimate areas”) during colonoscopy procedures. Although some plaintiffs characterize
his conduct as an examination and raise medical negligence claims under the Medical
Professional Liability Act (MPLA), this labeling does not change the essence of the claims.
1 MPLA claims require plaintiffs to identify—and ultimately prove—that the medical
provider’s negligent act proximately caused an injury separate from the breach of a
standard of care itself. However, despite the inclusion of negligence language and MPLA
counts, plaintiffs do not identify injuries proximately caused by Matulis’ conduct when that
conduct is construed as a legitimate but negligent medical examination. However, for their
intentional tort claims, plaintiffs clearly allege an injury: severe emotional distress caused
by Matulis’ harmful and offensive sexual misconduct in touching their intimate areas.
Because plaintiffs’ alleged injuries are solely intentional tort injuries, the nature and
essence of their complaints are sexual misconduct claims, which Mutual had no duty to
defend. Accordingly, I would reverse the circuit court’s May 4, 2021, order in totality.1
I. Duty To Defend
“[I]ncluded in the consideration of whether [an] insurer has a duty to defend
is whether the allegations in the complaint . . . are reasonably susceptible of an
interpretation that the claim may be covered by the terms of the insurance polic[y].” Syl.
Pt. 5, W. Va. Fire & Cas. Co. v. Stanley, 216 W. Va. 40, 602 S.E.2d 483 (2004) (quotation
omitted). The Supreme Court of Appeals of West Virginia (“SCAWV”) has clarified that,
1 Because I believe the Court should reverse this order in its entirety, I do not believe it was necessary to reach the merits of Mutual’s other assignments of error. Because Mutual had no duty to defend Matulis against any complaints, he is not entitled to any breach of contract damages, or any damages or attorney fees awarded pursuant to Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986). However, as the majority reaches those issues, I agree with their analysis and judgment on Mutual’s additional assignments of error. 2 in reviewing a complaint, the nature of the claims asserted against the insured controls,
rather than the labels assigned by the plaintiff. See Bruceton Bank v. U.S. Fid. & Guar. Ins.
Co., 199 W. Va. 548, 553-55, 486 S.E.2d 19, 24-26 (1997).
In Bruceton Bank, the SCAWV analyzed an insurer’s duty to defend an
insured against claims of breach of contract, bad faith, fraudulent misrepresentation,
negligence, constructive fraud, promissory estoppel, and discrimination. See id. at 549, 486
S.E.2d at 20. Having concluded that breach of contract claims were not covered under the
terms of the policy, the SCAWV rejected the insured’s contention that the negligence and
promissory estoppel claims triggered a duty to defend, reasoning “the remaining
allegations of the underlying complaint [do not] alter the basic nature of the [underlying]
action as one grounded essentially upon breach of contract.” Id. at 554, 486 S.E.2d at 25.
The SCAWV determined that the damages sought against the insured had their origin in
contract and that the negligence and promissory estoppel claims, despite their labels, were
barred by the policy’s exclusion for intentional acts of the insured. Id.
In analyzing an insurer’s duty to defend an insured against claims of sexual
misconduct, the SCAWV held that “[t]he inclusion of negligence-type allegations in a
complaint that is at its essence a sexual [misconduct] claim will not prevent the operation
of an ‘intentional acts’ exclusion contained in an insurance liability policy which is defined
as excluding ‘bodily injury’ ‘expected or intended from the standpoint of the insured.’”
Syl. Pt. 4, Smith v. Animal Urgent Care, Inc., 208 W. Va. 664, 542 S.E.2d 827 (2000); see
3 also Syl., Horace Mann Ins. Co. v. Leeber, 180 W. Va. 375, 376 S.E.2d 581 (1988) (finding
no duty to defend against sexual misconduct claims where policy contained intentional acts
exclusion). When determining whether a complaint is “at its essence” a sexual misconduct
claim, the SCAWV has considered whether the “primary allegations” allege sexual
misconduct. Stanley, 216 W. Va. at 53, 602 S.E.2d at 496.
