Evanston Insurance Company v. Agape Senior Primary Care, Inc
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00655-JFA. Copies to all parties and the district court. [999736310]. Mailed to: David Belding, George Hearn, Jr., and Michael Spears. [14-2268]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2268
EVANSTON INSURANCE COMPANY,
Plaintiff - Appellant,
v.
AGAPE SENIOR PRIMARY
CRIBBS; KEZIA NIXON,
CARE,
INC.;
SCOTT
MIDDLETON;
FLOYD
Defendants - Appellees,
and
VICKIE WATTS, as Personal Representative of the Estate of
Dorothy Jones; MEREDITH WOFFORD; DORA ELIZABETH HANNA, by
and through her Personal Representative, King C. Hanna, Jr.,
and on behalf of a Class of Individuals Similarly Situated;
AGAPE SENIOR, LLC; JACKSON & COKER LOCUM TENENS, LLC, a/k/a
Jackson and Coker; LAFAY WALKER, as Personal Representative
of the Estate of Martha Sellers Blackwelder; AMANDA CURTIS;
PRESTON WAYNE CHANDLER, as Personal Representative of the
Estate of Mildred Louise Chandler, deceased; PATTY LARIMORE,
as Personal Representative of the Estate of Annie Larimore,
deceased; THE ESTATE OF CLARICE POTTER; AGAPE NURSING &
REHABILITATION, INC.; AGAPE ASSISTED LIVING, INC.; AGAPE
COMMUNITY HOSPICE, INC.; CAROLINAS COMMUNITY HOSPICE, INC.,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Joseph F. Anderson, Jr., Senior
District Judge. (3:13-cv-00655-JFA)
Argued:
October 28, 2015
Decided:
January 15, 2016
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Before NIEMEYER and MOTZ, Circuit Judges, and M. Hannah LAUCK,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul Lindsey Fields, Jr., FIELDS HOWELL, Atlanta,
Georgia, for Appellant.
Shaun C. Blake, ROGERS LEWIS JACKSON
MANN & QUINN, LLC, Columbia, South Carolina, for Appellees. ON
BRIEF: Gregory L. Mast, FIELDS HOWELL, Atlanta, Georgia, for
Appellant. Jenkins M. Mann, ROGERS LEWIS JACKSON MANN & QUINN,
LLC, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In
2012,
Evanston
Insurance
Company
issued
a
renewed
Professional Liability Insurance Policy to Agape Senior Primary
Care,
Inc.
and
practitioners,
certain
of
including
Kezia
(collectively, “Agape”).
Agape,
Ernest
Osei
its
employees,
Nixon
doctors,
and
Dr.
and
Floyd
nurse
Cribbs
Unbeknownst to any other employee at
Addo
had
stolen
Dr.
Arthur
Kennedy’s
identity, and was fraudulently practicing medicine as an Agape
“physician” ostensibly insured by Evanston. Once Addo’s deceit
was uncovered, Evanston sought to rescind the policy as to all
participants
based
on
Addo’s
fraudulent
conduct
and
false
statements on his insurance application.
Evanston and Agape sought a declaration from the United
States District Court for the District of South Carolina as to
whether the fraudulent misrepresentations on an application for
medical malpractice insurance by one person who masqueraded as a
board-certified
should
vitiate
including
employees.
the
doctor,
fooling
coverage
medical
for
employers
all
entity
other
that
and
patients
innocent
employed
him
alike,
insureds,
and
its
For the reasons that follow, we affirm the district
court conclusion that South Carolina law and its principles of
equity demand that coverage for the innocent co-insureds remain
in place.
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I.
In the declaratory judgment action, both parties moved for
summary
judgment,
largely
agreeing
employs
physicians
and
nursing
homes
and
assisted
name.
Agape
uses
nurse
an
as
to
the
practitioners,
living
of
Agape
sending
facilities
“integration
facts.
with
services”
them
to
the
Agape
model
that
requires each patient to be treated by multiple physicians and
nurse practitioners.
Sometime around February 2012, Agape hired a man who held
himself out to be Dr. Arthur Kennedy, a South Carolina board
certified physician.
Neither Agape nor any of its employees
knew that “Kennedy” was actually Ernest Osei Addo, who was not a
South Carolina board-certified physician.
