Ncmic Ins. Co. v. Smith

• Decision Date: 30 May 2019
• Docket Number: Civil Action 2:18-cv-533
• Citation: 389 F.Supp.3d 535
• Parties: NCMIC INSURANCE CO., Plaintiff, v. Ryan D. SMITH, D.C., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

389 F.Supp.3d 535

NCMIC INSURANCE CO., Plaintiff,

v.Ryan D. SMITH, D.C., et al., Defendants.

Civil Action 2:18-cv-533

United States District Court, S.D. Ohio, Eastern Division.

Signed May 30, 2019

Victoria Lynne Vance, Tucker Ellis LLP, Cleveland, OH, for Plaintiff.

John Manuel Gonzales, The Behal Law Group LLC, Columbus, OH, for Defendant Ryan D. Smith, D.C.

David I. Shroyer, Mollie Slater, Colley, Shroyer & Abraham Co. LPA, Columbus, OH, for Defendant Susanne Horner.

Alexander Jacob Durst, Croskery Law Offices, Cincinnati, OH, for Defendant Jane Doe.

OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court for consideration of Plaintiff NCMIC Insurance Company's ("Plaintiff") Motion for Summary Judgment (ECF No. 41); Plaintiff's Memorandum in Support of its Motion for Summary Judgment (ECF No. 42); Defendant Ryan Smith's ("Defendant Smith") Response in Opposition (ECF No. 46); Defendant Susanne Horner's ("Defendant Horner") Response in Opposition (ECF No. 47); Plaintiff's Reply to Responses in Opposition of Defendants Smith and Horner (ECF No. 49); Defendant Jane Doe's ("Defendant Doe") Response in Opposition (ECF No. 59); and Plaintiff's Reply to Defendant Doe's Response in Opposition and Motion to Strike Affidavit of Brandon Zoller, D.C. (ECF No. 60).

For the reasons that follow, Plaintiff's Motion for Summary Judgment is DENIED (ECF No. 41); and Plaintiff's Motion to Strike is DENIED as moot (ECF No. 60).

I.

A. Defendant Doe and Defendant Horner Lawsuits

On April 25, 2018, Defendant Doe filed a Class Action Complaint against Defendant Smith in the Franklin County Court of Common Pleas on behalf of herself and others similarly-situated. (Exhibit B, ECF No. 1-3). Defendant Doe filed an Amended Class Action Complaint on May 31, 2018, alleging claims of: (1) assault, (2) battery, (3) medical negligence or chiropractic malpractice, (4) negligence for failure to obtain informed consent, (5) negligent invasion of privacy, (6) false imprisonment, and (7) intentional infliction of emotional distress. (Exhibit C, ECF No. 1-4).

In her Amended Class Action Complaint, Defendant Doe alleged that Defendant Smith, a chiropractor, sexually assaulted her and over 40 other female patients during the course of his chiropractic treatment. (Amended Class Action Compl. ¶ 1, Exhibit C). Defendant Doe further alleged that Defendant Smith "acted negligently, and committed additional common law torts" against the potential class. (Id. ). Specifically, Defendant Doe claimed that at treatment sessions between May 2017 and June 2017, Defendant Smith touched her breasts and "positioned [her] hand behind her back at waist level ... and holding [her] arm firmly in place, pressed his genitals into [her] hands." (Id. ¶ 20). Defendant further claimed that Defendant Smith once required her to wear a medical gown so that he could "manipulate the gown to expose both of her breasts." (Id. 123).

On May 1, 2018, Defendant Horner filed suit against Defendant Smith in the Franklin County Court of Common Pleas. (Exhibit D, ECF No. 1-5). In her Complaint, Defendant Horner asserted claims of: (1) assault, (2) battery, (3) negligence, (4) negligence for failure to obtain informed consent, and (5) intentional infliction of emotional distress. (Id. ). Defendant Horner alleged that in May 2017, Smith touched the "pectoralis muscle of [her] left breast in a way that made [her] feel uncomfortable" and "guided [her] hand behind her back and placed his penis in her hand." (Horner Compl. ¶¶ 11 & 15, Exhibit D).

B. Defendant Smith's Insurance Policy with Plaintiff

Plaintiff, an Iowa insurance company, issued a Professional Liability Insurance Policy for Chiropractic Malpractice ("Policy") to Defendant Smith for the period of October 3, 2016 to October 3, 2017. (Exhibit A, ECF NO. 1-2) (Policy # MP00923418). The Coverage Agreement in Defendant Smith's Policy provided, in pertinent part:

1. We will pay on behalf of an insured all sums to which this insurance applies and for which an insured becomes legally obligated to pay as damages because of an injury. The injury must be caused by an accident arising from an incident during the policy period. The injury must also be caused by an insured under this policy.

