National Fire Insurance Company of Hartford et al v. Lewis et al

Filing 269

ORDER, the Motion for Summary of Judgment or, in the Alternative, Partial Summary Judgment filed by Plaintiffs National Fire Insurance Company of Hartford and Transportation Insurance Company 78 is granted in part and denied in part; the Motion for Partial Summary Judgment filed by Defendants Dena and Shawn Larsen 108 is denied; the Motion for Partial Summary Judgment filed by Defendants Franklin and Jennifer Saylor 109 is denied; the Motion for Partial Summary Judgment filed by Defendants Collin and Laurie Shook 113 is denied as moot; the Motion for Partial Summary Judgment filed by Defendants Julie and Stewart Landsverk 115 is denied; the Motion for Partial Summary Judgment filed by Defendant Kellye Pummill 117 is denied; the Motion for Partial Summary Judgment filed by Defendants Daniel and Elizabeth Piper 119 is denied; the Motion for Partial Summary Judgment filed by Defendant Lauri A. Tipper 121 is denied as moot; the Motion for Partial Summary Judgment filed by D efendant Brooke E. Staley 123 is denied as moot; the Motion for Partial Summary Judgment filed by Defendants Advanced Cardiac Specialists, Chartered, Barbara Barker-Siegel, and Robert M. Siegel 125 is denied; the Motion for Partial Summary Judgme nt filed by Plaintiff Medical Protective Company 136 is granted in part and denied in part; the Motion for Partial Summary Judgment filed by Plaintiff Lexington Insurance Company 138 is granted in part and denied in part; the Motion for Partial S ummary Judgment filed by Defendants Dena and Shawn Larsen 167 is granted in part and denied in part; the Motion for Partial Summary Judgment filed by Defendants Franklin and Jennifer Saylor 184 is granted in part and denied in part; the Motion fo r Partial Summary Judgment filed by Defendants Franklin and Jennifer Saylor 188 is granted in part and denied in part; the Motion to Strike Reply to Response to Motion for Summary Judgment filed by Medical Protective 249 is granted. Signed by Judge G Murray Snow on 9/28/12. (REW)

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WO

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IN THE UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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National Fire Insurance Company of
Hartford, et al.;

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Plaintiffs,

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v.

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Richard Jay Lewis, M.D., et al.;

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Defendants.
Advanced Cardiac Specialists,
Chartered, et al.,
Third-Party Plaintiffs,

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v.
Medical Protective Company, et al.,
Third-Party Defendants.

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Medical Protective Company, et al.,
Third-Party Counterclaimants,

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v.

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Advanced Cardiac Specialists,
Chartered, et al.,
Third-Party Counterdefendants.

No. CV-11-01220-PHX-GMS
ORDER

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Several motions relating to insurance coverage are pending before the Court. This

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order attempts to dispose of all such motions. The motions resolved by this order are

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more specifically identified below.1

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FACTUAL BACKGROUND
The parties to this case are engaged in an insurance coverage dispute brought in

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this Court by various insurers.
Some of the Defendants to this action2 (the “Underlying Plaintiffs”) have filed
eight separate complaints in Arizona Superior Court against other Defendants.3 The
Defendants in the underlying actions include Richard Jay Lewis, M.D., his spouse Lisa
Hara Levin-Lewis, Advanced Cardiac Specialists, Chartered (“ACS”) which employed

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Dr. Lewis as a cardiologist, Robert M. Siegel, M.D.,4 who was the President, sole

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director, and sole shareholder of ACS, and Dr. Barbara Barker-Siegel, his spouse.

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The Underlying Plaintiffs allege, with some variation, that during the course of

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their treatment Dr. Lewis inappropriately viewed and sexually assaulted them. (Doc. 79

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¶¶ 15-23; Doc. 111 ¶¶ 15-23.) Underlying Plaintiffs Pummill, Larsen, Landsverk, and

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Saylor also allege that Dr. Lewis recommended and performed unnecessary pacemaker
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The Parties’ requests for oral argument are denied because the parties have had an
adequate opportunity to discuss the law and evidence and oral argument will not aid the
Court’s decision. See Lake at Las Vegas Investors Group v. Pac. Malibu Dev., 933 F.2d
724, 729 (9th Cir. 1991).
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Dena and Shawn Larsen, Franklin and Jennifer Saylor, Collin and Laurie Shook, Julie
and Stewart Landsverk, Kellye Pummill, Daniel and Elizabeth Piper, Lauri A. Tupper,
and Brooke E. Staley.
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Prior to the filing of this Order, the Court received notice from the Parties that all claims
had been settled between National Fire, Transportation, Medical Protective, Lexington,
the Shooks, Tupper, and Staley. (Doc. 256.) This Order will have no effect on them, as
the Parties have informed the Court that a joint motion and stipulation for dismissal is
forthcoming. (Doc. 256; Doc. 268.) The case, however, remains live as to the other five
Underlying Plaintiffs.
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Dr. Robert Siegel died in a plane crash on May 10, 2012. (Doc. 158.) On September 18,
2012, the Court granted the motions to substitute Barbara Barker-Siegel, his personal
representative, in the place of Dr. Robert Siegel. (Doc. 264.)
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surgeries on them. (Doc. 79, Ex. 1 at 10 (Pummill Compl. ¶ 28), 110 (Landsverk Compl.
¶ 17); Doc. 111, Ex. 12 (Saylor Amend. Compl. ¶¶ 16, 24); Doc. 165, Ex. 1 ¶ 30.)

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All Underlying Plaintiffs bring claims arising from the alleged inappropriate

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actions of Dr. Lewis, including: (1) Assault and Battery; (2) Negligence—Medical

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Malpractice; (3) Intentional or Negligent Infliction of Emotional Distress and Invasion of

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Privacy. (Doc. 79 ¶¶ 24-35; Doc. 111 ¶¶ 24-35, Ex. 12.) The Complaints allege not only

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that Dr. Lewis and his wife are liable for these three counts, but that ACS, Dr. Siegel, and
Dr. Barker-Siegel (collectively, “the ACS Defendants”) are vicariously liable under
Arizona law for Dr. Lewis’s actions. (Doc. 79 ¶¶ 25-27, 29, 30-35; Doc. 111 ¶¶ 25-27,
29, 30-35, Ex. 12.) The Complaints also state causes of action directly against the ACS

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Defendants for the negligent hiring, retention, and supervision of Dr. Lewis. (Id.)5

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Finally, Pummill, Larsen, Landsverk, and Saylor allege separate claims for medical

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negligence against Dr. Lewis and the ACS Defendants for performing unnecessary

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pacemaker surgery on them, as well as derivative negligence claims against the ACS

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Defendants.
On January 6, 2010, Dr. Lewis was indicted on 46 counts of sexual abuse, 14

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counts of assault, and one count of sexual assault in Arizona state court. (Doc. 139,
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Lexington SOF ¶ 14; Doc. 183 ¶ 14; Doc. 212 ¶ 14.) Seven of the eight Underlying
Plaintiffs were among the listed victims. (Doc. 139, Lexington SOF ¶ 15; Doc. 183 ¶ 15;
Doc. 212 ¶ 15.) Dr. Lewis subsequently pled guilty on May 10, 2012, to 18 counts of

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Minor variations exist among the complaints. The Larsens seek to hold only Dr. Lewis
liable for intentional infliction of emotional distress, and negligence, Dr. Lewis and ACS
liable for assault and battery, and Dr. Siegel liable under A.R.S. § 10-2234 for failure to
supervise. (Doc. 79, Ex. 1, Larsen Compl.) In addition, Piper does not seek to hold Dr.
Barker-Siegel vicariously or directly liable for any of the claims. (Doc. 79, Ex. 1, Piper
Compl.) For the sake of clarity in the Order, the Court will not constantly make this
distinction between the other six complaints and the two described here, but these
distinctions matter for coverage purposes as will be occasionally referenced throughout
this order.
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aggravated assault, a class 6 felony, involving the same seven Underlying Plaintiffs.6

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(Doc. 169, Ex.1 at 7-11; Doc. 165, Ex. A at 19-54; Doc. 139, Ex. 1 at 2-15.)

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Plaintiffs National Fire Insurance Company of Hartford and Transportation

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Insurance Company (the “General Liability Insurers”) issued separate but essentially

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identical Businessowner Liability Insurance Policies (“the businessowner policies”) to

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ACS that collectively cover the period from May 1, 2007, to May 1, 2010. (Doc. 79 ¶¶

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36-37; Doc. 111, ¶¶ 36-37.) The businessowner policies provide coverage for “bodily
injury” caused by a non-excepted “occurrence” during the policy time period. (Doc. 79 ¶
38; Doc. 111 ¶ 38.) The General Liability Insurers have undertaken a defense of the ACS
Defendants against the underlying complaints under a complete reservation of rights.
(Doc. 79 ¶ 50-51; Doc. 111 ¶ 50-51.)

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Plaintiff

Medical

Protective

Company

issued

consecutive

claims-made

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professional liability policies to the ACS Defendants and Dr. Lewis for the period of May

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1, 2008, through May 1, 2010. (Doc. 137, Medical Protective SOF ¶ 17, 19; Doc. 183 ¶

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17, 19.) The 2009-10 policy included an Extended Reporting Period Endorsement as to

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Dr. Lewis with a retroactive date of February 23, 2006. (Doc. 137, Medical Protective
SOF ¶ 20; Doc. 183 ¶ 20.) Pursuant to its terms, the 2009-10 policy was cancelled with

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regard to the ACS Defendants as of March 1, 2010. (Doc. 137, Medical Protective SOF ¶
21; Doc. 183 ¶ 21.) The Medical Protective policies contain two distinct insurance

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agreements: the “physicians” policy and the “corporate” policy. (Doc. 59, Ex. B at 5.)

