Interstate Fire and Casualty Company v. Dimensions Assurance Ltd.

Filing 43

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/24/2015. (kw2s, Deputy Clerk)

IN TIlE UNITED STATES DISTRICT COURT
FOR THE I)ISTRICT OF MARYLAND
SOllt!lem Dh';s;oll
INTERSTATE FIRE AND
CASUALTY COMPANY

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Plaintiff,

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Casc No.: G.lII-I3-3908

\'.

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DIMENSIONS ASSURANCE LTD.

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Dcfcndant.

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MEMORANDUM

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OPINION

Plaintilf Interstate Fire and Casualty Company ("I FCC") is the insurer of Favorite
Healthcare Starting ("FIlS''). and Defendant Dimcnsions Assurancc, Ltd. ("Dimensions") has a
reimburscmcnt agrecmcnt with Laurcl Rcgionaillospital

(the "Ilospitar').

See lOCI' No. 32-1 at

4.[ IFCC brings this action against Dimensions to recoup the costs ofdelcnding a medical
malpractice claim against a nurse who was working at the Ilospital pursuant to a starting
agrcement betwecn FI IS and thc Hospital. Iti. Thc parties havc lilcd cross motions I(lr sunllnary
judgmcnt. See ECF No. 25 & 35. Thc Court linds that a hcaring is unncccssary. See Local Rulc
105.6. For the reasons stated below, Plaintiff-s Motion l(>rSummary Judgment. ECF No. 25, is
DENIED, and Delcndant's Motion I()r Summary Judgmcnt. ECF No. 35, is GRANTED.
I.

BACKGROUND

Thc material facts of this casc arc not in dispute. Dcfendant Dimensions contracted to
providc rcimburscment insurancc covcrage to a list of namcd protcctcd pcrsons, which ineluded

[ All pin citcs to documcnts lilcd on the Court's electronic liling systcm (CM/ECr) rclcr to thc
pagc numbcrs gcncratcd by that systcm.

the Hospital.
contract

J. 2010 to January 2. 2011.' See lOCI' No. 25-10 at 30 & 45. Thc

included threc Rcimburscmcnt

professional
specified

Irom January

Agrccmcnts-onc

liability. and one for group physician

limitations.

professional

Dimcnsions

as damages

in suits resulting

liability agreement

professional

agreed to reimburse

liability agreement.

for general liability. onc I(l!' hospital

2-3. Subject to

the Hospital. under the hospital

I()r amounts any "protected

li'OIll professional

liability. See id at

person" was legally requircd to pay

injury. See id at 28. Thc hospital prolessional

also contains a section on "worker

protection."

which states:

Your prescnt and f(lrIller employees. students and authorized
volunteer workers are prolecled persolls while working or whcn
they did work for you within the scopc of their duties. Unless
added by amendment to this Agrecmcnt. interns. externs. residcnts.
or dcntal osteopathic or medical doctors arc not named protccted
persons for profcssional injury. evcn if they are your employees.
students or authorized volunteer workers.

Id at 3 J (emphasis

added)J

however. affiliated

healthcare

"a written partnership

The tcrm "employces"
providers

or physician

business
agreement

of rendering

healtheare

are specifically

agreement"'

See id at 30. An affiliated healthcare

providcr

sen'ices

excluding

afliliated

excluded

designating

fhllll coveragc unlcss there is

them as named protccted persons.

is "any natural pcrson or organization

in the

directly to the general public. and who or which has an

to provide such services in conjunction

the provision

is 110tdcfincd in thc contract. Notably.

hcalthcare

with thosc providcd by [thc Ilospitall."

pnn-iders

Irom coveragc.