2. We will also pay on behalf of the entity listed on the Declarations all sums for which this insurance applies and which the entity becomes legally obligated to pay as damages because of an injury. The injury must be caused by an accident arising from an incident during the policy period. The injury must also be caused by you or by an employee or independent contractor for whose professional services the entity is legally liable. The entity will share the limit of liability stated in the Declarations with you.

(Exhibit A at 6) (emphasis in original).

The Policy also includes a Defense and Settlement Clause, which reads as follows:

We have the right and duty to defend any claim or suit brought seeking damages against the insured for an injury covered by this policy. We have the right to appoint counsel and we may investigate any claim made or suit brought. With your written consent, we may settle any claim or suit as we believe may be proper. We shall not be obligated to pay any claim or judgment or to defend or continue to defend any suit after the limit of our liability is exhausted because of payment of judgments or settlements. Your consent shall not be required to make a settlement or payment after a judgment has been entered against you .

(Id. ) (emphasis in original).

Notably, the Policy includes several exclusions. Under the Exclusions provision, the Policy provides, in pertinent part:

Despite any other provision of this policy, this policy does not apply to claims arising out of, based upon, or attributable to any of the following:

A. An act or omission violating any federal or state statute, or any county or municipal ordinance governing the commission of a crime.

B. False imprisonment; false arrest; libel; slander; defamation; invasion of privacy; discrimination.

C. Sexual impropriety, sexual intimacy, sexual assault, sexual harassment or any other similarly defined act.

D. The intentional infliction of injury.

E. Punitive or exemplary damages, fines, penalties imposed by law, or matters uninsurable under law pursuant to which this policy is construed, unless the law of the state in which the insured is licensed to practice prohibits such an exclusion.

(Id. at 8–9).

The relevant definitions for analyzing Defendant Smith's Policy include:

1. Claim means a written demand for money or services arising from an alleged injury to which this insurance applies.

3. Injury means bodily injury, sickness, disease or death sustained by any one person.

4. Insured means any person or entity listed under the "Persons Insured" section of this policy.¹

5. Incident means any negligent omission, act or error in the providing of professional services by an insured or any person for whose omissions, acts or errors an insured is legally responsible. All such omissions, acts or errors causally related to the rendering of or failure to render professional services to one person shall be considered one incident. Causally related acts, errors and omissions includes acts, errors and omissions that have a common cause or form a causal chain of events. An incident shall be deemed to have occurred at the time of the earliest act, error or omission comprising that incident.

8. Professional Services means services which are within the scope of practice of a chiropractor in the state or states in which the chiropractor is licensed.

Professional Services does not include any services furnished by an insured as a practitioner of any other healing or treating art.

(Id. at 5) (emphasis added).

C. Procedural History

Plaintiff filed the instant action on May 31, 2018, seeking a declaratory judgment that it has no duty to defend, indemnify, or otherwise offer liability coverage to Defendant Smith in connection with any claims asserted by Defendants Doe and Horner. (Pl.'s Compl. ¶ A-H). On July 31, 2018, Defendant Doe filed a Motion to Dismiss Plaintiff's Complaint, or alternatively, a Motion to Stay Proceedings pending the conclusion of the underlying state court litigation. (ECF No. 8). The Court denied Defendant Doe's Motion to Dismiss or Stay Proceedings on March 21, 2019. (ECF No. 50).

On January 31, 2019, Plaintiff moved for summary judgment on its declaratory claims. (ECF No. 41). Defendant Smith and Defendant Horner each filed a Response in Opposition on February 20, 2019 and February 21, 2019 respectively. (ECF Nos. 46 & 47). On February 21, 2019, Defendant Doe filed a Motion for Discovery Pursuant to Rule 56(d). (ECF No. 48). In response, Plaintiff filed a joint Reply in Support of its Motion for Summary Judgment and Response in Opposition to Defendant Doe's Discovery Motion. (ECF No. 49). On May 2, 2019, the Court denied Defendant Doe's Discovery Motion. (ECF No. 58). Defendant Doe subsequently filed her Response in Opposition to Plaintiff's Motion for Summary Judgment. (ECF No. 59). Plaintiff filed a Reply brief and Motion to Strike the Affidavit of Brandon Zoller D.C. on May 14, 2019. (ECF No. 60). All motions are ripe for review.

II.

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant has the burden of establishing there are no genuine issues of material fact, which may be achieved by demonstrating the nonmoving party lacks evidence to support an essential element of its claim. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Barnhart v. Pickrel, Schaeffer & Ebeling Co. , 12 F.3d 1382, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106...