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ACS, Dr. Lewis, Dr. Siegel, and Dr. Barker-Siegel are all named insureds under the

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physicians agreement. (Id. at 10-11.) ACS and its agents are insureds under the corporate

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agreement. (Id. at 6-7.)

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Underlying Plaintiff Staley was not among the victims listed on the indictment or in the
plea agreement. She has, however, reached a settlement with the insurers. (Dco. 256;
Doc. 268.)
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Plaintiff Lexington Insurance Company (“Lexington”) issued consecutive claims-

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made Medical Group Professional Liability and Administrative Proceedings Insurance

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Policies (the “Lexington policies”) to the ACS Defendants that covered “sums that an

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Insured becomes legally obligated to pay others as damages resulting from a medical

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incident arising out of professional services.” (Doc. 139, Lexington SOF ¶¶ 17-20, 24;

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Doc. 183 ¶¶ 17-20, 24; Doc. 212 ¶¶ 17-20, 24.) The Lexington policies picked up where

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the Medical Protective policies left off and covered the period from March 1, 2010,
thorough March 1, 2012. (Doc. 139, Lexington SOF ¶¶ 17-19; Doc. 183 ¶¶ 17-19, Doc.
212 ¶¶ 17-19.)
The insurers instituted the present declaratory judgment action on June 21, 2011,

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seeking a declaration that the businessowner policies, the Medical Protective policies,

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and the Lexington polices do not provide coverage for the allegations contained in the

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underlying complaints against the Lewis and ACS Defendants, and that the insurers

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therefore have no duty to defend the Lewis and ACS Defendants in the underlying

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actions. First, National Fire and Transportation filed a Motion for Summary of Judgment

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or, in the Alternative, Partial Summary Judgment. (Doc. 78.) Many of the Defendants
opposed the motion and filed Motions for Partial Summary Judgment of their own with

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regard to the businessowner policy coverage: the Larsens (Doc. 108); the Saylors (Doc.
109); the Shooks (Doc. 113); the Landsverks (Doc. 115); Pummill (Doc. 117); the Pipers
(Doc. 119); Tupper (Doc. 121); Staley (Doc. 123); and the ACS Defendants (Doc. 125).

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Second, Medical Protective filed a Motion for Partial Summary Judgment. (Doc.

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136.) The relevant Underlying Plaintiffs opposed. In addition, Underlying Plaintiffs

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Larsen (Doc. 167) and Saylor (Doc. 184) filed cross-motions for summary judgment.

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Third, Lexington filed a Motion for Partial Summary Judgment. (Doc. 138.) Once
again, many of the Defendants opposed. The Saylors filed a separate Motion for Partial
Summary Judgment against Lexington. (Doc. 188.) Pummill (Doc. 245) and the

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Landsverks (Doc. 266) have joined the Saylors’ Motion.
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Finally, Medical Protective has filed a Motion to Strike (Doc. 249) arising out of a

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briefing dispute with the Larsens. In short, the issue of coverage for the ACS Defendants

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and Dr. Lewis under all of the relevant policies is before the Court.

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For the following reasons, the Court grants in part and denies in part the Motion

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for Summary Judgment filed by National Fire and Transportation, and denies the relevant

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cross-motions. The Court also grants in part and denies in part the motions for summary

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judgment filed by Medical Protective and Lexington. The cross-motions for summary
judgment filed by Underlying Plaintiffs Larsen and Saylor are likewise granted in part
and denied in part. Finally, Medical Protective’s Motion to Strike is granted.

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DISCUSSION
I.

LEGAL STANDARD

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Summary judgment is appropriate if the evidence, viewed in the light most

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favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

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P. 56(a). Substantive law determines which facts are material and “[o]nly disputes over

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facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d

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1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving

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party must show that the genuine factual issues “‘can be resolved only by a finder of fact

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because they may reasonably be resolved in favor of either party.’” Cal. Architectural

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Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)

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(quoting Anderson, 477 U.S. at 250).
II.

ANALYSIS
No party contests that Arizona law applies to this case. Interpretation of an

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insurance policy is a question of law, and is often an appropriate issue for the Court to
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resolve on cross-motions for summary judgment. See Keggi v. Northbrook Prop & Cas.

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Ins. Co., 199 Ariz. 43, 46, 13 P.3d 785, 788 (Ct. App. 2000); Blue Ridge Ins. Co. v.

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Stanewich, 142 F.3d 1145, 1147 (9th Cir. 1998). Arizona law directs courts to construe

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an insurance contract “according to [its] plain and ordinary meaning.” Keggi, 199 Ariz. at

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46; see Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 469, 224 P.3d 960, 966 (Ct. App.

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2010). “If a clause may be susceptible to different constructions . . . [the Court] will first

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attempt to discern the meaning of the clause by examining the purpose of the exclusion in
question, the public policy considerations involved and the transaction as a whole.”
Keggi, 199 Ariz. at 46 (internal quotations omitted). “Generally, the insured bears the
burden to establish coverage under an insuring clause, and the insurer bears the burden to

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establish the applicability of any exclusion.” Id. Only when an insurance contract is

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actually ambiguous will a court employ other canons of construction, such as construing

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the ambiguity against the insurer, see Thomas v. Liberty Mutual Insurance Co., 173 Ariz.

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322, 325, 842 P.2d 1335, 1338 (Ct. App. 1992), or favoring the protection of the interests

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of injured victims, see American Family Mutual Insurance Co. v. White, 204 Ariz. 500,

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505, 65 P.3d 449, 454 (Ct. App. 2003).
A.

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Undisputed Claims
1.
Coverage for the Pummill, Landsverk, Larsen, and Saylor
Claims of Unnecessary Pacemaker Surgery

Underlying Plaintiffs Pummill, Landsverk, Larsen, and Saylor have asserted a
claim of medical negligence against Dr. Lewis and the ACS Defendants that is separate
from the allegations of inappropriate sexual contact. These Underlying Plaintiffs do not

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dispute that this claim is excluded from coverage under the businessowner policies.

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Likewise, Medical Protective agrees that its physicians policy provides coverage for

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direct claims against Dr. Lewis arising out of this specific instance of medical negligence.

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Medical Protective has also agreed that, with respect to the pacemaker claims, there is
coverage for all ACS Defendants under the corporate policy. (Doc. 227 at 2-3.)7

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Lexington also agrees that its policy covers the separate instance of medical

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negligence. With regard to the Pummill Complaint, Lexington does argue that the

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unnecessary pacemaker surgery claim is not separate from the claims of sexual

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misconduct, but those arguments are unavailing. Nothing in the relevant paragraph of the

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Pummill Complaint references sexual misconduct. (Doc. 79, Ex. 1 at 7 (Pummill Compl.
¶ 17).)
Accordingly, Medical Protective is under a duty to defend and indemnify Dr.
Lewis against these separate claims of medical negligence, and both Medical Protective

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and Lexington are under a duty to defend and indemnify the ACS Defendants against

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these same medical negligence claims.
2.
Number of Incidents under Lexington and Medical Protective
Policies

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Medical Protective and Lexington move for summary judgment that the alleged

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multiple instances of sexual misconduct perpetrated on each of the potential victims

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constitutes one incident per victim for coverage purposes under their policies. With

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regard to the claims arising out of Dr. Lewis’s alleged sexual misconduct, no Party

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opposes the motion. Consequently, to the extent coverage is available under the Medical
Protective and Lexington policies, the collective molestations constitute one incident per
victim for coverage purposes.

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As will be discussed further below, there remains a genuine issue of material fact
whether Dr. Barker-Siegel is an insured under the Medical Protective policy with regard
to the sexual assault claims. Medical Protective, however, while objecting to coverage for
Dr. Barker-Siegel under the corporate agreement for the molestation claims, did not
object to coverage for Dr. Barker-Siegel under the corporate agreement for the other
claim of medical negligence.
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3.

Coverage for Punitive Damages under Lexington and Medical
Protective Policies

Lexington and Medical Protective also move for summary judgment that both the
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Lexington and Medical Protective policies preclude coverage for punitive damages. No
Party opposes this motion, and the Court will grant summary judgment for Lexington and

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Medical Protective on the issue of punitive damages.
4.
Coverage for the Landsverk, Pummill, and Saylor Molestation
Claims under the Medical Protective Policies

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Medical Protective has moved for summary judgment that the Landsverk,

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Pummill, and Saylor molestation claims were made outside of the policy period and are

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therefore not covered. None of these Underlying Plaintiffs opposes this motion.

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Consequently, Medical Protective is under no duty to defend and indemnify the ACS

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Defendants or Dr. Lewis for the molestation claims made by Underlying Plaintiffs

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Landsverk, Pummill, and Saylor.
5.
Coverage for the Larsen and Piper Molestation Claims Under
The Lexington Policies

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Lexington also moves for summary judgment that the Larsen and Piper claims
were made outside of its policy period and are therefore not covered. Neither Larsen nor
Piper opposes this motion. Consequently, Lexington is under no duty to defend and
indemnify the ACS Defendants or Dr. Lewis for claims made by Underlying Plaintiffs

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Larsen and Piper.
B.
Claims for Assault And Battery, Medical Negligence, Intentional or
Negligent Infliction of Emotional Distress, and Invasion of Privacy
Arising out of Dr. Lewis’s Alleged Sexual Misconduct

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The Underlying Plaintiffs assert that the ACS Defendants are vicariously liable—

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and Dr. Lewis directly liable—for assault and battery, medical malpractice, intentional or
negligent infliction of emotional distress, and invasion of privacy arising out Dr. Lewis’s
alleged sexual misconduct.

