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Emergency Medical Services, Inc. v St. Paul Mercury Insurance Company

Emergency Medical Services, Inc. v St. Paul Mercury Insurance Company, Case No. 05-3859 (C.A. 8, Jul. 26, 2007)

Dr. Douglas Rogers and his wife, Edwardine Reis-Rogers, (collectively, “Dr. Rogers”) brought suit against Emergency Medical Services, Inc., Islands Emergency Medical Service, Inc. (“Islands”), and Dr. Edward B. Kinports, Jr. (collectively “EMS”) in Hawaii state court (“the Underlying Lawsuit”), alleging several business torts, negligent and/or intentional infliction of emotional distress, and medical malpractice. EMS settled the Underlying Lawsuit with Dr. Rogers, and tendered a claim to its insurer, St. Paul Mercury Insurance (“St. Paul”), alleging coverage under the Commercial General Liability insurance policy (“the Policy”). St. Paul refused to reimburse EMS for the cost of its defense, and EMS brought a breach of contract suit in state court. After St. Paul removed the case to federal court, the parties filed cross-motions for partial summary judgment. The district court granted EMS’s motion, determining that St. Paul had a duty to defend EMS in the Underlying Lawsuit and that St. Paul breached this duty. The district court granted EMS’s request for attorney fees expended in defending the instant lawsuit, but declined to award prejudgment interest to EMS. St. Paul appeals, arguing that the district court erred because EMS’s claim is not covered by the Policy, that it was prejudiced by EMS’s failure to provide timely notice of the Underlying Lawsuit, and that attorney fees were not proper or were unreasonable in this case. EMS appeals the denial of its claim for prejudgment interest. For the following reasons, we affirm.

I. Background

Emergency Medical Services, Inc. is a Missouri corporation and Islands is a Hawaii corporation. During the time period relevant to this appeal, Dr. Kinports was the president, CEO, and director of both corporations. St. Paul is an insurance company authorized to do business in Missouri. On May 31, 1999, EMS entered into an agreement with St. Paul whereby St. Paul would provide insurance coverage to EMS. EMS was the named insured under the Policy. In relevant part, the Policy reads:

WHAT TO DO IF YOU HAVE A LOSS

You or other protected persons are required to perform the duties described below when a property loss that may be covered under this policy happens or an accident or incident happens that could result in liability damages covered under this policy. . . .

When This Policy Provides Liability Protection

If an accident or incident happens that may involve liability protection provided in this policy, you or any other protected person involved must:

. . .

2. Tell us or our agent what happened as soon as possible. Do this even though no demand for damages has been made against you or any other protected person, but you or another protected person is aware of having done something that may later result in a demand for damages. . . .

3. Send us a copy of all written demands. Also send us a copy of all legal documents if someone starts a lawsuit.

. . .









 

 

Judge(s): Michael Melloy
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Contracts , Health Care , Malpractice
 
Circuit Court Judge(s)
Morris Arnold
Kermit Bye
Michael Melloy

 
Trial Court Judge(s)
Dean Whipple

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Joshua Dickinson Spencer & Fane
Barry Pickens Spencer & Fane

 
Defendant Lawyer(s) Defendant Law Firm(s)
Tyson Ketchum Armstrong Teasdale LLP
Laurence Tucker Armstrong Teasdale LLP
Ann Buckley Buckley & Buckley

 

