Soyoola v. Oceanus Ins. Co.

• Decision Date: 19 June 2014
• Docket Number: CIVIL ACTION NO. 2:13-cv-08907
• Court: U.S. District Court — Southern District of West Virginia
• Parties: EMMANUEL O. SOYOOLA, Plaintiff, v. OCEANUS INSURANCE COMPANY, Defendants.

EMMANUEL O. SOYOOLA, Plaintiff, v. OCEANUS INSURANCE COMPANY, Defendants.

CIVIL ACTION NO. 2:13-cv-08907

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

ENTER: June 19, 2014

MEMORANDUM OPINION AND ORDER

Pending before the court is the defendant Oceanus Insurance Company's ("Oceanus") Motion for Summary Judgment [Docket 117]. This insurance dispute arises from a medical malpractice action filed against Dr. Emmanuel O. Soyoola for his alleged negligent delivery of Jamie and Tracy McNeely's baby. The policy at issue is a claims-made-and-reported policy. The policy only covers claims asserted against the insured and reported to the insurer during the policy period. For the reasons discussed below, I conclude that Dr. Soyoola has failed to present evidence that a claim was made against him during the policy period. Accordingly, Oceanus's motion is GRANTED.

I. Background

Dr. Soyoola practiced as an obstetrician and gynecologist in Logan County, West Virginia. (Second Am. Compl. [Docket 115] ¶ 1). In 2005, Dr. Soyoola obtained medical malpractice insurance from Oceanus to cover his practice in West Virginia and Georgia. (See Dr. Soyoola Aff. [Docket 123-1] ¶ 6; Ex. B, Policy [Docket 119¹], at 10). The policy at issue is identified as PolicyNumber 07-2006-015 ("the Policy"). (Ex. B, Policy [Docket 119], at 10). The Policy had a limit of $1 million per claim. (Id.).

The first page of the Policy explicitly states:

THIS IS A CLAIMS MADE POLICY. The coverage of this policy is limited for only those claims that are first made against the insured and reported to the Company while the policy is in force. Please review the policy.

(Id. at 11 (emphasis added)). The Policy continues to state the following:

The coverage provided in this Policy is written on a "claims made" basis. Coverage is limited to liability for those claims which are a result of medical incidents occurring subsequent to the retroactive date [August 1, 2004] stated on the Declarations Page and defined in the Policy. Claims must be first made against the Named Insured and reported to the Company during the policy period.

. . . .

Failure to comply with any conditions of this contract may give the Company the right to deny coverage, cancel or rescind this Policy.

(Id. at 12 (emphasis added)).

The Policy defines "claim" as "the sum the insurer is obligated to pay on behalf of the insured which the insured becomes legally obligated to pay as damages because of a 'medical incident' or 'suit' seeking those damages from the insured." (Id. at 14). The Policy does not define "claim" in the context of a claim asserted against the insured.

The Policy also outlines certain duties and obligations that arise if a written demand for money or suit is made against the insured:

NAMED INSURED'S DUTIES IN THE EVENT OF A CLAIM

If there is a written demand for money and/or suit involving the Named Insured or any other protected person under this Policy, the Named Insured must comply with the following or the Company will have no duty or obligation to defend or indemnify the Named Insured:

The insured must tell the Company what happened, as soon as possible, even though no claim has been made. The Named Insured must provide the Company with full disclosure. If the Named Insured or any other person covered under this Policy is aware of a potentially compensable event, they must notify the Company in writing with the following information, including but not limited to:

a. Date time and place of the event, and

b. the persons involved, and

c. the specific nature of the incident or events, and

d. the type of claim that may result as well as the services that were provided.

(Id. at 16).

In August 2006, Oceanus renewed and reissued the Policy. (See Dr. Soyoola Aff. [Docket 123-1] ¶ 9). Prior to the renewal, Dr. Soyoola alleges that he received a thank you note and photographs of the baby from the McNeelys. (See Pl.'s Resps. and Objections to Def.'s Statement of Material Fact ("Pl.'s Resps. to Facts") [Docket 122] ¶¶ 19, 24). The thank you note states "To: Dr. Soyoola[,] Thanks for everything you did to save my little boy[']s life[,] From: Jamie & Tracy McNeely." (Thank You Note and Photographs [Docket 123-9]). The note and the photographs are undated. Dr. Soyoola asserts he transmitted the note and the photographs to Fred Seilkop with Healthcare Professionals Services, Inc. ('HPSI"), who Dr. Soyoola alleges was Oceanus's insurance broker. (See Pl.'s Resps. to Facts [Docket 122] ¶¶ 19, 24). Dr. Soyoola also claims he verbally notified Mr. Seilkop of the claim prior to August 2006. (See Dr. Soyoola Dep. [Docket 123-5], at 166:20-168:11).

