Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Calendine

• Decision Date: 07 December 2022
• Docket Number: Civil Action 21-cv-01541-NYW-MDB
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Plaintiff, v. THE ESTATE OF STEPHEN CALENDINE, D.D.S., WESLEY BURCH, DELIA DONNELLY, MYKEL DONNELLY, individually and on behalf of her minor child, K.D., MICHELLE ESTRADA, THE ESTATE OF MARY JO NICHOLSON, KAREN PETRUCCI, LEON RENICKER, LAURI ROBERTS, KELLY SIEBER, SALLY STASCHKE, and CONTINENTAL CASUALTY COMPANY, Defendants. CONTINENTAL CASUALTY COMPANY, Counter/Cross-Claim Plaintiff, v. THE ESTATE OF STEPHEN CALENDINE, D.D.S., WESLEY BURCH, DELIA DONNELLY, MYKEL DONNELLY, individually and on behalf of her minor child, K.D., MICHELLE ESTRADA, THE ESTATE OF MARY JO NICHOLSON, KAREN PETRUCCI, LEON RENICKER, LAURI ROBERTS, KELLY SIEBER, and SALLY STASCHKE, Cross-Defendants, and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Counter-claim Defendant.
• Court: U.S. District Court — District of Colorado

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NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Plaintiff, v. THE ESTATE OF STEPHEN CALENDINE, D.D.S., WESLEY BURCH, DELIA DONNELLY, MYKEL DONNELLY, individually and on behalf of her minor child, K.D., MICHELLE ESTRADA, THE ESTATE OF MARY JO NICHOLSON, KAREN PETRUCCI, LEON RENICKER, LAURI ROBERTS, KELLY SIEBER, SALLY STASCHKE, and CONTINENTAL CASUALTY COMPANY, Defendants.

CONTINENTAL CASUALTY COMPANY, Counter/Cross-Claim Plaintiff, v. THE ESTATE OF STEPHEN CALENDINE, D.D.S., WESLEY BURCH, DELIA DONNELLY, MYKEL DONNELLY, individually and on behalf of her minor child, K.D., MICHELLE ESTRADA, THE ESTATE OF MARY JO NICHOLSON, KAREN PETRUCCI, LEON RENICKER, LAURI ROBERTS, KELLY SIEBER, and SALLY STASCHKE, Cross-Defendants, and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Counter-claim Defendant.

Civil Action No. 21-cv-01541-NYW-MDB

United States District Court, D. Colorado

December 7, 2022

MEMORANDUM OPINION AND ORDER

NINA Y. WANG, UNITED STATES DISTRICT JUDGE

This matter is before the Court on National Union Fire Insurance Company of Pittsburgh, PA and Continental Casualty Company's Joint Motion for Summary Judgment (the “Motion” or “Motion for Summary Judgment”). [Doc. 79]. Upon review of the Motion and the associated briefing, the applicable case law, and the record before the Court, the Court concludes that oral argument will not materially assist in the resolution of this matter. For the reasons set forth below, the Motion for Summary Judgment is respectfully GRANTED.

