Medical Mutual Insurance Co. v. Burka , 899 F.3d 61 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1872
MEDICAL MUTUAL INSURANCE COMPANY OF MAINE,
Plaintiff, Appellee,
v.
DOUGLAS BURKA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Christopher C. Dinan, with whom Monaghan Leahy, LLP was on
brief, for appellant.
Christopher C. Taintor, with whom Norman, Hanson & DeTroy,
LLC was on brief, for appellee.
August 10, 2018
LIPEZ, Circuit Judge. Appellant Douglas Burka, a
physician, is the defendant in a pair of civil suits filed in state
courts in Maine and Maryland. Following Burka's request for a
defense from his professional liability insurer, appellee Medical
Mutual Insurance Company of Maine ("MMIC"), MMIC brought this
declaratory judgment action seeking to establish that it has no
duty to defend Burka in either state proceeding. At the core of
the coverage dispute are allegations that Burka improperly
accessed his wife's medical records during their deteriorating,
and ultimately failed, marriage. In the state-court complaints,
Burka's now ex-wife, Allison Cayne, claims that Burka used his
status as a doctor to obtain her records so he could harass and
embarrass her.1
The district court granted the declaratory judgment for
MMIC, concluding that the claims against Burka in both lawsuits
fell outside the professional liability coverage provided by the
MMIC policy ("the Policy"). After close review of the Policy and
the state-court complaints, we agree with that determination and,
hence, affirm.
1
In the Maryland action, Cayne's parents also are plaintiffs,
and they likewise allege that Burka improperly accessed their
medical records.
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I.
Under Maine law, which the parties agree governs this
case, "[w]hether an insurer owes a duty to defend is a question of
law that we review de novo." City of S. Portland v. Me. Mun. Ass'n
Prop. & Cas. Pool, 158 A.3d 11, 13-14 (Me. 2017) (footnote
omitted). To answer that question, a court must "consider[] and
compare[] two documents: the insurance policy and the underlying
complaint against the insured." Harlor v. Amica Mut. Ins. Co.,
150 A.3d 793, 797 (Me. 2016). The duty to defend arises if that
comparison, with "the complaint[] read broadly in conjunction with
the policy, reveals the existence of any legal or factual basis
that could potentially be developed at trial and result in an award
of damages covered by the terms of the policy." Id.
Burka argues on appeal that the district court erred in
finding no duty to defend the Maryland and Maine lawsuits because
accessing medical records, as he was alleged to have done,
constitutes a "professional service" within the scope of the
Policy's coverage. He insists that the plaintiffs' allegations of
malicious intent are irrelevant to the coverage issue. He further
asserts that coverage is at least debatable, and he is therefore
entitled to a defense, because the Policy's definition of
"professional services" is ambiguous.
Given the centrality of the Policy and the state-court
complaints to the resolution of this case, we begin by describing
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those documents. In doing so, we borrow liberally from the
district court's helpful description of their contents. To set
the stage, and explain why lawsuits were filed in two states, we
note that Burka and Cayne moved from Tennessee to Maine in 2013
and, in 2015, as their marriage was collapsing, they both relocated
independently to Maryland. Cayne's parents are longtime residents
of Maryland.
A. The Maryland and Maine Lawsuits
In February 2016, Cayne and her parents filed a complaint
against Burka and his father, Dr. Steven A. Burka, in Maryland
state court. The complaint alleges, in relevant part, that both
during his marriage to Cayne and after their separation around
April 2015, Douglas Burka "engaged in a campaign to access
Allison's medical records to learn about her mental and
gynecological health and other confidential medical information."
Maryland Compl. ¶ 14. Specifically, the complaint alleges that
Burka conspired with his father in the spring of 2015 to improperly
access Cayne's medical records at hospitals in the Washington,
D.C. area for the purpose of harassing and embarrassing her and to
gain advantage in their pending divorce litigation. Id. ¶ 15.
The complaint also alleges Burka's improper access to the medical
records of Cayne's parents for the same purposes. Id. ¶ 18.