Addo had stolen the
identity of Dr. Kennedy, a former friend of Addo who was out of
the country during Addo’s fraudulent conduct at Agape.
Dr.
Kennedy’s
identity,
Addo
had
obtained
a
South
Using
Carolina
driver’s license with his own photo and previously had gained
employment as a physician with the South Carolina Department of
Mental Health.
In August 2012, approximately six months after hiring Addo,
Agape
learned
of
the
fraud
after
police
notified Agape of Addo’s true identity.
South
Carolina
sentenced
Addo
to
two
arrested
Addo
and
A federal court in
years
of
imprisonment
following his conviction for aggravated identity theft in 2014.
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All parties agree that Addo fraudulently portrayed himself as
Dr. Kennedy and that Addo’s conduct was dishonest, illegal, and
intentional.
Prior
issued
to
Addo’s
Physicians,
criminal
conviction,
Surgeons,
Dentists
in
2011,
and
Evanston
Podiatrists
Professional Liability Insurance Policy No. MM-820866 for the
policy
period
Policy”).
August 1,
2011
to
August
1,
2012
(the
“First
On February 11, 2012, Addo filled out an individual
application for insurance through Evanston, representing himself
to
be
Dr.
Kennedy
and
board-certified
in
family
medicine.
Evanston had no other information regarding “Kennedy” except the
application.
After
receiving
Addo’s
application,
Evanston
issued Endorsement 10-10, adding “Kennedy” to the First Policy
and charging an additional $4,000 premium for “Kennedy.”
On July 15, 2012, all applicants, including the individual
physicians,
applications.
Addo,
and
Agape,
submitted
separate
renewal
Thereafter, Evanston issued Policy No. MM-822351
(the “Renewal Policy”) for the period from August 1, 2012 to
August 1, 2013. Had Addo’s identity been disclosed, Evanston
would not have issued Endorsement 10-10 or the Renewal Policy.
The First Policy and the Renewal Policy were identical in
relevant part, with the exception of the addition of Kennedy’s
name to the list of insured physicians to the Renewal Policy.
The Policies provided for two different coverages:
5
“Coverage A:
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Individual Liability Coverage” (“Coverage A”) and “Coverage B:
Association,
(“Coverage
physicians,
Corporation
B”).
each
Coverage
of
whom
or
A
Partnership
related
applied
to
for
Liability
a
list
of
insurance
Coverage”
individual
separately.
Coverage B applied to Agape and certain of its employees.
Three
lawsuits
have
been
filed
against
Agape
that
potentially relate to the declaratory judgment case on appeal. 1
Evanston currently defends Agape in the lawsuits, all of which
proceed in South Carolina Courts of Common Pleas. 2
1
Other entities have given notice of intent to file suit or
sent letters suggesting they might sue.
2
The relevant suits are:
(1) The Hanna Class Action Lawsuit:
This class action
lawsuit was filed against Agape, Scott Middleton, Agape’s CEO,
and Jackson & Coker Locum Tenens, LLC (“Jackson”) in the Court
of Common Pleas for Richland County, South Carolina. Jackson
operates as a physician recruitment and staffing agency and
recommended Addo’s employment to Agape. Defendants removed the
action to the United States District Court for the District of
South Carolina, Columbia Division. Hanna v. Agape Sr. LLC, No.
3:12cv2872 (D.S.C. filed Oct. 4, 2012) (Anderson, J.).
In February 2014, the Hanna plaintiffs filed their first
amended complaint raising eight causes of action for negligent
conduct stemming from Agape and Middleton’s hiring of Addo. The
lawsuit does not allege medical malpractice by any doctors other
than Addo.
The district court remanded the action to state
court before a second amended complaint was filed in the Class
Action Lawsuit.
Hanna, No. 3:12cv2872 (D.S.C. Jan. 20, 2015)
(order granting motion to remand) (Anderson, J.).