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The General Liability Insurers claim that the businessowner policies do not cover

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any potential liability of their insureds for Dr. Lewis’s actions. They assert that Dr.

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Lewis’s actions did not constitute an “occurrence” under the policies, or that, even if they

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did, the actions fall squarely within the professional services exception set forth in the

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policy.

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Medical Protective contends that none of its professional liability policies provide

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coverage for Dr. Lewis or the ACS Defendants, either because the conduct at issue falls

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outside the scope of coverage set forth by the policies or falls within one of the coverage

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exceptions.
Likewise, Lexington asserts that the Lexington professional liability policies do
not provide coverage for the ACS Defendants because Dr. Lewis’s actions did not
constitute a “medical incident arising out of professional services,” or that, even if they
did, the actions fall within other policy exceptions.

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1.

Businessowner Policies
a.

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“Occurrence” under the Businessowner Policies

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The businessowner policies are general liability policies that provide coverage for

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“‘bodily injury’ . . . caused by an ‘occurrence’ . . . during the policy period.” (Doc. 79,

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Affidavit Exs. 2 & 3, at NFI00129, NFI00269, TI00103.) The insured under the
businessowner policies is ACS. By their terms, the policies also cover Dr. Siegel because

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he is alleged to be an “executive officer” or “director” of ACS. (Id. at NFI00137,
NFI00267, TI00111.) In addition, because these claims are for vicarious liability only,

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Dr. Barker-Siegel is covered as an “employee” of ACS. (Id. at NFI00138, NFI00268,

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TI00112.) Dr. Lewis is not an insured under either policy. None of the parties dispute that

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the “bodily injury” component of the coverage has been satisfied. Instead, the question is

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whether Dr. Lewis’s actions constitute an “occurrence” under the policies. The policies

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define “occurrence” as “an accident, including continuous or repeated exposure to
substantially the same general harmful conditions.” (Id. at NFI00142, NFI00282,
TI00116.)

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Notably, the policies do not cover “bodily injury” “expected or intended from the

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standpoint of the insured.” (Id. at NFI00131, NFI00271, TI00105.) There is no indication

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that any of the ACS Defendants, which are the insured under the policy, would have

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expected or intended any injury that Dr. Lewis inflicted on the Underlying Plaintiffs. It is

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the perspective of the insured that is key in deciding whether a given event is an accident.

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See Lennar Corp. v. Auto-Owners Ins. Co., 214 Ariz. 255, 264, 151 P.3d 538, 547 (Ct.

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App. 2007) (holding that even if some of the insureds intended to take action that would
exclude them from coverage, other insureds that did not intend or expect such action
would not be excluded from coverage.);8 Am. States Ins. Co. v. Borbor by Borbor, 826
F.2d 888, 892 (9th Cir. 1987) (“[The wife’s] liability for [the husband’s] acts may be

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distinguished from her ability to insure against that liability,” when she did not expect or

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intend her for her husband to abuse the children for whom they provided day care).

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None of the parties contend that the ACS Defendants intended or expected Dr.

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Lewis to do what he did. The plain meaning of the word accident is “an undesigned,

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sudden, and unexpected event, usually of an afflictive or unfortunate character,” Century

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Mutual Insurance. Co. v. Southern Arizona Aviation, Inc., 8 Ariz. App. 384, 386, 446
P.2d 490, 492 (1968), “which results in bodily injury or property damage neither

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expected nor intended from the standpoint of the insured”, Western Casualty & Surety
Co. v. Hays, 162 Ariz. 61, 63, 781 P.2d 38, 40 (Ct. App. 1989). See also 16 Eric M.

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Holmes, et. al., Holmes’ Appleman on Insurance § 117.3(B) at 241 (2d ed. 2000) (“[A]n

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accident is anything that happens or is the result of that which is unanticipated and takes

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place without the insured’s foresight or expectation or intention.”). While Dr. Lewis may

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have intended his actions, from the perspective of the ACS Defendants, the actions were

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“undesigned, sudden and unexpected events” that therefore meet the definition of an
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The definition of “occurrence” in Lennar was identical to the present case: “an accident,
including continuous or repeated exposure to substantially the same general harmful
conditions.” 214 Ariz. at 261.
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accident. The General Liability Insurers place great weight on Continental Insurance Co.

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v. McDaniel, 160 Ariz. 183, 187, 772 P.2d 6, 10 (Ct. App. 1988), which held that an

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insurer was not obligated to defend an insured who intentionally engaged in sexual

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harassment of an employee. The McDaniel court determined that general liability

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coverage for “occurrences” did not encompass intentional wrongdoing by one of the

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insured. Id. McDaniel, however, involved a question of direct liability, and not the

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question of vicarious liability presented here. Consequently, there has been an
“occurrence” under the terms of the businessowner policies.
b. The Professional Services Exclusion
The businessowner policies contain a professional services exclusion. It states:

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“This insurance does not apply to: . . . ‘Bodily injury’ . . . caused by the rendering or

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failure to render any professional service.” (Doc. 79, Affidavit Exs. 2 & 3, at NFI00131,

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NFI00134, NFI00271, NFI00274, TI00105, TI00108.) While the policies do not provide

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a general definition for professional services, they state that the exclusion “includes but is

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not limited to . . . Medical [or] surgical . . . services treatment, advice or instruction; [and]

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any health or therapeutic service treatment, advice or instruction.” (Id. at NFI00134,
NFI00274, TI00108.)

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The primary question is whether Dr. Lewis’s actions—which caused the
Underlying Plaintiffs’ bodily injuries—amount to the “rendering or fail[ing] to render

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any professional service.” (Id. at NFI00131, NFI00134, NFI00271, NFI00274, TI00105,

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TI00108.) In general, professional services “refer[] t-------------o those services rendered

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by a person engaging in a recognized discipline that necessarily requires advanced

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training and specialized knowledge to perform.” W. Corr. Group, Inc. v. Tierney, 208

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Ariz. 583, 588, 96 P.3d 1070, 1075 (Ct. App. 2004). But “in determining whether a
service is a professional one, we look at the nature of the involved acts rather than the
title afforded the actor.” Id.; St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565,

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566, 720 P.2d 540, 541 (Ct. App. 1986).
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Dr. Lewis was ostensibly deploying his “advanced training and specialized

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knowledge” when he performed the examinations and gave the consultations surrounding

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the alleged sexual abuse. Medical examinations and consultations certainly qualify as

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professional services. But, with the exception of the allegations of unwarranted

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pacemaker surgery, the Underlying Plaintiffs do not allege that Dr. Lewis’s medical

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treatment caused their injuries. Instead, the underlying complaints detail various forms of

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molestation that occurred during the examinations and treatment. Whether the acts of
molestation fall within the professional services exclusion thus depends on whether those
acts can be viewed separately under Arizona insurance law from the medical services
provided by Dr. Lewis.

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In Asbury, a doctor “manipulated [patients’] clitorises while performing routine

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gynecological examinations.” 149 Ariz. at 567. The issue was “whether the language

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‘providing or withholding of professional services’ (with no applicable policy exclusions)

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provide[d] coverage for injuries and damages that result from unprofessional acts of a

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physician.” Id. at 566.9 The Asbury court explicitly rejected the distinction adopted by

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many courts between the doctor’s professional services (gynecological exam) and
unprofessional actions (manipulation of the patients’ clitorises) and held that all of the

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doctor’s actions fell under the umbrella of “professional services” within the meaning of
the policy. Id. at 566-67. The court reasoned that the policy provided coverage because

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the “tortious sexual abuse of the patient [was] intertwined with and inseparable from the

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[professional] services provided.” Id. at 567. In other words, the injuries were “made

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possible only because there were professional services rendered during this time and

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others which should have been rendered but were not.” Id. A sufficient connection

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existed between the professional services offered by the doctor and the underlying
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The issue in Asbury was whether the doctor’s actions were covered by his professional
liability insurance—not whether a professional services exclusion applied. That
distinction for present purposes—whether unprofessional acts of sexual abuse can be
separated from the provision of professional services—does not make a difference.
- 13 -

1
2

misconduct because the underlying plaintiffs alleged that the doctor “manipulated their
clitorises while performing routine gynecological examinations.” Id.

3

This is not to say a doctor is engaged in professional services within the meaning

4

of Arizona insurance law any time he molests a patient in the course of medical

5

treatment. On the contrary, Asbury characterized decisions of other courts that did not

6

extend the definition of professional services to cover molestation that occurred during

7
8
9

medical treatment as resulting from those courts’ determination that the molestations
were insufficiently “intertwined with and inseparable from the [medical] services
provided.” It noted that “[o]ne example of noncovered sexual abuse not related to
treatment is the case . . . where a physician’s sexual molestation occurred with a patient

10

who was being treated for hand injuries suffered in a wrestling match.” Asbury, 149 Ariz.

11

at 567 (citing Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440

12

(1984)). According to Asbury, no professional service coverage resulted in that instance

13

because presumably the treatment of hand injuries was not sufficiently “intertwined with

14

and inseparable from” the oral sex and masturbation which the doctor performed on a

15

drugged patient against his will during the course of an office visit. See Hirst, 106 Idaho
at 794, 796.