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The Maryland complaint refers to allegedly improper
actions taken by Burka in Maine in only one paragraph, which states
in full:
Before and after their separation, Douglas
Burka engaged in a campaign to access
Allison's medical records to learn about her
mental and gynecological health and other
confidential medical information. Upon
information and belief, Douglas Burka first
used his privileges at Vanderbilt [in
Nashville] to access Allison's mental health
records without authorization in or about July
of 2011, when Allison was in therapy at
Vanderbilt. Upon information and belief, on
at least one occasion, after Allison left him,
Douglas Burka also used his privileges at
Southern Maine Medical Center to access
Allison's medical records. He also accessed
her email accounts and social media accounts
without authorization on several occasions
after Allison left him. These incidents are
the subject of a separate lawsuit in
Cumberland County Superior Court in Maine,
Burka v. Burka, No. 16-CV-20.
Maryland Compl. ¶ 14.
In Maine, the operative amended complaint was filed in
May 2016, alleging in relevant part that Burka had accessed Cayne's
medical records "at Southern Maine Healthcare" without
authorization while he was employed as a doctor in that practice
during the spring of 2015. Maine Compl. ¶¶ 1, 15-16. Although
the complaint does not specifically identify Cayne as a patient of
an SMHC doctor or the practice, that status is an inevitable
inference from the allegations that Burka accessed her
confidential healthcare information maintained there.
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The amended Maine complaint seeks a remedy on three
grounds. The First Claim for Relief (invasion of privacy) was
dismissed by the state court and the Third Claim for Relief
(intentional infliction of emotional distress) was dismissed by
stipulation of the parties, leaving only the Second Claim for
Relief alleging unlawful disclosure of confidential health care
information. For that claim, Cayne requests injunctive relief and
costs based on a Maine statute protecting the "[c]onfidentiality
of health care information." Me. Rev. Stat. Ann. tit. 22, § 1711-
C.2
B. The MMIC Policy
The Policy identifies SMHC Physician Services, P.A.
("SMHC") as the named insured,3 and it includes a "Slot Policy
2Section 1711-C prohibits disclosure of "[a]n individual's
health care information" by "the health care practitioner or
facility," with specified exceptions. Me. Rev. Stat. Ann. tit.
22, § 1711-C(2). The statute's "Enforcement" provision states, in
part:
An individual who is aggrieved by conduct in
violation of this section may bring a civil
action against a person who has intentionally
unlawfully disclosed health care information
. . . . The action may seek to enjoin
unlawful disclosure and may seek costs and a
forfeiture or penalty . . . .
Id. § 1711-C(13)(B).
3The district court noted its understanding that Southern
Maine Health Care, referenced in Cayne's complaints, is the sole
shareholder of SMHC Physician Services, P.A. and also has operated
under the name of Southern Maine Medical Center. Med. Mut. Ins.
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Endorsement" that extends coverage to "all individual physicians
listed on the SCHEDULE OF SLOTS ENDORSEMENT and working as
employees or contractors of the NAMED INSURED." The policy's
Declarations Page labels the document as "A Modified Professional
Liability Policy -- Claims Made -- for Physicians and Surgeons,"
and the policy itself is labeled "Physicians Comprehensive
Professional Liability Insurance Policy." Burka was listed by
name on the "Schedule of Slot Coverage," and it is undisputed that
he was a covered physician between August 13, 2012 and August 25,
2015.
The Slot Policy Endorsement includes the following
coverage agreement:
Coverage afforded to insured physicians under
this Policy is limited to CLAIMS arising from
MEDICAL INCIDENTS or from NON-PATIENT
INCIDENTS which result from their PROFESSIONAL
SERVICES rendered within the scope of their
duties as a physician employee or contractor
of the NAMED INSURED . . . .
The coverage agreements of the Policy state, in pertinent part:
A. MEDICAL INCIDENT Liability
We agree to pay on your behalf DAMAGES and
DEFENSE COSTS which you become legally
obligated to pay due to any CLAIM made against
you as a result of a MEDICAL INCIDENT as
defined in this Policy . . . , provided that:
Co. of Me., No. 2:16-cv-462-GZS, 2017 WL 3725980, at *2 n.2 (D.
Me. Aug. 29, 2017). We have no need to distinguish among these
entities and use "SMHC" to refer to Burka's Maine practice group.
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1. the MEDICAL INCIDENT results from your
PROFESSIONAL SERVICES . . . .
