MEDICAL MUTUAL INSURANCE COMPANY OF MAINE INC v. BURKA

Filing 52

ORDER ON DEFENDANTS MOTION FOR AMENDMENT AND/OR CLARIFICATION AND PLAINTIFFS MOTION TO REOPEN DISCOVERY re 45 Motion to Amend and/or Clarify 48 Motion to Reopen Discovery By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MEDICAL MUTUAL INSURANCE
COMPANY OF MAINE, INC.,
Plaintiff,
v.
DOUGLAS BURKA,

Defendant.

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) Docket no. 2:16-cv-462-GZS
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ORDER ON DEFENDANT’S MOTION FOR AMENDMENT AND/OR
CLARIFICATION AND PLAINTIFF’S MOTION TO REOPEN DISCOVERY
Before the Court is Defendant’s Motion for Amendment and/or Clarification of the Court’s
May 3, 2017 Order (ECF No. 45) and Plaintiff’s Motion to Reopen Discovery (ECF No. 48). For
the reasons briefly explained below, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion. As a result of its decision to GRANT summary judgment in Plaintiff’s favor
on the issue of whether Plaintiff ever had a duty to defend the relevant suit in Maine state court,
the Court DENIES AS MOOT Plaintiff’s Motion.

I.

PROCEDURAL HISTORY& REQUEST TO SUPPLEMENT THE RECORD
In its May 3, 2017 Order, the Court determined that further discovery was not necessary to

determine Plaintiff’s duty to defend in two civil actions brought against Defendant; that Plaintiff
had no duty to defend in the Maryland action; and that Plaintiff had no duty to defend in the Maine
action after the dismissal of any claim seeking damages because the relevant liability policy does
not cover claims seeking other forms of relief. (ECF No. 44, Page ID # 522.) However, the Court
concluded that it could not determine whether Plaintiff had a duty to defend in the Maine action

before the dismissal of the damages claims. (ECF No. 44, Page ID # 521 n.10.) Defendant has
now moved to supplement the record to include additional documents from the Maine state court
action and asks the Court to amend its prior ruling to address this issue and explicitly grant
Defendant summary judgment on the question of whether Plaintiff had a duty to defend the Maine
action through December 14, 2016.
Regarding Defendant’s request to supplement the record before this Court, Defendant
attached to his Motion six exhibits (ECF Nos. 48-1–48-6). With respect to the exhibits that are
pleadings or orders from the underlying Maine state court action, this request to supplement is
GRANTED WITHOUT OBJECTION to the extent the exhibits have not already been placed on
the docket and considered by the Court in connection with its May 3, 2017 Order. With respect to
the April 18, 2016 Opposition to Plaintiff’s Motion to Amend in the Maine state court action (ECF
No. 45-2), Plaintiff objects to the Court’s consideration of that exhibit and argues that the exhibit
is essentially immaterial to the question that Defendant now asks the Court to resolve. The Court
agrees and does not consider this motion paper in resolving the substantive question posed by the
pending Motion for Amendment and/or Clarification.1

II.

FACTUAL BACKGROUND
The Court directs interested readers to the factual background laid out in its May 3, 2017

Order (ECF No. 44) and limits its factual recitation here to the additional facts culled from the
supplemented record as well as the key insurance policy provisions that inform the Court’s analysis
of the remaining duty to defend question.

1

The Court likewise finds the June 7, 2017 Notice of Appeal (ECF No. 50-1) to be immaterial to the issues before the
Court. However, the Court notes that it is certainly able to take judicial notice of the fact that an appeal has been filed
in the underlying Maine action.

