United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.
as a declaratory judgment action pursuant to 28 U.S.C. §
2201, this case is an insurance coverage dispute pitting a
provider of professional services insurance to physicians,
ProAssurance Specialty Insurance Company, Inc.
(“ProAssurance”), against its insured, Ricky W.
McCullough, M.D., and a certified nurse assistant/mental
healthcare worker (“CNA”) employed by Roger
Williams Medical Center (“RWMC”), Barbara
Valletta. The case arises out of an incident that occurred on
May 21, 2012, when Dr. McCullough was treating an intoxicated
patient in the emergency room, assisted by Ms. Valletta in
her capacity as a CNA. When Ms. Valletta repeatedly raised
her voice at, grabbed, pushed and shook the patient, Dr.
McCullough believed she had “kind of crossed over the
line” and restrained her by grabbing her by the arm.
Ms. Valletta claimed that this action amounted to negligence,
assault and battery and negligent infliction of emotional
distress and sued Dr. McCullough in Rhode Island Superior
Court for lost wages, medical expenses and pain and
suffering, among other damages. Claiming that Ms.
Valletta's Superior Court complaint alleged a
“professional incident” covered by the
ProAssurance policy, Dr. McCullough demanded that it defend
the action. ProAssurance responded by invoking the
definitions of “professional incident” and
“professional services, ” as well as the
exclusion for “any obligation . . . for which any
carrier as insurer may be held liable under any workers'
compensation . . . law, ” among others, and took the
position that it had no duty to defend or to indemnify Dr.
McCullough. It nevertheless agreed to provide a defense as a
courtesy under a full reservation of rights. To clarify its
obligations, it initiated this declaratory judgment action
properly based on diversity jurisdiction pursuant to 28
U.S.C. § 1332(a).
motion for summary judgment asks the Court to construe the
plain meaning of the words used in its Health Care
Professional Liability Policy (the “Policy”) and
to declare that it has no duty to defend or to indemnify Dr.
McCullough in connection with Ms. Valletta's claim. Dr.
McCullough's cross motion asks the Court to declare the
opposite. Ms. Valletta asks the Court to deny
ProAssurance's motion for summary judgment because she
agrees with Dr. McCullough's argument that the incident
is covered by the Policy; she also asserts that ProAssurance
delayed in initiating this declaratory judgment action and
that her rights are not limited by the exclusions in the
Policy because she is not a party to it.
cross motions of ProAssurance and Dr. McCullough have been
referred to me for report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B). While Dr. McCullough and Ms.
Valletta apparently continue to contest vigorously the facts
arising from the incident, including whether his conduct
gives rise to liability and whether and to what extent his
conduct caused any injury, the facts that are material to
this declaratory judgment action are undisputed and the
matter is ripe for determination. For the reasons that
follow, I find the Policy to be clear and unambiguous and
recommend that the Court declare that that ProAssurance has a
duty to defend and indemnify because the incident arose out
of the rendering of professional services. Nevertheless, I
also recommend that the Court declare that ProAssurance's
duty to defend and indemnify is cabined by the unambiguous
language of Exclusion G, which eliminates Policy coverage for
any obligations based on Ms. Valletta's expenses for
reasonable and necessary medical treatment, lost wages and/or
lost earning capacity, all of which are potential liabilities
of the insurer that was liable to pay, and did pay,
workers' compensation coverage to Ms. Valletta in
connection with the incident under Rhode Island workers'
compensation law. See generally R.I. Gen. Laws
§ 28-33-1, et seq.
21, 2012, Dr. McCullough was working as a contract physician
providing medical services to patients on behalf of NES
Americas, Inc., through its subsidiary, Medical Services of
Rhode Island, Inc., in the emergency room at RWMC in
Providence, Rhode Island. PSUF ¶¶ 1-7. He claims
that, while providing emergency medical treatment to an
intoxicated patient, he became involved in the incident with
Ms. Valletta, an employee of RWMC who was assigned as the CNA
to assist him. DSUF ¶ 21. While providing medical
services to the patient, Dr. McCullough alleges that he
restrained Ms. Valletta to prevent her from continuing to
grab, push, shake and yell at the patient. PSUF ¶ 8;
DSUF ¶¶ 21-30. Dr. McCullough testified that his
conduct was based on his belief that Ms. Valletta's
actions were not necessary for the safety of the patient and
that she had “kind of crossed over the line.”
