Jenkins v. CLJ Healthcare, LLC
| Decision Date | 04 August 2020 |
| Docket Number | CIVIL ACTION NO. 4:19-cv-00045 |
| Parties | Hal JENKINS, Individually and as Administrator of the Estate of April Jenkins, Plaintiff, v. CLJ HEALTHCARE, LLC, d/b/a Opulence Aesthetic Medicine, Judgment Debtor. Owners Insurance Company, Garnishee. |
| Court | U.S. District Court — Southern District of Georgia |
Brent J. Savage, Kathryn Hughes Pinckney, Savage & Turner, PC, Steven E. Scheer, Steven E. Scheer, PC, Savannah, GA, for Plaintiff.
This garnishment action was filed to enforce a judgment awarded to the Plaintiff in a prior separate civil lawsuit for the wrongful death of April Jenkins. (Doc. 1-2, pp. 6–10.) Plaintiff Hal Jenkins brought the wrongful death suit against CLJ Healthcare, LLC, d/b/a Opulence Aesthetic Medicine ("CLJ"), the judgment debtor herein, in the State Court of Cobb County, Georgia, and won a jury verdict. (Doc. 32, pp. 5, 11; see also doc. 1-4, pp. 19–34; doc. 1-5, pp. 5, 7.) He now seeks to collect the judgment from that suit against Owners Insurance Company ("Owners"), which had issued a general liability insurance policy ("the policy") to CLJ. (Doc. 1-2, pp. 4–5, 9–10.) Presently, before the Court is Owners’ Motion for Summary Judgment, which argues that the "policy does not afford coverage for the [wrongful death] claims or judgment ... and therefore [it] is not holding policy proceeds subject to garnishment." (Doc. 20, p. 2.)
Plaintiff filed a Response, (doc. 31), to which Owners filed a Reply, (doc. 38). The Court finds as a matter of law that the policy does not require Owners to indemnify Plaintiff's judgment against CLJ. Accordingly, the Court GRANTS Owners’ Motion for Summary Judgment.1 (Doc. 20.)
As described above and in more detail below, this garnishment action follows the entry of a money judgment in favor of Plaintiff for the wrongful death of April Jenkins during a surgery performed at CLJ's medical center. The applicability of an insurance contract that had been issued by Owners to CLJ is the core dispute in the civil action presently before this Court. (Doc. 1-2, pp. 5, 7–9.) The relevant details are discussed below.
Sometime before Jenkins’ death, CLJ purchased the at-issue policy from Owners through an independent insurance agency, D. Ward Insurance Services, Inc. (" "). (Doc. 32, p. 1; doc. 30-1, p. 2; doc. 22-1, p. 7.) Along with the policy, Owners included a cover letter that concluded with the following statement: "Feel free to contact your independent Auto-Owners agent with questions you may have about any of your insurance needs." (Doc. 22-1, p. 7.) As for the policy itself, it included coverage for, among other things, certain "advertising injur[ies]," which were defined as injuries arising out of the "[o]ral or written publication of material that slanders or libels a person or organization" or "that violates a person's right of privacy." (Id. at pp. 48, 58.)
The policy stated that if the insured had an additional insurance policy "covering the same loss or damage," it would "pay only for the amount of covered loss or damage in excess of the amount due from that other insurance ...." (Id. at pp. 45–46.) It also included several exclusion provisions, noting areas where the policy did not extend coverage. (Id. at p. 49.) One of these provisions stated that the policy did "not apply to ‘Bodily injury’ ... due to rendering or failure to render any professional service." (Id. at pp. 49, 51.) It then listed several examples of rendering or failing to render professional services, including "[m]edical [or] surgical ... services or treatment[,] [a]ny health service or treatment, [and] [a]ny cosmetic ... service or treatment." (Id. at p. 52.) While this exclusion provision used the phrase "due to," many other exclusion provisions within the policy used a slightly different phrase and excluded coverage for bodily injury "arising out of" some act or omission. (See, e.g. id. at pp. 51–53) (excluding " ‘[b]odily injury’ ... arising out of the ownership, maintenance, use or entrustment to others of any aircraft ...")
In a separate section titled "Liability and Medical Expenses General Conditions," the policy stated that the insured "must see to it that we are notified promptly of an ‘occurrence’ that may result in a claim."2 (Id. at p. 57.) In addition, it also provided that "[i]f a claim is made or ‘suit’ is brought against any insured, you must see to it that we receive prompt written notice of the claim or ‘suit.’ " (Id. ) Finally, the policy noted that "[n]o one may bring a legal action against us under this insurance unless: [t]here has been full compliance with all of the terms of this insurance." (Id. at p. 72.)