(2) The Larimore Lawsuit: The Larimore estate filed a
complaint against Agape, two nursing homes, and Dr. Cribbs. The
complaint contains two counts of medical malpractice and
(Continued)
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After
brought
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the
a
filing
separate
of
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the
Class
declaratory
Action
action
Lawsuit,
against
Evanston
Agape
in
the
United States District Court for the District of South Carolina,
Division. 3
Columbia
Evanston
sought
a
“determination
as
to
whether it has a duty to defend and/or indemnify the parties who
have been named in underlying lawsuits (both filed and unfiled)
against [Agape].”
Evanston filed a motion for summary judgment,
seeking
“that
a
ruling
the
[Renewal
Policy]
does
not
afford
coverage for the underlying suits and that [Evanston] is not
required to defend or indemnify.”
Agape filed a cross-motion
for summary judgment, requesting a ruling “that the [Renewal
Policy]
does
afford
coverage
for
the
claims
made
in
the
underlying actions.”
The district court issued its amended order on the cross
motions
for
summary
judgment
in
October
2014.
The
district
court noted that the Supreme Court of South Carolina held in
McCracken
v.
Gov’t
Emps.
Ins.
Co.,
325
highlights
poor
care
by
Dr.
Cribbs,
Practitioners Nixon and Tonja Gantt.
S.E.2d
Addo,
62,
64
and
(S.C.
Nurse
(3) The Curtis Lawsuit:
In August 2013, Amanda Curtis
filed suit against Agape and Jackson.
The complaint alleges
assault and battery; defamation, libel, and slander; and,
negligence based on Agape’s hiring and retention of Addo, who
treated Ms. Curtis.
3
Judge Anderson presided over both the Class Action Lawsuit
and the present case.
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1985), that “in the absence of any statute or specific policy
language
denying
coverage
to
a
co-insured
for
the
arson
of
another co-insured, the innocent co-insured shall be entitled to
recover his or her share of the insurance proceeds.”
325
S.E.2d
at
64.
Without
express
guidance
from
McCracken,
the
Supreme
Court of South Carolina as to whether the innocent co-insured
doctrine applied outside of the arson context, or whether the
fraudulent application by one insured voided the contract ab
initio as to others, the district court addressed this novel
circumstance within the bounds of what would be South Carolina
law.
Private
Assocs.,
Inc.,
Mortg.
296
Inv.
F.3d
Servs.,
308,
312
Inc.
(4th
v.
Hotel
and
Club
Cir.
2002)
(citation
omitted); Brendle v. Gen. Tire & Rubber Co., 505 F.2d 243, 245
(4th Cir. 1974).
The court ruled that the Renewal Policy was void as to Addo
because of his fraudulent misrepresentations.
The court did not
“impute” Addo’s conduct to Agape, finding that (1) Addo applied
separately for the Policies and Agape had no knowledge of his
fraud; (2) the Renewal Policy demonstrated an intent to provide
separate insurance coverage for the “co-insureds” and thus the
Renewal Policy was not void ab initio; (3) Exclusion A did not
bar
coverage
of
the
other
named
insureds
for
malpractice
or
personal injury committed in violation of any law or ordinance
unless it was committed by or at the direction of “the Insured”;
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(4) Endorsement 5, read in conjunction with Endorsement 7, was
ambiguous
and
should
be
construed
to
afford
the
maximum
coverage, meaning that not only were the named physicians and
nurses covered by the Renewal Policy but also any employee or
volunteer; (5) the Renewal Policy did not provide Agape coverage
for
its
own
Exclusion”
negligent
barred
acts;
coverage
and,
for
(6)
any
the
“Medical
insured
while
Director
acting
as
medical director, but the exclusion could not be applied to a
specific case without more factual development. 4
Evanston filed
the present appeal.
II.
This
Court
judgment de novo.
reviews
a
district
court's
grant
of
summary
Roe v. Doe, 28 F.3d 404, 406 (4th Cir. 1994).
Summary judgment should be granted if, after reviewing all the
pleadings,
depositions,
affidavits,
and
other
documents
submitted by the parties, the Court finds that the moving party
is entitled to judgment as a matter of law.
Id. at 406–07
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
In evaluating
the evidence, the court must draw all reasonable inferences in
favor of the non-moving party.
Id. at 407.
“Similarly, in our
de novo review, this court must draw all reasonable inferences
4
Evanston did not challenge this ruling on appeal.
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in
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favor
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of
the
Pg: 10 of 18
appellant.”