2

The Maine Action: Allison Burka v. Douglas Burka, Docket No. 16-CV-20 (Maine
Superior Court, Cumberland County)
As now clarified by the supplemented record, on December 30, 2015, Allison Burka,
Defendant Douglas Burka’s then-wife, filed a four-count complaint against him asserting Invasion
of Privacy (Count I); Unlawful Disclosure of Confidential Health Care Information (Count II);
Intentional Infliction of Emotional Distress (Count III); and violation of the California
Comprehensive Computer Data Access and Fraud Act (Count IV). (ECF No. 45-1.) By Order
dated March 29, 2016, the Maine Superior Court dismissed the Invasion of Privacy claim for
failure to state a claim and dismissed the California state law claim without objection. (ECF No.
45-3.) Allison filed an Amended Complaint dated May 9, 2016, which did not include the
California statutory claim but, despite the March 29th Order, did include the Invasion of Privacy
claim. (ECF No. 45-4.) The Invasion of Privacy claim was again dismissed by the Superior Court
on September 22, 2016. (ECF No. 45-5.) On December 14, 2016, the parties stipulated to the
dismissal of the Intentional Infliction of Emotional Distress claim with prejudice, leaving only the
unlawful disclosure claim. (ECF No. 45-6.)
The initially filed Complaint alleges that Douglas had engaged in, among other things,
“unauthorized access to [Allison’s] medical records.” (Compl. (ECF No. 45-1) ¶ 1.) Specifically,
the Complaint alleges,
In April and May of 2015, without [Allison]’s permission, [Douglas] . . . improperly
disclosed to himself and accessed or attempted to access [Allison]’s confidential
health care information maintained by healthcare facilities and providers in Maine
including but not limited to Maine Medical Center, Southern Maine Medical
Center, and other healthcare facilities and practitioners associated with or
controlled by MaineHealth, a Maine nonprofit corporation.
(Compl. ¶ 8.) In Count I, Allison alleges that Douglas had invaded her privacy by intruding upon
her “confidential health care information” (Compl. ¶ 10) and that he had done so “with malice, in

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that he was motivated by ill will toward” her (Compl. ¶ 11). The First Amended Complaint
elaborates on the allegations, stating,
This is an action for damages and injunctive relief arising from a course of
conduct by Defendant Douglas Burka that involved emotionally abusive and
controlling conduct of the Defendant directed at Plaintiff Allison Burka [and]
involved his unauthorized access to the medical records in Maine of Plaintiff . . .
(Amend. Compl. (ECF No. 45-4) ¶ 1.) The Complaint alleges that Douglas “had staff privileges
at Southern Maine Healthcare” (Amend. Compl. ¶ 12) and that during a period when “he was in
the Washington D.C. area but still employed in Maine and still a member of the medical staff at
Southern Maine Healthcare” (Amend. Compl. ¶ 15), Douglas “accessed [Allison]’s medical
records at Southern Maine Healthcare without her knowledge or consent” (Amend. Compl. ¶ 16).
The Complaint describes a previous incident in which Douglas had accessed Allison’s medical
records without her consent when they were living in Nashville, Tennessee, and that “[a]s a result,
[she] soon stopped seeking services from mental health professionals at [the Nashville facility]
and was unwilling to seek such assistance elsewhere in Nashville because of her fear that [Douglas]
would access those records as well.” (Amend. Compl. ¶ 10.) Further, the Complaint alleges that
when the couple moved to Maine, “[f]earful of [Douglas]’s ability and willingness to access her
confidential health records, [Allison] did not seek treatment for her worsening [mental] condition
which included suicidal ideation.” (Amend. Compl. ¶ 12.) In general, Allison alleges that Douglas
accessed her medical records as part of “a continuing course of illegal conduct directed at [her]
physical and mental well-being” (Amend. Compl. ¶ 22) and was motivated by malice and ill will
in doing so (Amend. Compl. ¶ 25).

