United States District Court, D. Colorado
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Richard P. Matsch, Senior District Judge
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.
issued its Excess Healthcare Professional Liability - Claims
Made Policy, effective May 1, 2006 to May 1, 2008, to The
Children's Hospital Association.
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.
Pressey suffered a serious injury at CHC in Denver in
February 2008, shortly after her birth. CHC notified AIG
Technical Services, Inc. (AIG) 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
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 ...