Id.
(citing
United
States
v.
Diebold, Inc., 369 U.S. 654, 655 (1962)).
The Supreme Court of South Carolina applies the “general
rules of contract construction” to construe insurance policies.
B.L.G. Enters., Inc. v. First Fin. Ins. Co., 514 S.E.2d 327, 330
(S.C.
1999)
(citations
terms
in
insurance
favor
an
of
the
omitted).
policy
insured
and
“Ambiguous
must
be
or
construed
strictly
against
conflicting
liberally
the
in
insurer.”
Williams v. Gov’t Empls. Ins. Co. (GEICO), 762 S.E.2d 705, 710
(S.C. 2014) (quoting Diamond State Ins. Co. v. Homestead Indus.,
Inc., 456 S.E.2d 912, 915 (S.C. 1995)).
A
common
general
contract
principle
“allows
an
injured
party to void a contract when that party’s assent to the bargain
is induced by the fraudulent or material misrepresentation of
the other contracting party, and the injured party relied on the
misrepresentation in question.”
Robert H. Jerry, II & Douglas
R. Richmond, Understanding Insurance Law, 738 (5th ed. 2012).
Some states, including South Carolina, statutorily modify the
traditional
contract
requiring
the
insured
insurance
company.
principle
party
Id.;
to
see,
in
the
have
insurance
intended
e.g.,
S.C.
to
Code
context
defraud
§
by
the
38-71-40
(requiring intent to defraud in order to rescind accident and
health insurance policies).
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“Rescission is an equitable remedy that attempts to undo a
contract
from
existed.”
the
beginning
as
contract,
the
substantial
and
contract.”
Id.
minor
or
the
contract
had
never
ZAN, LLC v. Ripley Cove, LLC, 751 S.E.2d 664, 669
(S.C. 2013) (citation omitted).
a
if
plaintiff
In order to completely rescind
must
fundamental
as
show
to
a
breach
defeat
the
that
is
“so
purpose
of
the
Thus, “[r]escission will not be granted for a
casual
breach
of
a
contract,
but
only
for
those
breaches which defeat the object of the contracting parties.”
Id. (citations omitted).
III.
A.
Evanston
contends
that
the
innocent
co-insured
doctrine
does not apply, and that “principles of general contract law
regarding
fraudulent
entire policy.”
procurement
We disagree.
support
rescission
of
the
South Carolina law and principles
of equity weigh in favor of allowing coverage for the innocent
co-insured parties, who are the individual doctors, nurses, and
Agape.
insured.
South
Carolina
law
disfavors
rescission
against
the
In particular, under South Carolina law, three factors
tip the equity scales in favor of Agape:
(1) as the insurer and
drafter, Evanston could have included forfeiture language in the
policy;
(2)
neither
Agape
nor
any
of
its
employees
had
any
knowledge of Addo’s fraud, rendering them “innocent” under South
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Carolina law; and, (3) the public interest would not be served
through rescission.
South Carolina construes insurance policies “liberally in
favor of the insured and strictly against the insurer.”
USAA
Prop. and Cas. Ins. Co. v. Clegg, 661 S.E.2d 791, 797 (S.C.
2008)
(citation
rescission,
confirms
the
that
favored.”
omitted).
Supreme
In
the
Court
“[f]orfeitures
of
of
face
of
South
an
action
Carolina
insurance
for
repeatedly
contracts
are
not
Puckett v. State Farm Gen. Ins. Co., 444 S.E.2d 523,
524 (S.C. 1994); Johnson v. S. State Ins. Co., 341 S.E.2d 793,
794 (S.C. 1986); Small v. Coastal States Life Ins. Co., 128
S.E.2d 175, 177 (S.C. 1962).
Within this context, the Court addresses the issues in this
case.
noted
First, the Supreme Court of South Carolina in McCracken
that
include
insurers,
express
as
policy
drafters
language
of
insurance
supporting
policies,
their
position
can
to
rescind for the intentional misrepresentation of any applicant.
325 S.E.2d at 64.
Court
held
proceeds
Id.;
see
that
In McCracken, the South Carolina Supreme
an
innocent
notwithstanding
also
Nationwide
her
wife
could
husband’s
Mut.