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The Professional Liability Policy
Plaintiff Medical Mutual Insurance Company of Maine, Inc., issued a professional liability
policy (“the Policy”) for which the Named Insured is SMHC Physician Services, P.A.2 As
previously determined by the Court, Douglas Burka was also an “insured” within the meaning of
the Policy at the time of the relevant allegations in the Maine suit by virtue of his inclusion under
the so-called Slot Policy Endorsement. (ECF No. 44, Page ID # 516.) The Endorsement provides
the following coverage agreement:
Coverage afforded to insured physicians under this Policy is limited to CLAIMS
arising from MEDICAL INCIDENTS or from NON-PATIENT INCIDENTS
which result from their PROFESSIONAL SERVICES rendered within the scope of
their duties as a physician employee or contractor of the NAMED INSURED . . . .
(Policy (ECF No. 22-1), Page ID # 255.) The general coverage agreement of the Policy provides,
We agree to pay on your behalf DAMAGES and DEFENSE COSTS which you
become legally obligated to pay due to any CLAIM made against you as a result of
a MEDICAL INCIDENT as defined in this Policy . . . provided that:
1. the MEDICAL incident results from your
PROFESSIONAL SERVICES . . . and the MEDICAL
INCIDENT occurs on or after the Retroactive Date noted
on the DECLARATIONS PAGE for this Policy;
[and]
We agree to pay on your behalf DAMAGES and DEFENSE COSTS which you
become legally obligated to pay due to any CLAIM made against you as a result of
a NON-PATIENT INCIDENT as defined in this Policy . . . provided that:
1. the NON-PATIENT INCIDENT results from your
PROFESSIONAL SERVICES . . . and the NONPATIENT INCIDENT occurs on or after the Retroactive
Date noted on the DECLARATIONS PAGE for this
Policy . . . .

2

The Court understands that Southern Maine Health Care is the sole shareholder of SMHC Physician Services, P.A.
(“SMHC”) and has operated under the assumed name of Southern Maine Medical Center. Southern Maine Health
Care and SMHC are part of the MaineHealth network of healthcare providers.

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(Policy, Page ID #s 271, 272.) The Policy provides the relevant definitions as follows:
A. “CLAIM” means an oral or written demand against an INSURED for
DAMAGES, and includes civil lawsuits . . . .
B. “DAMAGES” means monetary sums not exceeding the Limit of Liability for
which you are legally obligated to pay (including pre-judgment interest) to
compensate for injury or death as a result of a MEDICAL INCIDENT [or] a
NON-PATIENT INCIDENT . . . DAMAGES do not include restitution, nonmonetary relief or the cost of complying with non-monetary relief, uninsurable
matters, fines, penalties, taxes or punitive, exemplary or multiplied damages
(except when expressly required by law).
[. . .]
E. “INSURED” means any individual or organization listed as the NAMED
INSURED or as an Additional INSURED on the DECLARATIONS PAGE or
on an Endorsement to this Policy. Other individuals or organization might also
be INSUREDS if they qualify as such under the Policy’s Section III.
INSUREDS.
F. “MEDICAL INCIDENT” means any act, failure to act, or omission in the
furnishing of PROFESSIONAL SERVICES to a PATIENT by any INSURED
....
[. . .]
H. “NON-PATIENT INCIDENT” means an occurrence other than a MEDICAL
INCIDENT which arises from PROFESSIONAL SERVICES provided by an
INSURED and which results in a CLAIM for DAMAGES . . . .
I. “PATIENT” means any person for whom any INSURED under this Policy
directly performs PROFESSIONAL SERVICES in the form of healthcare
treatment of that person . . . .
J. “PROFESSIONAL SERVICES” means an INSURED’S:
1. healthcare services to a PATIENT performed in the practice of
physician or surgeon, including the furnishing of food or beverages, the
furnishing or dispensing of medical supplies or appliances and the
handling and postmortem examinations of human bodies;
2. services as a member of a hospital’s or professional society’s formal
accreditation, peer review, credentialing, privileging, standards review
or similar board or committee, including executing the directives of
such board or committee;

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3. obligation to maintain PATIENT confidentiality in the handling of
PATIENT records in the direct course of providing PROFESSIONAL
SERVICES to that PATIENT;
4. writing of books, papers, and articles relating to the technical aspects of
medical practice if the same are published or distributed by a recognized
technical or professional publisher, academic or professional journal, or
professional or technical society or association.
PROFESSIONAL SERVICES do not include your billing and coding
activities; therefore, there is no coverage for any CLAIM arising out of such
activities. PROFESSIONAL SERVICES also do not include physical or
electronic security measures to maintain the confidentiality of PATIENT
records or any other records in the control of an INSURED; therefore, there
is no coverage for CLAIMS based on actual, possible or alleged identity
theft from your failure to adequately implement such security measures.
(Policy, Page ID #s 279-80.)