thc agrecment

1£1. In

also statcs

The other named proteetcd persons include Dimcnsions llealtheare Systcm. Dimcnsions llealth
Corporation. Madison Manor. Inc .. Princc Gcorgc's Ilospital Ccnter. Laurel Regional Hospital.
Bowic Health Center. Gladys Spellman Specialty Ilospital and ursing Center. First National
Bank of Maryland (but only while acting on behalfofthc
named protected pcrson). Affiliated
Entcrprise. Inc" Dimensions Artlliated Physicians. Inc" Dimensions Assurancc. Ltd ..
Manufacturers and Traders Trust Company (but only while acting on behalfofthc
named
protected persons). and Dimensions Healthcare Associates. Inc. (only I()r Reimbursement
Agrecment A & C). See ECF No. 25-10 at 45.
3 This section was amended to include "employed or voluntcer physicians. residents. interns or
dental or osteopathic medical doctors" as protected pcrsons. See ECF No. 25-10 at 46.
2

2

specilically

that .., a]gencies

basis are not protected

providing

clinical and other services on a per diem

covers claims for damages

agreement

between Dimensions

fiJr bodily injury, property damages.

Like the hospital professional

liability agreement.

employees

and the Ilospital

See id at I I.

or lire damages.

it also contains a section on worker protection.

See id at 16. In contrast to the hospital professional
excludes

contracted

persons .. :. !d

The general liability reimbursement

specifically

01"

liability agreement.

of contract agencies

Irom protection.

however. this section
It provides that

Your present and former employees.
students and authorized
volunteer workers are protected persons while working. or when
they did work for you within the scope of their duties. l'ersollS

working liJl' you Oil a per diem.
proleeled perso/1s.
Id. at 16 (emphasis
specilically

states, as (he professional

diem. contracted

Id

at

added) (emphasis

clinical. or contracted

lIgCJ1(l' OJ"con/rllc/

in original omitted).
liability agreement

hu.'.;islire

The general liability agreement
docs, that "agencies

providing

also
per

services arc not protected persons under this agreement."

15.
On April I, 2007. the Ilospital

provide the Ilospital

entered into a starting agreement

with nurses to accommodate

circumstances

will [FIlS

I practitioners

[HIS J stalT are and will be considered

with FHS for FilS to

the Hospital"s additional

Eel' No. 25-3 at 2:~ 1.2. As part of the agreement.

be considered
employees

employees

of' FilS

I:' Id."

Under the employment

employees

Practitioners

for purposes

of compensation.

This language

is repeated

shall in no event be considered

benefits. or otherwise.

at 2:~ 2.1.
3

needs. See

of IIIospitall. At all times.

FilS and the Hospital agreed that "[pjractitioners

of[ FHS] ....

staning

FIlS and the Hospital agreed that ..[uJnder no

p011ion of the agreement.

4

nol

status

shall be deemed

employees

of H r ospitall

'FHS j shall be solcly responsible

I(ll"the

actions or omissions
and professional

liability insurance

5:'; 7.

Id. at

of any practitioner:'

FilS agrced that it would obtain general

Id. at'l 7.3. HIS employees

for its employees.

eligible for Hospital benelit plans and were to be paid by FHS. Id. at

~'i
7.0-7.2.

the Hospital was found liable on the grounds of apparent agency or \'icarious
or omissions
HIS'

of an FHS employee.

insurance.

to their job responsibilities

and "all policies and procedures

See id. at

standards:'

4:'i 3.3.

Ii)!"knowing

25-4 at 7: 18-8: I. The Hospital expected

Effective
liability insurance

September

was to orient each FilS nurse

necessary

to meet Hlospital]

starting on their lirst day of work. all

the Ilospital"s

policies and procedures.

FHS nurses to provide the same standard of care as
a nurse immediately

PlaintilTlFCC

It)r not complying

"current
duties:'

On February

agreed to provide FHS \\ith professional
IFCC

lor "bodily injury" fiJr FIlS. the named insurcd. See id.

or lonncr employee[sr

arc also named insureds \\hen acting within the

See hi. at 3-4. If other valid insurance could also apply to a loss or claim

that was covered under IFCC's
above thc applicable

with

were on sitc at the

See lOCI' No. 25- I I at 3 & 51. Subject to some limitations.

agreed to pay legally rcquired "damages"
Additionally.