PROCEDURAL BACKGROUND

This case arises out of an insurance coverage dispute relating to ten state-court lawsuits alleging dental negligence on the part of Dr. Stephen Calendine (the “Underlying Lawsuits”). On June 8, 2021, Plaintiff National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) filed a Complaint for Declaratory Judgment against Wesley Burch, Delia Donnelly, Mykel Donnelly Michelle Estrada, The Estate of Mary Jo Nicholson, Karen Petrucci, Leon Renicker, Lauri Roberts, Kelly Sieber, Sally Staschke (collectively, the “Claimant Defendants”) and the Estate of Stephen Calendine, D.D.S (the “Estate”), seeking a declaratory judgment that it has no duty to defend nor indemnify Dr. Calendine against the Underlying Lawsuits. [Doc. 1 at 1, 10-11]. National Union filed a First Amended Complaint on June 21 2021, adding Continental Casualty Company (“Continental”) as a Defendant. [Doc. 18 at 1]. Continental answered the First Amended Complaint and asserted crossclaims for declaratory judgment against the Claimant Defendants and the Estate, similarly seeking a declaratory judgment that it has no duty to defend or indemnify Dr Calendine against the Underlying Lawsuits. [Doc. 35 at 1, 23-24]. On November 17, 2021, National Union filed a Second Amended Complaint with leave of court. See [Doc. 42; Doc. 45]. In response, Continental filed an Answer to Second Amended Complaint and First Amended Counter-claim and Cross-claim for Declaratory Judgment (the “Amended Answer”).^[1][Doc. 55]. The Claimant Defendants moved to dismiss National Union's claims and Continental's crossclaims (the “Motions to Dismiss”). [Doc. 50; Doc. 58]. On August 17, 2022, this Court denied the Claimant Defendants' two Motions to Dismiss. [Doc. 97].^[2]The Claimant Defendants subsequently answered National Union's claims and Continental's crossclaims, raising no counterclaims or crossclaims in response. [Doc. 99; Doc. 100].

National Union and Continental (collectively, the “Insurers”) jointly filed the instant Motion for Summary Judgment on April 29, 2022, requesting that the Court “grant the motion for summary judgment and enter a declaratory judgment stating that National Union . . . and Continental . . . have no obligation to defend, indemnify, or otherwise provide coverage to the Estate . . . as it concerns the subject litigation brought by [the Claimant Defendants].” [Doc. 79 at 19]. The Claimant Defendants responded in opposition, see [Doc. 93], and the Insurers have since replied. [Doc. 96]. The matter is thus ripe for disposition.

UNDISPUTED MATERIAL FACTS

The below material facts are drawn from the Parties' briefing and are undisputed unless otherwise noted.^[3]

1. National Union issued a professional liability insurance policy to Dr. Calendine (the “National Union Policy”). [Doc. 79 at ¶ 2; Doc. 93 at 7, ¶ 2;^[4] Doc. 79-14].

2. Continental issued a professional liability insurance policy to All Smiles Dental Group, PC (“All Smiles”) with Dr. Calendine named as an additional insured (the “Continental Policy”). [Doc. 79 at ¶ 10; Doc. 93 at 4, ¶ 1; Doc. 96 at 2; Doc. 79-17 at 11; Doc. 93-1 at 26, 28].

I. The National Union Policy

3. The National Union Policy had effective dates of April 2, 2017 to April 2, 2018 “and a retroactive date of April 16, 1993.” [Doc. 79 at ¶ 2; Doc. 93 at 7, ¶ 2; Doc. 79-14 at 36].

After expiration of this Policy, Dr. Calendine purchased a Supplemental Extended Reporting Period (“ERP”) Endorsement, which provided Dr. Calendine with an extended reporting period for claims arising out of dental incidents that occurred after the Retroactive Date but before the end of the Policy Period. [Doc. 79 at ¶ 8; Doc. 93 at 8, ¶ 8; Doc. 79-13 at ¶ 10].

4. The National Union Policy contains a declaration stating that “claims made coverage is limited to liability for claims first made against an insured and reported in writing to us during the Policy period or any extended reporting period, if applicable.” [Doc. 79 at ¶ 4; Doc. 93 at 8, ¶ 4; Doc. 79-14 at 2 (capitals omitted)].

5. The National Union Policy also states: “This Policy will cover only claims actually made against you, or dental incidents properly reported to us, while the Policy remains in effect.” [Doc. 93 at 5, ¶ 8; Doc. 96 at ¶ 8; Doc. 79-14 at 9 (capitals omitted)].^[5]

6. “Claim” is defined in the National Union Policy as “a ‘suit' or demand made by or for the injured person for ‘damages' to which this insurance applies.” [Doc. 79 at ¶ 6; Doc. 93 at

8, ¶ 6; Doc. 79-14 at 15].