Ins.
recover
arson
of
v.
Comm’l
Co.
insurance
their
home.
Bank,
479
S.E.2d 524, 527 (S.C. Ct. App. 1996) (distinguishing McCracken
because
of
its
payment
when
emphasis
insured
on
engaged
the
in
12
absence
fraud).
of
language
Evanston,
denying
as
the
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insurer
and
limiting
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drafter,
coverage
could
in
the
Pg: 13 of 18
easily
face
of
have
included
fraud
by
provisions
one
discrete
applicant.
It did not do so.
The district court correctly
noted
South
other
that
Carolina
and
states
emphasize
the
existence of such provisions, when they are present, in order to
limit coverage.
See Evanston Ins. Co. v. Watts, 52 F. Supp. 3d
761, 769 (D.S.C. 2014) (citing K & W Builders, Inc. v. Merchs. &
Bus. Men’s Mut. Ins. Co., 495 S.E.2d 473, 477 (Va. 1998); S.C.
Farm Bureau Mut. Ins. Co. v. Kelly, 547 S.E.2d 871, 876 (S.C.
Ct. App. 2001)).
Second, given the reasoning articulated in McCracken, the
district court did not err in its forecast that South Carolina
would extend the innocent co-insured doctrine beyond the context
of arson and into other areas of insurance.
McCracken looked to
the parties’ respective responsibility for bad acts, explicitly
rejecting
a
obligations
requirement
of
the
that
parties.
the
court
Instead,
look
the
to
court
the
relative
adopted
the
innocent co-insured doctrine that examines the liabilities of
the parties for the fraudulent act.
at 63–64.
See McCracken, 325 S.E.2d
South Carolina statutory law reinforces the view that
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the insured usually must exhibit some fault in order to support
vitiation of an insurance policy. 5
Finally, public policy considerations—appropriate to weigh
in
this
equitable
action—reinforce
that
the
district
arrived at the proper outcome under South Carolina law.
court
Equity
cannot demand that the actions of one corrupt applicant, who
conned Agape and Evanston alike, deprive the innocent insureds
of
the
benefit
separately
of
applied
their
for
contract.
medical
Agape
malpractice
and
its
insurance
employees
in
good
faith, and they would be left without such insurance through no
fault of their own.
Evanston accepted individual premiums as to
each
seemingly
insured
Further,
and
determination,
and
perhaps
rescission
spread
more
the
risk
accordingly.
important
would
in
leave
public
the
an
equitable
essentially
unprotected on matters of medical malpractice brought against
5
Under South Carolina statutory law, an accident or health
insurance policy is not void ab initio despite a material
misrepresentation made in the application unless “the false
statement was made with actual intent to deceive or unless it
materially affected either the acceptance of the risk or the
hazard assumed by the insurer.”
S.C. Code § 38-71-40.
South
Carolina common law places the burden on the insurer to show, by
clear and convincing evidence, that: (1) the statements made on
the application were untrue; (2) the applicant knew the
statements were false; (3) the statements were material to the
risk; (4) the insurer relied on the false statements; and, (5)
the statements were made with the intent to deceive and defraud
the company. Lanham v. Blue Cross & Blue Shield of S.C., Inc.,
563 S.E.2d 331, 334 (S.C. 2002).
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every other Agape employee.
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See First Am. Title Ins. Co. v.
Lawson, 827 A.2d 230, 240 (N.J. 2003).
The
innocent
Carolina
district
court
co-insured
courts.
faced
doctrine
For
the
a
novel
otherwise
reasons
stated
application
employed
above,
of
by
the
the
South
district
court did not err when it concluded that South Carolina would
not allow rescission under the facts of this case.
the
Court
will
affirm
the
district
court’s
Accordingly,
holding
that
the
Renewal Policy is not void ab initio.
B.
Evanston next argues that, if the Renewal Policy is not
void ab initio, the district court erred in allowing coverage of
claims
for
“administrative
failures,”
as
opposed
to
limiting
coverage to claims for “medical malpractice or personal injury.” 6
Evanston
fundamentally
misunderstands
the
district
court’s
decision.
