Paynter v. ProAssurance Wisconsin Insurance Co., 082719 WICA, 2017AP739

Docket Nº:2017AP739
Opinion Judge:STARK, P.J.
Party Name: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 ...
Judge Panel:Before Stark, P.J., Hruz and Seidl, JJ.
Case Date:August 27, 2019
Court:Court of Appeals of Wisconsin
 
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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.

No. 2017AP739

Court of Appeals of Wisconsin, District III

August 27, 2019

Not recommended for publication in the official reports.

APPEAL from a judgment of the circuit court for Ashland County No. 2015CV80 ROBERT E. EATON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

STARK, P.J.

¶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.

BACKGROUND

¶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: We will neither defend nor 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] at the following location(s):

in the State of Michigan and/or outside the State of Wisconsin.

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...

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