B. NON-PATIENT INCIDENT Liability
We agree to pay on your behalf DAMAGES and
DEFENSE COSTS which you become legally
obligated to pay due to any CLAIM made against
you as a result of a NON-PATIENT INCIDENT as
defined in this Policy . . . , provided that:
1. the NON-PATIENT INCIDENT results from
your PROFESSIONAL SERVICES . . . .
The Policy provides relevant definitions as follows:
A. "CLAIM" means an oral or written demand
against an INSURED for DAMAGES, and includes
civil lawsuits . . . .
B. "DAMAGES" means monetary sums not exceeding
the Limit of Liability for which you are
legally obligated to pay (including pre-
judgment interest) to compensate for injury or
death as a result of a MEDICAL INCIDENT
. . . or as a result of a NON-PATIENT INCIDENT
. . . .
E. "INSURED" means any individual or
organization listed as the NAMED INSURED or as
an Additional INSURED on the DECLARATIONS PAGE
or on an Endorsement to this Policy. Other
individuals or organizations might also be
INSUREDS if they qualify as such under the
Policy's Section III. INSUREDS.4
F. "MEDICAL INCIDENT" means any act, failure
to act, or omission in the furnishing of
PROFESSIONAL SERVICES to a PATIENT by any
INSURED. . . . .
4 Section III sets out four categories of "INSUREDS." Of
pertinence here is subsection C, which includes as insureds
"employees of the NAMED INSURED, but only for PROFESSIONAL SERVICES
rendered within their scope of duties as such."
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H. "NON-PATIENT INCIDENT" means an occurrence
other than a MEDICAL INCIDENT which arises
from PROFESSIONAL SERVICES provided by an
INSURED and which results in a CLAIM for
DAMAGES. . . . .
I. "PATIENT" means any person for whom any
INSURED under this Policy directly performs
PROFESSIONAL SERVICES in the form of
healthcare treatment of that person. . . . .
The Policy's definition of "professional services" is of
particular significance to the parties' contentions, and we
therefore reproduce it in full:
J. "PROFESSIONAL SERVICES" means an INSURED's:
1. healthcare services to a PATIENT performed
in the practice of physician or surgeon,
including the furnishing of food or beverages,
the furnishing or dispensing of medical
supplies or appliances and the handling and
postmortem examinations of human bodies;
2. services as a member of a hospital's or
professional society's formal accreditation,
peer review, credentialing, privileging,
standards review or similar board or
committee, including executing the directives
of such board or committee;
3. obligation to maintain PATIENT
confidentiality in the handling of PATIENT
records in the direct course of providing
PROFESSIONAL SERVICES to that PATIENT;
4. writing of books, papers, and articles
relating to the technical aspects of medical
practice if the same are published or
distributed by a recognized technical or
professional publisher, academic or
professional journal, or professional or
technical society or association.
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PROFESSIONAL SERVICES do not include your
billing and coding activities; therefore,
there is no coverage for any CLAIM arising out
of such activities. PROFESSIONAL SERVICES
also do not include physical or electronic
security measures designed to maintain the
confidentiality of PATIENT records or any
other records in the control of an INSURED;
therefore, there is no coverage for CLAIMS
based on actual, possible or alleged identity
theft arising from your failure to adequately
implement such security measures.
II.
A. The District Court Proceedings
MMIC filed the operative amended complaint in this
action in November 2016, seeking a declaration that it does not
have a duty to defend Burka in the Maryland and Maine lawsuits.
Burka subsequently moved for partial summary judgment, asking for
the opposite declaration -- i.e., that MMIC does have a duty to
defend him in the two lawsuits.5 MMIC moved to defer the court's
ruling on Burka's motion so that the company could conduct
discovery on whether Burka was covered by the Policy when he
allegedly accessed Cayne's medical records. Alternatively, MMIC
asked for summary judgment in its own favor.
The district court issued two separate rulings on MMIC's
declaratory judgment claim. In its initial ruling, the court held
that MMIC had no duty to defend the Maryland action, noting that
5 Burka had filed a counterclaim requesting that declaration,
and he also sought an award of attorney's fees incurred in
defending the underlying actions.
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it could "discern no potential for coverage under the Policy."
