National Fire Ins. v. Bartolazo

• Decision Date: 01 August 1994
• Docket Number: 93-2879,Nos. 93-2448,s. 93-2448
• Citation: 27 F.3d 518
• Parties: NATIONAL FIRE INS., National Fire Insurance Company, Plaintiff-Counter-Defendant-Appellant, v. Napoleon A. BARTOLAZO, M.D., Defendant-Counter-Claimant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 518

27 F.3d 518

29 Fed.R.Serv.3d 872

NATIONAL FIRE INS., National Fire Insurance Company Plaintiff-Counter-Defendant-Appellant, v. Napoleon A. BARTOLAZO, M.D., Defendant-Counter-Claimant-Appellee.

Nos. 93-2448, 93-2879.

United States Court of Appeals Eleventh Circuit.

Aug. 1, 1994.

Chris Ballentine, Orlando, FL. Jennifer A. Grandoff,

Robert J. Levine, Miami, FL.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

In this declaratory judgment action, the issue is whether the defendant, a physician charged by a patient with medical malpractice, reported the claim within the time frame required for coverage under his medical malpractice insurance policy. The insurance company appeals the district court's grant of summary judgment in favor of the physician. Because of a procedural flaw in the granting of summary judgment, Rule 56(c), Federal Rules of Civil Procedure, we reverse and remand.

For several years, appellant, National Fire Insurance Company ("National"), has issued to appellee, Dr. Napoleon Bartolazo ("Bartolazo"), successive annual policies insuring Bartolazo against liability from medical malpractice. These "claims-made" policies cover an insured at the time a claim is made rather than when the alleged wrongful acts took place. The policies require Bartolazo to inform the insurance company of a claim in the year in which that claim is made, with some grace period for reporting claims after the policy is terminated. One issue on this appeal is whether the claim at issue was made in 1990, or in 1991, when Bartolazo reported the claim. National issued policies for both of the coverage years relevant to this case, one policy for 1990 and another policy for 1991.

On April 18, 1990, Bartolazo received a letter from the attorney for a former patient, Helen Marsico, requesting the patient's records in connection with "her claim for medical malpractice and other relief against him." ¹

It was not until January 24, 1991, however, that Marsico served a Notice of Intent to Initiate Litigation for Medical Malpractice ("Notice") against Bartolazo, as required by Florida Statutes prior to filing a complaint. In the notice, Marsico alleged Bartolazo coerced her into a sexual relationship by prescribing addictive drugs.

On January 27, 1991, Bartolazo notified National of the claim, seeking coverage under his 1991 policy. National sent to Bartolazo a reservation of rights letter required under Section 627.426(2), Florida Statutes, in August 1991, and in July 1992, filed an amended complaint seeking declaration of its obligations under the 1991 policy.

National moved for summary judgment on the basis that Bartolazo failed to timely report the "claim" as required under the policy. National contended that the 1990 letter constituted a "claim," and Bartolazo was not entitled to coverage because he failed to notify National of the letter within the year he received it.

Bartolazo countered that only the 1991 Notice constituted a claim and he reported it timely, or alternatively, if the 1990 letter did constitute a claim, he was entitled to coverage under the extended reporting period clause in his 1990 policy.

The district court properly denied National's motion for summary judgment. While orders denying motions for summary judgment are normally unappealable, we, in our discretion, exercise our pendent appellate jurisdiction over this issue. See Stewart v. Baldwin County Bd. of Ed., 908 F.2d 1499, 1509 (11th Cir.1990) ("pendent jurisdiction is properly exercised over non-appealable decisions of the district court when the reviewing court already has jurisdiction over one issue in the case."). Since the grant of summary judgment to Bartolazo is properly before us, and must be reversed as shown in the following discussion, we exercise jurisdiction over the court's denial of summary judgment to National.

National's motion for summary judgment was based on Exclusion "Q" of the policy. Exclusion "Q" allows National to deny coverage on any claim arising out of a medical incident which, on the inception date of the policy, the insured "knew or had been told ... would result in a claim" or is the subject of a pending claim.

The 1991 policy defines a "claim" as "the receipt by you of a demand for money or services, naming you and alleging a medical incident." National's contention that the 1990 letter from Marsico's attorney constitutes a "claim" is meritless. The 1990 letter made no demand for money or services, nor did it allege a medical incident. The letter merely requested Marsico's medical records and alluded to a claim for malpractice. The district court's decision on this point is due to be affirmed. National's motion for summary judgment was properly denied.

Although Bartolazo claimed coverage under the extended reporting period in the 1990 policy, it is not necessary to decide this argument in view of our decision that the claim was properly made under the 1991 policy.

As to the summary judgment for Bartolazo, the only motion for summary judgment on his behalf was made orally by Bartolazo's attorney during the hearing on National's motion. In concluding his oral argument...