The majority formulates a new standard for courts to apply these principles,
explaining that negligence allegations in a complaint otherwise alleging intentional sexual
misconduct against an insured are sufficient to trigger a duty to defend if they state claims
that would survive a motion to dismiss. I disagree with the introduction of this standard for
several reasons. First, it is not supported by the caselaw. Second, this standard encourages
gamesmanship and creative pleading. Under West Virginia’s notice pleading, “the standard
for assessing a motion to dismiss requires the circuit court to view the complaint in the
light most favorable to the plaintiff and take all allegations as true.” McKnight v. Bd. of
Governors of Glenville State Univ., 250 W. Va. 368, ___, 902 S.E.2d 917, 923 (Ct. App.
2024). Given this liberal standard, a plaintiff suing an insured for intentional acts not
covered by their policy could trigger an insurer’s duty to defend simply by including a
basic negligence count in their complaint.
Third, in analyzing the underlying complaints in this case, the majority does
not actually analyze the complaints under West Virginia’s liberal notice pleading standards.
Instead, the majority states that Mutual had the duty to defend “plausible” claims of
4 medical malpractice. However, unlike in federal court, a plaintiff in West Virginia court
does not have to state a “plausible” claim to survive a motion to dismiss. See Mountaineer
Fire & Rescue Equip., LLC v. City Nat'l Bank of W. Va., 244 W. Va. 508, 521 n.4, 854
S.E.2d 870, 883 n.4 (2020). Moreover, the majority does not limit its consideration to the
facial plausibility of the claims in the underlying complaints. Instead, the majority
considers Matulis’ proposed defense to some of the claims and expert witness opinions in
support of his defense, effectively converting their consideration to a summary judgment
standard. See Shaffer v. Charleston Area Med. Ctr., Inc., 199 W. Va. 428, 433, 485 S.E.2d
12, 17 (1997) (recognizing that where a court considers evidence at the motion to dismiss
stage, it should convert the motion into a summary judgment motion).
For these reasons, I would not introduce the standard set forth in the majority
opinion. In determining if allegations in a complaint against an insured trigger an insurer’s
duty to defend, I would continue to look at the nature and essence of those claims, rather
than their labels.
In the Policy at issue, Mutual provided that it would not pay for or defend
“any claim or suit arising out of an intentional tort, dishonest, reckless or malicious act, or
breach of contract except as otherwise provided in this policy” or “liability arising out of
sexual acts or sexual activities whether under the guise of professional services or not, on
the part of any insured.” However, despite the similarity of the allegations in all fourteen
underlying cases, the majority finds that Mutual had no duty to defend Matulis against
5 eight complaints and that it had a duty to defend against the other six. Crediting the defense
Matulis proffered below that he sometimes performed digital vaginal examinations
(“DVEs”) during colonoscopy procedures and the expert opinions that DVEs can be
legitimate and necessary during colonoscopies, the majority concludes that, where a
plaintiff properly alleged a medical malpractice claim based on Matulis’ performing a DVE
during a colonoscopy, Mutual was required to provide him with a defense.
However, review of each of the five complaints (and in L.B.’s case, the notice
of claim) for which the majority finds a duty to defend demonstrates that, regardless of the
labels used in the complaint, Mutual had no duty to defend Matulis. Although some of the
plaintiffs include a count in their complaint alleging that Matulis’ intentional and
nonconsensual touching of their intimate areas may have been medical malpractice, the
nature of the injuries allegedly suffered demonstrates that the nature and essence of these
complaints are intentionally tortious sexual misconduct. These complaints are foreign to
the risk of injuries insured against by the Policy, and Mutual had no duty to defend.
