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General Star Indemnity Co v. Beck

United States District Court, D. New Hampshire

August 13, 2018

General Star Indemnity Co.
v.
Adam P. Beck, M.D., et al.
v.
General Star Indemnity Co. et al

          William J. Amann, Esq., Christopher T. Conrad, Esq., Sabina B. Danek, Esq. Richard E. Fradette, Esq. Mark L. Mallory, Esq. Kenneth D. Murphy, Esq. David A. Wilford, Esq.

          ORDER

          Joseph A. Diclerico, Jr. Judge United States District Judge

         General Star Indemnity Company brought a declaratory judgment action, seeking a determination that it may rescind the liability insurance policy issued to Adam P. Beck, M.D. or in the alternative that there is no coverage under the policy. General Star also named Beck's company, New England Eye Specialists, P.C., James F. Kelly, Goldie Morrow, John Morrow, and David Dennis as defendants because the company, along with Beck, is seeking insurance coverage for claims made by Kelly, the Morrows, and Dennis. Beck, proceeding pro se, brought counterclaims against General Star and others, and then amended the counterclaims. Counsel has now entered an appearance on behalf of Beck and New England Eye Specialists, P.C.

         General Star moves to dismiss Counts III, IV, V, VI, VII, and IX of the counterclaim in Beck's amended answer. Beck did not file a response to the motion to dismiss within the time allowed.

         Standard of Review

         In considering a motion to dismiss, the court accepts all well-pleaded facts as true, disregarding mere legal conclusions, and resolves reasonable inferences in the plaintiff's favor.[1]Galvin v. U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017). Taken in that light, the complaint must state sufficient facts to support a plausible claim for relief. In re Curran, 855 F.3d 19, 25 (1st Cir. 2017). The plausibility standard is satisfied if the factual allegations in the complaint “are sufficient to support the reasonable inference that the defendant is liable.” In re Fidelity ERISA Float Litig., 829 F.3d 55, 59 (1st Cir. 2016) (internal quotation marks omitted). The complaint need not include “a high degree of factual specificity” but “must contain more than a rote recital of the elements of a cause of action.” Carcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (internal quotation marks omitted).

         Background

         During the events at issue in the case, Adam Beck was a licensed medical doctor with a specialty in ophthalmology. New England Eye Specialists, PC, was his professional corporation. General Star was an insurance company, authorized to do business in New Hampshire.

         General Star issued a Physicians & Surgeons Professional Liability Insurance Policy to Beck based on his application and supporting statement dated July 31, 2017. General Star contends that Beck made material misrepresentations in his application and supporting statement because he did not disclose that a complaint with the New Hampshire Board of Medicine by Doris Newell or another patient remained open and that a complaint had been filed against him by James Kelly. He also did not disclose that a lawyer, on behalf of two of his patients Goldie Morrow and David Dennis, had requested medical records.

         After General Star issued the policy, medical malpractice actions were brought against Beck on behalf of Morrow, Dennis, and Kelly. Beck also entered a settlement agreement with the New Hampshire Board of Medicine with regard to either Newell's complaint or another patient's complaint.[2] General Star seeks rescission of the policy, or alternatively, a declaratory judgment that there is no coverage for the actions against Beck.

         In his amended answer, Beck alleges that he has paid his premiums for the coverage in the General Star policy. Beck notified General Star of the underlying lawsuits brought by Morrow, Dennis, and Kelly. General Star has refused to provide coverage for those suits.

         Beck alleges eight counts in his counterclaim brought against General Star Indemnity Company, General Star Management Company, General Star Corporation, General Star LLC, General Star National Insurance Company, General Star Start LLC, and individuals identified as directors of General Star.[3] Beck identifies the defendants collectively as General Star, indicating that he did not intend to bring claims against the listed defendants individually.

         In Count I he seeks a declaratory judgment that General Star is obligated to provide a defense in the underlying lawsuits, and in Count II he alleges that General Star has breached its duty to defend. Count III is titled “Negligence” but also allege defamation and includes citations to New Hampshire and Massachusetts statutes, along with the Health Insurance Portability and Accountability Act (“HIPAA”). In Count IV, Beck alleges violation of the New Hampshire Consumer Protection Act but also lists other New Hampshire statutes, and in Count V, he alleges violation of the Massachusetts Consumer Protection Act. Count VI is titled “Libel and Defamation, ” and Count VII is titled “False Light, ” but include ...


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