61 So. 3d 1
La. Ct. App.2010Background
- Bell underwent breast augmentation by Parry in 2003 and 2005; damages alleged for June 2005 discovery.
- Bell filed a claim with the Patient's Compensation Fund; a panel found negligence by Parry.
- LAMMICO insured Parry and moved for summary judgment arguing no coverage for the 2003/2005 surgeries.
- LAMMICO relied on exclusions in the 2005 policy and the claims-made nature of all policies; retroactive date October 6, 1997 was stated.
- Trial court granted partial summary judgment for no coverage for the 2003 surgery and later dismissed all claims against LAMMICO; Bell appealed.
- Appellate review was de novo as issues involved interpretation of insurance policies; court affirmed the trial court's judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the 2003 policy cover the 2003 surgery? | Bell asserts coverage existed for 2003 surgery despite renewals. | LamMICO argues claims-made policy requires claim within the policy period; 2003 claim not made. | No coverage for 2003 surgery under 2003 policy. |
| Does the 2004 policy cover the 2003 surgery? | Prior surgeries were not excluded when 2005 policy renewed. | Policies are claims-made; no claim within 2004 policy period. | No coverage for 2003 surgery under 2004 policy. |
| Does the 2005 policy cover the 2003 surgery given the breast augmentation exclusion? | Claims during 2005 policy period could be covered if not excluded. | 2005 endorsement excludes Breast Augmentation, Breast Reduction, Cosmetic Surgery; pre-2005 procedures excluded. | No coverage for 2003 surgery under 2005 policy due to explicit exclusion. |
| What governs interpretation of a claims-made policy in this context? | Policies renewable; should provide coverage for ongoing claims. | Anderson and Hood require claim-made language to control coverage; no coverage unless claim made and reported during policy period. | Claims-made framework governs; no coverage for the 2003/2004 surgeries; 2005 claim not covered for pre-2005 surgery. |
Key Cases Cited
- Anderson v. Ichinose, 760 So.2d 302 (La. 1999) (explains claims-made policy concept and insured risk)
- Hood v. Cotter, 5 So.3d 819 (La. 2008) (no coverage for claims not made and reported within policy period)
- Marigny v. Allstate Ins. Co., 667 So.2d 1229 (La. App. 4th Cir. 1996) (de novo review on insurance policy interpretation)
- Craig v. Bantek West, Inc., 885 So.2d 1241 (La. App. 1st Cir. 2004) (summary judgment standard for movant's entitlement)