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Admiral Insurance Co. v. Banasiak

Court of Appeals of Indiana

March 16, 2017

Admiral Insurance Company, Appellant-Defendant,
v.
Joseph Banasiak, as Personal Representative of the Estate of Habib Tagizadieh a/k/a Habib Zadeh, deceased and Jennifer Muehlman, Appellees-Plaintiffs.

         Appeal from the Lake County Superior Court The Honorable Bruce D. Parent, Judge Trial Court Cause No. 45D04-1404-PL-50

          ATTORNEY FOR APPELLANT Scott B. Cockrum Hinshaw & Culbertson LLP Schereville, Indiana.

          ATTORNEYS FOR APPELLEE Lloyd P. Mullen Mullen & Associates PC Crown Point, Indiana Joseph Stalmack Joseph Stalmack & Associates, P.C. Munster, Indiana.

          BROWN, JUDGE.

         [¶1] Admiral Insurance Company ("Admiral") appeals the trial court's denial of its motion for summary judgment and its grant of declaratory judgment. Admiral raises one issue which we revise and restate as whether the trial court erred in denying its motion for summary judgment or in entering declaratory judgment in favor of the Estate of Dr. Habib Zadeh.[1] We reverse.[2]

         Facts and Procedural History

         [¶2] Admiral issued a professional liability policy (the "Policy") to Dr. Habib T. Zadeh, with an initial policy period from September 21, 2008, to September 21, 2009, and with a "Retroactive Date" of September 21, 2005. Appellant's Appendix at 58, 62. The Policy provides:

PHYSICIANS, SURGEONS AND DENTISTS PROFESSIONAL LIABILITY INSURANCE
Claims-Made
THIS IS A CLAIMS-MADE POLICY. COVERAGE AFFORDED BY THIS POLICY IS LIMITED TO LIABILITY FOR ONLY THOSE "CLAIMS" THAT ARE FIRST MADE AGAINST YOU AND REPORTED IN WRITING TO U.S. DURING THE POLICY PERIOD OR AN EXTENDED REPORTING PERIOD. PLEASE REVIEW THIS POLICY CAREFULLY TO DETERMINE YOUR RIGHTS, DUTIES AND WHAT IS AND IS NOT COVERED.
* * * * *
I. INSURING AGREEMENT
We will pay on behalf of the "insured" those amounts in excess of the Deductible stated in the Declarations, if applicable, which you are legally obligated to pay as "damages" for a "claim" first made against you during the "policy period" and reported to us in writing during the "policy period", or an Extended Reporting Period, provided that the following additional conditions are met:
D. we receive notice of a "claim" within sixty (60) days after the expiration or termination date of this policy in accordance with:
1. Section VII. "INSURED'S" DUTIES IN THE EVENT OF A "CLAIM"
2. Section V. EXTENDED REPORTING PERIOD.
** * * *
VII. "INSURED'S" DUTIES IN THE EVENT OF A "CLAIM"
Each "insured" must comply with the following conditions:
A. If a "claim to which this policy applies is made against you, then you must give written notice, as soon as practicable, and as otherwise required by this policy to us.
B. With regard to Item 11. DEFINITIONS, b. 1, 2 and 3, when a "claim" is reported in writing to us, the notice must contain reasonably obtainable information regarding the alleged act, error or omission including, but not limited to names of the potential witnesses, name of the alleged claimant(s), and the extent and type of "claim" anticipated.
C. You must cooperate with us in the defense and investigation of any "claim". We may require that you submit to examination under oath, if required, produce and make available all records, documents and other materials which we deem relevant to the "claim".
1. You must also, at our request, attend hearings, depositions and trials.
2. In the course of investigation or defense, provide us with written statements as requested by us or your attendance at meetings with us.
3. You must assist us in effecting settlement, securing and providing evidence and obtaining the attendance of witnesses, all without charge to us.
* * * * *
VIII. OTHER CONDITIONS
* * * * *
J. Action Against Us
No action shall be brought against us by you to recover for any loss or "damages" under this policy unless, as a condition precedent thereto:
1. you have fully complied with all the terms and conditions of this policy; and
2. the amount of such loss or "damages" has been fixed or rendered certain:
a. by a final judgment against you after trial of the issues; or
b. the time to appeal such judgment has expired without an appeal being taken; or
c. if appeal is taken, after the appeal has been determined; or
d. the "claim" is settled in accordance with the terms and conditions of this ...

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