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Medical Mutual Insurance Co. of Maine v. Douglas Burka

United States Court of Appeals, First Circuit

August 10, 2018

MEDICAL MUTUAL INSURANCE COMPANY OF MAINE, Plaintiff, Appellee,
v.
DOUGLAS BURKA, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

          Christopher C. Dinan, with whom Monaghan Leahy, LLP was on brief, for appellant.

          Christopher C. Taintor, with whom Norman, Hanson & DeTroy, LLC was on brief, for appellee.

          Before Howard, Chief Judge, Lipez and Barron, Circuit Judges.

          LIPEZ, Circuit Judge.

         Appellant Douglas Burka, a physician, is the defendant in a pair of civil suits filed in state courts in Maine and Maryland. Following Burka's request for a defense from his professional liability insurer, appellee Medical Mutual Insurance Company of Maine ("MMIC"), MMIC brought this declaratory judgment action seeking to establish that it has no duty to defend Burka in either state proceeding. At the core of the coverage dispute are allegations that Burka improperly accessed his wife's medical records during their deteriorating, and ultimately failed, marriage. In the state-court complaints, Burka's now ex-wife, Allison Cayne, claims that Burka used his status as a doctor to obtain her records so he could harass and embarrass her.[1]

         The district court granted the declaratory judgment for MMIC, concluding that the claims against Burka in both lawsuits fell outside the professional liability coverage provided by the MMIC policy ("the Policy"). After close review of the Policy and the state-court complaints, we agree with that determination and, hence, affirm.

         I.

         Under Maine law, which the parties agree governs this case, "[w]hether an insurer owes a duty to defend is a question of law that we review de novo." City of S. Portland v. Me. Mun. Ass'n Prop. & Cas. Pool, 158 A.3d 11, 13-14 (Me. 2017) (footnote omitted). To answer that question, a court must "consider[] and compare[] two documents: the insurance policy and the underlying complaint against the insured." Harlor v. Amica Mut. Ins. Co., 150 A.3d 793, 797 (Me. 2016). The duty to defend arises if that comparison, with "the complaint[] read broadly in conjunction with the policy, reveals the existence of any legal or factual basis that could potentially be developed at trial and result in an award of damages covered by the terms of the policy." Id.

         Burka argues on appeal that the district court erred in finding no duty to defend the Maryland and Maine lawsuits because accessing medical records, as he was alleged to have done, constitutes a "professional service" within the scope of the Policy's coverage. He insists that the plaintiffs' allegations of malicious intent are irrelevant to the coverage issue. He further asserts that coverage is at least debatable, and he is therefore entitled to a defense, because the Policy's definition of "professional services" is ambiguous.

         Given the centrality of the Policy and the state-court complaints to the resolution of this case, we begin by describing those documents. In doing so, we borrow liberally from the district court's helpful description of their contents. To set the stage, and explain why lawsuits were filed in two states, we note that Burka and Cayne moved from Tennessee to Maine in 2013 and, in 2015, as their marriage was collapsing, they both relocated independently to Maryland. Cayne's parents are longtime residents of Maryland.

         A. The Maryland and Maine Lawsuits

         In February 2016, Cayne and her parents filed a complaint against Burka and his father, Dr. Steven A. Burka, in Maryland state court. The complaint alleges, in relevant part, that both during his marriage to Cayne and after their separation around April 2015, Douglas Burka "engaged in a campaign to access Allison's medical records to learn about her mental and gynecological health and other confidential medical information." Maryland Compl. ¶ 14. Specifically, the complaint alleges that Burka conspired with his father in the spring of 2015 to improperly access Cayne's medical records at hospitals in the Washington, D.C. area for the purpose of harassing and embarrassing her and to gain advantage in their pending divorce litigation. Id. ¶ 15. The complaint also alleges Burka's improper access to the medical records of Cayne's parents for the same purposes. Id. ¶ 18.

         The Maryland complaint refers to allegedly improper actions taken by Burka in Maine in only one paragraph, which states in full:

Before and after their separation, Douglas Burka engaged in a campaign to access Allison's medical records to learn about her mental and gynecological health and other confidential medical information. Upon information and belief, Douglas Burka first used his privileges at Vanderbilt [in Nashville] to access Allison's mental health records without authorization in or about July of 2011, when Allison was in therapy at Vanderbilt. Upon information and belief, on at least one occasion, after Allison left him, Douglas Burka also used his privileges at Southern Maine Medical Center to access Allison's medical records. He also accessed her email accounts and social media accounts without authorization on several occasions after Allison left him. These incidents are the subject of a separate lawsuit in Cumberland County Superior Court in Maine, Burka v. Burka, No. 16-CV-20.

Maryland Compl. ¶ 14.

         In Maine, the operative amended complaint was filed in May 2016, alleging in relevant part that Burka had accessed Cayne's medical records "at Southern Maine Healthcare" without authorization while he was employed as a doctor in that practice during the spring of 2015. Maine Compl. ¶¶ 1, 15-16. Although the complaint does not specifically identify Cayne as a patient of an SMHC doctor or the practice, that status is an inevitable inference from the allegations that Burka accessed her confidential healthcare information maintained there.

         The amended Maine complaint seeks a remedy on three grounds. The First Claim for Relief (invasion of privacy) was dismissed by the state court and the Third Claim for Relief (intentional infliction of emotional distress) was dismissed by stipulation of the parties, leaving only the Second Claim for Relief alleging unlawful disclosure of confidential health care information. For that claim, Cayne requests injunctive relief and costs based on a Maine statute protecting the "[c]onfidentiality of health care information." Me. Rev. Stat. Ann. tit. 22, § 1711-C.[2]

         B. The MMIC Policy

         The Policy identifies SMHC Physician Services, P.A. ("SMHC") as the named insured, [3] and it includes a "Slot Policy Endorsement" that extends coverage to "all individual physicians listed on the SCHEDULE OF SLOTS ENDORSEMENT and working as employees or contractors of the NAMED INSURED." The policy's Declarations Page labels the document as "A Modified Professional Liability Policy -- Claims Made -- for Physicians and Surgeons," and the policy itself is labeled "Physicians Comprehensive Professional Liability Insurance Policy." Burka was listed by name on the "Schedule of Slot Coverage," and it is undisputed that he was a covered physician between August 13, 2012 and August 25, 2015.

         The Slot Policy Endorsement includes the following coverage agreement:

Coverage afforded to insured physicians under this Policy is limited to CLAIMS arising from MEDICAL INCIDENTS or from NON-PATIENT INCIDENTS which result from their PROFESSIONAL SERVICES rendered within the scope of their duties as a physician employee or contractor of the NAMED INSURED . . . .

         The coverage agreements of the Policy state, in pertinent part:

A. MEDICAL INCIDENT Liability
We agree to pay on your behalf DAMAGES and DEFENSE COSTS which you become legally obligated to pay due to any CLAIM made against you as a result of a MEDICAL INCIDENT as defined in this Policy . . ., provided that:
1. the MEDICAL INCIDENT results from your PROFESSIONAL SERVICES . . . .
B. NON-PATIENT INCIDENT Liability
We agree to pay on your behalf DAMAGES and DEFENSE COSTS which you become legally obligated to pay due to any CLAIM made against you as a result of a NON-PATIENT INCIDENT as ...

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