In 2012, Evanston Insurance Company issued a renewed Professional Liability Insurance Policy to Agape Senior Primary Care, Inc. and certain of its employees, doctors, and nurse practitioners, including Kezia Nixon and Dr. Floyd Cribbs (collectively, "Agape"). Unbeknownst to any other employee at Agape, Ernest Osei Addo had stolen Dr. Arthur Kennedy's identity, and was fraudulently practicing medicine as an Agape "physician" ostensibly insured by Evanston. Once Addo's deceit was uncovered, Evanston sought to rescind the policy as to all participants based on Addo's fraudulent conduct and false statements on his insurance application.
Evanston and Agape sought a declaration from the United States District Court for the District of South Carolina as to whether the fraudulent misrepresentations on an application for medical malpractice insurance by one person who masqueraded as a board-certified doctor, fooling employers and patients alike, should vitiate coverage for all other innocent insureds, including the medical entity that employed him and its employees. For the reasons that follow, we affirm the district court conclusion that South Carolina law and its principles of equity demand that coverage for the innocent co-insureds remain in place.
In the declaratory judgment action, both parties moved for summary judgment, largely agreeing as to the facts. Agape employs physicians and nurse practitioners, sending them to nursing homes and assisted living facilities with the Agape name. Agape uses an "integration of services" model that requires each patient to be treated by multiple physicians and nurse practitioners.
Sometime around February 2012, Agape hired a man who held himself out to be Dr. Arthur Kennedy, a South Carolina board certified physician. Neither Agape nor any of its employees knew that "Kennedy" was actually Ernest Osei Addo, who was not a South Carolina board-certified physician. Addo had stolen the identity of Dr. Kennedy, a former friend of Addo who was out of the country during Addo's fraudulent conduct at Agape. Using Dr. Kennedy's identity, Addo had obtained a South Carolina driver's license with his own photo and previously had gained employment as a physician with the South Carolina Department of Mental Health.
In August 2012, approximately six months after hiring Addo, Agape learned of the fraud after police arrested Addo and notified Agape of Addo's true identity. A federal court in South Carolina sentenced Addo to two years of imprisonment following his conviction for aggravated identity theft in 2014. All parties agree that Addo fraudulently portrayed himself as Dr. Kennedy and that Addo's conduct was dishonest, illegal, and intentional.
Prior to Addo's criminal conviction, in 2011, Evanston issued Physicians, Surgeons, Dentists and Podiatrists Professional Liability Insurance Policy No. MM-820866 for the policy period August 1, 2011 to August 1, 2012 (the "First Policy"). On February 11, 2012, Addo filled out an individual application for insurance through Evanston, representing himself to be Dr. Kennedy and board-certified in family medicine. Evanston had no other information regarding "Kennedy" except the application. After receiving Addo's application, Evanston issued Endorsement 10-10, adding "Kennedy" to the First Policy and charging an additional $4,000 premium for "Kennedy."
On July 15, 2012, all applicants, including the individual physicians, Addo, and Agape, submitted
The First Policy and the Renewal Policy were identical in relevant part, with the exception of the addition of Kennedy's name to the list of insured physicians to the Renewal Policy. The Policies provided for two different coverages: "Coverage A: Individual Liability Coverage" ("Coverage A") and "Coverage B: Association, Corporation or Partnership Liability Coverage" ("Coverage B"). Coverage A related to a list of individual physicians, each of whom applied for insurance separately. Coverage B applied to Agape and certain of its employees.
Three lawsuits have been filed against Agape that potentially relate to the declaratory judgment case on appeal.
After the filing of the Class Action Lawsuit, Evanston brought a separate declaratory action against Agape in the United States District Court for the District of South Carolina, Columbia Division.
The district court issued its amended order on the cross motions for summary judgment in October 2014. The district court noted that the Supreme Court of South Carolina held in
The court ruled that the Renewal Policy was void as to Addo because of his fraudulent misrepresentations. The court did not "impute" Addo's conduct to Agape, finding that (1) Addo applied separately for the Policies and Agape had no knowledge of his fraud; (2) the Renewal Policy demonstrated an intent to provide separate insurance coverage for the "co-insureds" and thus the Renewal Policy was not void
This Court reviews a district court's grant of summary judgment
The Supreme Court of South Carolina applies the "general rules of contract construction" to construe insurance policies.