Se~ lOCI' No.

to the FHS nurses. See id. at 14: 10-20.
10.2010.

coverage.

to

'i 8.1.

for patient care. See id. at 9: 1-5 & II :5-9. Also. no FHS supervisors

Hospital to provide direction

liability It))"the acts

Additionally.

direct hire nurses. and had the right to terminate

"cmployees'

Id at

In the event that

was to be passive and secondary

fUl1her indicated that the Ilospital

FHS nurses were responsible

dircctions

insurance

which was to be active and primary.

The stat1ing agreement

performance

the Hospital's

were not

policy. thc IFCC insurancc

limit of the other valid insurance.

was to bc excess insurance over and

See id. at 11-12.

16. 2012. a lawsuit was liled against the Hospital.

nurscs. alleging negligent

carc and treatment.

scveral doctors. and

See lOCI' No. 25-6. One of the nurses was \\orking

4

at the Hospital as a result of the Hospital's
named FHS as vicariously
nurse demanded

agreement

liable lar the nurse's

actions.

that the Hospital and Dimcnsions

ECF No. 25-7. Dimensions

with FilS. See hI. at 15. The lawsuit

See id. On Fcbruary 20. 2013. the FfIS

provide defense and indemnity

rcfused and FHS's insurance.

IFCC. defcnded

ECF No. 32-1 at 95 IFCC tiled this lawsuit to recoup from Dimensions

coverage.

See

the FHS nursc. See

the costs incurrcd in that

defense. See ECF No. I.
II.

STANDARD

OF REVIEW

Summary judgment
is cntitled to judgmcnt

is proper ifthcrc

are no issues ofmaterialfilct

and the moving party

as a matter of law. Celolex Corp. \'. Caln'l/. 477 U.S. 317. 322 (19X6)

(citing Fed. R. Civ. P. 56(c)): Francis \'. /300=.AI/en & !lOll/ii/on. Inc.. 452 F.3d 299. 30X (4th
Cir. 2(06).

When ruling on a motion fllr summary judgment.

is to be belicvcd.

and alljustitiable

are to bc drawn in his favor." Anderson \'. Uherly

infercnccs

Lohhy. Inc.. 477 U.S. 242. 255 (1986) (eitation omitted).
judgment

are filed. the same standards

"[tJhc evidence of the non-movant

When eross motions Illl'summary

of review apply. /3/)'lII1I\'. Hel/er HIlS.H"rea" olCirealer

Maryland. Inc.. 923 F.Supp. 720. 729 (D. Md. 1996). The Court must deny both motions if
questions

of matcrial

demonstrate

fact exists. Id. "However.

a basic agreement

they 'may be probativc

concerning

of the non-existenee

when cross-motions

tllr summary judgment

what Icgal theories and material facts are dispositive.
of a faetual dispute .. " !d (quoting Shook

I'.

United

Slales. 713 F.2d 662. 665 (11th Cir. 19X3».

Plaintiff originally tiled its memorandum in support of its motion tlll' summary judgment under
seal. The Court ordered Plaintiff to tile a redaeted version. whieh is found at ECF No. 32. See
ECF No. 29 & 30. While the parties filed subsequent papers without redaction. the originally
redaeted inlanllation. sueh as the name of the nurse and details of the underlying lawsuit. is not
relevant to the Court's opinion. Thus. the Court will avoid using the inflll"ll1ation that has been
redacted from the Plaintifrs tirst submission.

j

5

Here, both parties request summary judgment
interpretation,
judgment

See ECF Nos. 32-1 & 34. "Thc first stcp for a court asked to grant summary

based on a contract's

contract

in their tllvor based on an issue of contract

is ambiguous

interpretation

or unambiguous

is ...

to determine

on its face'" Wash. Melro. ;1rell 7;.,msi/ Allih. l". PO/OlIIllC

1m'. /'rops .. Inc .. 476 F.3d 231. 235 (4th Cir.2007)

(quoting Goodmlln

7 l'.3d I 123. I 126 (4th Cir.1993 )). If the contract is unambiguous.
contract as a matter of law. Id. If the contract is ambiguous.
evidence

whether. as a matter of law. the

the Court can interpret the

the court may examine extrinsic

as a matter of law or can Icave genuine issues of material Illet respecting

judgment

III.