16
17

The Asbury court did nothing more to clarify just how a court is to determine the
dividing line between molestations that are sufficiently “intertwined with and inseparable

18

from” professional services to give rise to coverage, and those that are not. Nevertheless,

19

by distinguishing Hirst the court clearly held that sexual assault during medical treatment

20

is not in itself sufficient to qualify as a professional service. Some connection between

21

the type of treatment and the type of molestation is required.

22
23

In arguing that the professional services exemption placed in the businessowners
policy does not exclude coverage to the extent that the ACS Defendants are vicariously
liable for Dr. Lewis’s acts, the Underlying Plaintiffs argue that Dr. Lewis could not have

24
25

been providing professional services when he molested the Underlying Plaintiffs because
- 14 -

1

molestation is not a professional service. This is the exact same distinction between

2

professional and unprofessional services rejected in Asbury. Asbury invites a different

3

line of inquiry: if there is a close nexus between the alleged unprofessional sexual

4

conduct of Dr. Lewis and his proffered professional treatment, Dr. Lewis’s actions would

5

qualify as professional services within the meaning of the exception. Each of the

6

underlying claims assert that Dr. Lewis engaged in some variety of the following

7
8
9

unprofessional conduct: “exposing Plaintiff’s breasts for his personal viewing, fondling,
and cupping plaintiff’s breasts”, “making inappropriate comments about [Plaintiff’s]
breasts”, “having Plaintiff remove all of her clothes including her panties”, “staring at
[Plaintiff’s] vagina, and pulling her legs apart”, “manipulating his fingers under her

10

panties and inserting his finger inside the lips of her vagina, feeling and touching all

11

around the area around her vagina”, “catheterizing [Plaintiff] without gloves”,

12

“conducting examinations with an erection”, and “conducting examinations without a

13

chaperone”. (Doc. 79 ¶¶ 16-23; Doc. 111 ¶¶ 16-23.) Other complaint-specific accusations

14

include “grabbing [Plaintiff’s] right buttock”; and “asking [Plaintiff’s] private

15

information about her relationship with her spouse, ramming . . . fingers down
[Plaintiff’s] throat, squeezing [Plaintiff’s] throat, and pulling [Plaintiff’s] hair in a very

16
17
18

sexual manner”. (Doc. 79 ¶¶ 21, 23; Doc. 111 ¶¶ 21, 23.) The Underlying Plaintiffs allege
that they “assumed and trusted that [Dr. Lewis] was doing [these things] for legitimate
medical reasons.” (Doc. 79 ¶¶ 16-23; Doc. 111 ¶¶ 16-23.)

19

It would hardly be unexpected for a cardiologist to examine the chest area of a

20

patient. Thus the similarity between a cardiologist inappropriately fondling, examining,

21

or otherwise commenting on the breasts of a patient, and a gynecologist inappropriately

22
23

manipulating the clitoris of a patient, appears to be rather direct. In both situations, the
doctor would have had an apparently legitimate reason to conduct an examination of the
area of the body which he or she allegedly abused. In other words, the alleged

24
25

inappropriate sexual touching of the breasts was “intertwined with and inseparable from”
- 15 -

1

the provision of professional services. Asbury controls as to these allegations. They

2

constitute professional services and are thus excluded under the exemption to policy

3

coverage.10

4

Nevertheless, the Underlying Plaintiffs also allege that Dr. Lewis inappropriately

5

touched and viewed other areas of their bodies including their hair, throat, vagina, and

6

buttocks, and that he conducted examinations with an erection. It is true that a

7
8
9

cardiologist is concerned with the internal health of the body, which may manifest itself
in various internal and external indicators not obvious to the Court. Nevertheless, the
connection between cardiology and, for instance, vaginal manipulation is not nearly as
direct as the allegations of fondling of the breast. On their face such allegations resemble

10

something closer to Hirst than Asbury. And nothing provided by the Parties in the record

11

demonstrates whether Dr. Lewis’s examinations of the vaginal area and his patients’ hair

12

or throat were related to his professional work as a cardiologist. By contrasting the

13

gynecologist who inappropriately manipulates the vagina with the doctor treating the

14

hand who sexually assaulted his patient, Asbury makes clear that the relation between the

15

sexual assault and the type of medical service offered matters when determining whether
an act constitutes a professional service—for purposes of coverage or exclusion. Because

16
17

the record is not yet clear on whether Dr. Lewis could have been legitimately acting
within the purview of a cardiologist when he sought to view, viewed, touched or

18

manipulated the vaginas, buttocks, throat, and hair of the Underlying Plaintiffs, summary

19

judgment as to all of the underlying plaintiffs’ claims is not appropriate. There remains a

20

genuine issue of material fact to be decided.

21
10

22
23
24
25

Saylor alleges that Dr. Lewis engaged in “sexually offensive conduct [that] occur[ed]
after medical procedures had been completed.” (Doc. 111, Ex. 12 at 54.) She has attached
declarations that Dr. Lewis entered her room after the operation was over and grouped
her. (Id. at 34-40.) For the reasons discussed, there appears to be a legitimate justification
for a cardiologist to inspect the chest area after installation of a pacemaker.
Consequently, this alleged incident remains intertwined with Dr. Lewis’s treatment.
- 16 -

1

The professional liability insurers in this case criticize Asbury and cite cases from

2

other jurisdictions that likewise disapprove. Most persuasively, however, the insurers cite

3

a subsequent Arizona Court of Appeals opinion, Wilshire Insurance Co. v. S.A. 224 Ariz.

4

97, 102, 227 P.3d 504, 509 (Ct. App. 2010). In Wilshire, a discerning panel of the Court

5

of Appeals noted that, in arriving at its decision, the Asbury Court did not consider a

6

policy set forth previously by the Arizona Supreme Court in Transamerica Insurance

7
8
9

Group v. Meere, 143 Ariz. 351, 356, 694 P.2d 181, 186 (1984). In Meere, the Supreme
Court recognized a public policy that forbids indemnifying a person against loss resulting
from his own willful wrongdoing. The Wilshire court identified another case, decided
after Asbury, Phoenix Control Systems, Inc. v. Insurance Co. of North America, 165 Ariz.

10

31, 35, 796 P.2d 463, 467 (1990), in which the Supreme Court again relied on the same

11

public policy in interpreting an intentional acts exclusion. Thus, to the extent that the

12

Wilshire court criticized Asbury, it did so based on its failure to consider Meere and the

13

public policy against allowing an insured to be indemnified for a loss resulting from his

14

own intentional wrongdoing. It did not criticize Asbury for its sometimes awkward test

15

that distinguishes between professional and non-professional services when assaults
occur in the context of medical treatment.

16
17

“‘When interpreting state law, federal courts are bound by decisions of the state’s
highest court.’ . . . In the absence of such a decision, a federal court must predict how the

18

highest state court would decide the issue using intermediate appellate court decisions,

19

decisions from other jurisdictions, statutes, treatises, and restatements as guidance.”

20

Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 427 (9th Cir. 2011). Decisions of

21

Arizona’s Court of Appeals are “‘dat[a] for ascertaining state law which are not to be

22
23

disregarded by a federal court unless it is convinced by other persuasive data that the
highest court of the state would decide otherwise.’” Martinez v. Asarco, 918 F.2d 1467,
1471 n.4 (9th Cir. 1990) (quoting Commissioner v. Bosch, 387 U.S. 456, 465 (1967)

24
25

(emphasis in original)). Meere, Phoenix Control, McDaniel, and Wilshire are sufficient
- 17 -

1

persuasive data upon which this Court determines that, even in light of Asbury, the

2

Arizona Supreme Court would hold void as against public policy any insurance policy

3

provision that would extend coverage to Dr. Lewis, as an insured, for his own intentional

4

wrongdoing that he knew would result in harm to his patients.

5

Nevertheless, to the extent that Asbury sets forth a coverage test for sexual assaults

6

inflicted by a physician in the course of medical treatment as it relates to third parties

7
8
9

who did not intend such conduct, the insurers do not present sufficient data upon which
this Court can determine that the Arizona Supreme Court would reject Asbury. The
parties have set forth a few cases from other jurisdictions which have been critical of the
admittedly strange relationship between type of professional services and the type of

10

molestation that emerged from Asbury. But the mere existence of criticism from other

11

jurisdictions regarding the Asbury standard, no matter how valid, does not mean that this

12

Court can ignore long-standing Arizona law. Asbury has been the existing law in this

13

state for twenty-six years without its core holding undermined by challenge or criticism

14

from another Arizona court. As Martinez indicates, there is benefit in such circumstances

15

of respecting the rule of stare decisis until the Arizona Supreme Court decides otherwise.
Thus, in the context of the businessowner policies it is sufficient to point out that

16
17

while Meere and Phoenix Control do set forth a limited public policy that that forbids
indemnifying a person against loss resulting from his own willful wrongdoing, it applies

18

only to potential coverage for an insured who acts intentionally. There are no allegations

19

that the ACS Defendants—the insured under the businessowner policies—acted

20

“wrongfully or with a purpose to inflict injury.” Asbury consequently controls as to

21

coverage for claims that the ACS Defendants are vicariously liable for Dr. Lewis

22
23

inappropriately viewing and fondling Underlying Plaintiffs’ breasts. Such actions do
amount to professional services by Dr. Lewis and are therefore excluded from the
policies’ coverage. However, questions of fact remain as to whether the other allegations

24
25

pertaining to Dr. Lewis’s sexual assaults constitute excluded professional services.
- 18 -

1

The General Liability Insurers are therefore under no duty to indemnify the ACS

2

Defendants for claims that Dr. Lewis fondled, cupped, or otherwise engaged in

3

inappropriate touching of the breast. As to the remaining claims of inappropriate conduct,

4

there remains a genuine issue of material fact and summary judgment is not appropriate.

