United States District Court, D. Rhode Island
[Copyrighted Material Omitted]
For Lifespan Corporation, Plaintiff: Joseph V. Cavanagh, Jr., Stephen J. Reid, Jr., LEAD ATTORNEYS, Joseph V. Cavanagh, III, Blish & Cavanagh LLP, Providence, RI.
For National Union Fire Insurance Company of Pittsburgh, PA., Defendant: Michael P. Duffy, LEAD ATTORNEY, Scarlett Rajbanshi, Christopher R. Conroy, Peabody & Arnold LLP, Boston, MA; Stephen J. Reid, Jr., Blish & Cavanagh, LLP, Providence, RI.
For RLI Insurance Company Defendant: Jesse Siegel PRO HAC VICE Choate, Hall & Stewart, LLP, Boston, MA; Mark D. Cahill, PRO HAC VICE, Choate, Hall & Stewart, Boston, MA; Mark C. Hadden, Law Office of Mark C. Hadden, Providence, RI; Stephen J. Reid, Jr., Blish & Cavanagh, LLP, Providence, RI.
MEMORANDUM AND ORDER
John J. McConnell, Jr., United States District Judge.
Lifespan filed this lawsuit to obtain a declaratory judgment and monetary damages from the two defendant insurance companies, National Union Fire Insurance Company of Pittsburgh, Pennsylvania and RLI Insurance Company. Lifespan seeks coverage under its policies with National Union and RLI in connection with a $29,605,282.93 amended judgment issued against it at the conclusion of litigation between Lifespan, New England Medical Center, Inc. (" NEMC" ), and the Massachusetts Attorney General (the " Attorney General" ) regarding a five-year affiliation between Lifespan and NEMC (the " Underlying Suit" ). The question is whether Lifespan, through its insurance policies, has coverage for its monetary losses stemming from breaches of fiduciary duties and gross negligence in connection with the negotiation of NEMC's health insurer contracts and an interest rate swap transaction.
Three motions for summary judgment bring the matter before this Court. (ECF Nos. 20, 22, 24). They raise the issue of whether the defendant insurance companies have proven that various exclusions to established insurance coverage apply. After a thorough review of the facts and the law, and after extensive briefing and lengthy arguments, this Court finds that the exclusions to coverage asserted by the insurance companies do not apply.
A. Before The Underlying Suit
In January of 1997, Lifespan and NEMC executed a memorandum of understanding " proposing an affiliation in which
Lifespan would become NEMC's corporate parent, and NEMC would in turn become one of the hospital subsidiaries in Lifespan's system." Findings of Fact at 1) 5. NEMC, a non-profit hospital in Boston, was one of the smallest teaching hospitals in the area and it " had been in a downward spiral, losing money, patient volume, and its ability to participate in one of the area's major insurance networks." Id. at ¶ ¶ 2, 4. Lifespan, " an umbrella organization that provides managerial, administrative, and other support services to its hospital subsidiaries," " saw the proposed affiliation as an opportunity to expand its healthcare system beyond Rhode Island into Massachusetts." Id. at ¶ ¶ 1, 6.
After conducting due diligence and obtaining regulatory approvals, " Lifespan and NEMC entered into a final Amended and Restated Master Affiliation Agreement [the " Affiliation Agreement" ] in October 1997." Id. at ¶ 8. Per the Affiliation Agreement, Lifespan established Lifespan of Massachusetts, Inc. (" LOM" ) and maintained majority control of LOM. Id. at ¶ 9. " LOM, in turn, became the sole voting member of NEMC, with the power to oversee and control its operations, including major financial decisions, budgeting, strategic planning, policymaking, and contractual negotiations with health insurers." Id. Through its majority control of LOM, Lifespan had " the ability to control NEMC." Id. " In exchange for NEMC's agreement to join Lifespan's system and submit to its control, Lifespan agreed to transfer $8.7 million per year to NEMC, which resulted in a total transfer of about $42 million over the course of the affiliation." Id. at H 10. NEMC paid its " share of Lifespan's corporate overhead expenses, which totaled about $172 million over the course of the affiliation." Id.