DSUF ¶¶ 25, 28. With respect to the incident, Ms.
Valletta does not claim that she was, in any respect, a
patient of Dr. McCullough or that she was receiving any sort
of professional treatment from Dr. McCullough or that there
was any physician/patient relationship between her and Dr.
December 17, 2013, Ms. Valletta filed a Complaint suing Dr.
McCullough in the Rhode Island Superior Court. PSUF ¶
11; PSUF Ex., ECF No. 12-1 (“Valletta Compl.”). It
alleges that Dr. McCullough committed an assault on her while
she was working in the course of her employment at RWMC.
Valletta Compl. ¶¶ 4, 7, 10, 11, 14, 17. The
pleading has three Counts - first, negligence in breach of
the duty to provide a safe and secure atmosphere; second,
assault and battery in intentionally causing bodily contact;
and third, negligent infliction of emotional distress by
causing severe emotional distress accompanied by physical
symptoms. Id. ¶¶ 4-19. The Valletta
Complaint seeks damages for “severe personal injuries,
great pain and suffering, . . . tremendous medical expenses,
. . . loss of enjoyment of life, . . . lost wages and/or lost
earning capacity, and . . . other great damage, ” as
well as for “severe emotional distress.”
Id. ¶¶ 8, 12, 19.
December 31, 2013, Dr. McCullough sought defense coverage
from ProAssurance as to the Valletta Complaint. PSUF ¶
12; PSUF Ex., ECF No. 12-12. Several weeks later, Dr. Keri
Gardner of NES, on behalf of ProAssurance, advised Dr.
McCullough that the Policy does not provide defense or
indemnity coverage as to the Valletta Complaint, as the
Policy does not provide coverage for claims of injury to
non-patients; nevertheless ProAssurance agreed that it would
provide a courtesy defense to Dr. McCullough under a full
reservation of its rights. PSUF ¶¶ 5, 13; PSUF Ex.,
ECF No. 12-13. Since that time, ProAssurance has provided a
defense to Dr. McCullough in connection with the Valletta
Complaint, at all times under a full reservation of rights.
PSUF ¶¶ 15, 16, 18. The Valletta Complaint remains
addition to the claims that she asserted in the Valletta
Complaint, Ms. Valletta also claimed and recovered
workers' compensation benefits. Id. ¶ 20.
These benefits were provided to her as the obligation of the
workers' compensation insurer for her employer, RWMC.
APPLICABLE POLICY TERMS
relies on two discrete arguments. First, it contends that the
incident is not covered by the Policy because Ms. Valletta
was not Dr. McCullough's patient and her claim against
him is not a professional incident because it did not involve
the delivery of professional services or involve a breach of
the physician/patient relationship. Second, even if the
incident is covered by the Policy, ProAssurance asserts the
exclusion barring it from any duty to defend or indemnify in
connection with obligations for which a workers'
compensation insurer may be liable for coverage.
Policy terms applicable to these arguments are below.
Damages means all amounts of money which are
reimbursable under this policy because of injury . . .
Defense Costs means reasonable and necessary
costs incurred by or on behalf of an insured . . .
Policy means the Cover
Page, the forms listed thereon and any endorsements
issued from time to time. The policy terms in effect at the
time a professional incident is first reported shall apply to
that professional incident.
Professional incident means:
A. a single act or omission, or a series of related acts or
omissions during a continuing course of professional
services, arising out of the rendering of, or
failure to render, professional services to
any one person by an insured or any person
for whose acts or omissions an insured is
legally responsible, which results, or is likely to result,
in damages . . .
Professional services means the provision of
direct patient care, including treatment, diagnosis and
consultation that an insured may legally perform and that is
within the scope of the insured's profession.
PSUF Ex., ECF No. 12-3 at 4-5 (emphasis in original)