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Children's Hospital Colorado v. Lexington Insurance Co.

United States District Court, D. Colorado

April 13, 2017

CHILDREN'S HOSPITAL COLORADO, Plaintiff,
v.
LEXINGTON INSURANCE COMPANY, Defendant.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          Richard P. Matsch, Senior District Judge

         Plaintiff Children's Hospital Colorado (CHC) brings a claim for declaratory judgment that a professional liability policy issued by Defendant Lexington Insurance Company covers CHC for defense and indemnity in a medical malpractice lawsuit arising from an incident occurring in February 2008. CHC and Lexington have filed cross motions for summary judgment.

         Facts

         Lexington issued its Excess Healthcare Professional Liability - Claims Made Policy, effective May 1, 2006 to May 1, 2008, to The Children's Hospital Association.

         The Policy provides professional liability coverage to CHC after exhaustion of CHC's $1, 000, 000 self-insured retention (“SIR”), which includes defense costs. Section I of the Policy, Insuring Agreement, provides that “A claim for a medical incident must be first made against an Insured during the policy period….” Section V.C of the Policy, “Duties in the Event of a Claim, Suit, or Medical Negligence, ” provides, as pertinent here:

1. If during the policy period, the First Named Insured shall become aware of any Medical Incident which may reasonably be expected to give rise to a claim being made against any Insured, the First Named Insured must notify us in writing as soon as practicable.
. . . .
Any claim arising out of such medical incident which is subsequently made against any Insured and reported to us, shall be considered first made at the time such notice was given to us.
. . . .
2. If a claim or suit is brought against an Insured arising out of a medical incident, the First Named Insured must:
. . . .
b. Provide us with written notice of the claim or suit as soon as practicable; and c. Immediately send us copies of any demands, notices, summonses, or legal papers received in connection with the claim or suit.

         Naomi Pressey suffered a serious injury at CHC in Denver in February 2008, shortly after her birth. CHC notified AIG Technical Services, Inc. (AIG)[1] of the February 10, 2008 incident involving Naomi Pressey by submitting an AIG reporting form dated April 24, 2008 and received by AIG on April 29, 2008. This was within the Policy's effective period ending May 1, 2008.

         The Presseys filed a Complaint against CHC, three physicians, and two nurses on January 14, 2013. CHC retained attorney John Martin to represent it. On October 6, 2014, Martin notified CHC that the Presseys had agreed to dismiss all defendants except CHC. CHC has admitted that it did not submit any information to ...


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