Wright v. Willis–knighton Med. Ctr.

• Decision Date: 24 February 2011
• Docket Number: No. 45,810–CW.,45,810–CW.
• Citation: 57 So.3d 382
• Parties: Dewayne Wesley WRIGHT, Plaintiff–Respondentv.WILLIS–KNIGHTON MEDICAL CENTER, et al., Defendant–Applicant.
• Court: Court of Appeal of Louisiana — District of US

57 So.3d 382

Dewayne Wesley WRIGHT, Plaintiff–Respondent
v.
WILLIS–KNIGHTON MEDICAL CENTER, et al., Defendant–Applicant.

No. 45,810–CW.

Court of Appeal of Louisiana, Second Circuit.

Jan. 19, 2011.Rehearing Denied Feb. 24, 2011.

[57 So.3d 384]

The Allison Law Firm, by William T. Allison, for Plaintiff–Respondent.Watson, Blanche, Wilson & Posner, Baton Rouge, LA by Peter T. Dazzio, for Defendant–Applicant, Raghu Nathan, M.D.Blanchard, Walker, O'Quinn & Roberts, Shreveport, LA by Paul M. Adkins, for Defendant–Applicant, Ignatius Tedesco, M.D.Hayes, Harkey, Smith & Cascio, Monroe, LA by Laura S. Achord, Bruce M. Mintz, for Defendant Applicant, Continental Casualty Company.Before STEWART, GASKINS, PEATROSS, MOORE and LOLLEY, JJ.MOORE, J.

[2 Cir. 2] Continental Casualty Company (“CNA”) seeks supervisory review of a judgment that denied its motion for summary judgment. For the reasons expressed, we grant the writ and make it peremptory.

Procedural Background

Dewayne Wright, an adult with Down Syndrome, came to the Willis–Knighton emergency room because of severe cramps on November 8, 1998. The emergency physician on duty, Dr. Ignatius Tedesco, evaluated him and admitted him to the hospital, where he later experienced a coma, insulin shock and CVA (stroke).

On November 5, 1999, Wright's mother filed a complaint with the Patient Compensation Fund (“PCF”) naming Willis–Knighton as the healthcare provider; on November 2, 2000, she amended it to name Dr. Tedesco and a general surgeon, Dr. Rousseau. The PCF notified Dr. Tedesco [2 Cir. 3] of this action on November 15, 2000. In December 2001, a medical review panel found that Dr. Tedesco breached the standard of care by failing to verify the results of a urine test.

Acting through his mother, Wright filed the instant suit against Dr. Tedesco, Dr. Rousseau and a critical care physician, Dr. Raghu Nathan, on January 22, 2002; she amended her petition to join Willis–Knighton as a defendant on October 31, 2002. In late 2008, the district court dismissed Willis–Knighton and Dr. Rousseau on exceptions of prescription (in the process, the court stated that Dr. Tedesco was an employee of Willis–Knighton). Wright amended the petition to join CNA, Dr. Tedesco's medical malpractice insurer, on June 16, 2009.

CNA filed a motion for summary judgment, urging that its policy covering Dr. Tedesco was a claims-made policy insuring claims made between November 1, 1999, and November 1, 2000. It showed that Wright did not name Dr. Tedesco in her PCF complaint until November 2, 2000, a day after the claims-made period expired; hence, there was no coverage.

Wright opposed the motion. He argued that even though Willis–Knighton was not a named insured under the CNA policy, it was a solidary obligor and codefendant with Dr. Tedesco; ergo, the claim against Willis–Knighton, when made, was effective against Dr. Tedesco as well. In the [2 Cir. 4] alternative, he argued “relation back” under La. C.C.P. art. 1153, in that the joinder of Dr. Tedesco related back to the

[57 So.3d 385]

original PCF complaint, which was within CNA's claims-made period.

The district court found genuine issues as to whether Willis–Knighton and Dr. Tedesco were solidary obligors and whether the claims-made policy would relate back to the initial complaint. It therefore denied the motion for summary judgment.