5
6
7
8
9

2.

Medical Protective Policies
a.

The Physicians Policy

The physicians policy covers Dr. Lewis and the ACS Defendants and insures them
against “all loss arising from a health care occurrence.” (Doc. 137 ¶ 22; Doc. 165 ¶ 22.)
That policy defines “health care occurrence” as “any act in the furnishing of professional
services which results in injury.” (Doc. 137 ¶ 23; Doc. 165 ¶ 23.) “‘Professional services’

10

means treatment or peer review.” (Doc. 137 ¶ 24; Doc. 165 ¶ 24.) “‘Treatment’ means

11

health care services rendered to a patient[, including] medical [or] surgical . . . services.”

12

(Doc. 137 ¶ 25; Doc. 165 ¶ 25.) To the extent that the policy coverage is geared to

13

“professional services,” the standards set forth in Asbury apply. Nevertheless, as

14

explained in greater detail above, to the extent that the physicians policy extends

15

coverage to Dr. Lewis for his intentional acts that he knew would harm others, such
policy provisions are void as prohibited by public policy under Arizona law. See Meere,

16
17

143 Ariz. at 356; Phoenix Control Systems, 165 Ariz. at 35. There is no coverage for Dr.
Lewis under the physicians policy for allegations of sexual assault.

18

Further, while some vicarious liability claims against the ACS Defendants fall

19

within the physicians policy, it also contains a number of exclusions. One of these is

20

Exclusion D, which bars coverage for “any vicarious liability for the acts of a physician.”

21

(Doc. 137 ¶ 42; Doc. 165 ¶ 42.) Dr. Lewis is a physician. Nothing in Exclusion D limits

22
23

the acts of a physician to the provision of professional services (thus implicating the
Asbury distinctions). This exclusion therefore applies to bar all claims that the ACS
Defendants are vicariously liable for actions committed by Dr. Lewis while he was

24
25

treating his patients. Because Exclusion D clearly prohibits vicarious liability for all acts
- 19 -

1

of a physician, factual issues surrounding Dr. Lewis’s touching of the vaginal area are not

2

material to coverage under the physicians policy, as opposed to the businessowner

3

policies. Consequently, Medical Protective is under no duty to defend or indemnify Dr.

4

Lewis or the ACS Defendants under the physicians policy.
b.

5

The corporate policy covers ACS and its agents. (Doc. 59, Ex. B at 6.) The policy

6
7
8
9

The Corporate Policy

defines an agent as “a person who was acting within the scope of his or her duties as . . .
an administrator.” (Id. at 7.) The parties do not dispute that Dr. Siegel is an agent under
the corporate agreement because the Underlying Plaintiffs have alleged that he is a
director and stockholder in ACS. (Id.; Doc. 79 ¶¶ 9-10; Doc. 111 ¶¶ 9-10.) Neither do

10

they dispute that Dr. Lewis is not covered under the corporate policy. But there is

11

disagreement on whether Dr. Barker-Siegel qualifies as an agent and therefore has

12

coverage under the corporate policy. Indeed, coverage for Dr. Barker-Siegel appears to

13

be a hotly contested issue, at least judging by the amount of paper devoted to the subject

14

by Medical Protective and the Larsen defendants.11 As it stands, none of the relevant

15
16
17
18
19
20
21
22
23
24
25

11

In its response to Medical Protective’s Motion for Partial Summary Judgment (Doc.
164) and separate Motion for Summary Judgment against Medical Protective (Doc. 167),
the Larsen defendants asserted that Dr. Barker-Siegel was covered under the corporate
agreement (Doc. 164 at 8; Doc. 167 at 2). Medical Protective responded in its reply in
support of its Motion for Partial Summary Judgment that there were, however, no
allegations in any of the underlying complaints that Dr. Barker-Siegel acted in the
capacity of an “administrator” or “committee member” within the definition of the
policy. (Doc. 243 at 7-8; Doc. 59, Ex. B at 6.)
Subsequently, the Larsen defendants included in their reply in support of their separate
Motion for Summary Judgment an argument sounding in Arizona property law to support
extending coverage under the corporate agreement to Dr. Barker-Siegel. (Doc. 244 at 56.) The inclusion of this argument in the Larsen reply brief prompted Medical Protective
to file a Motion to Strike this new argument raised by the Larsens in their reply brief.
(Doc. 249 at 2-4.) The Court does not consider arguments raised for the first time in a
reply. See Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments
raised for the first time in [the] reply brief are deemed waived.”); Marlyn Nutraceuticals,
Inc. v. Improvita Health Prods., 663 F. Supp. 2d 841, 848 (D. Ariz. 2009) (“The Court
need not consider Defendants' position, however, since it was first raised in their reply
brief ... Thus, even if the argument has merit, this Court cannot appropriately consider it,
- 20 -

1

Underlying Plaintiffs have provided evidence in their motions as to Dr. Barker-Siegel’s

2

role or duties at ACS. As the parties moving affirmatively for summary judgment that Dr.

3

Barker-Siegel is covered under the corporate policy, they bear the burden to present

4

facts—not mere allegations—to support that claim. See Alanco Tech., Inc. v. Carolina

5

Cas. Ins. Co., No. CV-04-789-PHX-DGC 2005 WL 6242303 at *4 n.4 (D. Ariz. May 19,

6

2005) (requiring party moving for summary judgment on question of insurance coverage

7
8
9

to have provided evidence that policy covered a certain entity); Fed. R. Civ. P. 56(e)
(stating that the party opposing or brining a motion summary judgment “may not rest
upon the mere allegations or denials of [the party's] pleadings, but ... set forth specific
facts showing that there is a genuine issue for trial”); Celotex Corp. v. Catrett, 477 U.S.

10

317, 322 (1986) (stating that summary judgment is appropriate against a party who “fails

11

to make a showing sufficient to establish the existence of an element essential to that

12

party's case, and on which that party will bear the burden of proof at trial”). They have

13

not done so. Accordingly, Dr. Barker-Siegel is not covered under the corporate policy.

14
15

The coverage terms of the corporate policy are identical to the physicians policy
and therefore cover claims against ACS and Dr. Siegel arising out of Dr. Lewis’s
inappropriate sexual touching and/or viewing of the breasts under the analysis provided

16
17

above. The record is insufficient to determine whether coverage extends for claims that
Dr. Lewis inappropriately touched other areas of the body. Proceeding with the question

18

of coverage for the covered claims requires an examination of the “General Exclusions”

19

provisions because there is no vicarious liability exception in the corporate policy.

20

General Exception A excludes from coverage claims for “any loss arising from any of the

21

following acts committed by, or at the direction of, an insured”: (1) “any malicious act or

22
23
24
25

intentional tort”, (2) “any sexual activity, behavior or conduct, whether under the guise of
treatment or not”, and (3) “any criminal act or willful violation of any law, statute or
since Plaintiffs did not have the opportunity to respond.”) Accordingly, the Motion to
Strike is granted.
- 21 -

1

regulation.” (Doc. 59, Ex. B at 25.) Medical Protective argues that each of the three

2

exclusions independently bar coverage for ACS and Dr. Siegel for the vicarious liability

3

claims.

4

However, the exclusions apply only when the excluded acts have been “committed

5

by, or at the direction of, an insured.” (Id.) The inclusion of this clause results in a

6

significant limitation on the scope of the exclusions. When an exclusion contains an “an

7
8
9

insured” limitation, that exclusion requires that one of the insured parties actually commit
the specified action. See United Servs. Auto. Ass’n v. DeValencia, 190 Ariz. 436, 949
P.2d 525 (Ct. App. 1997) (business pursuits exclusion did not apply to actions of a boy
because “an insured” language required that the boy himself be involved in business).

10

Here, the corporate policy defines “[a]n insured” as “any person or entity entitled to

11

coverage under the applicable Insuring Agreement.” (Doc. 59, Ex. B at 23) (emphasis

12

added). Dr. Lewis is not an insured under the corporate policy. And none of the

13

Underlying Plaintiffs have alleged that the ACS Defendants themselves have committed

14

the inappropriate sexual touching or that they directed Dr. Lewis to engage in those

15

actions. Because no one contends that the ACS Defendants themselves either committed,
or directed Dr. Lewis to commit, the excluded actions, ACS and Dr. Siegel retain at least

16
17

some coverage under the corporate policy.
To summarize, there is no coverage for Dr. Lewis under any Medical Protective

18

policy for the assault and battery, medical negligence, intentional infliction of emotional

19

distress and invasion of privacy claims, but there is coverage under the corporate policy

20

for the potential vicarious liability of the ACS and Dr. Siegel for claims that Dr. Lewis

21

inappropriately touched the Underlying Plaintiffs’ breasts. Coverage for the remaining

22

claims depends on as of yet unresolved factual questions.

23
24
25

- 22 -

1

3.

2

Lexington Policies
a.

Medical Incidents Arising out of Professional Services.

3

The Lexington policies provide the following coverage for all ACS Defendants:12

4

“We will pay those sums that an Insured becomes legally obligated to pay others as

5

damages resulting from a medical incident arising out of professional services.” (Doc.

6

139, Lexington SOF, ¶ 24; Doc. 183, ¶ 24; Doc. 212, Lexington Response, ¶ 24.) The

7
8
9

Lexington policies define “medical incident” as “any act, error or omission in the
providing of or failure to provide professional services to any one patient.” (Doc. 139,
Lexington SOF, ¶ 25; Doc. 183, ¶ 25; Doc. 212, Lexington Response, ¶ 25.)
“Professional services” mean, in relevant part, “[m]edical, surgical, . . . or other health

10

care services.” (Doc. 139, Lexington SOF, ¶ 25; Doc. 183, ¶ 25; Doc. 212, Lexington

11

Response, ¶ 25.)

