v. Dartmouth Hitchcock Medical Center et al

Filing 26

ORDER re: 19 Motion for Summary Judgment. Set Hearing as to 19 MOTION for Summary Judgment on Count I - Indemnification: ( Motion Hearing set for 9/24/2009 01:30 PM before Judge Joseph A. DiClerico Jr.) Signed by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dartmouth Hitchcock Medical Center v. Cross Country Travcorps, Inc., d/b/a Cross Country Staffing (and their affiliates), and CHG Medical Staffing, Inc., d/b/a RN Network PROCEDURAL ORDER Dartmouth Hitchcock Medical Center ("DHMC") brought an action against Cross Country Travcorps, Inc., doing business as Cross Country Staffing, and their affiliates (referred to collectively as "Cross Country"), and CHG Medical Staffing, Inc., doing business as RN Network ("CHG"). DHMC's claims against Civil No. 09-cv-160-JD

Cross Country were based in part on a contract between those two parties entitled "Healthcare Staffing Vendor Management Agreement" (the "Agreement"). DHMC moved for summary judgment on

its claim against Cross Country seeking indemnity for liability and attorneys' fees and expenses incurred in Aumand v. Dartmouth Hitchcock Medical Center, No. 06-cv-434-JL. DHMC also seeks Both Cross

attorneys' fees incurred in the present action.

Country and CHG filed memoranda in opposition to DHMC's summary judgment motion.

There are a number of issues raised by the memoranda in support of and opposition to summary judgment that would benefit from oral argument. Therefore, a hearing will be scheduled at

which counsel shall be prepared to address the following issues, including whether or not an issue is relevant to the decisions the court must make at this time:

1.

DHMC's motion seeks summary judgment only on its Why did CHG join in

indemnification claim against Cross Country.

Cross Country's motion and file an opposition to the motion?

2.

Is it undisputed that CHG is ultimately responsible for the

actions of Nurse Burdett, as stated in CHG's Opposition to Plaintiff's Motion for Summary Judgment on Count I Indemnification (p. 2)?

3.

What is the meaning of the phrase "directly arising out of"

as used in paragraph 16, "Liability and Indemnification," of the Agreement? a. It appears that Cross Country is contending that

the phrase limits Cross Country's duty to indemnify DHMC to claims and liabilities for the actions of healthcare professionals ("HCPs") provided by Cross 2

Country itself and does not include HCPs provided through a subcontract with approved vendors. paragraph 1 of the Agreement contemplates subcontracting with approved vendors, what is the basis for this contention? b. It appears that Cross Country is arguing that the Since

phrase limits Cross Country's duty to indemnify DHMC to claims and liabilities arising out of Cross Country's actions in management or placement services, such as failing to provide an HCP as agreed, and excludes indemnification for the negligence of HCPs provided under the Agreement. If so, why does the Agreement

require, in paragraph 15, that Cross Country procure professional liability and general liability insurance for each HCP employed under the Agreement and, in paragraph 11, that DHMC notify Cross Country's Risk Management Department of any patient care incident? c. Does the phrase limit Cross Country's duty to

indemnify DHMC only for Nurse Burdett's actions, as distinguished from actions of any other person alleged to have been negligent in the Aumand case, or does the phrase require indemnification for DHMC's entire liability in the Aumand case if Nurse Burdett were a 3

direct or proximate cause of the harm to Mrs. Coffey? d. How does the addition of the word "directly"

affect the generally broad interpretation of the phrase, "arising out of," applied in New Hampshire cases?

4.

It appears that DHMC and Cross Country each has a different

interpretation of the indemnification clause, which they offer in support of and in opposition to summary judgment. Does this

raise a question of ambiguity in the contract terms? a. If so, what are the reasonable but conflicting

meanings of the indemnification clause to be considered in an ambiguity analysis? b. It appears that the Agreement was drafted by Cross Should any ambiguity in language be construed

Country.

against the drafter?

5.

Contract language must be construed after reading the How does each party construe the following

document as a whole.

paragraphs, when considering the document as a whole, in light of the position taken by each party: (1) description of Cross

Country's services in paragraph 1, (2) contemplation of subcontracting in paragraph 1, (3) patient care incident 4

reporting in paragraph 11, (4) insurance requirement in paragraph 15, and (5) "100% Guarantee" in paragraph 21?

6.

What is the relevance of the parties' course of dealing in

relation to providing a defense and indemnification for the Aumand case?

7.

Does Cross Country have an insurance policy, procured under

the requirements of paragraph 15?

Counsel are also granted leave to raise and argue any other issues they deem relevant to the motion pending before the court.

Conclusion For the foregoing reasons, a hearing on DHMC's motion for summary judgment will be held on September 24, 2009, at 1:30 p.m.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge September 17, 2009 cc: Andrew D. Dunn, Esquire Ronald J. Lajoie, Esquire Ralph Suozzo, Esquire 5