Wolcott et al v. Willis of Ohio, Inc. et al

Filing 99

Memorandum of Opinion and Order For the reasons set forth herein, Defendant Forum Health Insurance LTD's Motion to Dismiss (ECF No. 37 ) is denied without prejudice. Plaintiffs' Motion for Leave to File An Amended [Supplemental] Complaint (ECF No. 51 ) is granted without opposition. Plaintiffs' Amended Supplemental Complaint Under R.C. 3929.06 (ECF No. 51 -1) is deemed filed as of today, 10/12/2016. Judge Benita Y. Pearson on 10/12/2016. (JLG)

PEARSON, J.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MATTHEW WOLCOTT, etc., et al. ,
Plaintiffs,
v.
WILLIS OF OHIO, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 4:16CV0316

JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF Nos. 37 and 51]

Pending are Defendant Forum Health Insurance Ltd.’s (“FHIL”) Motion to Dismiss (ECF
No. 37), filed on March 31, 2016, and Plaintiffs’ Motion for Leave to File an Amended
[Supplemental] Complaint (ECF No. 51), filed on April 27, 2016. The Court has been advised,
having reviewed the record, the parties’ briefs and the applicable law. The Court has also
considered the oral statements of counsel offered during the Telephonic Status Conference. For
the reasons set forth below, the Court grants Plaintiffs’ motion without opposition and denies
FHIL’s motion without prejudice.

(4:16CV0316)

I. Background
On December 30, 2015, Plaintiffs filed a Supplemental Complaint1 before the Trumbull
County, Ohio Court of Common Pleas pursuant to Ohio Rev. Code § 3929.062 in Case No. 2011
CV 01512 against Certain Underwriters at Lloyd’s, London (subscribing to Policy No.
B0429VHP080059 and any and all renewal policies thereto), and Underwriters at Lloyd’s,
London (subscribing to Policy No. B0429VHP080059 and any and all renewal policies thereto)
(collectively, “Underwriters”), FHIL, and Lexington Insurance Company3 seeking to collect on
the judgment entry for medical malpractice in the amount of $28,745,991 against Nicole R.
Prusky, RN under insurance policies for which these defendants are allegedly responsible. On
February 10, 2016, Underwriters removed the case to this Court pursuant to 28 U.S.C. §§ 1332,
1441, and 1446. See Notice of Removal (ECF No. 1).

1

ECF No. 1-2 at PageID #: 16-71.

2

Section 3929.06 allows a judgment creditor to bring suit to collect under a
liability insurance policy insuring a judgment debtor. Specifically, § 3929.06(A)(1)
provides that the plaintiff “is entitled as judgment creditor to have an amount up to the
remaining limit of liability coverage provided in the judgment debtor’s policy of liability
insurance applied to the satisfaction of the final judgment.” If the judgment debtor’s
insurer has not paid the judgment creditor within 30 days of the entry of final judgment,
“the judgment creditor may file in the court that entered the final judgment a
supplemental complaint against the insurer seeking the entry of a judgment ordering the
insurer to pay the judgment creditor the requisite amount.” § 3929.06(A)(2).
3

Willis of Ohio, Inc. was also named as a New Party Defendant. On March 1,
2016, Plaintiffs filed a Notice of Dismissal of Willis of Ohio, Inc. Without Prejudice
Under Fed. R. Civ. P. 41(a)(1)(A)(i) (ECF No. 17), which the Court approved. See ECF
No. 18.
2