12

To the extent that the policies reference professional services, Asbury controls and

13

there is coverage for claims that the ACS Defendants are vicariously liable for Dr.

14

Lewis’s groping and fondling of Underlying Plaintiffs’ breasts. As with the

15

businessowner policies, there remains a genuine issue of material fact as to whether Dr.
Lewis was engaged in cardiological treatment when he touched other areas of the

16
17
18

Underlying Plaintiffs’ bodies. There is thus coverage under the Lexington policy for
some of the assault claims, and there may be coverage for the other claims. As discussed
below, however, all of the touching involved falls within the policy exceptions.

19

b.

The Criminal Acts and Statutory Violation Exclusions

20

The Lexington policies include exclusions that prohibit coverage for “any medical

21

incident, claim or suit arising out of” two excepted categories of behavior: “[d]ishonest,

22

fraudulent, criminal or malicious acts” (the “criminal acts exclusion”), and “violation of

23
24
25

12

Dr. Lewis is not among the insured.
- 23 -

1

any statute, ordinance, rule or regulation” (the “statutory violation exclusion”).13 (Doc.

2

139, Lexington SOF, ¶¶ 28, 30; Doc. 183, ¶¶ 28, 30; Doc. 212, Response to Lexington

3

SOF, ¶¶ 28, 30.) Dr. Lewis pled guilty to aggravated assault against seven of the eight

4

plaintiffs in this case: Larsen, Saylor, Shook, Landsverk, Pummill, Piper, and Tupper.

5

(Doc. 169, Exhibit 1, p. 7-11; Doc. 165, Exhibit A, p. 19-54; Doc. 139, Exhibit 1, p. 2-

6

15.) Aggravated assault is a class 6 felony under Arizona law. A.R.S. §§ 13-1203,

7
8

1204(A)(4), 1204(D). Dr. Lewis pled guilty to “recklessly caus[ing] injury” to the seven
Underlying Plaintiffs “while [their] capacity to resist was substantially impaired by virtue
of the doctor-patient relationship.” (Doc. 165, Exhibit A, p. 34-50.)

9

Unless specifically stated otherwise in the policy agreement, criminal act and

10

statutory violation exclusions apply to both intentional and reckless criminal conduct.

11

Am. Family Mut. Ins. Co. v. White, 204 Ariz. 500, 503-04, 65 P.3d 449, 452-53 (Ct. App.

12

2003) (rejecting the position that a violation of law exclusion applied only to intentional

13

criminal conduct). Arizona law precludes a “defendant convicted in a criminal

14

proceeding . . . from subsequently denying in any civil proceeding brought by the victim .

15

. . against the criminal defendant the essential allegations of the criminal offense of which
he was adjudged guilty.” A.R.S. § 13-807.

16
17

The Underlying Plaintiffs have brought civil claims for assault and battery,
medical malpractice, intentional or negligent infliction of emotional distress, and invasion

18

of privacy against the ACS Defendants on the theory that they are vicariously liable for

19

Dr. Lewis’s actions. Some of these vicarious liability claims against the ACS Defendants

20

fall squarely within the criminal acts and statutory violation exclusions because they are

21
13

22
23
24
25

Lexington also cites the “intended acts exclusion,” which removes coverage for
“[d]amages or harm expected or intended from an insured’s standpoint.” (Doc. 139,
Lexington SOF, ¶ 29; Doc. 183, ¶ 29; Doc. 212, Response to Lexington SOF, ¶ 29.)
Because there are no allegations that the insureds in question—the ACS Defendants—
intended or expected the injuries suffered by the Underlying Plaintiffs, the intended acts
exclusion is not in play.
- 24 -

1

claims “arising out of . . . criminal . . . act[s] . . . [and] violation[s] of a[] statute,

2

ordinance, or regulation”—the assaults committed by Dr. Lewis (Doc. 139, Lexington

3

SOF, ¶¶ 28, 30; Doc. 183, ¶¶ 28, 30; Doc. 212, Response to Lexington SOF, ¶¶ 28, 30.)

4

For these purposes, the assaults encompass any inappropriate touching, obviating the

5

need to draw an Asbury distinction for coverage purposes. Even if the touching of areas

6

other than the breasts is covered, it would fall within the criminal acts exception. Still,

7
8
9

there are allegations that Dr. Lewis made inappropriate comments about the Underlying
Plaintiffs’ breasts or inappropriately asked them to disrobe. These actions are not
necessarily criminal, although they may be “malicious” or violate a statute within the
meaning of the policy. The Court lacks information from the Parties on that issue.

10

However, all of the Underlying Plaintiffs who alleged inappropriate comments also

11

alleged that all of Dr. Lewis’s misconduct violated criminal law. (Doc. 79, Ex. 1 at 9, 27,

12

46, 73, 92; Doc. 111, Ex. 1 at 55.) It is the allegations of the complaint that determine

13

insurers’ duties at this stage. See Lennar Corp. v. Auto-Owners Ins. Co., 214 Ariz. 244,

14

261, 151 P.3d 538, 543 (Ct. App. 2007). The Underlying Plaintiffs placed all of their

15

allegations squarely within the exception.
Lexington is under no duty to indemnify the ACS Defendants against the claims

16
17
18

brought by the Underlying Plaintiffs for assault and battery, medical malpractice,
intentional or negligent infliction of emotional distress, and invasion of privacy arising
out of Dr. Lewis’s criminal misconduct.

19

C.

20

The Underlying Plaintiffs bring claims directly against the ACS Defendants for

21

the negligent hiring, retention, and supervision of Dr. Lewis. The General Liability

22
23

Negligent Hiring, Retention, and Supervision Claims

Insurers again claim that they have no duty to indemnify or defend ACS and the Siegels
against the direct liability claims because the claims derive from actions that either do not
constitute an occurrence or fall within the professional services exclusion. Medical

24
25

Protective likewise objects to coverage for the derivative claims under both the
- 25 -

1
2

physicians and corporate policies. Lexington similarly contends that the direct liability
claims do not fall within the policy’s coverage.

3

1.

4

The Businessowner Policies
a.

An “Occurrence”

5

As discussed above, the businessowner policies define “occurrence” as “an

6

accident, including continuous or repeated exposure to substantially the same general

7
8
9
10

harmful conditions.” (Doc. 79, Affidavit Exs. 2 & 3, at NFI00142, NFI00282, TI00116.)
The policies do not cover injuries “expected or intended from the standpoint of the
insured.” (Id. at NFI00131, NFI00271, TI00105.) The parties’ dispute centers on whether
the negligence claims against ACS and the Siegels fall within the “continuous or repeated
exposure to . . . harmful conditions” category of occurrences.

11

While there does not appear to be specific Arizona law that covers the present

12

circumstances, a similar situation appeared in the recent case of Interstate Fire & Cas.

13

Co., Inc. v. Roman Catholic Church of the Diocese of Phoenix, CV-09-01405-PHX-

14

NVW, 2011 WL 587163 (D. Ariz. Feb. 8, 2011). There, an insurer claimed that it did not

15

have to defend or indemnify the Diocese of Phoenix against various negligence claims
brought by plaintiffs who were the victims of molestation. Id. at *3. The insurer argued

16
17

that facts giving rise to the claims, such as negligent supervision, hiring, retention, and
failure to report, did not amount to an “occurrence” under the Diocese’s general liability

18

policy.14 Judge Wake rejected that claim: “As to whether there was an ‘accident or a

19

happening or event or a continuous or repeated exposure to conditions,’ the Court finds

20

that the conduct underlying the various negligence-based claims, namely, failure to

21

prevent sexual molestation, qualifies as an ‘exposure to conditions’ and thus falls within

22

14

23
24
25

Occurrence was defined in the policy as “an accident or a happening or event or a
continuous or repeated exposure to conditions which unexpectedly and unintentionally
results in personal injury, or damage to property during the policy period.” Diocese of
Phoenix, 2011 WL 587163 at *2. None of the parties contend that the minor differences
in the definitional language are important to this case.
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1

the definition of ‘occurrence.’” Id. at *7. Other courts have taken the same approach in

2

molestation cases. See Interstate Fire & Cas. Co. v. Archdiocese of Portland in Oregon,

3

35 F.3d 1325, 1239 (9th Cir. 1994) (“[T]he terms of the policy make clear that . . . it is

4

the repeated ‘exposure’ of the boy to the negligently supervised priest, resulting in injury,

5

that provides the basis for indemnification.”); Guideone Ins. Co. v. St. Andrews Episcopal

6

Church, CV-03-2222-PCT-MHM (D. Ariz. Mar. 31, 2006) (refusing to grant summary

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8
9

judgment on issue of insurance coverage for failure to supervise claim because the
actions could constitute an occurrence).
The present dispute is analogous to the clergy cases, which the Court finds
persuasive. The Underlying Plaintiffs allegedly suffered physical invasions because of

10

the carelessness of the ACS Defendants. Thus by allegedly hiring, retaining, and then

11

failing to supervise Dr. Lewis, the ACS Defendants “exposed” the Underlying Plaintiffs

12

to the “harmful condition” of sexual assault and battery. The actions giving rise to the

13

negligence claims constitute an “occurrence” within the meaning of the businessowner

14

policies.

15

b.

The Professional Services Exclusion.