A common general contract principle "allows an injured party to void a contract when that party's assent to the bargain is induced by the fraudulent or material misrepresentation of the other contracting party, and the injured party relied on the misrepresentation in question." Robert H. Jerry, II & Douglas R. Richmond,
"Rescission is an equitable remedy that attempts to undo a contract from the beginning as if the contract had never existed."
Evanston contends that the innocent co-insured doctrine does not apply, and that "principles of general contract law regarding fraudulent procurement support rescission of the entire policy." We disagree. South Carolina law and principles of equity weigh in favor of allowing coverage for the innocent co-insured parties, who are the individual doctors, nurses, and Agape. South Carolina law disfavors rescission against the insured. In particular, under South Carolina law, three factors tip the equity scales in favor of Agape: (1) as the insurer and drafter, Evanston could have included forfeiture language in the policy; (2) neither Agape nor any of its employees had any knowledge of Addo's fraud, rendering them "innocent" under South Carolina law; and, (3) the public interest would not be served through rescission.
South Carolina construes insurance policies "liberally in favor of the insured and strictly against the insurer."
Within this context, the Court addresses the issues in this case. First, the Supreme Court of South Carolina in
Second, given the reasoning articulated in McCracken, the district court did not err in its forecast that South Carolina would extend the innocent co-insured doctrine beyond the context of arson and into other areas of insurance.
Finally, public policy considerations—appropriate to weigh in this equitable action—reinforce that the district court arrived at the proper outcome under South Carolina law. Equity cannot demand that the actions of one corrupt applicant, who conned Agape and Evanston alike, deprive the innocent insureds of the benefit of their contract. Agape and its employees separately applied for medical malpractice insurance in good faith, and they would be left without such insurance through no fault of their own. Evanston accepted individual premiums as to each insured and seemingly spread the risk accordingly. Further, and perhaps more important in an equitable determination, rescission would leave the public essentially unprotected on matters of medical malpractice brought against every other Agape employee.
The district court faced a novel application of the innocent co-insured doctrine otherwise employed by South Carolina courts. For the reasons stated above, the district court did not err when it concluded that South Carolina would not allow rescission under the facts of this case. Accordingly, the Court will affirm the district court's holding that the Renewal Policy is not void
Evanston next argues that, if the Renewal Policy is not void
The district court plainly held that the policy provided coverage to Agape "for the acts and omissions of all Coverage A Named Insureds and Coverage B Named Insureds, to the extent such individuals were acting within the scope of their duties on behalf of [Agape.]" Nowhere did the district court's decision extend such coverage to Agape for its own administrative failures. Indeed, the district court observed, albeit in a footnote, that the policy did
Evanston further asserts that the district court improperly construed Exclusion A, which states:
This policy does not apply to:
Additional exclusions, lettered B through S, followed Exclusion A. Evanston avers that the district court failed to apply this exclusion and instead allowed coverage for claims against Named Insureds arising from the acts and omissions of Addo. Evanston again misinterprets the district court's decision.
The district court correctly concluded that "all other Coverage A Named Insureds are entitled to coverage, to the extent a claim exists that would trigger their coverage under the [Renewal Policy]." As discussed above, the phrase "all other Coverage A Named Insureds" does not include Addo or Kennedy. The district court noted that coverage extended only to claims arising from "the acts and omissions of all Coverage A Named Insureds and Coverage B Named Insureds, to the extent such individuals were acting within the scope of their duties on behalf of [Agape.]" In sum, the district court did not hold that coverage extends to claims arising from Addo's acts and omissions.
Finally, Evanston argues that the district court failed to apply its rulings to each individual lawsuit and potential lawsuit presented to the court, contending that the district court's order has caused more disputes. "It is well settled that an insurer's duty to defend is based on the allegations of the underlying complaint."
The record shows the existence of three filed lawsuits: the Class Action Lawsuit, the Larimore Lawsuit, and the Curtis Lawsuit. However, none of the parties in interest in these suits were brought before the district court.
For the foregoing reasons, the district court correctly interpreted the policy and committed no error when it applied the innocent co-insured doctrine to the novel circumstances of this case. South Carolina law and principles of equity demand that fraudulent misrepresentations on an application for medical malpractice insurance by a person posing as a doctor should not vitiate the insurance policy as to his or her innocent employer and fellow employees.
Accordingly, the judgment of the district court is
In February 2014, the Hanna plaintiffs filed their first amended complaint raising eight causes of action for negligent conduct stemming from Agape and Middleton's hiring of Addo. The lawsuit does not allege medical malpractice by any doctors other than Addo. The district court remanded the action to state court before a second amended complaint was filed in the Class Action Lawsuit.