(4:16CV0316)
II. Motion for Leave
Plaintiffs attached to their motion the proposed Amended Supplemental Complaint Under
R.C. 3929.06 (ECF No. 51-1). In their proposed amendment, Plaintiffs seek to expand upon
their allegations regarding the liability insurance afforded under FHIL’s policy, along with
additional factual allegations regarding FHIL’s “notice” issue. ECF No. 51 at PageID #: 664.
FHIL does not oppose Plaintiffs’ motion. Response (ECF No. 58) at PageID #: 1088.
Fed. R. Civ. P. 15(a)(2) mandates that leave to amend shall be freely given “when justice
so requires.” As stated by the Supreme Court:
In the absence of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment, etc,—the leave
sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962); Brown v. Chapman, 814 F.3d 436, 442-43 (6th Cir.
2016). Under Rule 15(a), the court has discretion in allowing amendments. Robinson v. Mich.
Consol. Gas Co., 918 F.2d 579, 591 (6th Cir. 1990) (“Decisions as to when justice requires
amendment are left to the sound discretion of the trial judge.”).
For good cause shown, Plaintiffs’ motion is granted without opposition. Plaintiffs’
Amended Supplemental Complaint Under R.C. 3929.06 (ECF No. 51-1) is deemed filed as of
today, October 12, 2016.

3

(4:16CV0316)
III. Motion to Dismiss
FHIL argues the claims made liability insurance policy at issue4 does not provide
coverage for a judgment against Nurse Prusky and no claim was made during the policy period.
ECF No. 37 at PageID #: 349. FHIL’s motion, however, predates the Amended Supplemental
Complaint Under R.C. 3929.06 (ECF No. 51-1), which supersedes the Supplemental Complaint
(ECF No. 1-2 at PageID #: 16-71) to which the motion is directed. See Clark v. Johnston, 413
Fed.Appx. 804, 811 (6th Cir. 2011) (citing 6 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1476 (3d ed. 2010) (stating that “[a] pleading that has been amended
under Rule 15(a) supersedes the pleading it modifies” and that “[o]nce an amended pleading is
interposed, the original pleading no longer performs any function in the case”); see also Drake v.
City of Detroit, Michigan, 266 Fed.Appx. 444, 448 (6th Cir. 2008) (stating that a prior
“complaint is a nullity, because an amended complaint [supersedes] all prior complaints”).
Accordingly, FHIL’s motion is denied without prejudice because it is moot due to the
filing of the Amended Supplemental Complaint Under R.C. 3929.06 (ECF No. 51-1). See
Calvert v. GNC Corp., No. 4:13CV1697 (N.D. Ohio Oct. 30, 2013) (Pearson, J.).5
Plaintiffs allege that both Forum Health and its insurer, FHIL, had sufficient notice that
the underlying medical incident involving Nathan Wolcott’s birth-related injuries was reasonably
expected to give rise to a future claim or lawsuit against various Forum Health insureds involved

4

Policy No. HPL/EPL 1002/2009-10 (ECF No. 1-2 at PageID #: 29-70).

5

FHIL acknowledges that to the extent the Court grants Plaintiffs’ motion,
FHIL’s motion is moot. Reply Memorandum (ECF No. 60) at PageID #: 1094.
4

(4:16CV0316)
in Nathan’s care, including Nurse Prusky. ECF No. 51-1 at ¶¶ 21-23. FHIL responds in its reply
memorandum that Nurse Prusky did not give it notice of the lawsuit and no one asked FHIL to
cover her defense until after final judgment was rendered. ECF No. 60 at PageID #: 1096. Such
an argument is more appropriate for a motion for summary judgment, not a motion to dismiss. A
plaintiff is not required to affirmatively demonstrate at the pleading stage that a claim was made
during the policy period because that would require the plaintiff to overcome a motion for
summary judgment in his complaint. Instead, a plaintiff is only required to allege a set of facts
which, if proven, would plausibly allow him to recover. See Shively v. Green Local Sch. Dist.
Bd. of Educ., 579 Fed.Appx. 348, 359 (6th Cir. 2014) (citing Mohat v. Horvath, No. 2013-L-009,
2013 WL 5450296, at *5 (Ohio App. 11th Dist. Sept. 30, 2013)).
IV. Conclusion
Defendant Forum Health Insurance LTD’s Motion to Dismiss (ECF No. 37) is denied
without prejudice.
Plaintiffs’ Motion for Leave to File An Amended [Supplemental] Complaint (ECF No.
51) is granted without opposition. Plaintiffs’ Amended Supplemental Complaint Under R.C.
3929.06 (ECF No. 51-1) is deemed filed as of today, October 12, 2016.

IT IS SO ORDERED.

October 12, 2016
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

5