The General Liability Insurers again assert that the professional services exclusion
16
17

applies to bar coverage. The exclusion applies to “‘[b]odily injury’ . . . caused by the
rendering or failure to render any professional service. This includes but is not limited to .

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Supervisory . . . services; . . . Medical, surgical . . . advice or instruction; [and] any health

19

or therapeutic service treatment advice or instruction.” (Doc. 79, Affidavit Exs. 2 & 3, at

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NFI00131, NFI00134, NFI00271, NFI00274, TI00105, TI00108.) While the policy does

21

not define supervisory services, claims that the ACS Defendants negligently supervised

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and retained Dr. Lewis fall squarely in that portion of the professional services exclusion.
No party explains how an action for negligent retention would be separate from a claim
for negligent supervision. There is therefore no coverage for those claims since they are

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25

specifically barred under the policy. As to the negligent hiring claim, the exercise of
- 27 -

1

hiring an employee is not necessarily the same thing as supervising an employee.

2

Therefore, given the canons of construction for insurance policies, the Court cannot

3

conclude that the negligent hiring claim falls within the supervisory services section of

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the professional services exception. See Thomas v. Liberty Mut. Ins. Co., 173 Ariz. 322,

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325, 842 P.2d 1335, 1338 (Ct. App. 1992) (construe ambiguity against insurer).

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7
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9

The General Liability Insurers stress that because Dr. Lewis caused the injuries to
the Underlying Plaintiffs while he was engaged in an excluded activity—Asbury’s mixed
professional services—“derivative” legal claims such as negligent hiring are likewise
excluded from coverage. The Underlying Plaintiffs and the ACS Defendants object,
insisting that the principle of severability and separation of insureds, combined with the

10

narrowness of the professional services exception in the Businessowner Policies, keep the

11

negligence claims out of the exclusion.

12

As a general matter, Arizona law is clear that negligence claims deriving from an

13

excluded activity are themselves typically excluded. See, e.g., Am. Family Mut. Ins. Co.

14

v. White, 204 Ariz. 500, 508, 65 P.3d 449, 457 (Ct. App. 2003) (denying coverage for

15

claim of negligent supervision against parents of child who engaged in excluded
activity—violation of criminal law—because the negligent supervision claim “derives

16
17

from the claim against Travis, which is excluded”); Behrens v. Aetna Life & Cas., 153
Ariz. 301, 302, 736 P.2d 385, 386 (Ct. App. 1987) (a claim for negligent entrustment or

18

supervision was inseparable from the excluded negligent operation of a boat);

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Lumbermens Mut. Cas. Co. v. Kosies, 124 Ariz. 136, 138, 602 P.2d 517, 519 (Ct. App.

20

1979) (“It is evident that negligent entrustment as a distinct and specific cause of action is

21

not exclusive of, but rather is derived from, the more general concept of ownership,

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23

operation and use of a motor vehicle.”). In other words, the “focus of an exclusion should
be the injury, not the pleaded cause of action.” White, 204 Ariz. at 508, 65 P.3d at 457
(citing Nw. G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179, 184 (N.D. 1994)). When the

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allegations raised against the party seeking coverage do not exist separate and apart from
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1
2

the excluded action, there is no coverage. See Colony Ins. Co. v. Events Plus, Inc., 585 F.
Supp. 2d 1148, 1155 (D. Ariz. 2008).

3

The contractual language here excludes from coverage any bodily injury “caused

4

by the rendering or failure to render any professional service.” Dr. Lewis allegedly used

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the provision of professional services to cloak his tortious conduct, which “caused”

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bodily injuries to the Underlying Plaintiffs. And the Court determined above that Dr.

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Lewis was engaged in professional services under the terms of the businessowner policies
when he engaged in inappropriate sexual touching of the breast area. As Arizona law
makes clear, courts will not engaging in strained hair-splitting where the alleged
negligence of a party is entirely dependent on the actions of another party. The negligent

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conduct of ACS and the Siegels cannot be divorced from the excluded conduct of Dr.

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Lewis. Nevertheless, the Asbury distinction made earlier applies with equal force here.

12

Allegations that Dr. Lewis inappropriately touched other areas of the body may not be

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sufficiently intertwined with medical treatment to qualify as professional services. It

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follows that negligence claims deriving from that conduct would likewise not be

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excluded.
The Underlying Plaintiffs and ACS Defendants rely heavily on Diocese of

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Phoenix, in which Judge Wake refused to apply an assault-and-battery exception to
derivative negligence claims against the Diocese. 2011 WL 587163 at *10-11. That

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reliance is misplaced. The assault and battery exclusion at issue in Diocese of Phoenix

19

was significantly narrower than the professional services exclusion. There, the policy

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“expressly preclude[d] coverage for ‘liability of any Assured for assault and battery

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committed by or at the direction of such Assured. . . .” Id. at *9 (emphasis in original).

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Judge Wake found the clause to be quite limited in application: only assaults and batteries
committed at the direction of the Diocese would be excluded. Id. at *10-11. He
contrasted the Diocese of Phoenix clause with the clause in White, which excluded

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“bodily injury or property damage arising out of . . . violation of any criminal law for
- 29 -

1
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which any insured is convicted,” 204 Ariz. at 503, 65 P.3d at 452. Diocese of Phoenix,
2011 WL 587193 at *9. He concluded,

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Had the clause instead excluded all claims arising out of an assault or battery, such
a clause could have excluded from coverage claims of derivative liability of all
innocent co-insureds for the tortfeasor's acts because derivative negligence claims
arguably “arise out of” the underlying act. Without such language, though, all
derivative liability claims cannot be so categorically excluded. Rather, in the
assault and battery clause at issue here, the exclusion of liability attaches only to
the person who committed or directed the act and only excludes coverage for the
tortfeasor. As such, the Court concludes that the clause only precludes coverage of
the direct liability of any insured who commits or directs an assault or battery.
Because the derivative claims against the Diocese are not premised on allegations
that the Diocese committed or directed an assault or battery, the claims do not fall
within the assault and battery exclusion.

11
Id. at *10.
12

The professional services exception contained in the businessowner policies bears

13

little resemblance to the assault and battery exception of Diocese of Phoenix. There is no

14

extra language in the businessowner policies that requires the ACS Defendants

15

themselves to have committed the injury-causing offense. The professional services

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exception means what it says—no coverage for injuries “caused by the rendering or

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failure to render any professional service,” (Doc. 79, Affidavit Exs. 2 & 3, at NFI00131,

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19

NFI00134, NFI00271, NFI00274, TI00105, TI00108) (emphasis added), no matter how
they are asserted.
The Underlying Plaintiffs nonetheless insist that the “Separation of Insureds”

20

clause in the businessowner policies requires the Court to determine whether the ACS

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Defendants were engaged in professional services when they hired Dr. Lewis, rather than

22

resting on the determination that Dr. Lewis was engaged in professional services when he

23

allegedly caused the injuries. For support, they cite United Services Automobile Ass’n v.

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DeValencia, 190 Ariz. 436, 949 P.2d 525 (Ct. App. 1997), where several children were

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molested by a minor child of a couple who provided day care. The victims brought

2

intentional tort claims against the child and negligent supervision claims against the

3

family. The homeowners’ policy at issue in DeValencia excluded coverage for injuries

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“arising out of or in connection with a business engaged in by an insured.” Id. The

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DeValencia court held that the policy did not exclude the minor child’s actions, even

6

though the actions would not have occurred but for the parents’ business activities. Id. at

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438, 949 P.2d at 527. In the eyes of the Underlying Plaintiffs and ACS Defendants,
DeValencia means that the ACS Defendants themselves must have performed
professional services for the exclusion to apply. Once again, they ignore important
limiting language in the DeValencia policy. That language—“business engaged in by an

10

insured”—expressly required that each insured himself be engaged in business. No such

11

limitation is present in the professional services exclusion. Absent the “an insured”

12

limitation, an exclusion generally bars coverage for claims derivative of excluded

13

activities. See e.g., White, 204 Ariz. at 507-08, 65 P.3d at 456-57; Allstate Ins. Co. v.

14

Kim, 121 F. Supp. 2d 1301, 1308 (D. Haw. 2000) (citing cases).

15

In sum, because the claims against the ACS Defendants for negligent retention,
and supervision fall squarely within the professional services exception, there is no duty

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17

to indemnify any of those claims. With regard to the negligent hiring claim, there remains
an issue of material fact. There is no coverage for negligent hiring with regard to

18

allegations of inappropriate touching of the breasts, because that claim derives from

19

actions taken by Dr. Lewis under the guise of professional medical services, and the

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professional services exclusion applies. As for the claims that Dr. Lewis inappropriately

21

touched other areas of the body, the record is insufficient to determine whether the

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derivative negligent hiring claim likewise falls within the professional services exclusion.
c.

Reimbursement For General Liability Insurers

The General Liability Insurers assert their entitlement to reimbursement of the
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defense expenses they have incurred defending the ACS Defendants in the underlying
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cases. National Air and Transportation have provided for the defense of ACS and the

2

Siegels under a complete reservation of rights. (Doc. 79 ¶¶ 50-51; Doc. 111 ¶¶ 50-51.)