Med. Mut. Ins. Co. of Me. v. Burka, No. 2:16-cv-462-GZS, 2017 WL
1743505, at *5 (D. Me. May 3, 2017) ("Burka I"). The court observed
that the claims in the Maryland action are not based on Burka's
conduct in Maine, and the Policy covers only "professional
services" furnished by physicians working within the scope of their
duties for SMHC. Id. Although the court acknowledged "some
ambiguity in the definition of 'professional services' in the
Policy," it concluded that "there is no potential that facts will
be developed at trial that would connect Dr. Burka's provision of
'professional services' under the Policy, however that term is
defined, with the alleged conspiracy to access Allison's medical
records at Washington, D.C.-area medical facilities seemingly
unaffiliated with SMHC at a time when Allison was no longer living
in Maine." Id.6
With respect to the Maine lawsuit, the court held that
MMIC had no duty to defend going forward because the Policy limits
the defense obligation to claims for damages, and the only
remaining cause of action -- based on the Maine statute -- did not
include damages as a remedy. See supra note 2 (quoting Me. Rev.
6The district court also noted its understanding that Burka
did not "seriously contend that the allegations in the Maryland
suit concerning Howard and Caroline Cayne, Allison's co-plaintiffs
and parents, are sufficient to trigger a duty to defend." Burka
I, 2017 WL 1743505, at *5 n.8.
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Stat. Ann. tit. 22, § 1711-C(13)(B)). However, the court held
that it could not yet determine whether Burka was entitled to
coverage for his defense costs for the period before the claims
seeking damages were dismissed. Burka I, 2017 WL 1743505, at *6
n.10. Accordingly, the court granted partial summary judgment for
MMIC, holding that it "does not have a duty to defend the Maryland
suit and does not have a duty to defend the Maine suit to the
extent it only states a claim under 22 M.R.S.A. § 1711-C(13)(B)."
Id. at *7.
In response to the court's ruling, Burka filed a motion
for amendment and/or clarification, which the court treated as
another motion for partial summary judgment -- this time addressing
the question of whether the insurer ever had a duty to defend the
Maine suit. Med. Mut. Ins. Co. of Me. v. Burka, No. 2:16-cv-462-
GZS, 2017 WL 3725980, at *4 (D. Me. Aug. 29, 2017) ("Burka II").
In its decision on that motion, the court again observed that the
Policy's definition of "professional services" is imperfect --
deeming it "circular in that it includes the term 'professional
services.'" Id. at *5. Nonetheless, the court said it "cannot
divine, without resorting to undue speculation, reading
allegations in or out of the Complaint, or ignoring the intention
of the parties as expressed in the Policy's clear language, how
Allison's claims in the Maine suit arose 'in the furnishing of' or
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'in the direct course of providing' her professional services."
Id.
The court explained its conclusion, in part, as follows:
Simply put, there is no ambiguity that the
provision of professional services is a
central component of any covered claim.
Further, any common understanding of
"professional services" would not encompass a
physician maliciously and surreptitiously
accessing a patient's medical records for the
sole purpose of harassing, threatening, or
embarrassing that patient based on a spousal
relationship.
Id. The court thus held that MMIC "never had a duty to defend the
Maine suit." Id.
B. Contentions on Appeal
Burka's challenge to the district court's judgment rests
primarily on two propositions: (1) under Maine law, the duty to
defend is extremely broad, and (2) "professional services" as
defined in the Policy embraces a meaning that could cover the
allegations in the complaints. Burka maintains that the court
improperly focused on allegations in the state-court complaints
concerning improper motivation to conclude that there was no
potential for any of Cayne's claims to fall within the Policy's
coverage. Asserting that his motivation is irrelevant, Burka
states that "coverage turns on Allison's allegations that [he]
intentionally accessed her medical records without her permission
and that she suffered damages as a result." He emphasizes that
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the Policy's definition of "professional services" reflects an
"intent to provide coverage for claims related to the handling of
a patient's confidential records." Because "[t]hat is precisely
the claim made against [him]," Burka asserts, "[t]he duty to defend
is obvious."