In an MPLA claim, a plaintiff must demonstrate not only that “[t]he health
care provider failed to exercise that degree of care, skill and learning required or expected
of a reasonable, prudent health care provider in the profession or class to which the health
care provider belongs acting in the same or similar circumstances,” but also that “[s]uch
failure was a proximate cause of the injury or death.” W. Va. Code § 55-7B-3(a) (2003). As
the SCAWV has recognized, “[i]n a malpractice case, the plaintiff must not only prove
6 negligence but must also show that such negligence was the proximate cause of the injury.”
Syl. Pt. 4, Short v. Appalachian OH-9, Inc., 203 W. Va. 246, 507 S.E.2d 124 (1998).
Despite their inclusion of malpractice counts in their complaints, the
plaintiffs have not alleged separate injuries proximately caused by Matulis’ alleged
malpractice.2 Of course, when viewing Matulis’ alleged conduct as intentionally tortious
sexual misconduct, each plaintiff’s injury is clear: Matulis’ intentional harmful, unwanted
contact of her intimate areas, and any resultant harm. See McKenzie v. Sevier, 244 W. Va.
416, 425, 854 S.E.2d 236, 245 (2020) (“[A]n actor is subject to liability to another for
battery if (a) he acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such contact, and (b) a harmful
contact with the person of the other directly or indirectly results.”) (citations and quotations
omitted). In contrast, when Matulis’ conduct is recast as a legitimate medical examination
that was merely negligent because it was performed without informed consent, the
examination is the breach of the standard of care, rather than the injury. As the SCAWV
has explained, in an MPLA claim, the plaintiff must demonstrate a breach of the standard
of care and an injury proximately caused by that breach. See Arbogast v. Mid-Ohio Valley
2 Several of the six plaintiffs discussed below allege generally that Matulis’ alleged breaches of the standard of care caused them damages or harm. See, e.g., B.D. Complaint ¶¶ 35, 80; T.W. Amended Complaint ¶ 21; R.K. Complaint ¶ 18. Regardless, they do not identify an injury, separate from Matulis’ conduct itself, that was proximately caused by his conduct if that conduct is construed as a legitimate medical examination. For instance, there is no claim that the purported “examination” failed to diagnose a health concern or that the examination physically injured a patient separate and apart from the complete lack of consent to the “examination.” 7 Med. Corp., 214 W. Va. 356, 361, 589 S.E.2d 498, 503 (2003) (per curiam) (“Merely
finding that the evidence established that [the health care provider] violated the standard
of care for extracting blood does not alone impose liability . . . .”).
Plaintiffs’ failure to allege a separate injury proximately caused by Matulis’
breach of the standard of care demonstrates that the malpractice counts in their complaints
are recharacterizations of their intentional tort claims. Regardless of their inclusion of
negligence or malpractice counts, or their characterization of Matulis’ touching of their
intimate areas as an “examination,” the injury plaintiffs allege is that he intentionally and
inappropriately touched in them in those areas, not that he performed a legitimate medical
procedure that proximately caused a separate injury. Because the injuries plaintiffs allege
are intentional tort injuries, their allegations of negligence and malpractice do not transform
the essence of their complaints. Cf. Bruceton Bank, 199 W. Va. at 554, 486 S.E.2d at 25
(finding that, despite negligence claim, the nature of the complaint was breach of contract
in part because “the damages claimed by the [underlying plaintiff] more appropriately had
their origin in contract, rather than in tort”).
The nature of the injuries alleged alone demonstrates that the nature and
essence of the five complaints and L.B.’s notice of claim are claims for intentionally
tortious sexual misconduct, and that Mutual had no duty to defend Matulis against any of
them. However, I will also briefly address specific allegations in each complaint that further
demonstrate the nature and essence of plaintiffs’ claims.