On February 19, 2013, April Jenkins underwent liposuction
surgery at CLJ's medical center. (Doc. 32, p. 2.) Dr. Nedra Dodds performed the procedure. (Doc. 30-2, p. 2.) Towards the end of the operation, Jenkins "went rigid." (Id. ) According to her testimony, Dr. Dodds instructed an "office staff" member who was not a licensed medical provider to call 911, but allegedly this call was not made for another twenty-nine minutes. (Id. ) Dr. Dodds also attempted to use the drug atropine but was delayed because the medical supply "crash" cart was not properly stocked. (Id. at p. 3.) Jenkins was transported to a hospital where she was pronounced dead. (Doc. 30-34, p. 2.) Following an autopsy, the medical examiner concluded that Jenkins "died as a result of [a] pulmonary fat emboli" which, he commented, is "a known complication of liposuction /fat transfer procedures." (Id. at pp. 12–13.)
"[W]ithin several weeks" of Jenkins’ death, CLJ's office manager, John Marshall, called D. Ward about Jenkin's death. (Doc. 30-1, p. 2.) According to Marshall, he contacted D. Ward in reliance upon the language in the policy's cover letter advising CLJ to contact its independent agent with any questions. (Id. ) Marshall says he talked to the representative at D. Ward specifically about the delayed 911 call and the inadequately stocked "crash" cart, and that he was told there was no coverage because what he described was a medical malpractice claim. (Id. ) He also says he was never told by anyone at D. Ward that he needed to submit a written report of Jenkins’ death. (Id. at pp. 2–3.)
On August 6, 2013, Plaintiff filed a wrongful death suit against CLJ and Dr. Dodds in the State Court of Cobb County. (Doc. 32, p. 5; Doc. 1-4; p. 1.) The complaint asserted that Dr. Dodds was liable for professional negligence, and that CLJ was vicariously liable. (Doc. 1-4, pp. 5–7.) A few months later, in October, Dr. Dodds told her defense counsel that she had an insurance policy with Owners. (Doc. 30-2, p. 4.) According to Dr. Dodds, her defense counsel told her they would present the claim to Owners. (Id. ) Nothing in the record indicates that her defense counsel contacted Owners at that time, however.
In April 2014, Owners received a demand letter drafted by Plaintiff's attorney, which had initially been sent to CLJ's attorney who had in turn forwarded it to D. Ward who then sent it to Owners. (Doc. 30-8, pp. 1–6.) Sometime later, Owners sent CLJ a letter informing it that the policy did not provide coverage for the claims surrounding Jenkins’ death because CLJ failed to provide timely notification of both the incident and the lawsuit and also because the claims fell within the policy's professional services exclusion. (Doc. 32, p. 8.) Plaintiff then filed an amended complaint in his lawsuit against CLJ in November 2014. (Id. at p. 9.) This amended complaint contained a "Non-professional Negligence" claim based on the allegedly delayed 911 call and for CLJ's publication of "inaccurate data of Dr. Dodds’ credentials" on its Website, which Ms. Jenkins had allegedly visited prior to her surgery. (Doc. 1-4, pp. 21, 31.) Plaintiff's counsel sent Owners a copy of the amended complaint on June 19, 2015. (Doc. 32, p. 9; doc. 30-14.) In response, Owners reiterated to CLJ that the policy did not provide coverage. (Doc. 32, p. 10; doc. 30-15, p. 1.)
Three years later, the State Court of Cobb County entered default against CLJ. (Doc. 32, p. 10.) Plaintiff obtained a judgment in the amount of $60,000,000 against CLJ. (Id. at p. 11.) Plaintiff then filed the at-issue garnishment action against Owners seeking payment under the policy. (Doc. 1-2, p. 2.) Once litigation began, Plaintiff deposed Thomas Bernardi who worked in Owners’ legal department. (Doc. 24, p. 4.) Bernardi testified that an insured calling an independent agent about a claim could in some instances serve notice of that claim to Owners. (Id. at pp. 9–10.)
On January 22, 2019, Plaintiff filed the at-issue garnishment against Owners in the State Court of Chatham County. (Doc. 1-2.) Owners removed the case to this Court. (Doc. 1.) It subsequently filed an Answer and a counterclaim seeking a declaratory judgment stating that the policy does not require Owners to indemnify CLJ. (Doc. 4.) On September 4, 2019, Owners filed the Motion for Summary Judgment presently before the Court. (Doc. 20.) Plaintiff then filed a Response, (doc. 31), to which Owners filed a Reply, (doc. 38).
Summary judgment "shall" be granted if "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The moving party bears the burden of establishing that there is no genuine dispute...
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