Moreover, Burka argues, any uncertainty about coverage
should have been resolved in his favor because Maine law gives
wide scope to the duty to defend and also directs that ambiguities
in insurance policies be construed in favor of the insured. Hence,
given that the district court found the definition of "professional
services" to be ambiguous, he argues that the Policy should be
construed to cover both the Maryland and Maine actions because
both allege harm from his flawed performance of an explicitly
covered professional task: "maintain[ing] confidentiality in the
handling of patient records."
MMIC counters that the district court's reading of the
complaints and the Policy was on target: MMIC has no duty to defend
either state lawsuit because the underlying pleadings do not seek
to impose liability for conduct by Burka that even potentially
occurred "in the direct course of providing [the Caynes]
PROFESSIONAL SERVICES" or within the scope of his duties as an
employee of SMHC.
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III.
We can readily agree with Burka that Maine employs an
expansive concept of the duty to defend. See, e.g., Barnie's Bar
& Grill, Inc. v. U.S. Liab. Ins. Co., 152 A.3d 613, 615 (Me. 2016)
("We have consistently applied a broad construction of the
underlying complaint in favor of the insured and a strict
construction of policy exclusions and ambiguities against the
insurer."). Despite its breadth, however, the duty to defend in
Maine is not unbounded. The Maine Supreme Judicial Court has
cautioned against reading its "body of case law" to "oblig[e]
courts to conjure the duty to defend from speculation or
supposition." Id.
Determining coverage thus requires a realistic
application of the "comparison test," in which the court
"examine[s] the underlying complaint for any potential factual or
legal basis that may obligate the insurer to defend the insured,
even the mere 'intent to state a claim within the insurance
coverage.'" Id. at 616 (quoting Lavoie v. Dorchester Mut. Fire
Ins. Co., 560 A.2d 570, 571 (Me. 1989)) (emphasis and citation
omitted). In making that examination, the court may neither "read
extrinsic facts or allegations into an underlying complaint" nor
"selectively read facts or allegations out of that complaint in
order to conclude that the insurer has a duty to defend." Id. at
616-17.
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We consider it undisputed in this case that coverage --
and thus the duty to defend -- turns on whether Burka's alleged
access to the Caynes' medical records could potentially fall within
the Policy's definition of "professional services." That is so
because the Slot Policy Endorsement, which extends the Policy to
named physicians, states that coverage is provided for claims
arising from incidents that "result from [the covered physicians']
PROFESSIONAL SERVICES rendered within the scope of their duties as
a physician employee or contractor of" SMHC. No other Policy
provision broadens the coverage beyond "professional services,"
and, indeed, the Policy is identified as a "Physicians
Comprehensive Professional Liability Insurance Policy." (Emphasis
added.)
Hence, to answer the coverage question -- and thus to
determine whether MMIC has a duty to defend -- we must consider
whether the allegations reveal "any potential factual or legal
basis," Harlor, 150 A.3d at 797, for concluding that Burka's
actions "result from . . . PROFESSIONAL SERVICES rendered within
the scope of [his] duties as a physician employee or contractor
of" SMHC. As we shall explain, we agree with the district court
that a sensible reading of the Policy, together with a fair reading
of the complaints, does not permit such a conclusion. We begin
with our interpretation of the Policy and then review why the
allegations fall outside the scope of its coverage.
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A. Reading the Policy
Burka's allegedly improper access to, and use of, the
Caynes' medical records would be covered under the Policy, if at
all, within the category of "professional services" that the Policy
describes as the "obligation to maintain PATIENT confidentiality
in the handling of PATIENT records in the direct course of
providing PROFESSIONAL SERVICES to that PATIENT." This
description appears as one of four types of "professional services"
listed within the definition of that term.
We acknowledge the poor drafting of the Policy in
defining "professional services." A definition that uses the term
that is being defined -- i.e., defining "professional services" as
maintaining confidentiality in providing "professional services"
-- is far from ideal. In context, however, the circularity in the
definition does not beget ambiguity. The Policy makes clear that
the confidentiality obligation covers only records relating to
patient interactions because that term is used three times in the
confidentiality provision to define and limit the coverage. In
addition, the phrase "in the direct course of providing
PROFESSIONAL SERVICES" specifies that the confidentiality
obligation exists only in relation to one or more of the four
listed professional services covered by the Policy. Only two items
on the list involve patients: "healthcare services" and the
confidentiality obligation. But we cannot reasonably conclude
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that the confidentiality provision covers itself -- i.e., that the
Policy covers an insured for breaching the obligation to maintain
confidentiality in the handling of patient records in the direct
course of providing [the professional service of] maintaining
confidentiality in the handling of the patient's records. Such a
reading would be nonsensical.