" During the first three years of the affiliation, NEMC's financial situation improved somewhat, largely because of its return to the Harvard Pilgrim network," but it " continued to lose money." Id. at ¶ 13. " During the last two years of the affiliation, NEMC's financial situation deteriorated further." Id. at ¶ 14. " NEMC became increasingly upset with Lifespan over the performance of its health insurer contracts, the unfavorable outcome of a complex financial transaction, known as an interest rate swap, recommended by Lifespan's CFO, and the amount of Lifespan's corporate overhead charges." Id. (internal citations omitted).
" Recognizing that the affiliation was not working, NEMC proposed, and Lifespan agreed, to disaffiliate through a Restructuring Agreement signed in September 2002 and then closed in November 2002." Id. at ¶ 15. Under the Restructuring Agreement, NEMC was required " to make a series of payments to Lifespan totaling $30 million and also to split on a 50/50 basis . . . any recovery received from Medicare by NEMC . . . for the loss on sale/depreciation recapture resulting from the Affiliation." Id. (internal quotation marks omitted). While NEMC paid most of the $30 million to Lifespan required by the Restructuring Agreement, it refused to pay the final two installments totaling $3.66 million because " NEMC claimed that it had sustained losses far in excess of that amount because of Lifespan's misconduct during the affiliation, including with regard to (1) the health insurer contracts, (2) the interest rate swap, (3) the corporate overhead charges, and (4) NEMC's overall financial performance." Id. at ¶ 16.
In addition, " [t]he Restructuring Agreement provides that 'Lifespan will indemnify NEMC for any losses it incurs that result directly and solely . . . from Lifespan's
willful misconduct or gross negligence in the provision of services to NEMC by Lifespan employees working under the supervision and direction of Lifespan employees during the Affiliation Period." ' Id. at ¶ 39. The Restructuring Agreement also contains releases of liability, including a release providing that NEMC " hereby releases, remises and forever discharges any and all rights and claims that [it] has had, now has, might now have or might in the future have against Lifespan . . . or their officers, directors, employees and agents arising from or in connection with the [Affiliation Agreement]." (ECF No. 21-9 at 29-30).
B. The Underlying Suit
In 2006, Lifespan filed the Underlying Suit in this district, " alleging breach of contract and seeking to recover the $3.66 million that NEMC refused to pay." Findings of Fact at ¶ 17. " NEMC brought a counterclaim against Lifespan under the Restructuring Agreement's indemnification provision, seeking to recover the losses allegedly caused by Lifespan's misconduct" as well as " counterclaims for breach of fiduciary duty, unjust enrichment, and unfair business practices." Id. (internal citation omitted). Lifespan later amended its complaint to add a contract claim for half of the Medicare reimbursement NEMC received. Id. at ¶ 19. Then NEMC added " more counterclaims, asserting that the Restructuring Agreement's Medicare recovery provision was inapplicable, unconscionable, contrary to public policy, lacking in consideration, a violation of the Affiliation Agreement, a breach of fiduciary duty, and an unjust enrichment." Id.
Following recusal by all of the judges in this district at that time, the case was assigned to Judge Joseph N. Laplante of the United States District Court for the District of New Hampshire. Id. at ¶ 20. Then the court " granted a motion by the Massachusetts Attorney General to intervene in the case on behalf of the public interest pursuant to her supervisory authority over NEMC as a public charity." Id. at ¶ 21 (internal citation omitted). " [T]he Attorney General joined in nearly all of NEMC's counterclaims against Lifespan (except for the indemnification and unfair business practices claims)" and " did not assert any new claims of her own." Id.
All three parties moved for partial summary judgment. Id. at ¶ 22. " NEMC and the Attorney General moved for summary judgment on the issue of whether Lifespan owed a fiduciary duty to NEMC during the affiliation." Id. Applying Massachusetts law, the court concluded that " Lifespan did owe a fiduciary duty to NEMC, by virtue of its control over a nonprofit hospital and the faith, confidence, and trust that NEMC placed in its judgment and advice." Id. (internal quotation marks and citation omitted). Lifespan sought " summary judgment on its claim for half of NEMC's recent Medicare recovery, and on nearly all of the counterclaims (except for NEMC's indemnification claim, which the parties agreed was trial worthy)." Id. at 123.
