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.
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. We reverse.
and Procedural History
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
PHYSICIANS, SURGEONS AND DENTISTS PROFESSIONAL LIABILITY
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
* * * * *
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
Each "insured" must comply with the following
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"
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;
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;
d. the "claim" is settled in accordance with the
terms and conditions of this ...