In context, then, the reference to "PROFESSIONAL
SERVICES" in the confidentiality provision necessarily refers only
to the other professional service provided to patients -- i.e.,
healthcare services -- despite the Policy's failure to say so
expressly. In addition, the definition of "professional services"
ties the covered confidentiality obligation to the physician's
provision of healthcare services to the particular patient whose
medical records are at issue. Put another way, a physician's
alleged breach of confidentiality is covered if it arises "in the
direct course of providing [healthcare services] to that PATIENT"
-- i.e., the patient alleging the breach. (Emphasis added.)
The Policy's definition of "patient" confirms that a
doctor-patient relationship is an essential component of the
confidentiality obligation. Under the Policy, a "PATIENT" is "any
person for whom any INSURED . . . directly performs PROFESSIONAL
SERVICES in the form of healthcare treatment of that person." The
Policy's definitions thus describe a covered claim of improper
disclosure of medical records (implicating the professional
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service of maintaining confidentiality) as one in which the alleged
mishandling occurs "in the direct course" of the insured's carrying
out the professional service of "healthcare treatment." By
definition, then, whether an alleged breach of confidentiality is
covered depends on whether the accused doctor has treated the
complaining patient.
The Slot Policy Endorsement, the portion of the Policy
that expressly extends coverage to individually named physicians,
confirms this reading of the definitions and coverage. The
relevant portion of the Endorsement limits coverage to "CLAIMS
arising from MEDICAL INCIDENTS . . . which result from [the
covered physicians'] PROFESSIONAL SERVICES rendered within the
scope of their duties as a physician employee or contractor of the
NAMED INSURED."7 A "MEDICAL INCIDENT," pursuant to the Policy's
definitions, occurs "in the furnishing of PROFESSIONAL SERVICES to
a PATIENT." And, as we have ascertained, when the professional
service underlying the "incident" is the obligation to maintain
the confidentiality of medical records, the conduct at issue must
have occurred "in the direct course" of a patient's treatment.
7The omitted text refers to "NON-PATIENT INCIDENTS." In his
opening brief, Burka states that it does not matter whether Cayne
was Burka's patient because "the policy covers incidents both with
patients and non-patients." As detailed above, however, the
confidentiality obligation applies only to patients.
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We thus find no ambiguity in the scope of coverage for
claims based on the "professional service" of "maintain[ing]
PATIENT confidentiality in the handling of PATIENT records." The
only reasonable interpretation of the Policy's provisions is that
an insured's alleged mishandling of patient records is covered
only if that behavior occurred "in the direct course" of the
insured's provision of healthcare services to the patient claiming
the breach. See State Farm Mut. Auto. Ins. Co. v. Montagna, 874
A.2d 406, 408 (Me. 2005) ("When the . . . policy is interpreted as
a whole, it is not reasonably susceptible to different
interpretations, and therefore it is not ambiguous.").
In his brief on appeal, Burka does not fully reject this
understanding of the Policy's terms. Although he at times appears
to suggest that the Policy should be construed to cover the
"mishandling of patient records" by any insured physician at SMHC
-- whether or not that physician is the particular patient's own
provider8 -- he elsewhere acknowledges the necessary tie between a
doctor's confidentiality obligation and the doctor-patient
relationship. He points out that under both the Maine and Maryland
8 This contention is implied, for example, in the following
statements from Burka's brief (with our emphasis added): "It
appears that Allison, a patient of an insured, is alleging that
Dr. Burka, a covered insured physician, mishandled her
confidential patient records. If proved, Allison's allegations
could potentially give rise to coverage under the MMIC Policy."
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statutes governing disclosure of health care information,
"evidence is required that the claimants were patients of Dr.