The " court ruled that Lifespan was entitled to half of the Medicare recovery, rejecting the slew of counterclaims challenging the Restructuring Agreement's Medicare recovery provision." Id. (citation omitted). The court also " ruled that
NEMC had released its tort counterclaims against Lifespan through the Restructuring Agreement, including its claims for breach of fiduciary duty and unfair business practices, leaving itself only a contractual remedy under the agreement's indemnification provision." Id. at ¶ 24 (citations omitted). NEMC's unjust enrichment counterclaim also was rejected, as it was " unavailable in light of NEMC's contractual remedy." Id. (citations omitted). However, the court found " that the Attorney General was not bound by NEMC's release and could therefore proceed to trial on her claim for breach of fiduciary duty." Id. at ¶ 25 (citation omitted).
The court held a three-week bench trial in New Hampshire in February and March of 2011, hearing from almost twenty witnesses. Id. at ¶ 26-27. " Because only the Attorney General's breach of fiduciary duty claim and NEMC's indemnification claim were still in genuine dispute," the " court treated the Attorney General and NEMC as plaintiffs during the trial, and Lifespan as the defendant." Id. at ¶ 26.
After the trial, the court reviewed various submissions from the parties and then issued its Findings of Fact. (ECF No. 21-2 at 3). In short, the court found that (i) NEMC breached the Restructuring Agreement by failing to make two payments and by failing to pay Lifespan half of the Medicare recovery, Findings of Fact at ¶ ¶ 52-54; (ii) Lifespan breached its fiduciary duty of care to the Attorney General, see, e.g., id. at ¶ ¶ 93-94, 96, 99-102, 136-44; and (iii) " Lifespan's gross negligence directly and solely caused NEMC to incur  losses," id. at ¶ 107, so Lifespan was responsible for indemnifying those losses in accordance with the Restructuring Agreement. Id. at ¶ ¶ 103, 145,155. Lifespan's liability to the Attorney General was by virtue of its breach of fiduciary duty, id. at ¶ ¶ 29-35, while its liability to NEMC arose from the indemnification clause of the Restructuring Agreement. Id. at ¶ ¶ 39.
As noted supra, in their case against Lifespan, NEMC and the Attorney General focused on " Lifespan's misconduct during the affiliation, including with regard to [four distinct issues:] (1) the health insurer contracts, (2) the interest rate swap, (3) the corporate overhead charges, and (4) NEMC's overall financial performance." Id. at ¶ 16 . The court found against Lifespan regarding the first two issues: health insurer contracts, id. at ¶ ¶ 56-107, and the interest rate swap. Id. at ¶ ¶ 108-55. Regarding the latter two issues, corporate overhead charges, id. at ¶ ¶ 156-78, and NEMC's overall financial performance, id. at ¶ ¶ 179-99, the court found that Lifespan did not have any liability. Id. at ¶ ¶ 161-78, 192-99. Therefore, this Court's insurance coverage analysis involves only the health insurer contracts and the interest rate swap.
A. The Health Insurer Contracts
NEMC and the Attorney General alleged that Lifespan failed " to meet the standard of care in negotiating NEMC's contracts with health insurance providers (also called 'payors') during the affiliation." Findings of Fact at III.B. Under the Affiliation Agreement, " Lifespan had authority . . . to negotiate NEMC's payor contracts, which it delegated to the Lifespan Physicians Professional Services Organization ('PSO'), a joint venture between Lifespan and certain Rhode Island-based physician groups." Id. at ¶ 56. " Lifespan had control over the PSO and, through it, control over NEMC's payor contracting throughout the affiliation," Id.
The court agreed with the Attorney General " that Lifespan breached its fiduciary duty of care to NEMC by failing to
renegotiate NEMC's Cigna and United contracts to obtain inflationary increases in their reimbursement rates by the end of the affiliation's second year and annually thereafter." Id. at ¶ 93 (citation omitted). The court explained, " [t]hose failures constituted 'clear and gross' departures from the standard of care that any reasonable party in Lifespan's position would have exercised." Id. at ¶ 93. The court also agreed " with the Attorney General that Lifespan breached its fiduciary duty of care to NEMC by failing to negotiate jointly with Cigna on behalf of NEMC and the Rhode Island hospitals, and failing to share Cigna's Rhode Island rate information with NEMC and the PSO's Massachusetts team." Id. at ¶ 94 (citations omitted). The court explicated, " [t]hose, too, were 'clear and gross' departures from the standard of care that any reasonable party in Lifespan's position would have exercised." Id. at ¶ 94 (citations omitted). The court concluded that " Lifespan's breaches of fiduciary duty were the 'but-for' and proximate cause of damages to NEMC." Id. at ¶ 98 (internal citation omitted). Those breaches " foreseeably prevented NEMC from obtaining higher reimbursement rates from Cigna and United, and thereby resulted in NEMC's receiving significantly less revenue from those payors during the affiliation." Id.