CNA took the instant application for supervisory review, which this court granted to docket on July 15, 2010.

Applicable Law

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Samaha v. Rau, 2007–1726 (La.2/26/08), 977 So.2d 880. Appellate courts review summary judgments de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Hill v. Shelter Mutual Ins. Co., 2005–1783 (La.7/10/06), 935 So.2d 691. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. [2 Cir. 5] The interpretation of an insurance contract is usually a legal question that can be properly resolved by motion for summary judgment. Henry v. South Louisiana Sugars Coop., 2006–2764 (La.5/22/07), 957 So.2d 1275; Walker v. State Farm, 42,051 (La.App. 2 Cir. 4/4/07), 954 So.2d 847.

The major distinction between an “occurrence” policy and a “claims-made” policy lies in the difference between the perils insured. In the occurrence policy, the peril insured is the occurrence itself; once the occurrence takes place, coverage attaches even though the claim may not be made for some time thereafter. By contrast, in the claims-made policy, the making of the claim is the event and peril insured and, subject to policy language, regardless of when the occurrence took place. Hood v. Cotter, 2008–0215 (La.12/2/08), 5 So.3d 819, quoting Sol Kroll, “The Professional Liability Policy ‘Claims Made,’ ” 13 Forum 842, 843 (1978); Guthrie v. Louisiana Medical Mut. Ins. Co., 42,974 (La.App. 2 Cir. 2/13/08), 975 So.2d 804. The Louisiana Supreme Court has held that claims-made policies do not violate public policy. Anderson v. Ichinose, 98–2157 (La.9/8/99), 760 So.2d 302; Livingston Parish School Bd. v. Fireman's Fund, 282 So.2d 478 (La.1973). The supreme court has also held that claims-made policies do not violate the statutory time limit in which an insured may make a first-party claim under La. R.S. 22:868. Hood v. Cotter, supra. In addition, this [2 Cir. 6] court has applied claim-made policies as written, even when claims period effectively shortens the legal prescriptive period. Guthrie v. Louisiana Medical Mut., supra.

Discussion

The CNA policy at issue identifies the named insured as “Contracted Physicians of Willis Knighton Medical Center.” Dr. Tedesco is on the schedule of named insureds, with a prior acts date of February 23, 1996; Willis–Knighton Medical Center itself, however, is not on the schedule. The declarations page contains this notice, printed in all capital letters:

YOUR PROFESSIONAL LIABILITY INSURANCE IS WRITTEN ON A CLAIMS–MADE BASIS AND PROVIDES COVERAGE FOR THOSE CLAIMS WHICH ARE THE RESULT OF MEDICAL INCIDENTS HAPPENING SUBSEQUENT TO THE PRIOR ACTS DATE STATED ON

[57 So.3d 386]

THE DECLARATIONS AND WHICH ARE FIRST MADE AGAINST YOU WHILE THIS INSURANCE IS IN FORCE. NO COVERAGE EXISTS FOR THE CLAIMS FIRST MADE AGAINST “YOU” AFTER THE END OF THE POLICY PERIOD UNLESS, AND TO THE EXTENT, AN EXTENDED REPORTING PERIOD APPLIES.

The alleged malpractice occurred after the prior acts date but the claim against Dr. Tedesco was made on November 2, 2000, after the end of the policy period, which expired on November 1, 2000. Plainly, there is no coverage “unless, and to the extent, an extended reporting period applies.”

[2 Cir. 7] Wright argues that the CNA policy contains an extended reporting period (or “mini-tail”), appearing in Section V(A) of the policy (defined terms in boldface in the original):

V. EXTENDED REPORTING PERIOD COVERAGE

A. Termination

If this policy is terminated for any reason, you have the right to an Extended Reporting Period as follows:

1. Beginning on the termination date, the period of time allowed by the policy for the reporting of medical incidents, is extended for a period of 60 days, at no additional premium.

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