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Bennett v. Krupkin12/22/2000
Whipple, J. concurs
St. Paul Fire & Marine Insurance Company ("St. Paul") appeals a final partial summary judgment against it on the issue of coverage for a medical malpractice claim, filed after the "claims made" policy had lapsed, for alleged acts of malpractice that occurred during the period covered by the policy. Finding that the district court correctly applied our decision in Hedgepeth v. Guerin, No., 96-1044, (La.App. 1 Cir. 3/27/97) 691 So.2d 1355, we affirm. At issue herein is whether, under the specific facts of this case, the "claims made" provision in this medical malpractice insurance policy contravenes public policy or statutory law. The merits of the malpractice claim were not addressed by the district court and are not at issue herein.
FACTS AND PROCEDURAL HISTORY
The facts are undisputed: Elena Ledo Bennett was a patient of Dr. Robert Krupkin for several years prior to October 25, 1996, the date Mrs. Bennett alleges that she learned that she had breast cancer which had been allegedly misdiagnosed by Dr. Krupkin. Dr. Krupkin was insured by St. Paul during the time of the alleged misdiagnosis; policy premiums were paid through January 15, 1997. The St. Paul policy was a "claims made" policy and thus, covered only claims which were made during the policy period and arose from events which occurred during the retroactive period covered by the policy. The policy, in pertinent part, provides:
To be covered the professional service must have been performed (or should have been performed) after your retroactive date that applies. The claim must also first be made while this agreement is in effect. A claim is made on the date you first report an incident or injury to us or our agent. You must include the following information:
ù Date, time and place of the incident.
ù What happened and what professional service you performed.
ù Type of claim you anticipate.
ù Name and address of injured party.
ù Name and address of any witness.
St. Paul gave Dr. Krupkin the option to renew his policy or to pay for a "tail" extension, but Dr. Krupkin neither renewed his policy nor opted for the tail coverage. The Bennetts filed a medical malpractice claim against Dr. Krupkin with the Commissioner of Insurance on March 20, 1997, and filed suit against Dr. Krupkin and St. Paul on April 17, 1997.
St. Paul moved for summary judgment, contending that there was no coverage under its claims made policy because, although the policy was in effect at the time the Bennetts' claim of malpractice arose, the policy was not in effect at the time the claim was made. The Bennetts filed a cross motion for summary judgment, contending that La. R.S. 22:629 and Hedgepeth, supra, mandated coverage under these facts. The Bennetts' motion also asserted that they were entitled to summary judgment under the Direct Action Statute, La. R.S. 22:655, based on their allegations that Dr. Krupkin and St. Paul had notice of the malpractice claim before expiration of the policy period. The district court denied St. Paul's motion for summary judgment and, on September 3, 1999, granted partial summary judgment in favor of the Bennetts and against St. Paul on the issue of coverage as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment of plaintiffs be granted against St. Paul Fire and Marine Insurance Company on the issue of insurance coverage and that the Court hereby decrees that St. Paul Fire and Marine Insurance Company does provide coverage to Dr. Robert Krupkin in favor of plaintiffs for the alleged malpractice (the Court making no ruling on the
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