Focusing on NEMC's indemnification claim, the court explained that " [t]he individuals responsible for overseeing NEMC's payor contracting during the affiliation . . . were Lifespan employees working under the supervision and direction of Lifespan employees, and were providing services to NEMC." Id. at ¶ 104 (citation omitted). The court concluded that " Lifespan was grossly negligent" in three respects: (i) " in failing to renegotiate the Cigna and United contracts to obtain inflationary increases in their reimbursement rates," (ii) " in failing to jointly negotiate with Cigna on behalf of NEMC and the Rhode Island hospitals or to share Cigna's Rhode Island rate information across the system," and (iii) " in failing to obtain sufficient rates and margins from Cigna." Id. at ¶ 105 (citation omitted).
B. The Interest Rate Swap
NEMC and the Attorney General alleged that Lifespan was liable for " misconduct in connection with a complex financial transaction, known as an interest rate swap, that NEMC executed during the last year of the affiliation." Findings of Fact at III.C. Specifically, more than $100 million in revenue bonds issued by NEMC were callable in July 2002. Id. at ¶ 108. Leading up to July 2002, " interest rates dropped significantly from the rate at which the bonds had been issued, creating a potential opportunity for NEMC to refinance the bonds at a lower rate." Id. The court detailed the complex business relations between NEMC, Lifespan, and Morgan Stanley related to the interest rate swap. Id. at ¶ ¶ 109-34.
Approximately a year before the bond call date, Lifespan's CFO, David Lantto, arranged for financial services firm Morgan Stanley to " present a bond refinancing proposal to NEMC." Id. at ¶ 109. " Morgan Stanley proposed that NEMC refinance the bonds in July 2002, using Morgan Stanley as underwriter." Id. Morgan Stanley also " proposed that NEMC enter into an interest rate swap." Id. " The idea for the swap came from Morgan Stanley broker Jeff Seubel, who suggested it to [Mr.] Lantto, who in turn suggested it to NEMC." Id. at ¶ 113.
" Unbeknownst to NEMC, [Mr.] Lantto had a close, longstanding personal friendship
with [Mr.] Seubel." Id. at ¶ 114. They had worked with each other in the past, and Mr. " Seubel had recommended [Mr.] Lantto for the CFO position that [Mr.] Lantto held before coming to Lifespan." Id. In addition to their business relationship, their " mutual affinity for wine" developed into a personal relationship with wine tastings, buying dinner and wine for each other " on numerous occasions, and stay[ing] overnight at each other's homes." Id. Mr. " Seubel was also part of a wine-related business partnership that [Mr.] Lantto wanted, but had never been invited, to join." Id. Despite Lifespan's clear corporate policy regarding conflict of interest requiring Mr. Lantto to disclose his relationship with Mr. Seubel, Mr. Lantto " failed to disclose the personal relationship to NEMC, recuse himself, or offer to do so." Id. at ¶ 115.
Prior to Mr. Seubel's proposal, NEMC had never entered into, or seriously considered an interest rate swap. Id. at ¶ 113. Morgan Stanley claimed that the interest rate swap would " enable NEMC to 'lock in' the current low interest rate and 'protect' against any rate increases before the refinancing date." Id. at ¶ 109. The interest rate swap can be summarized as follows:
NEMC would agree to pay Morgan Stanley a fixed interest rate, and Morgan Stanley would agree to pay NEMC a variable interest rate (based on a swap rate index), on a notional amount roughly equal to the amount of NEMC's bonds. Upon termination of the swap, whichever party had the higher balance would pay the difference. Thus, if the variable rate went up, Morgan Stanley would make a payment to NEMC. Conversely, if the variable rate went down, NEMC would make a payment to Morgan Stanley.