On August 1, 2009, Oceanus terminated the Policy and issued Dr. Soyoola tail coverage of $250,000. (See Second Am. Compl. [Docket 115] ¶ 9). On December 15, 2009, Dr. Soyoola'scounsel in another medical malpractice case received an email from the McNeely's attorney. (See Ex. J, Email from Paul Farrell to Sam Fox (Dec. 15, 2009) [Docket 119], at 58). The email stated:

My law firm has been retained by Jamie L. McNeely to pursue a medical malpractice claim against Emmanuel Soyoola, MD et al. arising out of the traumatic birth of Trace McNeely (DOB: 11.10.2005) at Logan Regional Medical Center.

The medical records indicate at 1410 hours "VE-unable to reach inner os. to verify presenting part." At 1840 hours a vaginal exam indicated 60%/4/-1 followed by artificial rupture of membranes. A STAT c-section was called at 1846 hours due to a cord prolapse. Mrs. McNeely was brought to the operating room at 1857 hours. Baby Trace was delivered at 1914 hours. Baby Trace was born with APGARS of 0-4-7. Arterial blood gas was reported at pH6.99 with a Base Excess -21.2L. Seizure activity was noted at 2030 hours. Baby Trace was placed on a ventilator at 2130 hours. Baby Trace was transferred to the University of Kentucky Medical Center Neonatology unit and diagnosed with hypoxic ischemic encephalopathy.

Please advise to whom the Notice of Claim and Certificate of Merit should be directed.

(Id. at 58). The next day, the lawyer sent an email to Oceanus notifying it of the claim. (See Ex. K, Email from Sam Fox to Ron Kurtz (Dec. 16, 2009) [Docket 119], at 60). The lawyer indicated in the email that he had informed Dr. Soyoola of the claim. (See id.).

On April 4, 2013, Dr. Soyoola sued Oceanus in the Circuit Court of Kanawha County. (See Compl. [Docket 1-2]). The suit was removed to this court on April 24, 2013. (See Notice of Removal [Docket 1]). On December 11, 2013, I granted Dr. Soyoola leave to amend his complaint. (See Order [Docket 60]). I permitted Dr. Soyoola to assert five claims based on the Policy: (1) breach of contract, (2) unfair trade practices, (3) false and deceptive practices, (4) fraud, and (5) punitive damages. (See id.). After several attempts to file an amended complaint that conformed to the December 11, 2013 Order, Dr. Soyoola moved to amend his complaint again on April 23, 2014, which I granted. (See Order [Docket 114]). Oceanus now moves for summary judgment,primarily arguing that coverage does not exist because Dr. Soyoola did not adhere to the Policy's notice provisions. Dr. Soyoola responds that he gave Oceanus notice of the McNeely claim, through Mr. Seilkop, before August 2006. As I will discuss below, Dr. Soyoola has failed to present evidence that a claim was asserted against him during the policy period and therefore no coverage exists. Because Dr. Soyoola's claims depended on the existence of coverage, his claims fail.

II. Legal Standard

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]" Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson, 477 U.S. at 252. Likewise,conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Felty v. Graves Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); Ross v. Comm'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

III. Discussion

A. Maturity of the Motion

Dr. Soyoola argues that summary judgment should be denied as premature due to a lack of adequate discovery. Oceanus has moved to stay discovery two times pending the resolution of its motion to dismiss and its motion to strike, for sanctions, and/or judgment on the pleadings. I denied Oceanus's motion to dismiss as moot because I granted Dr. Soyoola's motion for leave to amend. I also granted Oceanus's motion to strike and thus denied the motion for judgment on the pleadings as moot.

No depositions have been conducted in this case.² According to Dr. Soyoola, only two written discovery responses have been served and answered. Oceanus contends that it has provided Dr....