The district court plainly held that the policy provided
coverage to Agape “for the acts and omissions of all Coverage A
Named Insureds and Coverage B Named Insureds, to the extent such
individuals
were
acting
behalf of [Agape.]”
within
the
scope
of
their
duties
on
Nowhere did the district court’s decision
6
No party disputes that “Dr. Kennedy” and Addo, whose name
appears nowhere on the insurance policy, lack coverage.
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extend
such
failures.
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coverage
Indeed,
to
the
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Agape
for
district
its
court
own
administrative
observed,
albeit
in
a
footnote, that the policy did not “provide coverage to [Agape]
for
any
of
its
own
negligent
acts.”
A
reading
of
this
malpractice policy to exclude coverage for Agape’s own negligent
administrative acts such as negligent hiring and retention is
not
in
court’s
error.
Accordingly,
interpretation
of
the
its
Court
finding
affirms
of
the
coverage
district
under
the
policy.
Evanston further asserts that the district court improperly
construed Exclusion A, which states:
This policy does not apply to:
A.
any Malpractice or Personal Injury committed in
violation of any law or ordinance; to any Claim based
upon or arising out of any dishonest, fraudulent,
criminal, malicious, knowingly, wrongful, deliberate,
or intentional acts, errors or omissions committed by
or at the direction of the Insured . . . .
Additional exclusions, lettered B through S, followed Exclusion
A.
Evanston avers that the district court failed to apply this
exclusion and instead allowed coverage for claims against Named
Insureds arising from the acts and omissions of Addo.
Evanston
again misinterprets the district court’s decision.
The
Coverage
district
court
A
Insureds
Named
correctly
are
concluded
entitled
to
that
“all
coverage,
other
to
the
extent a claim exists that would trigger their coverage under
16
Appeal: 14-2268
the
Doc: 33
[Renewal
other
Filed: 01/15/2016
Policy].”
Coverage
Kennedy.
A
As
Named
Pg: 17 of 18
discussed
Insureds”
above,
does
not
the
phrase
include
“all
Addo
or
The district court noted that coverage extended only
to claims arising from “the acts and omissions of all Coverage A
Named Insureds and Coverage B Named Insureds, to the extent such
individuals
were
acting
behalf of [Agape.]”
within
the
scope
of
their
duties
on
In sum, the district court did not hold
that coverage extends to claims arising from Addo’s acts and
omissions. 7
Accordingly, the Court affirms the district court’s
interpretation of Exclusion A.
Finally, Evanston argues that the district court failed to
apply
its
rulings
to
each
individual
lawsuit
and
potential
lawsuit presented to the court, contending that the district
court’s order has caused more disputes.
“It is well settled
that an insurer's duty to defend is based on the allegations of
the underlying complaint.”
B.L.G. Enters., 514 S.E.2d at 330.
“In examining the complaint, a court must look beyond the labels
describing the acts to the acts themselves which form the basis
of the claim against the insurer.”
Collins Holding Corp. v.
Wausau Underwriters Ins. Co., 666 S.E.2d 897, 899 (S.C. 2008).
7
Indeed, Agape conceded that, as a result of Exclusion A,
it lacks coverage “for a claim where the sole basis of liability
against [Agape] is vicarious liability for the actions or
omissions of Addo.”
17
Appeal: 14-2268
Doc: 33
Filed: 01/15/2016
Pg: 18 of 18
The record shows the existence of three filed lawsuits:
the Class Action Lawsuit, the Larimore Lawsuit, and the Curtis
Lawsuit.
However, none of the parties in interest in these
suits were brought before the district court.
See A.S. Abell
Co. v. Chell, 412 F.2d 712, 717 (4th Cir. 1969) (noting that the
district court may withhold declaratory relief for nonjoinder of
interested parties).
Accordingly, the district court did not
err when it made no declarations regarding a duty to defend
against lawsuits not properly before it.
IV.
For
the
foregoing
reasons,
the
district
court
correctly
interpreted the policy and committed no error when it applied
the innocent co-insured doctrine to the novel circumstances of
this case.
South Carolina law and principles of equity demand
that fraudulent misrepresentations on an application for medical
malpractice insurance by a person posing as a doctor should not
vitiate the insurance policy as to his or her innocent employer
and fellow employees.
Accordingly, the judgment of the district court is
AFFIRMED.
18
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