Id. In the latter case. summary judgment

is appropriate

be definitely

Corp ..

intent. Id. At that point. the extrinsic evidence can either be dispositive

of the parties'

interpretation.

l". Reso!lIli1m hllsf

when the contract

resolved by reference

in question

the contract' s proper

should be denied. Id. In sum. "summary
is unambiguous

to extrinsic evidence'"

or when an ambiguity

can

Id

DISCUSSION
The sole issue in this case is whether Dimensions

settlement

costs of the lawsuit against the FHS nurse. IFCC contends that Dimensions

have covered these costs because its reimbursement
nurses. See ECl' No. 32-1 at 17. Dimensions
agreement

should have covered the defense and

only covers Ilospila!

employees

agreement

with the Ilospital

asserts that the prolcssionalliability
and the FIlS nurse was not a Ilospital

should

covers agency
reimbursement
employee.

See

ECF No. 34 at 12.
Under Maryland
principals

of contract

law. "[aJn insurance

interpretation.""

policy is a contract and is construed

subject to the

Peop!e"s Ins. COllnse! DI1'. \'. SllIle Farm Fire 1II"! ClIS.

(. While Dimensions maintains that the reimbursement agreement with the Hospital is not an
insurance policy. it concedes that case law interpreting insurance contracts is applicable. See
ECFNo.34at
12-19.

6

Ins. Co., 76 A.3d 517. 526 (Md. Ct. Spec. App. 2013) (citation omitted). Maryland law applies
an objective interpretation of contracts. Walker \'. Dep'l o(f/lIl1/an Res .. 842 A.2d 53. 61 (Md.
2004). Under this interpretation. the court is focused on determining the intent or the parties with
the language of the contract being the primary source ror identirying this intcnt. (ires/wlI/ \'.
LIIII/herll/en's Mill. Cas. Co .. 404 F.3d 253. 260 (4th Cir.2(05). "[TJhe intention of the parties is

to be ascertained irreasonably possible from the policy as a whole'" Cheney \'. /Jell Nal. Ute.
Ins. Co.. 556 A.2d 1135, 1138 (Md. 1989). Each clause "shall be given force and efreet ... to
create a harmonious and coherent whole." Prince (ieorge 's Cnl)'.
A.2d 353. 358 (Md. Ct. Spec. App. 2004).

alrd.

I'.

Loca/

(j1J\.'1

1m. hllsl. 859

879 A.2d 81 (Md. 2005).

Ilere, IFCC argues that because Dimensions' contract with the Ilospital specifically
excludes coverage lor agency employees in its general liability agreement. the lack or such a
specific exclusion in the hospital proressionalliability

agreement is unambiguous evidence that

such employees are included in that agreement. See ECF No. 32-1 at 20-21. The Court
disagrees.
Dimensions' contract with the Hospital states that "each agreement is to be read and
interpreted separately and independently of the other." See ECF No. 25-10 at 7. Reading the
professional liability agreement as an independent whole. it appears that the parties did not
intend to extend prolessionalliability

coverage to contracted workers. For instance. the policy

specifically excludes affiliated healthcare providers from coverage. See ECF No. 25-10 at 30. An
"afliliated healthcare provider" is "any natural person or organization" providing "healthcare
services" who "has an agreement to provide such services in conjunction with those provided by
[the Hospital]." See ill. at 30. No party contests that the nurse was a natural person. that she
provided healthcare services. and that her services were provided pursuant to an agreement