Id. at ¶ 110. Ordinarily, when the swap rate moves in tandem with the refinancing rate, " the swap would offset any movements in the refinancing rate and effectively enable NEMC to 'lock in' the current rate (minus¶ Morgan Stanley's $1.6 million transaction fee, which was built into the swap)." Id. at ¶ 111. However, there are significant risks if the swap rate index " decouples" from the refinancing rate. Id. If decoupling occurred, then " NEMC would not actually 'lock in' the current rate; it would be at risk of paying more, or receiving less, in the swap than the amount necessary to offset the changes in the refinancing rate." Id. While Morgan Stanley mentioned these risks to NEMC, they were mentioned " only in passing, and not in a way that enabled NEMC to fully understand the nature and scope of the risk,"  Id. at ¶ 112.
Despite the fact that " NEMC's CFO, Mark Scott, strongly opposed the swap, in part because it was a complex transaction and difficult to understand or assess," NEMC engaged in the interest rate swap with Morgan Stanley. Id. at ¶ ¶ 118, 123. The interest rate swap was governed by the " ISDA Master Agreement between Morgan Stanley Capital Services Inc. and New England Medical Center Hospitals, Inc." dated January 15, 2002 (the " Master Agreement" ). (ECF No. 23-10). Soon after the Master Agreement was signed,
" interest rates unexpectedly moved in a direction adverse to NEMC's swap position" and, as a result, " NEMC's projected savings on the bond refinancing had dropped by nearly half, to $5.73 million." Findings of Fact at ¶ 126.
In August 2002, as NEMC and Lifespan moved closer to disaffiliation, Mr. Lantto distanced himself from the interest rate swap transaction and told NEMC's CFO, Mark Scott, to " take the lead." Id. at ¶ ¶ 118, 129. NEMC then engaged a different consultant, Ponder & Co., and followed its recommendation to refinance the bonds with Merrill Lynch as underwriter. Id. at ¶ ¶ 129, 130. NEMC fired Morgan Stanley. Id. at ¶ 130.
The court explained that the losses from the interest rate swap " constituted a breach of [Mr. Lantto's]--and Lifespan's--duty of loyalty to NEMC." Id. at ¶ 137. Specifically, the court found that Mr. Lantto:
knowingly gave Morgan Stanley preferential access to NEMC, concealed from NEMC his personal relationship with [Mr.] Seubel, failed to recuse himself from the proposed swap transaction, pressured NEMC to enter into the swap, prohibited competitive bidding, prohibited NEMC from obtaining a timely second opinion from its chosen consultant, suppressed opposition from NEMC's CFO, advocated the swap to NEMC without discussing its risks, and falsely stated to NEMC that the swap would 'lock in' current interest rates.
Id. at ¶ 136.
C. The Amended Judgment
Based on its findings of fact and conclusions of law, the court entered an Amended Judgment. (ECF No. 1-20). Including prejudgment interest, Lifespan was awarded $20,398,336.94 for breach of contract, while NEMC and the Attorney General were awarded $29,605,282.93 on their counterclaims for indemnification and breach of fiduciary duty. Id. The net award was $9,206,945.99 to NEMC. Id. Lifespan satisfied the Amended Judgment by making a net payment of $9,207,778.40 to NEMC. (ECF No. 23-9 at 3). No party took an appeal to the First Circuit Court of Appeals. ( See ECF No. 1 at 10 ¶ 37; docket in 06-cv-421).
II. THIS LAWSUIT
In this case, Lifespan seeks to be indemnified for the amount of the Amended Judgment and post-judgment interest, $29,607,959.57, " in excess of the agreed-upon retention paid by Lifespan for legal services . . . in the amount of . . . $290,064.50." (ECF No. 1 at 13; ECF No. 23-9 at 2). Lifespan has a $15 million policy entitled " Not-For-Profit Individual And Organization Insurance Policy Including Employment Practices Liability Insurance Not-for- Profit Protector(##RefNum=sm FootnoteNum=9##)" (the " D& O Policy" ) from National Union. (ECF No. 1-1 at 3), Lifespan seeks judgment against National Union for the full amount of the Amended Judgment, up to and in excess of the National Union policy limit, including eighty percent of all defense costs it expended in excess of the retention, together with costs, interest, and attorneys' fees. (ECF No. 1 at 14). Lifespan has a $10 million Excess Policy with RLI. Id. Lifespan seeks judgment against RLI for the frill amount of the Amended
Judgment " up to and in excess of the RLI Policy" limit, together with costs, interest, and attorneys' fees. Id. at 15.