III.

ANALYSIS
a. Defendant’s Motion for Amendment and/or Clarification
Regardless of how Defendant has chosen to title his Motion, the Court treats the Motion as

an additional motion for partial summary judgment on the issue of whether Plaintiff ever had a
duty to defend the Maine suit. Although the general rule is that parties are entitled to only one
“bite” at the summary judgment “apple,” the Court concludes that in these unique circumstances
it would be appropriate and in the best interests of justice to resolve Defendant’s Motion on the
merits.3
The Court therefore considers, on the supplemented record and as a matter of law, whether
Plaintiff had a duty to defend in the Maine case before the dismissal of any claim seeking damages.

In considering Defendant’s Motion, the Court applies the same legal standard for summary judgment motions
articulated in its May 3rd Order. (See ECF No. 44, Page ID #s 509-11.) To the extent Defendant contends that the
Court erred in its treatment of the Maryland suit, the Court disagrees and sees no reason to revisit its ruling on that
issue.
3

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See City of South Portland et al. v. Me. Mun. Ass’n Prop. & Cas. Pool, 158 A.3d 11, 13 (Me.
2017) (“Whether an insurer owes a duty to defend is a question of law . . . .”) (footnote omitted).
The procedure for determining whether a duty to defend exists, and the supporting
rationale, is well established:
To determine whether an insurer has a duty to defend, a court considers and
compares two documents: the insurance policy and the underlying complaint
against the insured. An insurer has a duty to defend an insured when the complaint,
read broadly in conjunction with the policy, reveals the existence of any legal or
factual basis that could potentially be developed at trial and result in an award of
damages covered by the terms of the policy . . . . [The Law Court has] explained
the comparison test and its low threshold for triggering an insurer’s duty to defend
as a test and a threshold designed to discourage mini-trials on the issue of the duty
to defend.
Harlor v. Amica Mut. Ins. Co., 150 A.3d 793, 797-98 (Me. 2016) (emphasis added) (footnote,
citations, and quotation marks omitted). A court must “appl[y] a broad construction of the
underlying complaint in favor of the insured and a strict construction of policy exclusions and
ambiguities against the insurer.” Barnie’s Bar & Grill, Inc. v. U.S. Liab. Ins. Co., 152 A.3d 613,
615 (Me. 2016). However, “[t]he court must interpret unambiguous language in a contract
according to its plain and commonly accepted meaning.” Peerless Ins. Co. v. Brennon, 564 A.2d
383, 384 (Me. 1989) (quotation marks omitted). Furthermore, “[a] contract of insurance, like any
other contract, is to be construed in accordance with the intention of the parties, which is to be
ascertained from an examination of the whole instrument.” Id. at 385 (quotation marks omitted).
Finally, a court should not “conjure the duty to defend from speculation or supposition,”
Barnie’s Bar & Grill, Inc., 152 A.3d at 615, or “speculate about causes of action that were not
stated,” York Golf and Tennis Club v. Tudor Ins. Co., 845 A.2d 1173, 1175 (Me. 2004). Similarly,
“[t]he facts alleged in the complaint need not make out a claim that specifically and unequivocally
falls within the coverage,” Harlor, 150 A.3d at 797 (quotation marks omitted), but a court should

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not “read allegations into the complaint” to find a legal or factual basis for coverage that does not
otherwise exist, Barnie’s Bar & Grill, Inc., 152 A.3d at 616.
Because the Court has already determined that Douglas Burka was an insured within the
meaning of the Policy during the period at issue in the Maine action, the Court compares the
Complaint in the Maine suit with the Policy to determine whether Allison’s claims fall within the
Policy’s coverage.4 After careful consideration, the Court concludes that Allison’s claims do not
fall within the Policy’s coverage. Granting that there is some lack of clarity in the pleadings
regarding what entity held her medical records, the Court agrees with Defendant that it is not
unduly speculative that Allison was a “patient” within the meaning of the Policy because the Policy
definition only requires that she was a patient of any covered doctor under the Policy, not Douglas
Burka himself.5 (See Policy, Page ID # 279.) However, the Court reads the Policy’s clear language
to require that any covered patient claim must directly arise from the provision of professional
services to that patient. As outlined above, a covered “medical incident” is defined as “any act,
failure to act, or omission in the furnishing of PROFESSIONAL SERVICES to a PATIENT.”
(Policy, Page ID # 279.) “Professional services” is itself defined in part to encompass the
“obligation to maintain PATIENT confidentiality in the handling of PATIENT records in the direct
course of providing PROFESSIONAL SERVICES to that PATIENT.” (Policy, Page ID # 280.)
Finally, the slot endorsement provides that covered incidents must “result from [physicians’]
PROFESSIONAL SERVICES rendered within the scope of their duties.” (Policy, Page ID # 255)
(emphasis added).