7

betwccn FilS and thc Hospital. Indecd, Dimensions' profcssionalliability

agrcemcnt with the

Ilospital providcs that "[aJgencics providing clinical and othcr serviccs on a pcr dicm or
contractual basis arc not protectcd pcrsons undcr this agrcement:' See ECF No. 25-10 at 30,
Sincc FHS was an "affiliatcd hcalthcare provider:' and the partics did not dcsignate FilS as a
protect cd person, it does not stand to rcason that the partics intcnded to designate FIlS'
employces as protected persons.
In addition to contending that the contract specifically includes contract workers, tFCC
argues that Dimensions' protessional liability agrcemcnt covers all employees and that thc HIS
nurse was an employcc ofthc Hospital under Maryland's borrowcd servant doctrine, See ECF
No, 32-1 at 25-26. IFCC correctly asscrts that, under the principals of contract interpretation.
specific words and terms arc given thcir ordinary and accepted meaning. Id at 21 (citing Kleill ",
Fidelil)' & Deposil Co, o/AIII .. 700 A,2d 262, 270 (Md, Ct. Spec, App, 19(7) (additional
citation omitted), It is common practice lor courts to consult dictionary and common law
definitions to determine the accept cd meaning of words in a contract. See ie!. (citing ll1lerSI"le
Fire & C"s, Co. ", rv"silillglOIl Hosp. Or. Corp .. 758 FJd 378, 386 (D,C. Cir. 2014) & Sleigier
\'. Eurek" Life 111.1'. 127 A, 397, 402 (Md, 1925»), IFCC contends that "employcc" is an
Co..
unambiguous tcrm that cncompasses a "borrowed scrvant:' Id at 25-26, For support. IFCC citcs
ll1lerslale Fire & Cas. Co .. whcre the United Statcs Court of Appcals
Columbia Circuit tound that thc dctinition of"cmployec"

jilT

thc District of

included "borrowed servant:'

ll1ler,\fale Fire & C"s. Co.. 758 F.3d at 384-86, Thus, tFCe contcnds, if the FilS nurse qualifies
as a borrowed cmployee of the Hospital under Maryland's borrowcd servant doctrinc. shc was an
cmployec of both FIlS and the Ilospitai. See ie!. at 25-26. Dimensions agrces that the term
cmployee is unambiguous and the Court should look to Maryland's borrowcd scrvant doctrine to

8

define employee. See ECF No, 34 at 9, But Dimensions asserts that it is entitled to summary
judgment. under that analysis, because the HIS nurse does not qualify as a borrowed servant of
the Hospital. See id at 10- I4.
The borrowed servant doctrine is an agency law principle. Under the borrowed sen'ant
doctrine, an employee can be in the "general service" of one employer while also sen'ing a ..third
person" who takes on the "legal consequences" of being an employer. Slandard Oil Co, ",
Anderson,

212 U,S. 2 I5, 220 (1909): see also Mackall \'. la)'re Cllll'., 443 A.2d 98, 102 (Md,

1982) ("This Court has repeatedly recognized that. under certain circumstances, a person
performing a given function, simultaneously may be the employce of two employers,") (citations
omitted), Borrowed servant status typically depends on the "degree of eontrol exereised by the third
party over the servant:' See Rivera v. Prince Gellrge
(Md. Ct. Spec. App. 1994) (citing Dippel

I'.

'.I'

Cm.\'. Ileallil Del'

'I,

649 A.2d 1212, 1224

.Iuliano, 137 A, 514 (Md. 1927)).

Importantly, however. ", , . Maryland law permits contractual allocation of risk between a
general employer and a bOlTowing employer under the borrowed servant doetrinel.
Cllnsl. & Eng

'x COIjJ. I'.

r A 11'110

n,e Ins. Co. of"lhe Slale o{Pa., 402 F. Appx. 8 18, 83 I (4th Cir. 2(10)

(citation omitted), Thus, two employers can decide which employer will be liable I(lr the dual
employee's negligent acts. Krzywicki

\'. Tide\l'lJler EIJuip. Co .. Inc .. 600 F. Supp. 629. 639 (D,

Md, 1985), a[rd, 785 F,2d 305 (4th Cir. 1(86) ("whateverthe

status of an employee under the

'borrowed servant" doctrine, the parties may allocate between themselves the risk of any loss
resulting from the employee's negligent acts:') (citation omitted): see also NJIR \'. .Iu.l'l 1('1111'.1'.
NC., 3 I F. Appx. 80S, 807 (4th Cir. 2(02) ("if the parties contractually agreed that one or the
other of them should bear the risk of a particular employee's negligent acts, that employee's
status under the borrowed servant doctrine is immaterial:'): COllli/llre lIercules
lion)'

I'o\l'ller CO.