3

Pursuant to this Order, the General Liability Insurers have no duty to indemnify the ACS

4

Defendants against the following claims: (1) vicarious liability for assault and battery,

5

medical malpractice, intentional or negligent infliction of emotional distress, and invasion

6

of privacy relating to Dr. Lewis’s alleged groping and fondling of the Underlying

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Plaintiffs’ breasts; (2) vicarious liability for medical negligence arising out of Dr. Lewis’s
recommendation of unnecessary medical procedures for Underlying Plaintiffs Ms.
Pummill, the Landsverks, and the Saylors; and (3) direct liability for negligent retention,
and supervision. In Arizona, however, “if any claim alleged in the complaint is within the

10

policy's coverage, the insurer has a duty to defend the entire suit, because it is impossible

11

to determine the basis upon which the plaintiff will recover (if any) until the action is

12

completed.” W. Cas. & Sur. Co. v. Int’l Spas of Ariz., Inc., 130 Ariz. 76, 80, 634 P.2d 3, 6

13

(Ct. App. 1981); see also Scottsdale Ins. Co. v. Van Nguyen, 158 Ariz. 476, 477–78, 763

14

P.2d 540, 541–42 (Ct. App. 1988) (an uncovered, concurrent cause of harm does not

15

defeat coverage if there is a separate, covered cause of harm); Lennar Corp. v. AutoOwners Ins. Co., 214 Ariz. 255, 261, 151 P.3d 538, 544 (Ct. App. 2007). The General

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17

Liability Insurers have not been discharged from their duty to defend claims arising out
of Dr. Lewis’s alleged groping of other parts of the body. They therefore remain under a

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duty to defend the entire suit.

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2.

Medical Protective Policies

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The Parties have agreed that the Medical Protective physicians policy does not

21

provide coverage for Dr. Siegel and Dr. Barker Siegel with regard to the derivative

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23

negligence claims. Therefore any coverage for ACS Defendants would fall under the
corporate policy. The terms of the corporate agreement cover the negligence claims
against ACS and Dr. Siegel arising out of Dr. Lewis’s alleged groping of the breasts

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under the analysis provided with regard to the businessowner policies. Those negligence
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claims cannot be separated from the underlying covered conduct. And for the reasons

2

discussed earlier with the vicarious liability claims, none of the General Exclusions apply

3

to the underlying conduct. Nor are there any applicable exclusions for supervisory

4

services. Consequently, ACS and Dr. Siegel retain coverage under the corporate

5

agreement. As with the businessowner policies, however, a factual question remains with

6

regard to coverage for claims that Dr. Lewis groped areas of the Underlying Plaintiffs’

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9
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bodies besides the breasts. To summarize, there is no coverage for Dr. Siegel and Dr.
Barker-Siegel under the physicians agreement for the derivative negligence claims. There
is coverage for ACS and Dr. Siegel under the corporate agreement for those claims to the
extent they arise out of Dr. Lewis’s inappropriate touching of the breasts.
3.

Lexington Policies

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As determined above with regard to the vicarious liability claims, Dr. Lewis’s

12

conduct, at least in part, qualifies as a “medical incident arising out of professional

13

services.” (Doc. 139, Lexington SOF, ¶ 24; Doc. 183, ¶ 24; Doc. 212, Lexington

14

Response, ¶ 24.) Nevertheless, the criminal act and statutory violation exclusions apply

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with equal force here to all claims of sexual misconduct made by the Underlying
Plaintiffs. Claims that the ACS Defendants were negligent in hiring, retaining, and

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17

supervising Dr. Lewis cannot exist separate and apart from his alleged criminal conduct.
The derivative negligence claims thus qualify as “suit[s] arising out of . . . criminal . . .

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act[s] . . . [and] violation[s] of a[] statute, ordinance, or regulation.” (Doc. 139, Lexington

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SOF, ¶¶ 28, 30; Doc. 183, ¶¶ 28, 30; Doc. 212, Response to Lexington SOF, ¶¶ 28, 30.)

20

Because the Underlying Plaintiffs have alleged that all of Dr. Lewis’s inappropriate

21

sexual misconduct constituted violations of criminal law, the exception applies across the

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23

board and the Court need not draw the Asbury distinctions. The Underlying Plaintiffs and
ACS Defendants pursue the “separation of insureds” line of argument again here, but the
Court rejects it for the reasons discussed above. The plain language of the policy

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excludes all suits “arising out of” the excluded activities.
- 33 -

1

Therefore, Lexington has no duty to indemnify the ACS Defendants against claims

2

of negligent hiring, retention, and supervision to the extent those claims arise out of Dr.

3

Lewis’s allegedly criminal sexual misconduct.

4

CONCLUSION

5

Medical Protective is under a duty to defend and indemnify Dr. Lewis with regard

6

to claims that Dr. Lewis is directly liable for medical negligence arising out of

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8
9
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unnecessary pacemaker installation.
Medical Protective and Lexington are under a duty to defend and indemnify the
ACS Defendants against claims that the ACS Defendants are vicariously liable for Dr.
Lewis’s medical negligence and any derivative negligence claims against the ACS
Defendants stemming from the unnecessary pacemaker installation.

11

None of the insurers are under a duty to defend or indemnify Dr. Lewis with

12

regard to claims sounding in assault and battery, medical negligence, intentional or

13

negligent infliction of emotional distress, and invasion of privacy arising out of Dr.

14

Lewis’s alleged intentional sexual misconduct.

15

Under the terms of the corporate agreement, Medical Protective has a duty to
defend and indemnify ACS and Dr. Siegel for claims by Underlying Plaintiffs Larsen and

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17

Piper that the ACS Defendants are vicariously liable for assault and battery, medical
negligence, intentional or negligent infliction of emotional distress, and invasion of

18

privacy arising out of Dr. Lewis’s alleged inappropriate sexual contact with the breasts. A

19

genuine issue of fact remains as to coverage for other allegations of inappropriate

20

touching, which means Medical Protective must continue to defend the entire suit.

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Lexington is under no duty to indemnify the ACS Defendants against any
vicarious liability claim brought by the Underlying Plaintiffs.
National Fire and Transportation have no duty to indemnify the ACS Defendants
against claims that the ACS Defendants are vicariously liable for the claims that arise out

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of Dr. Lewis’s alleged inappropriate manipulation of, or comments about, the Underlying
- 34 -

1

Plaintiffs’ breasts. However, because there remains a genuine issue of material fact

2

concerning coverage for the other allegations of misconduct, National Fire and

3

Transportation must continue to defend the entire suit against the ACS Defendants.

4

Medical Protective has a duty to defend and indemnify ACS and Dr. Siegel against

5

the Underlying Plaintiffs’ derivative negligence claims arising out of Dr. Lewis’s

6

inappropriate touching of the breasts. And because a genuine issue of fact remains as to

7
8
9

coverage for the remaining claims of inappropriate contact, Medical Protective must
continue to defend the ACS Defendants against the entire suit.
Lexington is under no duty to indemnify the ACS Defendants against the
derivative negligence claims brought by all Underlying Plaintiffs.

10

National Fire and Transportation are under no duty to indemnify the ACS

11

Defendants with respect to the negligent retention and supervision claims. National Fire

12

and Transportation likewise do not have a duty to indemnify the ACS Defendants against

13

the negligent hiring claims arising out of Dr. Lewis’s alleged inappropriate touching of

14

the breasts. A genuine issue of fact remains regarding coverage for other inappropriate

15

touching, and so National Fire and Transportation remain under a duty to defend the
entire suit.

16
17

IT IS HEREBY ORDERED that the Motion for Summary of Judgment or, in the
Alternative, Partial Summary Judgment filed by Plaintiffs National Fire Insurance

18

Company of Hartford and Transportation Insurance Company (Doc. 78) is granted in

19

part and denied in part.

20

IT IS FURTHER ORDERED that

21

1. The Motion for Partial Summary Judgment filed by Defendants Dena and

22
23

Shawn Larsen (Doc. 108) is DENIED.
2. The Motion for Partial Summary Judgment filed by Defendants Franklin and
Jennifer Saylor (Doc. 109) is DENIED.

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25

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5
6
7
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9
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3. The Motion for Partial Summary Judgment filed by Defendants Collin and
Laurie Shook (Doc. 113) is DENIED as moot.
4. The Motion for Partial Summary Judgment filed by Defendants Julie and
Stewart Landsverk (Doc. 115) is DENIED.
5. The Motion for Partial Summary Judgment filed by Defendant Kellye Pummill
(Doc. 117) is DENIED.
6. The Motion for Partial Summary Judgment filed by Defendants Daniel and
Elizabeth Piper (Doc. 119) is DENIED.
7. The Motion for Partial Summary Judgment filed by Defendant Lauri A. Tipper
(Doc. 121) is DENIED as moot.
8. The Motion for Partial Summary Judgment filed by Defendant Brooke E.
Staley (Doc. 123) is DENIED as moot.

12

9. The Motion for Partial Summary Judgment filed by Defendants Advanced

13

Cardiac Specialists, Chartered, Barbara Barker-Siegel, and Robert M. Siegel

14

(Doc. 125) is DENIED.

15

10. The Motion for Partial Summary Judgment filed by Plaintiff Medical
Protective Company (Doc. 136) is granted in part and denied in part.

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17
18
19
20
21
22
23

11. The Motion for Partial Summary Judgment filed by Plaintiff Lexington
Insurance Company (Doc. 138) is granted in part and denied in part.
12. The Motion for Partial Summary Judgment filed by Defendants Dena and
Shawn Larsen (Doc. 167) is granted in part and denied in part.
13. The Motion for Partial Summary Judgment filed by Defendants Franklin and
Jennifer Saylor (Doc. 184) is granted in part and denied in part.
14. The Motion for Partial Summary Judgment filed by Defendants Franklin and
Jennifer Saylor (Doc. 188) is granted in part and denied in part.
15. The Motion to Strike Reply to Response to Motion for Summary Judgment

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25

filed by Medical Protective is GRANTED.
- 36 -

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Dated this 28th day of September, 2012.

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