United States District Court, D. New Hampshire
General Star Indemnity Co.
Adam P. Beck, M.D., et al.
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.
A. Diclerico, Jr. Judge United States District Judge
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
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
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.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).
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.
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
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. General Star seeks rescission of the
policy, or alternatively, a declaratory judgment that there
is no coverage for the actions against Beck.
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.
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. Beck identifies the defendants
collectively as General Star, indicating that he did not
intend to bring claims against the listed defendants
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