Burka," and he subsequently reiterates that "the required proof
for the critical claims is solely mishandling of medical records
by the claimants' doctor." (Emphasis added.) He then observes:
"The relevant aspects of the proof needed to establish the
underlying claims, in short, precisely match the coverage provided
relative to the 'obligation to maintain patient confidentiality in
the handling of patient records.'" In other words, this final
statement declares that the Policy's coverage "match[es]" the
proof required by the statutes, which he previously described as
including a showing that "the claimants were patients of Dr.
Burka."
Notwithstanding this depiction of the Policy as
requiring a doctor-patient relationship, Burka falls back on his
assertion of ambiguity in the "professional services" provision to
argue that the scope of coverage in any event remains elusive and
that, accordingly, the Policy must be construed in his favor. He
acknowledges that whether the Caynes' allegations add up to a
covered "medical incident" (per the Slot Policy Endorsement)
depends on whether the alleged accessing of their records was
committed in the furnishing of "professional services." But the
latter term, he maintains, is ambiguously defined, and the insurer
therefore has a duty to defend against the claims.
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As our discussion above reveals, a close review of the
Policy terms belies the contention of ambiguity in the definition
of professional services or the Policy's coverage for claims
premised on the mishandling of patient records. Accordingly,
moving from the Policy to the complaints, the coverage question
becomes whether the allegations in the complaints present "any
potential factual or legal basis" for a finding that Burka
improperly accessed or disclosed Cayne's records at SMHC in the
direct course of providing her healthcare services. Barnie's, 152
A.3d at 616 (emphasis omitted). The question is not whether Cayne
was a patient of any doctor at SMHC, but whether Burka's alleged
mishandling of records stemmed from his own provision of healthcare
services to her.
B. Reading the Complaints
1. The Maryland Complaint
Like the district court, we can discern no potential
basis in the Maryland complaint for coverage under the Policy,
which is limited to Burka's conduct within the scope of his
employment at SMHC. The sole reference to Burka's actions in Maine
is contained in paragraph 14, reproduced in full above. See
Section I.A. The complaint offers no details concerning that
conduct, instead seeming to present the information -- including
the fact that "a separate lawsuit" was filed in Maine -- solely as
background. By contrast, the subsequent paragraphs detail Burka's
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alleged actions in accessing the Caynes' records within the Johns
Hopkins Health System ("JHHS"), whose hospitals are located in
Maryland and Washington, D.C. The complaint's four counts allege
violations of Maryland statutory law, common law (invasion of
privacy, civil conspiracy, and intentional infliction of emotional
distress), and the federal Health Insurance Portability &
Accountability Act.
Given the unelaborated statements relating to Maine, and
the specificity of the allegations concerning access to JHHS
records, paragraph 14 is only reasonably read to say that the
asserted access to records in Maine is covered by a different
lawsuit and not the Maryland action. In any event, there would be
no coverage for any Maine-based conduct in the Maryland action for
the same reasons, discussed below, that Burka is not entitled to
a defense in the Maine action. Accordingly, we agree with the
district court's determination that the Policy does not entitle
Burka to a defense in the Maryland action.
2. The Maine Complaint
As described above, the allegations in the Maine
complaint unquestionably would permit a factual finding that Cayne
received medical care at SMHC and that Burka was covered by the
Policy at the time he allegedly accessed her medical records there.
The question remains, however, whether the allegations offer "any
potential factual . . . basis" for a finding that Burka's alleged
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mishandling of Cayne's records occurred "in the direct course of"
his provision of healthcare services to Cayne at SMHC.
We see no such possibility in the complaint. The
pleading does not merely omit any reference to a doctor-patient
relationship between Burka and Cayne; its allegations directly
contradict a professional association between them. We note, in
particular, Cayne's assertion that Burka's actions involved
unauthorized access to her medical records in Maine and improper
disclosure to himself. The allegation that Burka was not entitled
even to see her records leaves no room for a factual finding that
he was involved in her medical treatment. Indeed, the complaint
depicts his actions as solely animated by his personal objectives.
Accordingly, the complaint unequivocally places Burka's alleged
improper access to, and disclosure of, Cayne's medical records
outside the Policy's coverage.9
Burka's contention that the district court erred by
highlighting the Maine complaint's allegations of bad faith is
9 To the extent Burka is suggesting that we must construe
Cayne's complaints to potentially allege a doctor-patient
relationship because the statutes she invokes require such a
relationship, we reject that assertion. The legal sufficiency of
her complaints is a separate issue from whether the comparison
test reveals a duty to defend under the Policy. See Mitchell v.
