Paynter v. Proassurance Wis. Ins. Co.
| Decision Date | 27 August 2019 |
| Docket Number | Appeal No. 2017AP739 |
| Citation | 935 N.W.2d 550 (Table),388 Wis.2d 621,2019 WI App 54 |
| Parties | David W. PAYNTER and Kathryn M. Paynter, Plaintiffs-Appellants-Petitioners, v. PROASSURANCE WISCONSIN INSURANCE COMPANY, James A. Hamp and American Physicians Assurance Corporation, Defendants-Respondents, Continental Casualty Company, Wisconsin Injured Patients and Families Compensation Fund, Keith A. Henry and Blue Cross Blue Shield of Michigan, Defendants. |
| Court | Wisconsin Court of Appeals |
¶1 This case is before us for the second time, on remand from the Wisconsin Supreme Court. The supreme court determined that under Wisconsin’s borrowing statute, Wisconsin’s statute of limitations applied to and did not bar David and Kathryn Paynter’s claim that Dr. James Hamp negligently failed to diagnose David’s cancer. The only remaining issue on appeal is whether an insurance policy that ProAssurance Wisconsin Insurance Company issued to Hamp provides coverage for the Paynters' medical negligence claim. The circuit court granted ProAssurance summary judgment based on a policy endorsement stating that ProAssurance would not pay damages for "any liability arising from, relating to, or in any way connected with the rendering of or failure to render professional services by [Hamp] ... in the State of Michigan and/or outside the State of Wisconsin." (Formatting altered.) We conclude the undisputed evidence establishes that Hamp’s alleged liability in this case is "connected with" professional services that Hamp performed in Michigan. We therefore affirm the circuit court’s determination that ProAssurance’s policy does not provide coverage for the Paynters' medical negligence claim.
¶2 The following facts are undisputed. David Paynter and his wife, Kathryn, live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. In April 2010, David saw Dr. Peter Areson regarding a growth on the upper right side of his neck. Areson referred David to Hamp, an ear, nose, and throat specialist who practiced in both Ashland, Wisconsin, and Ironwood, Michigan.
¶3 David had an initial consultation at Hamp’s Ironwood office on May 13, 2010. On June 10, 2010, David returned to the Ironwood office for a second appointment, during which Hamp performed an aspiration of the growth on David’s neck.1 Hamp’s notes regarding the June 10 procedure state: "I told [David] this is probably a benign mixed tumor or Warthin’s type growth." David similarly testified at his deposition that Hamp told him during the June 10 appointment there was a "98 percent chance" that the growth was not cancerous.
¶4 Hamp’s staff subsequently transported the samples taken during the aspiration to Ashland to be analyzed by a pathologist there. Hamp received the pathologist’s report on June 14, 2010. He then called the Paynters' home telephone in Michigan from his Ashland office, and during that call he told David that the growth was not cancerous and David did not need any further treatment. However, David ultimately had surgery to remove the growth on June 19, 2014, and was diagnosed with cancer. Shortly thereafter, a comparison of the June 2014 growth samples with the pathology slides from the June 2010 aspiration showed that David’s cancer had been present in June 2010.
¶5 In August 2015, the Paynters filed the instant lawsuit against Hamp; his Michigan medical malpractice insurer, American Physicians Assurance Company; and his Wisconsin medical malpractice insurer, ProAssurance.2 The Paynters' complaint asserted both medical negligence and informed consent claims against Hamp.
¶6 ProAssurance moved for summary judgment, arguing its policy did not provide coverage for the Paynters' claims. ProAssurance relied on a policy endorsement—hereinafter, "the location endorsement"—which stated:
ProAssurance argued the location endorsement applied to the Paynters' claims because it was "undisputed that the needle biopsy itself was performed in Ironwood, Michigan ... and therefore the handling or failure to handle the results flowing from the Michigan procedure can only be reasonably understood to have arisen from rendering or failing to render professional service by Dr. Hamp in Michigan."
¶7 The circuit court initially denied ProAssurance’s summary judgment motion. The court explained:
Allegedly, Dr. Hamp is negligent in the handling of [the pathology results] either, one, because he never gives the information [to the Paynters] or, two, he gives wrong information. I think it is impossible to say none of this happened in Wisconsin. ... I think pretty clearly if there was failure to provide information that fell short of the standard of care that failure occurred in Wisconsin, and it wasn't because the biopsy was done in a manner that fell beyond the professional standard. It is clearly the interpretation and communication of the results. And none of that happened in Michigan unless you say, well, the treatment only occurs when the patient receives it. No, I think the treatment is at least equally occurring in Wisconsin when the doctor renders his advice or fails to.
