Mindy G. Barfield

On behalf of a professional malpractice insurer, we obtained a dismissal of key claims by tort claimants who were seeking professional malpractice coverage from the insurer of a doctor who was found liable for a series of unnecessary surgeries. The jury found both negligence by the doctor and fraudulent misrepresentations about the need for surgeries. Claimants alleged that they were entitled to coverage under Ohio law, noting that the tort verdicts included a negligence component as well as a fraud component. However, by submitting trial transcripts from the tort trials, the jury verdict, jury interrogatories, and pertinent case law involving damages arising from multiple causes, we obtained a dismissal on the merits under Civil Rule 12. The Court agreed with our arguments that negligence damages were not independent of the fraud, and instead were in consequence of the fraud. The Court dismissed the claims for coverage.

Dinsmore obtained a successful result for a professional liability carrier in a federal case involving coverage and bad faith claims. A Kentucky dentist allegedly lied to his patient that he had installed dental implants for her, and after she began to experience increased pain and called the dentist, she learned he had abandoned his practice and moved out of state. After racking up massive dental bills from another provider, her lawyer phoned the dentist’s carrier, but only provided the carrier his client’s name and did not specify damages were being sought or provide any details about the loss. Days later the policy terminated. When that information was provided several months later, the insurer denied the request for coverage, contending that the dentist himself had not reported a “claim” or “potential claim” consistent with the policy terms, nor had the claimant done so consistent with the policy’s reporting requirements. Thereafter, the patient obtained a nearly $500,000 default judgment for negligence against the dentist, and then sued MedPro to cover that judgment as well as for bad faith. Ultimately, a Kentucky federal district judge entered summary judgment in favor of the insurer, ruling that strict compliance with a claims made policy’s reporting policy was required under Kentucky law and that neither a “claim” (a written request for damages during the policy period) or “potential claim” (reporting all “reasonably available information” about the loss during the policy period) had been provided. As a result, the insurer was deemed to have no contractual duty to pay (a required element under Kentucky law for any bad faith claim), a summary judgment on the bad faith claim was also entered. The district court’s orders were recently upheld in a unanimous decision by the Sixth Circuit Court of Appeals. 

The plaintiff claimed she was the subject of sexual harassment and a hostile work environment created by the lewd comments, dirty jokes and sexual overtures from her supervisor; that her complaints were ignored; and that she was thereafter constructively discharged. This case was settled on favorable terms to the client.