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______________________________ authorizes an award of pre-judgment interest at the discretion of the court. id. at 106; expressly excluded under the policy. as we noted above, dr. rogers's complaint a particular remedy, however, "is a question of law which we review de novo." lack of notice. as a federal court sitting in diversity we apply substantive hawaii law its losses incurred in defending the underlying lawsuit. on october 2, 2003, ems alleges facts within coverage"). we consider any exhibits filed along with the first documents if someone starts a lawsuit." subsequent occasions, including a september 13, 2000 press release that was attached agent in the policy. the email was a follow-up to a telephone conversation the notice to aon satisfies the policy's notice requirement. the policy provides that if bodily injury means any physical harm, including sickness or disease, property damage means: reference allegations made in all of the previous paragraphs of the complaint. st. paul also argues that the district court erred in finding that ems met the if an accident or incident happens that may involve liability protection melloy, circuit judge. exclusion and the "expected or intended bodily injury" exclusion do not apply in this any delay in the proceedings." see metcalf v. voluntary employees' benefit ass'n st. paul the opportunity to investigate the facts of the underlying case, to enter into its do not believe that the "expected result" of ems's conduct was the extensive alreadyadequatelycompensatedtheplaintiff,orthedefendant'sconductdidnotcause r.r. co. v. tompkins, 304 u.s. 64, 78 (1938). the hawaii supreme court has policy's employment exclusion applies because dr. rogers was an employee of ems. discretion of the court."). section 478-2, which is titled "legal rate; computation," that any bodily injury he suffered was"caused by an event" as required under the "bodily injury" under the policy and that the complaint does not include allegations on october 15, 2004, ems dismissed with prejudice its claim for email, aon notified hartford fire insurance company ("hartford"), but not st. paul, * emergency medical services, inc. is a missouri corporation and islands is a states district court for the western district of missouri. terms "should be interpreted according to their plain, ordinary, and accepted sense in distress dr. rogers suffered was the result of the business torts or the medical ems has met its burden of proving a possibility of coverage under the policy. amended complaint to be part of the complaint. see fed. r. civ. p. 10(c) ("a copy failure to provide timely notice of the underlying lawsuit, and that attorney fees were paul] a copy of all written demands" and to "send [st. paul] a copy of all legal for the eighth circuit -4- hanig v. lee, 415 f.3d 822, 825 (8th cir. 2005). whether such fees are appropriate filed this suit against st. paul in missouri state court, seeking defense costs and the district court granted ems's request for attorney fees in the instant lawsuit -18- rogers was an equal partner in islands operations and would be compensated as such. the facts and inferences to be drawn from them in the light most favorable to the intended bodily injury" exclusion. third, st. paul argues that the district court erred including sickness or disease, to the physical health of other persons." it includes any year. . . ." ii. standard of review rogers's nied claimwas potentially within the policy's coverage, st. paul had a duty claim to its insurer, st. paul mercury insurance ("st. paul"), alleging coverage under the president, ceo, and director of both corporations. st. paul is an insurance amount "equals thirty percent of the judgment, a percentage common in contingency to the physical health of other persons. it includes any of the following contract, or promissory estoppel claims." id. here, however, the situation is different. though no demand for damages has been made against you or any other to defend. in entering its judgment, the district court granted ems's request for (quotation marks and citation omitted). however, the hawaii supreme court has . . . , and the insured's expected result of the act or omission was the injury, then the for kona hospital, where dr. rogers was the chairman of the emergency underlying lawsuit. that amount, $475,000, is what ems is seeking to be can escape its obligations." interstate cleaning corp. v. commercial underwriters that prejudgment interest is proper under 636-16 and that " 478-2 provides for a "the burden is on the insured to establish coverage under an insurance policy," 992 p.2d at 117. dr. rogers pleaded alternative theories and allegations, one of which associated with defending against dr. rogers's state-court claim. while it is true that hawaii law because the duty to defend is not a "benefit" as defined by haw. rev. stat. paul's argument that any bodily injury was "expected or intended" has no merit. for the foregoing reasons, we affirm the district court's judgment in this case. torts, negligent and/or intentional infliction of emotional distress, and medical prejudgment interest. for the following reasons, we affirm. their conduct and omissions in doing so were either negligent and/or intentional." the provided that the earliest commencement date . . . in cases arising by as discussed above, a little over one month after dr. rogers filed his first because of the actions and demands of dr. kinports. by january 19, 2001, a number allowing an insurer "to rely upon extrinsic facts to disclaim liability only when the (iv) negligent and/or intentional misrepresentations as to tax representations; (v) discussion. district court abused its discretion by "failing to find a legally permissible basis to * western district of missouri. coincidental that aon was both ems's insurance broker and st. paul's agent p.2d 1278, 1288 (haw. 1994); see john & jane roes, 1-100 v. fhp, inc., 985 p.2d claim for negligent infliction of emotional distress ("nied") incorporated by as "declared by its legislature in a statute or by its highest court in a decision." erie st. paul's reliance on cim ins. corp. v. masamitsu, 74 f. supp. 2d 975 (d. when the court is "faced with the proper case." id. subsequent to great american defend. st. paul has not shown that it would have spent less money in defending inc.; edward b. kinports, jr., m.d., * action). where, as here, the insurer contests coverage, the district court determines . . . we'll pay amounts any protected person is legally required to pay as of prejudgment interest on the fact that the damages were extraordinary. it is within there is untimely notice by the insured. thus, a logical reading of the complaint leaves open the possibility that the emotional 2 was negligence. co. of hawai'i, 875 p.2d 894, 914 (haw. 1994) (affirming an award of fees and costs does not apply. of a series of neurologic events known as transient ischemic attacks, or "mini- required under hawaii law in order to state a claim for nied. calleon v. miyagi, 876 "authorized representative" in other areas throughout the policy. aon is the only common speech unless it appears from the policy that a different meaning is lists "aon risk services" as the "agent." aon is labeled as the "agent" or alreadyadequatelycompensatedtheplaintiff." roxasv.marcos,969p.2d1209,1271 fact and . . . the moving party is entitled to a judgment as a matter of law.'" id. rogers, ems investigated its right to coverage and a defense from st. paul. in a letter believe that when faced with the issue, the hawaii supreme court will determine that of and in the course of his or her: employment by the [insured]; or performance of relevant to this appeal, the complaint alleged that in early summer of 1991, dr. medical service, inc. ("islands"), and dr. edward b. kinports, jr. (collectively, to defend ems.3 negligent infliction of emotional distress," alleged that "[ems] inflicted pain, paul, therefore, cannot argue that it was prejudiced by an inability choose a trial v. * district court for the stand-alone claim, which incorporates by reference the physical injuries alleged at the damaged. . . . the court also found that ems's notice to aon satisfied the complaint. see dairy rd. partners, 992 p.2d at 117 (holding that an insurer may not rogers")1 nied "is permitted only when there is a predicate physical injury to someone"). lawsuit. after receiving the email, aon notified hartford, but not st. paul, of ems's insured.'" dairy rd. partners, 992 p.2d at 117. we do not believe that this exception his request that aon put ems's general liability carrier on notice of the underlying haw. 1999), is misplaced. the court in cim found that under the policy at issue, any rely on extrinsic facts that are "subject to dispute in the underlying lawsuit as a basis in original). 3 in a letter dated march 17, 2003. was"caused by an event." second, st. paul argues that dr. rogers's claims fell within not be entirely accurate, we are required to follow circuit precedent. moreover, we -6- resulting loss of use of that property; or the court's award of $143,807.09 is reasonable. 4 complaint then alleges, however, that in early summer of 1991, dr. kinports told dr. apply in this case. -8- injury was not caused by an accident"), rev'd on other grounds, dairy rd. partners, event means an accident, including continuous or repeated exposure to accounting; and (vi) negligent and/or intentional infliction of emotional distress. on company authorized to do business in missouri. on may 31, 1999, ems entered into the district court denied ems's request for prejudgment interest, stating "that has not ordered it to "pay benefits." it contends that the district court's order to pay reimbursed because of the district court's decision that st. paul breached its duty to c. notice care, loss of services, or death. be awarded reasonable attorney[] fees. . . ." a court may deny prejudgment interest where an extraordinary damage award has which it e. prejudgment interest aetna cas. and sur. co., 876 p.2d 1314, 1319 (haw. 1994) (citing standard oil co. indemnification is not required under 431:10-242. see sentinel ins. co. v. first ins. not proper or were unreasonable in this case. ems appeals the denial of its claim for nied claim is subject to a duty to defend under the policy. specifically, st. paul the amount of attorney fees awarded in this case do not reflect an abuse of discretion. rogers helped dr. kinports retain islands's contract to provide emergency services you or other protected persons are required to perform the duties of reasonable defense costs owed to ems as a result of st. paul's breach of its duty the policy requires the insured to "[t]ell [st. paul] or [i]ts agent what happened suggested that "even where the insurer can show untimely notice on the part of its granted ems's $143,807.09 in attorney fees and denied its request for prejudgment interest. and in favor of the insured." id. no. 05-3859/3935 cause the delay in the proceedings; (2) the plaintiff himself has caused or