Allstate Ins. Co., 36 A.3d 876, 879 (Me. 2011) ("An insurer may
have a duty to defend even against a complaint that could not
survive a motion to dismiss."). And here, as we have explained,
the complaint's express allegations do not leave room for an
inference of a doctor-patient relationship. To be clear, we note
that we offer no view on the scope of either state statute.
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thus off the mark. It is true, as Burka points out, that a
violation of Maine's medical-records confidentiality provision
does not require a showing of maliciousness, and the trial of such
a claim therefore need not "involve discussion of the alleged
access being malicious or surreptitious." But Burka goes beyond
the bounds of the Policy when he suggests that a potential for
coverage exists without regard to the context in which he accessed
his ex-wife's records.
Burka insists that a determination of no-coverage would
be at odds with forty years of Maine precedent, in which the vast
majority of all duty-to-defend disputes have been resolved in favor
of the insured. He reports that in nearly all of the cases in
which no duty was found, the alleged conduct fell within an
unambiguous policy exclusion. He cites, for example, Barnie's Bar
& Grill, where the Maine Supreme Judicial Court held that the
insurer had no duty to defend a bar in an action brought by a
patron who had been injured by another bar customer. See 152 A.3d
at 614. The court reasoned that all of the claims were based on
assault and battery, and the policy expressly excluded such claims.
See id. at 616-17; see also, e.g., York Golf & Tennis Club v. Tudor
Ins. Co., 845 A.2d 1173, 1177 (Me. 2004) (finding no duty to defend
a complaint seeking a remedy for slander because the policy
excluded coverage for libel and slander claims). Burka draws from
this precedent the proposition that, "unless [a claim is]
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specifically excluded, the insurer owes its insured a defense."
He asserts that, because there is no applicable policy exclusion
here, and "critical aspects of the policy language are ambiguous,"
he is entitled to a defense.
The imbalance in the number of cases finding a duty to
defend as compared to those that find no duty does not, however,
give rise to the principle Burka extracts from the disparity. An
applicable exclusion is one way to negate the duty-to-defend, but
allegations also may simply fall outside a policy's affirmative
coverage. See, e.g., Harlor, 150 A.3d at 799 (noting the need to
determine if a complaint's allegations potentially provide a basis
for damages resulting from an "occurrence" within the meaning of
the insurance policy); Gibson v. Farm Family Mut. Ins. Co., 673
A.2d 1350, 1353 (Me. 1996) (finding a duty to defend a claim
exposing the insureds to damages for a loss "within the policy
definition of 'property damage' resulting from an unintentional
act within the policy definition of an 'occurrence'"). Indeed,
the Maine Supreme Judicial Court's directive against "conjur[ing]
the duty to defend from speculation or supposition" hints at a
concern that its broad doctrine is susceptible to over-extension.
Barnie's Bar & Grill, 152 A.3d at 615. Put simply, the obligation
to resolve doubts in favor of the insured does not mean that courts
should make generalized assumptions in favor of coverage. Each
case requires particularized scrutiny, and "the comparison test is
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limited to the language of the underlying complaint and the
insurance policy." Id. at 616.
In this case, that comparison reveals no potential for
coverage. To reiterate our conclusion, under the affirmative terms
of the Policy, coverage depends on whether the allegedly improper
access to, and disclosure of, Cayne's medical records occurred in
the course of professional services -- specifically, healthcare
services -- provided by Burka to Cayne. The duty to defend Burka
thus requires a relationship of doctor to patient that is
emphatically denied by the complaint's allegations and, hence,
could only be "conjure[d] . . . from speculation or supposition."
Id. at 615; see also id. at 616 ("Except in rare circumstances, we
will not consider facts extrinsic to the underlying complaint nor
will we read allegations into the complaint in determining whether
the insurer has a duty to defend." (citation omitted)).
We therefore conclude that MMIC is not obligated to
defend Burka in the Maine action.
IV.
Having found that MMIC has no duty to defend Burka in
either the Maryland or Maine proceedings, we affirm the district
court's summary judgment in MMIC's favor.
So ordered.
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