¶8 Based on the circuit court’s reasoning, the Paynters subsequently moved for summary judgment on the coverage issue, seeking an order "that ProAssurance ... is obligated to defend and indemnify [Hamp] for the plaintiffs' claims against him." However, following briefing and arguments by the parties, the court denied the Paynters' motion and instead granted summary judgment to ProAssurance on the coverage issue. Contrary to its previous decision, the court concluded ProAssurance’s policy did not provide coverage for the Paynters' claims against Hamp because a "professional incident" had occurred in Michigan. The court reasoned that: (1) on the day of the needle aspiration, which took place in Michigan, Hamp gave David a preliminary opinion that the growth was likely benign; and (2) David was in Michigan when he received Hamp’s subsequent phone call reporting that the growth was not cancerous, which "confirm[ed]" what Hamp had previously told David on the day of the aspiration.
¶9 The Paynters filed a motion for reconsideration of the circuit court’s coverage ruling. Shortly thereafter, however, Hamp moved for summary judgment, arguing that Wisconsin’s borrowing statute required the application of Michigan’s statute of limitations to the Paynters' claims, and their claims were untimely under the Michigan statute. The court agreed that the Michigan statute of limitations applied and that the Paynters' claims were untimely under that statute. It therefore granted Hamp’s summary judgment motion. Based on that ruling, the court entered judgments dismissing the Paynters' claims against both Hamp and ProAssurance. Because it had dismissed the Paynters' claims on other grounds, the court did not address the Paynters' motion for reconsideration of the court’s coverage ruling.
¶10 The Paynters then appealed, arguing the circuit court had erred by concluding: (1) that their claims were subject to the Michigan statute of limitations; and (2) that ProAssurance’s policy did not provide coverage for their claims. We concluded the Michigan statute of limitations applied to the Paynters' claims, and the circuit court therefore properly dismissed their claims as untimely. Paynter v. ProAssurance Wis. Ins. Co. , 2018 WI App 27, ¶3, 381 Wis. 2d 239, 911 N.W.2d 374. Given our conclusion in that regard, we declined to address the parties' arguments regarding coverage. Id. , ¶3 n.3.
¶11 The supreme court granted the Paynters' petition for review of our decision and ultimately issued an opinion affirming our decision in part and reversing in part. Paynter v. ProAssurance Wis. Ins. Co. , 2019 WI 65, ¶13, 387 Wis. 2d 278, 929 N.W.2d 113. The court affirmed our ruling that the Michigan statute of limitations applied to the Paynters' informed consent claim, which was therefore untimely. Id. , ¶¶100-03. However, the court concluded the Wisconsin statute of limitations applied to the Paynters' medical negligence claim, and, accordingly, that claim was timely filed. Id. , ¶¶87-88. Because the court concluded Hamp was not entitled to summary judgment on the medical negligence claim, it remanded the matter to this court to address whether ProAssurance’s policy provides coverage for that claim. Id. , ¶113.
¶12 We independently review a circuit court’s decision on a motion for summary judgment. Marnholtz v. Church Mut. Ins. Co. , 2012 WI App 53, ¶6, 341 Wis. 2d 478, 815 N.W.2d 708. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2) (2017-18).3 In this case, the relevant facts are undisputed, and the only disputed issue is whether, given those facts, ProAssurance’s policy provides coverage for the Paynters' medical negligence claim. The interpretation of an insurance policy presents a question of law for our independent review.4 Marnholtz , 341 Wis. 2d 478, ¶10.
¶13 Our goal in interpreting an insurance policy is to give effect to the parties' intent. American Family Mut. Ins. Co. v. American Girl, Inc. , 2004 WI 2, ¶23, 268 Wis. 2d 16, 673 N.W.2d 65. In so doing, we construe the policy as it would be understood by a reasonable person in the position of the insured. Id. If the policy’s language is unambiguous, we simply enforce it as written. Marnholtz , 341 Wis. 2d 478, ¶10. However, we construe ambiguous policy language against the insurer and in favor of coverage. Id. Policy language is ambiguous if it is reasonably susceptible to more than one interpretation. Id.
¶14 As noted above, the location endorsement in ProAssurance’s policy...
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