Fletcher v. Pennsylvania Property & Casualty Insurance Guaranty
27 A.3d 299
Pa. Commw. Ct.2011Background
- Fletcher seeks excess coverage from MCARE for a $7,727,808.20 final judgment arising from a 1991–2001 malpractice period.
- PHICO insured Dr. Kubacki and Medical Associates 1997–2001; tail coverage from PHICO converted to occurrence coverage for that period.
- PHICO’s liquidation placed the CAT Fund/Guaranty Association in liability posture for related claims.
- MCARE paid surcharges for tail coverage in some periods; dispute centers on whether tail coverage/surcharge suffices for excess coverage.
- Malpractice occurred over a decade; the occurrence date and which policy covered the claim are disputed.
- Court previously resolved jurisdictional questions; dispute now focuses on whether MCARE owes excess coverage for 1997–2001 and the timing/date of occurrence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCARE bears excess coverage for 1997–2001 malpractice. | Fletcher argues Kubacki/Medical Associates had tail coverage and paid surcharges; 1997–2001 occurrence triggers MCARE. | MCARE contends no primary coverage or tail coverage applicable; surcharges for tail coverage not proven. | Summary judgment in part: MCARE liable for 1997–2001 occurrence coverage, but factual dispute on exact occurrence date. |
| Whether tail coverage/surcharge payments satisfy MCARE eligibility. | MCARE tail coverage from PHICO and paid surcharges cover excess liability. | MCARE requires its own tail coverage and surcharge mechanism; PHICO tail does not create MCARE obligation. | MCARE’s tail coverage argument rejected; fact questions remain regarding surcharges and tail coverage applicability. |
| When did the malpractice occurrence first manifest for MCARE purposes? | Occurrence occurred in 2000 when symptoms appeared per complaint. | Occurrence date could be earlier or later; records may show earlier manifestation. | No genuine issue as to date; 2000 supported by the complaint, but remaining factual issues prevent ruling on exact date. |
| Is the Joint Tortfeasor Release admissible in evaluating summary judgment? | Release should be admitted to determine liability allocation if joint tortfeasor status exists. | Release should be struck or not considered absent judicial determination of joint tortfeasor status. | Release admissible; court denied MCARE’s motion to strike and considered it in part. |
Key Cases Cited
- D’Auria v. Zurich Ins. Co., 507 A.2d 857 (Pa. Super. Ct. 1986) (determines occurrence-based coverage when multiple years are involved)
- Gingerlowski v. Commonwealth Insurance Department, 961 A.2d 237 (Pa. Cmwlth. 2008) (tail coverage required for excess coverage; failure defeats MCARE claim)
- Paternaster v. Lee, 863 A.2d 487 (Pa. 2004) (CAT Fund not obligated where tail coverage not obtained)
- Dellenbaugh v. Commonwealth Medical Professional Liability Catastrophe Loss Fund, 756 A.2d 1172 (Pa. 2000) (failure to pay surcharges within time limits precludes coverage)