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Verhalen v. Forum Health Management11/3/2000
ue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.
Appellate courts review summary judgments de novo under the same criteria that govern the district courts' consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La. App. 2d Cir. 05/10/00), 760 So. 2d 587; Fuggins v. Burger King, 33,473 (La. App. 2d Cir. 05/10/00), 760 So. 2d 605.
In this case, the policy purchased by Dr. Roberson, and captioned a "Claims Made Policy," contained the following provision:
he Company hereby agrees to DEFEND and PAY DAMAGES, in the name and on behalf of the Insured or his estate,
A. IN ANY CLAIM FOR DAMAGES, FILED DURING THE TERM OF THIS POLICY, BASED ON PROFESSIONAL SERVICES RENDERED OR WHICH SHOULD HAVE BEEN RENDERED AFTER THE RETROACTIVE DATE, BY THE INSURED OR ANY OTHER PERSON FOR WHOSE ACTS OR OMISSIONS THE INSURED IS LEGALLY RESPONSIBLE, IN THE PRACTICE OF THE INSURED'S PROFESSION AS HEREINAFTER LIMITED AND DEFINED.
IF REPORTED TO THE COMPANY, THE FOLLOWING SHALL BE DEEMED TO BE A CLAIM FILED DURING THE TERM OF THIS POLICY:
a) the receipt, by the Insured, of a notice of legal action for damages as described above, or
b) the receipt, by the Insured, of a notification of an intention to hold the Insured responsible for damages as described above.
MPC insured Dr. Roberson and provided coverage for any claims made for services rendered from April 1989 through April 1991, with retroactive coverage from April 1981. Dr. Roberson canceled his policy with MPC effective September 1, 1990, and at that time he declined tail coverage, which would have continued to provide coverage for any acts of medical malpractice which occurred during the policy period and were discovered at a future date. Thus, pursuant to the unambiguous terms of its policy, MPC insured Dr. Roberson for claims made from April 1, 1989 until September 1, 1990 when he cancelled the policy. Verhalen's claims against Dr. Roberson were not brought until May 1995 and MPC was not named as a defendant until June 1998-both dates well after the termination of the MPC policy.
A "claims made" insurance policy is one in which coverage attaches only if the negligent harm is discovered and reported within the policy period. Ward v. Vizzini, 94-638 (La. App. 5th Cir. 05/14/97), 695 So. 2d 1012, writ denied, 97-2142 (La. 11/14/97), 703 So. 2d 632. Where a policy unambiguously and clearly limits coverage to acts discovered and reported during the policy term, such limitation of liability is not per se impermissible. Livingston Parish School Bd. v. Fireman's Fund Am. Ins. Co., 282 So. 2d 478, 481 (La. 1973). This is in accordance with the general principle that, in the absence of conflict with statute or public policy, insurers may by unambiguous and clearly noticeable provisions limit their liability and impose such reasonable conditions as they wish upon the obligations they assume by their contract. Id.; see also, Anderson v. Ichinose, 98-2157 (La. 09/08/99), 760 So. 2d 302. However, pursuant to La. R.S. 22:629, an insurer cannot limit by provisions contained in a policy the prescriptive period to less than twelve months, which a plaintiff is allowed by law.
Verhalen argues that the claims made provision of the MPC policy is prohibited by La. R.S. 22:629, and she relies on two cases as being supportive of that position: Gary v. Witherspoon, 98-1810 (La. App. 3d Cir. 06/02/99), 743 So. 2d 708 and Hedgepeth v. Guerin, 96-1044 (La. App. 1st Cir. 03/27/97), 691 So. 2d 1355, writ denied, 97-1377 (La. 09/26/97), 701 So. 2d 983. Both of those cases addresse
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