After describing the insurance policies, this Court turns to the claims in this lawsuit and then focuses on the pending motions.
A. Insurance Policies
Lifespan, in accordance with its normal insurance program, " secured a D& O Policy from National Union covering losses resulting from wrongful acts, including reimbursement of defense expenses, with an indemnification limit of fifteen million dollars." (ECF No. 22-1 at 5). Lifespan also obtained an Excess Policy from RLI with a limit of ten million dollars excess of the fifteen million dollar National Union policy. Id. Both policies were for the same period, October 1, 2005 to October 1, 2006, on a claims basis. Id.
The D& O Policy provided coverage for (1) individual insured members of Lifespan, including " a past, present or future duly elected or appointed director, officer, trustee, trustee emeritus, executive director, department head, . . . Employee or volunteer of [Lifespan]"  ; (2) Lifespan as an organization, " pay[ing] on behalf of the Organization Loss arising from a Claim first made against an Individual Insured .. . only when and to the extent that the Organization has indemnified such Individual Insured for such Loss pursuant to law . . ." ; and (3) Lifespan as an organizational entity, " pay[ing] on behalf of the Organization Loss arising from a Claim first made against the Organization . . . for any actual or alleged Wrongful Act of the Organization." (ECF No. 1-1 at 9,11).
The Excess Policy provided coverage " in conformance with the terms and conditions of the [D& O] Policy," except " as otherwise provided [in the Excess Policy]." (ECF No. 1-4 at 3). Specifically, the Excess Policy provided that " [i]n no event shall this Policy grant broader coverage than would be provided by any of the Underlying Insurance." Id. The Excess Policy " provid[ed] the Insureds with insurance during the Policy Period excess of the Underlying Limit" and coverage attached " only after the insurers of the Underlying Insurance shall have paid in legal currency the full amount of the Underlying Limit." Id.
After making a net payment to NEMC of $9,207,778.40, Lifespan sought coverage from National Union and RLI, claiming coverage for the $29,607,959.57 in damages and interest returned against Lifespan in favor of the Attorney General at the conclusion of the Underlying Suit. (ECF No. 23-9; ECF No. 1-22). National Union denied coverage based on D& O Policy exclusions 4(a), (b), (k), (m), and (n). (ECF No. 10 at 6 ¶ 44). RLI denied coverage because " no part of the Amended Judgment constitutes a covered Loss under the terms of the [D& O] Policy" and " no coverage is available under the Excess Policy in any event until the underlying limit of the [D& O] Policy has been exhausted in accordance with the terms of the policies." (ECF No. 1-23; see also ECF No. 4 at 5 ¶ 44). RLI concurred with and reiterated the exclusions cited by National Union. (ECF No. 1-23).
Unable to secure payment from National Union or RLI, Lifespan filed this lawsuit seeking a declaratory judgment stating that none of the exclusions relied upon by defendant insurance companies to deny
coverage is applicable (Count I). (ECF No. 1 at 11-12). Lifespan also alleges breach of contract, bad faith, and breach of the common law implied covenant of good faith and fair dealing against each insurance company (Counts II, IV, and VI against National Union; Counts III, V, and VII against RLI). Id. at 12-19. Finally, Lifespan alleges an Asermely rule claim against National Union (Count VIII). Id. at 19-20. In terms of damages, Lifespan seeks from both National Union and RLI $29,607,959.57, the amount of the Amended Judgment, as well as interest, costs, and attorneys' fees. Id. at 13-15. Lifespan also seeks eighty percent of all defense costs in excess of retention from National Union. Id. at 14. On its bad faith claims, Lifespan seeks compensatory and punitive damages from both insurance companies. Id. at 17-19. On the Asermely claim against National Union, Lifespan seeks " the full amount of the damages sustained by Lifespan to satisfy ...