8 1. B.D. v. Matulis, Civil Action No. 18-C-15
B.D. alleges that during her colonoscopy procedure on January 8, 2016,
Matulis “placed his fingers in and about the Plaintiff’s vaginal area without the knowledge
or consent of the Plaintiff.” B.D. Complaint ¶ 33. She also alleges that Matulis engaged in
this “misconduct” with at least six women other than her. Id. ¶¶ 15-20, 24-25. In her MPLA
claim, B.D. alleges that this conduct constituted various breaches of the standard of care
for a reasonably prudent gastroenterologist. B.D. Complaint ¶ 79. However, these
allegations are inconsistent with Matulis’ defense—and the majority’s basis for finding that
some plaintiffs stated covered malpractice claims—that he performed legitimate DVEs on
some patients during colonoscopies. Contrarily, far from alleging that Matulis’ conduct
may have simply been a legitimate but negligent DVE, B.D. specifically alleges that
Matulis acted outside of his own area of practice and beyond his training and expertise. See
B.D. Complaint ¶ 79. Therefore, by the majority’s own reasoning, these allegations do not
trigger a duty to defend.
2. A.H. and Fleming v. Matulis, Civil Action No. 18-C-176 (Class Action)
A.H. and Fleming allege that they represent a class of Matulis’ former
patients who underwent colonoscopies or sigmoidoscopies between 2010 and 2016.
A.H./Fleming Complaint ¶ 44. A.H. and Fleming allege that, during the relevant period, it
was Matulis’ practice to perform nonconsensual vaginal and breast examinations on his
patients. See id. ¶¶ 14-16. Notably, A.H. and Fleming allege that they are unaware if they
or any class members were actually subjected to any of the alleged conduct. Id. ¶ 32.
9 A.H. and Fleming do not allege that Matulis performed a legitimate DVE for
which he should have obtained informed consent; they allege he might have performed a
DVE or a breast examination. A.H./Fleming Complaint ¶¶ 12, 32. Moreover, because they
do not allege that a DVE occurred, they have not alleged that any DVE was the proximate
cause of an injury separate from the breach of the standard of care itself, as required for an
MPLA claim. See W. Va. Code § 55-7B-3(a); Short, 203 W. Va. at 252-53, 507 S.E.2d at
130-31. That these plaintiffs do not know which form of nonconsensual touching might
have occurred underscores that their alleged injury is the harmful contact, not an injury
proximately caused by a legitimate but negligent medical procedure.
3. Jane Doe 1 and Jane Doe 2, Civil Action No. 16-C-1723 (Class Action)
Jane Does 1 and 2 (“Jane Does”) allege that they represent a class of Matulis’
former patients who underwent colonoscopies or sigmoidoscopies between 2010 and 2016.
See Jane Does Complaint ¶ 104. The Jane Does’ allegations are similar to A.H. and
Fleming’s in that the Jane Does are unaware if Matulis touched their intimate areas during
their colonoscopies, but they allege concern that he may have. See id. ¶¶ 21-22, 43, 112.
Moreover, beyond simply failing to allege an injury caused by Matulis’ alleged
malpractice, the Jane Does affirmatively disclaim one, stating that they “do not allege a
physical injury sustained during their colonoscopy.” Jane Does Complaint ¶ 112. The Jane
Does also specifically allege that the “allegations [of sexual assault] against Dr. Matulis
were true.” Jane Does Complaint ¶ 20. As the majority recognizes, where a plaintiff’s
10 allegations “assume that Matulis did commit sexual misconduct, either against [the
plaintiff] or others . . . her allegations arise from sexual conduct.”
4. R.K. v. Matulis, Civil Action No. 17-C-1579
R.K. alleges that, during a consultation for acute pancreatitis, “Matulis
performed a vaginal examination that was not medically indicated . . . without [R.K.]’s
consent.” R.K. Complaint ¶¶ 7-9. R.K. characterizes Matulis’ actions as “misconduct” that
was “intentional, willful, wanton, and reckless.” Id. ¶¶ 13-14. R.K. also alleges a
negligence count, which the majority concludes is sufficient to trigger Mutual’s duty to
defend.