I'.

T Call1phell Sons Co .. 144 A. 510, 513-18 (i'vld, 1929) (Iinding supplier was not liable to
9

quarry owner lor damagcs
the two cxplosivc

causcd by detonation

experts would be considered

whcre quarry owner contractualty
his ..cmployees."").

11";lhSeo LOlld Imllls .. Illc. \'.

Cell. Ship Repoir COli}. 530 F. Supp. 550. 564-65

(D. Md. (982) (analyzing

control the special employer

servant to detcrmine

had over a borrowed

liable where general employer.s
shipping

contract to maintain

terminal did not include any .'borrowed

agreed that

the amount of

which cmployer

a crane at a special cmployer"s

servant". clause allocating

was

Baltimorc

liability to the special

employer).
Here. the FIlS nurse was employed
Hospital

pursuant to the stalling

Although

agrecment

bctwcen FIlS and the Ilospitai.

See ECF No. 25-3.

thc Hospital did exercisc a large amount of control over the nurse. the Ilospital

FHS contractually
7.0-7.3.

by FHS. see ECF No. 25-6. and worked at the

altocated

Spccificalty.

actions or omissions

profcssionalliability

and

risk to FI-IS. See lOCI' No. 25-3 at 2:'; 1.2.5:',';

thc parties agreed in advance that ..[FHSj shall be solcly responsiblc
of any practitioner.'.

I(,r the

Id at5:'i 7.0 (emphasis added). In lilct. FHS agreed

that it would obtain general and profcssionalliability

insurancc

1(11" employees.}
its

Id at ~ 7.3.3.

Further. the contract cxplains that. in the event that the Hospital was found liable on thc grounds
of apparcnt
Ilospital.s

agency or vicarious
insurance

liability f()r the acts or omissions

was to be passive and sccondary

of an FilS cmployee.

to FI-{S' insurancc.

thc

which was to bc activc

and primary. Jd. at ~ 8.1. While IFCC states that Illlaslole

Fire & Cos. Co .. 758 F.3d at 386.

applied the ..right to control tesC in determining

servant status. IFCC ignores that thc

D.C. Circuit was not faccd with an altocation
the altocation

changes thc analysis.

borrowed

of risk betwcen the employcrs

in that casco Ilcre.

See !VI'R. Illc .. 31 Fed. I\ppx. at 808 (finding cases il1\'olving

I\lso. in two different c1auscs. FilS and the Hospital agrced that .'[ujnder no circumstances wilt
[FIlS J practitioncrs be considcred employecs of III ospital J. At all times. IFilS I staff are and will
be considered employces of [FIlS].". Id. at 2:'i'i 1.2 & 2.1.
7

10

disputes between an employee and one of the employers was not applicable to a case inyolving a
dispute between a general employer and a borrowing employer in which thc employers
contractually allocated the risk of the loss that materialized): Clilollliris \', Woods, 727 A,~d 35X,
36X (Md, 1999) ("Contracts playa critical role in allocating the risks and benelits of our
economy, and courts generally should not disturb an unambiguous allocation of those risks in
order to avoid adverse consequences for one party.'"). Thus, under Maryland's borrowed servant
doctrine. the FilS nurse would not qualify as a borrowed servant of the Ilospital ii)r the purposes
of deterJnining which employer is to pay for liability resulting li'OInthe nurse's negligent acts.