contributed blanco, 804 p.2d 876, 880 (haw. 1990) (stating that "if the insured did something mental injury] arose from the previously-pled (uncovered) fraud, misrepresentation, a. coverage issues -15- st. paul points to instances in the first amended complaint that refer to dr. kinports (haw. 1998) (citations omitted). the parties in this case stipulated that the damage (quoting fed. r. civ. p. 56(c)). it is entitled to an award of attorney fees pursuant to haw. rev. stat. 431:10-242, happens while this agreement is in effect; and strategy or challenge liability. see eastman v. mcgowan, 946 p.2d 1317, 1324 (haw. 1997) ("prejudgment interest, employee of st. paul for the first time. st. paul refused to reimburse ems for any of neurological injuries that dr. rogers suffered. cf. hawaiian ins. and guar. co. v. also alleges that "dr. rogers's partnership status was thereafter confirmed on various for the defense is not a "benefit" under the statute the way an order of indemnification by the policy. occasions" by ems. one of those occasions was a press release, attached to the in order to be relieved of its duty to defend, the insurer must show prejudice when hawaii law provides for discretionary awards of prejudgment interest. haw. dismissal of the underlying lawsuit, with prejudice, on june 16, 2003. "physical harm, sickness, or disease[.]" instead, st. paul argues, the emotional we review a district court's grant of attorney fees for abuse of discretion. judgment. the district court granted ems's motion, determining that because dr. on april 10, 2003, the hawaii state court approved a settlement of the united states court of appeals dated may 28, 2003, ems provided direct notice of the underlying lawsuit to an suit in state court. after st. paul removed the case to federal court, the parties filed ___________ sickness, or disease[.]" rev. stat. 636-16; see tri-s corp., 135 p.3d at 106 ("an award of prejudgment harmful conditions." to be an "accident," ems's conduct must be unexpected. we the hours spent on the dismissed indemnification claim. as the court pointed out, "the as to partnership representations; (ii) negligent and/or intentional misrepresentations because ems's claim is not covered by the policy, that it was prejudiced by ems's submitted: september 29, 2006 entity the policy refers to as st. paul's "agent." st. paul argues that it was only alternative, that the amount of attorney fees granted was unreasonable. ems cross- liability carrier on notice of the underlying lawsuit. several days after receiving the * practice medicine, either as an emergency physician or as an administrator. the district court properly applied 636-16 in this case. to the delay in bringing the action to trial; or (3) an extraordinary damage award has rogers sent a demand letter to ems. the letter discussed potential medical paul stipulated as to a reasonable amount of attorney fees and costs for settling the incorporated by reference in count vi, the nied claim, at least leaving open the supreme court has clearly stated in tri-s corp., and other cases that hawaii law hawaii corporation. during the time period relevant to this appeal, dr. kinports was distress alleged in count vi was caused by the physical injuries alleged earlier in the malpractice alleged in the complaint. we disagree. dr. rogers's nied claim is a st. paul appeals, arguing that the district court erred in finding that it had a duty not abuse its discretion in denying prejudgment interest to ems. haw. rev. stat. 636-16. ems argues that a different statute, 478-2,5 policy happens or an accident or incident happens that could result in policy's notice requirement and alternatively that st. paul was not prejudiced by the own settlement negotiations, to hire its own defense counsel, to choose a trial strategy, attorney fees and costs of the defense of the underlying claim, attorney fees are in the amount of $143,807.09. st. paul argues that attorney fees are not proper under constitute "bodily injury" as defined by the policy, and that the first amended st. paul has not met its burden of proving that any of the policy exclusions exclusion does not apply in this case. for purposes of determining whether a duty to physical injuries at the beginning of the complaint. again, these injuries are entergy ark., inc. v. nebraska, 358 f.3d 528, 556 (8th cir. 2004). for attorney fees expended in defending the instant lawsuit, but declined to award late notice in order to deny coverage under the policy." great am. ins. co. v. of hawai'i, 52 p.3d 823, 831 (haw. 2002). "[a]n award of prejudgment interest is delay. we agree with the district court that st. paul was not prejudiced. (haw. 2006). "[t]he duty to defend rests primarily on the possibility that coverage complaint as an exhibit. to challenge liability, to dispute the amount of damages[,] and to control defense defend exists, we resolve all doubts in favor of the insured. tri-s corp., 135 p.3d at brought suit against emergency medical services, inc., islands emergency "mental anguish, injury, . . . illness[,] [e]motional distress[,] [c]are, loss of services, duties related to the conduct of the [insured's] business." st. paul argues that the 1 settlement negotiations, dispute the amount of damages, or control defense costs, st. after the suit had gone to trial and a jury award had been rendered. id. at 1029. ems, unreasonable. see sharp v. hui wahine, inc., 413 p.2d 242, 248-49 (haw. 1966). costs." st. paul's main authority for this proposition, interstate cleaning corp., can motion, determining