Although the Amended Complaint fleshes out Allison’s claims to some extent, the Court concludes that there is no
substantive distinction between the two complaints for purposes of determining the duty to defend issue.
4

As a result, it is apparent that any covered claim in this action would not constitute a “non-patient incident.” (See
Policy (ECF No. 22-1), Page ID # 280) (defining the scope of “professional services” to include the insured’s
“obligation to maintain PATIENT confidentiality in the handling of PATIENT records”).
5

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The Court acknowledges Defendant’s argument that the Policy’s definition of
“professional services” is circular in that it includes the term “professional services.” However,
any circularity in the definition only goes to emphasize the clear importance of “professional
services” to defining the scope of Policy coverage. Simply put, there is no ambiguity that the
provision of professional services is a central component of any covered claim. Further, any
common understanding of “professional services” would not encompass a physician maliciously
and surreptitiously accessing a patient’s medical records for the sole purpose of harassing,
threatening, or embarrassing that patient based on a spousal relationship. The Court cannot divine,
without resorting to undue speculation, reading allegations in or out of the Complaint, or ignoring
the intention of the parties as expressed in the Policy’s clear language, how Allison’s claims in the
Maine suit arose “in the furnishing of” or “in the direct course of providing” her professional
services.6 Rather, the claims directly arise from the spousal relationship and, as alleged in the
Maine action, involved efforts by Defendant to harass and embarrass his wife. Therefore, on the
record as supplemented, the Court concludes that Plaintiff never had a duty to defend the Maine
suit.7

Defendant suggests in part that there is a duty to defend because he alleges that “he was asked by his then-wife to
check on her records and having done as requested—just as he would have done for any other patient of Physician
Services or SMHC—after their divorce, he has been sued for complying.” (Def.’s Reply in Support of Def.’s Mot.
for Amendment and/or Clarification (ECF No. 50), Page ID # 580.) Even accepting this assertion, a defendant’s
characterization of the allegations in a suit, or assertion of facts to the contrary, cannot control the duty to defend
analysis. If it did, resolving a duty to defend question would no longer involve simply comparing a complaint with
the relevant insurance policy, and defendants could create a duty to defend where it would not otherwise exist based
on the comparison test.
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To be explicit, the Court concludes that there is no duty to defend even if the dismissed Invasion of Privacy claim is
somehow revived.

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b. Plaintiff’s Motion to Reopen Discovery
Because the Court concludes that further discovery is unnecessary to resolving the duty to
defend question, as just discussed, the Court DENIES AS MOOT Plaintiff’s Motion to Reopen
Discovery. To the extent that the Court’s May 3, 2017 Order addressed this request, the Court
considers that prior ruling to be the law of the case and the Court sees no reason on the
supplemented record to reconsider its prior ruling. See Buntin v. City of Boston, 857 F.3d 69, 72
(1st Cir. 2017) (“The law of the case doctrine posits that when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same case.”)
(quotation marks omitted).8

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

Defendant’s Motion (ECF No. 45), DENIES AS MOOT Plaintiff’s Motion (ECF No. 48), and
ORDERS that judgment be entered in Plaintiff’s favor on the remaining issue before the Court.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 29th day of August, 2017.

The Court substantively addressed the parties’ arguments about the consideration of extrinsic evidence in its May
3rd Order and will not further address the issue here.
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