7. In addition, “suit” is defined in pertinent part as “a civil proceeding in which ‘damages' to which this insurance applies are alleged.” [Doc. 79 at ¶ 7; Doc. 93 at 8, ¶ 7; Doc. 79-14 at 17].

8. The National Union Policy further provides “Duties In The Event Of A ‘Dental Incident', ‘Claim', Or ‘Suit,'” as follows:

1. If during the “policy period”, the first Named Insured shall become aware of any “dental incident” which may reasonably be expected to give rise to a “claim” being made against any insured, the first Named Insured must notify us in writing as soon as practicable. To the extent possible, notice should include:

a. How, when, and where the “dental incident” took place;

b. The names and addresses of any injured persons and witnesses; and c. The nature and location of any injury or damage arising out of the “dental incident”.

2. If a “claim” or “suit” is brought against an insured arising out of a “dental incident”, the first Named Insured must:

a. Immediately record the specifics of the “claim” or “suit” and the date received;

b. Provide us with written notice of the “claim” or “suit” as soon as practicable; and c. Immediately send us copies of any demands, notices, summonses, or legal papers received in connection with the “claim” or “suit”.

[Doc. 79 at ¶ 5; Doc. 93 at 8, ¶ 5; Doc. 79-14 at 17-18].

II. The Continental Policy

9. The Continental Policy was effective from February 1, 2018 through September 4, 2018. [Doc. 79 at ¶ 10; Doc. 93 at 8, ¶ 10; Doc. 79-16 at ¶ 4]. An ERP Endorsement was added effective September 4, 2018, providing Dr. Calendine an extended period of time “for the reporting of claims first made against you and immediately reported in writing to us.” [Doc. 79 at ¶ 15; Doc. 93 at 8, ¶ 15; Doc. 79-17 at 34].

10. The Continental Policy provides coverage against “injury or damage . . . caused by a dental incident arising out of the supplying of or failure to supply professional services by you or anyone for whose professional acts or omissions you are legally responsible.” [Doc. 79 at ¶ 11; Doc. 93 at 8, ¶ 11; Doc. 79-17 at 13].

11. “Dental incident” is defined in the Continental Policy as “any act, error or omission in the supplying of or failure to supply professional services by you or by anyone for whom you are legally liable.” [Doc. 79 at ¶ 11; Doc. 93 at 8, ¶ 11; Doc. 79-17 at 17].

12. The Continental Policy provides the following policyholder duties:

B. Your Duty

A claim for injury or damage is considered first made when you first receive notice of the claim. The notice must be given to us immediately and within the policy period or within 10 days after its expiration or termination. All claims arising out of the same dental incident will be considered as having been made at the time the first claim is made.

[Doc. 79 at ¶ 12; Doc. 93 at ¶ 12; Doc. 79-14 at 17].

13. The Continental Policy further states that “[i]f there is a claim or you reasonably think there will be, you must . . . notify us and your insurance agent in writing as soon as possible.” [Doc. 79 at ¶ 14; Doc. 93 at 8, ¶ 14; Doc. 79-17 at 20].

14. “Claim” is defined in pertinent part as “the receipt of a demand for money or services, naming you and alleging a dental incident.” [Doc. 79 at ¶ 13; Doc. 93 at 8, ¶ 13; Doc. 79-17 at 16].

III. The Underlying Lawsuits

15. The Claimant Defendants are former patients of Dr. Calendine. [Doc. 79 at ¶ 16; Doc. 93 at 8, ¶ 16; Doc. 79-1 at ¶ 10].

16. Between April 8, 2019 and May 1, 2019, six of the Claimant Defendants-Karen Petrucci, Kelly Sieber, Mykel Donnelly Delia Donnelly, Mary Jo Nicholson, and Lauri Roberts- sent demand letters to Dr. Calendine, requesting contact from Dr. Calendine's legal representative. [Doc. 79...