Cl

Goodie \'. UniledSllIle.l'. ~013 WL 96XI98 at' 6-7 (D, Md,1v1ar. 1~. 2013) (explaining that

the borrowed servant analysis did not apply because the goyernment expressly agreed that it
would be liable lor the negligent acts of residents working at a hospital).
IFCC contends that the "allocation of risk" portion of Maryland's borrowed servant
doctrine does not apply in this ease because IFCC and Dimensions are not parties to the
agreement between FilS and the Hospital.s See ECF No, 39 at 15-19. While the "allocation of
risk" in a contract may not typically control in eases involying third parties to the contract that
allocated the risk. the insurers of the employers that allocated the risk essentially step in the
shoes of those employers liJr the purpose of this litigation. C}: Imerslllle Fire & CliS. Co.. 758
F,3d at 382 ("Interstate Fire asserted that it 'stands in the shoes' of Nurse Iland and Progressi"e
for purposes of the litigation."), Logically. as an insurer seeking contribution ti'OInanother
potential insurer. IFCC is bound by the allocation of risk agreed to by its insured, See 7i'm'elas
Indelll. Co. \" IllS. Co, olN. Alii.. 519 1\.2d 760. 768-69 (Md. Ct. Spec, App, 1(87) (linding

8 Notably. howeyer. IFCC cites the stafJing agreement in its analysis of whether the FilS is a
borrowed servant of the Hospital. See ECF No, 3~-1 at ~4 (citing provisions in the staffing
agreement for the proposition that FHS nurses were responsible for knowing the Hospital's
"policies and procedures." and that the Ilospital could "dismiss" any FilS nurse at "any time."),

II

defending insurer's subrogation rights include the insured's right to rccovcr against anothcr
insured) and General Cigar Co. ". LanCllsler Leaj'7,>!wcco COlllflal1.\'. 323 F.Supp. 931. 935
(D.Md. 1971) (tinding an insurcr which has paid for a loss in whole or part bccomcs subrogatcd
to thc rights of the insurcd as holdcr ofthc claim and stands in the shoes of such subrogor). In the
dctcrmination of which insurancc company is rcsponsiblc li)r thc cmploycc's ncgligent act. ifthc
two insurcd employcrs havc allocatcd thc risk. thcn thc cmploycc's status under thc borrowcd
servant doctrine is immatcrial. Thus, Dimcnsion's rcimburscmcnt agrcemcnt with thc Ilospital
for professional liability covcragc docs not co vcr thc FilS nurse as a mattcr of law."

" If the Court wcre to rejcct thc parties' argumcnts that the bOITo\\'edservant doctrinc controls
and look to thc dictionary detinition of cmploycc, the Court would rcach the samc rcsult.
Merriam-Webster's dictionary delines employee as "'1 person who works for anothcr pcrson or
for a company fi)r wagcs or a salary'" Mcrriam- Wcbster Dictionary (2015), http://www.mcrriamwebster.com/dietionary/employee.
Although "employce" may bc unamhiguous in some cases,
"[a] tcrm which is clear in one context may bc ambiguous in anothcr'" Bushey". i\'. Assur. Co. or
Alii., 766 A.2d 598, 632 (Md. 2001) (citation omittcd). Hcrc, whcther thc FilS nursc fits into the
dictionary dcfinition of cmployec of thc Ilospital would likely be ambiguous given that FilS paid
her wages but she was working insidc the Hospital. See ECF No. 25-3 at 5:~ 7.0. Thus. thc Court
would turn to extrinsic evidcnce to detcrminc ifthc parties' intcntions werc clear. Here, FilS and
thc Hospital agrced that FHS was the nurse's employer and that it would bear the risk of liability
for the nurse's negligent acts. See ill. at 2:'i~ 1.2 & 7.0. This evidenec, cvcn ifit was to be
eonsidcred cxtrinsic cvidcncc of thc dclinition of employcc in this easc, Icavcs no gcnuine
dispute over whether the HIS nurse was an employce of the Hospital. Thus, whethcr the contract
tcrm "cmployce" is unambiguous or ambiguous, the parties' intcntions are clear and the contract
does not include the FHS nurse in its detinition of employec for the purposes of professional
liability coveragc.
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IV.

CONCLUSION
For the reasons discussed above, Defendant Dimensions' cross motion for summary

judgment, ECF No. 35, is GRANTED. and IFCC's motion for summary judgment, ECF No. 25.
is DENIED.
A separate order shall follow.

Dated: June

&,

#--g-

2015

George J. Hazel
United Slates District Judge

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