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Verhalen v. Forum Health Management11/3/2000
d claims made policies; however, in each case the insurer used the policy limitations to decrease impermissibly the amount of time those plaintiffs had to bring suit pursuant to La. R.S. 9:5628. The Gary, supra and Hedgepeth, supra plaintiffs brought suits which were otherwise timely pursuant to the dictates of La. R.S. 9:5628; however, when the limiting provisions of the respective policies were applied by the insurers, they effectively reduced to less than twelve months the amount of time those plaintiffs had to bring suit. The Gary and Hedgepeth courts reached the same conclusion that:
policy provision, which effectively reduces the prescriptive period against the insurer to less than the statutorily mandated period, is without effect. Such a provision would enable an insurer to escape liability for an act of medical malpractice committed shortly before the end of the policy period (e.g., a week or a month) but not reported to the insurer until after the policy was no longer in force. As a result, the effective prescriptive period against the insurer would be reduced from one year to a shorter period. This would be a clear violation of the statutory law, which prohibits limiting a right of action against an insurer to less than one year. Gary, supra at 712; Hedgepeth, supra at 1364.
While at first blush Gary, supra and Hedgepeth, supra appear to be factually analogous to the case at hand, neither case is persuasive when the particular facts in this case are considered. In both of those cases, the insurer attempted to use the limiting provisions to cut short the prescriptive period allowed those plaintiffs under La. R.S. 9:5628. Furthermore, as the record of the trial court shows, that is obviously not the case in this instance.
In this case, the date of the alleged neglect was December 18, 1988, which was also the date of David's death. Thus, pursuant to La. R.S. 9:5628, Verhalen had until December 18, 1989 to bring suit on her cause of action. Dr. Roberson's MPC policy was in effect from April 1, 1989 until the date of its cancellation by Dr. Roberson on September 1, 1990, a date well after the prescription deadline in this case. Verhalen had ample time under the terms of the MPC policy to bring suit against Dr. Roberson and his insurer. Therefore, the limitation in the MPC policy was not violative of the provisions of La. R.S. 22:629 because an application of the MPC policy to the particular facts of this case did not serve to impermissibly limit the time in which Verhalen could bring suit against Dr. Roberson or make an effective claim against his policy. In other words, although Dr. Roberson's MPC policy had a limitation, when the particular facts of this case are considered, it did not shorten the statutorily mandated period dictated by La. R.S. 9:5628 or La. R.S. 22:629.
Considering the clear and unambiguous terms of the MPC claims made policy, it is apparent that any claim made after the termination of the policy would not be covered. Verhalen failed to bring suit against Dr. Roberson until May 1995, four years after the policy expired. Suit against MPC was not brought until June 1998, some seven years after the policy expired, and almost ten years after the date of David's death when the alleged negligence took place. Under the terms of the policy, claims could be made until September 1, 1990, the date the policy was cancelled by Dr. Roberson and a date well after Verhalen's prescriptive deadline of December 18, 1989. Here, MPC is not trying to impermissibly shorten to less than twelve months the amount of time Verhalen had to bring suit against Dr. Roberson, as the insurers in Gary, supra and Hedgepeth, supra did.
Additionally, we observe tha
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