Matulis claims that he had a “practice of performing limited digital vaginal
examinations (DVEs) during colonoscopy procedures.” Matulis Brief at 1, 4. Both his
supporting experts opined that a DVE could be within the standard of care during a
colonoscopy. Notably, R.K. does not allege that Matulis performed a colonoscopy during
the visit at issue. Rather, she underwent treatment for acute pancreatitis. See R.K.
Complaint ¶ 7. Neither Matulis nor the majority contend that a DVE is within the standard
of care during an evaluation for acute pancreatitis. Therefore, even under the theory that
MPLA claims based on Matulis’ performing a DVE during a colonoscopy triggered
Mutual’s duty to defend, R.K.’s allegations do not put forth such a claim.
11 5. T.W. v. Matulis, Civil Action No. 16-C-497
In her initial complaint, T.W. alleges that during a colonoscopy procedure,
“Matulis placed his hands inside her hospital gown and groped her breasts” and “used his
fingers to repeatedly penetrate her vagina.” See T.W. Complaint ¶¶ 6-7. T.W. specifically
characterizes this as “sexual assault,” id. ¶ 8, and raises claims against Matulis for battery
and outrage. In her amended complaint, T.W. alleges the same factual conduct. See T.W.
Amended Complaint ¶¶ 8-9. However, she removes the references to sexual assault, and
adds references to negligence, including that Matulis “was negligent, reckless and
committed a battery upon [T.W.]” See id. ¶ 12.
Although the majority does not analyze T.W.’s initial complaint, based on
their analysis of the complaints for which they find no duty to defend, they likely would
have determined that Mutual had no duty to defend Matulis against that version of the
complaint. Indeed, in finding that Mutual had a duty to defend against the amended
complaint, the majority emphasizes that the complaint did not reference sexual assault. I
believe that this clearly demonstrates the flaw in the majority’s standard. Mutual contracted
to limit its duty to defend claims based on certain conduct, not words. The conduct T.W.
alleges in her amended complaint has not changed; therefore, the nature and essence of the
claims have not changed.
12 6. L.B. Notice of Claim3
In the certificate of merit included with her notice of claim, L.B. alleges that
Matulis “breached the standard of care . . . by negligently failing to conduct a proper
colonoscopy exam. [L.B.] was sexually assaulted by Dr. Matulis during her colonoscopy
exam resulting in injury to her,” and that he “[was] otherwise negligent.” L.B. Certificate
of Merit ¶ 6. Despite her use of negligence language, the only concrete conduct that L.B.
identifies as a “breach” is that “she was sexually assaulted.” As the majority recognizes,
where a plaintiff’s allegations “assume that Matulis did commit sexual misconduct, either
against [the plaintiff] or others . . . her allegations arise from sexual conduct.” Moreover,
the SCAWV has recognized that simply calling sexual misconduct negligence does not
trigger a duty to defend. See Stanley, 216 W. Va. at 53, 602 S.E.2d at 496.
II. Conclusion
Because I conclude that Mutual had no duty to defend Matulis against any of
the underlying complaints, I believe it was unnecessary to address Mutual’s assignments
of error on their merits, because the duty to defend would have been dispositive of those
issues. However, in light of the majority’s need to reach those issues based on their partial
affirmance of the May 4, 2021, order, I agree with the majority’s reasoning and judgment
3 Although L.B. never filed a complaint against Matulis, the majority analyzes the certificate of merit included with her notice of claim in the same manner as a complaint. Although I do not believe it is clear under West Virginia law that a notice of claim and certificate of merit can trigger a duty to defend against a lawsuit before a complaint is filed, for the purposes of this separate opinion I will analyze her notice of claim and certificate of merit like a complaint. 13 on each of Mutual’s additional assignments of error. Accordingly, for the foregoing
reasons, I respectfully concur in part and dissent in part from the majority opinion.