St. Paul Fire & Marine Insurance v. Medical Protective Co. ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 4, 2007
No. 07-10255
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00391-CV-FTM-99-SPC
ST. PAUL FIRE AND MARINE INSURANCE COMPANY,
Plaintiff-Appellee,
versus
THE MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA,
Defendant-Appellant,
M.D. EDWARD J. TOGGART,
THOMAS E. BELL,
Defendants-Appellees,
________________
No. 07-11577
_________________
D.C. Docket No. 04-00391-CV-FTM-99SPC
ST. PAUL FIRE AND MARINE INSURANCE COMPANY,
Plaintiff-Appellee,
versus
THE MEDICAL PROTECTIVE COMPANY OF FORT WAYNE INDIANA,
Defendant-Appellant,
SOUTHWEST FLORIDA HEART GROUP, P.A.,
Defendant,
M.D. EDWARD J. TOGGART,
THOMAS E. BELL,
Defendants-Appellees.
Appeals from the United States District Court
for the Middle District of Florida
(December 4, 2007)
Before DUBINA and KRAVITCH, Circuit Judges, and GOLDBERG,* Judge.
PER CURIAM:
Appellant, The Medical Protective Company (“Medical Protective”),
appeals the district court’s order granting summary judgment to St. Paul Fire and
Marine Insurance Company (“St. Paul”) and to Thomas Bell (“Bell”) on its
__________________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
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declaratory judgment action seeking a court decree that St. Paul had a duty to
defend and indemnify Dr. Edward J. Toggart (“Dr. Toggart”) and Southwest
Florida Heart Group (the “Heart Group”) in the underlying negligence action filed
by Bell against Dr. Toggart and the Heart Group in state court. Medical Protective
also appeals the district court’s summary order directing it to reimburse St. Paul
for the expenses it has incurred in providing a defense in the underlying suit. In
appeal No. 07-11577, Medical Protective appeals the district court’s order
granting costs and attorney’s fees to Dr. Toggart in the amount of $14,641.00, and
its attendant order denying Medical Protective post-judgment relief.1
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we conclude that the district court correctly found that
under the terms of its policy, Medical Protective owed a duty of defense to its
insureds under its professional liability policy based on Bell’s claims that he was
injured as a result of Dr. Toggart’s actions during, and as a result of, a medical
procedure.
1
Medical Protective proffers no argument to challenge the district court’s denial of its motion
for post-judgment relief. Accordingly, we conclude that it has waived on appeal any issues related
to that judgment. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.
1989).
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We also conclude that the district court properly ruled that Medical
Protective must reimburse St. Paul for the expenses that St. Paul incurred in
defending the insureds in the underlying action.
Finally, we affirm the district court’s order granting costs and attorney’s
fees to Dr. Toggart.
AFFIRMED.
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