DR. DARA PARVIN, Plaintiff,
CNA FINANCIAL CORPORATION dba
THOMAS M. COFFIN, Magistrate Judge.
Plaintiff, Dr. Dara Parvin, asserted several claims for relief in this action against defendants CNA Financial Corporation dba "CNA Insurance Company" and Continental Casualty Company.
This Court previously dismissed plaintiffs' tort claims (# 199, #200, #224). Presently before the court is defendants' motion(# 202) for summary judgment on plaintiffs breach of contract claim.
Federal Rule of Civil Procedure 56 allows the granting of summary judgment:
if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). There must be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is missing. Celotex Corp. v. Catrett , 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the burden shifts to the nonmovant to produce specific evidence to establish a genuine issue of material fact or to establish the existence of all facts material to the claim. Id .; see also, Bhan v. NME Hosp., Inc. , 929 F.2d 1404, 1409 (9th Cir. 1991); Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc. , 210 F.3d 1099, 1105 (9th Cir. 2000). In order to meet this burden, the nonmovant "may not rely merely on allegations or denials in its own pleading, " but must instead "set out specific facts showing a genuine issue of fact for trial." Fed.R.Civ.P. 56(e).
Material facts which preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. Anderson , 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id . On the other hand, if, after the court has drawn all reasonable inferences in favor of the nonmovant, "the evidence is merely colorable, or is not significantly probative, " summary judgment may be granted. Id.
Plaintiff Dr. Dara Parvin's professional liability insurance policy with Continental Casualty Company (the "insurer") was a custom group policy sponsored by the Oregon Medical Association ("OMA") and offered to its qualified members. The policy offered preferred rates in exchange for a mechanism to restrain costs, specifically, a provision allowing the insurer to settle claims even when the physician does not consent by obtaining an overriding consent from the OMA.
The insurer's standard-form policy states "we will... not settle any claim without your consent." Ex. 1. However, the policy sponsored by the OMA-plaintiffs policy-replaces that language with an "AMENDATORY ENDORSEMENT-MEDICAL PRACTITIONERS OREGON MEDICAL ASSOCIATION (Claims-Made Program)" which provides "We will... Notsettleanyclaim without your consent, or the consent of the Association's Committee formed to this purpose." Id . (Emphasis suppplied) That committee-the OMA's Professional Consultation Committee ("PCC") - has nine to eleven voting members, all of whom are physicians. Ex. 11.
Plaintiffs complaint claims CNA breached the policy by settling Gloria Mason's malpractice lawsuit against him. Mason accused Parvin of paralyzing her during a kypholasty surgery by crossing the needles and puncturing her spinal cord. On July 16, 2008, about a week before trial, the PCC convened to consider the insurer's request for consent to settle, in view of Dr. Parvin's objection to settlement. After hearing Parvin, (who attended by phone) and his attorney, the PCC deliberated in private and reached a decision about granting consent.
The next morning, the OMA's general counsel, Paul Frisch, conveyed by telephone the PCC's decision to CNA's liason to the OMA, Melanie Spiering. CNA's internal record of the conversation "was that we proceed to trial with the following parameters, " including that CNA "need[s] to be prepared to settle at any time through the trial." Ex. 4. At the time, however, Ms. Speiring interpreted this communication to mean that the PCC had not yet consented to a settlement.
During the third day of the trial, Parvin began presenting his defense. That afternoon, Ms. Spiering emailed Mr. Frisch a request for the PCC to again consider granting consent: "We would like to request a tentative conference call with the PCC tomorrow afternoon at 5:00PM to further discuss consent in the Mason v. Parvin trial." Ex. 5. The Chair of the PCC, Charles Rosenblatt, responded the next morning, on the fourth day of trial, and stated his understanding that the PCC already had ...