that st. paul had a duty to defend ems in the underlying iii. analysis department. dr. kinports represented to dr. rogers that from that point forward dr. with regard to the employee exclusion, we note that our inquiry into whether appellant/cross-appellee. * bodily injury and property damage liability. the complaint alleges that dr. rogers was hired by ems in september of construed liberally in favor of the insured and [any] ambiguities [must be] resolved decision that st. paul has not shown prejudice in this case. st. paul may have been unable to hire its own defense counsel, enter into its own unless specifically provided by a contract or statute, "a litigant has no inherent asking to be reimbursed for the amount it paid to settle the underlying lawsuit. st. st. paul claims it was prejudiced by ems's untimely notice because it "denied physical damage to tangible property of others, including all indemnification claim involved many of the same issues as the duty to defend claim." potential for coverage." tri-s corp. v. western world ins. co., 135 p.3d 82, 97 appeals the district court's denial of its claim for prejudgment interest. we review -16- appropriate under 431:10-242. when this policy provides liability protection -17- -9- each of the parties' arguments in turn. p.2d 1273, 1296-97 (haw. 1992). section 636-16 provides: in the alternative, st. paul argues that the amount of attorneys fees awarded is of ems's claim and demand for coverage and a defense. hartford denied coverage 1981. on march 1, 1985, dr. rogers became medical director for islands. there is an agreement with st. paul whereby st. paul would provide insurance coverage to ems argues in the alternative that if haw. rev. stat. 636-16 applies, the "ems") in hawaii state court ("the underlying lawsuit"), alleging several business cause of action was directed toward dr. rogers, we will refer only to him in our what this agreement covers we decline to further assess the sufficiency of ems's notice to st. paul because to reimburse ems for the cost of its defense, and ems brought a breach of contract which provides in part: ems has not shown that st. paul caused any delay in litigation. the district court did under hawaii law, which the parties have agreed governs this dispute, for the award of prejudgment interest specifically, and that statute is discretionary. -10- in awarding interest in civil cases, the judge is authorized to designate the district court ordered ems to provide a "line-by-line" explanation of each entry see christina a. v. bloomberg, 315 f.3d 990, 994 (8th cir. 2003). requesting party caused the delay or the opposing party did not cause the delay"). ___________ intended[.]" dairy rd. partners v. island ins. co., 992 p.2d 93, 106 (haw. 2000) as dr. rogers's "employer" and the w2 forms dr. rogers attached to his complaint. rogers that he "was an equal partner with him in the [islands] operations and that he -13- st.paulalsoarguesthattheunderlyinglawsuitcontainsallegationsofconduct complaint. emotional distress made by dr. rogers in his first amended complaint do not on the part of ems that resulted in "expected or intended bodily injury," which is "[w]e review the district court's grant of summary judgment de novo, viewing lawsuit and that st. paul breached this duty. the district court granted ems's request district of missouri. underlying state-court suit at issue here. however, because the conduct that led to that mental anguish, injury, or illness. the complaint alleges that dr. rogers became a partner in 1991, the employee -3- -11- malpractice claim. each claim was alleged alternatively and each was asserted as a a partner; therefore, st. paul has a duty to defend ems. st. paul mercury insurance company, * indemnification. underlying lawsuit between ems and dr. rogers. the parties filed a stipulated of any written instrument which is an exhibit to a pleading is a part thereof for all august 8, 2002, dr. rogers filed his first amended complaint, which added a medical case. we agree with the district court that dr. rogers's claim does not fit within happened as soon as possible." as the district court noted, the first page of the policy oncehartfordhaddeniedcoverageandduringsettlementnegotiationswithdr. included a claim for nied and alleged facts supporting that claim. therefore, st. rate of ten percent per year. . . ."). section 636-16, however, is the authorizing statute accident, including continuous or repeated exposure to substantially the same general for an insurer's breach of the duty to defend and for bringing the declaratory relief against dr. rogers's claims than ems did. therefore, we affirm the district court's on the other hand, dismissed with prejudice its claim for indemnification. it is not is used to set the rate of prejudgment interest. see eastman, 946 p.2d at 1324 (stating hawaii patients on behalf of islands. on may 7, 2001, an attorney representing dr. b. exclusion issues 97. the alleged facts regarding partnership provide the possibility that dr. rogers is reads: ("aon"), which was ems's insurance broker and the company listed as st. paul's ins. co., 325 f.3d 1024, 1028 (8th cir. 2003). while we note that this statement may an insurer's duty to defend is broad and "arises wherever there is the mere either exclusion at issue.4 damages for covered bodily injury and property damage that: relevant facts `will not be resolved by the trial of the third party's suit against the complaint, dr. rogers also alleged that on june 22, 2000, dr. rogers suffered the first to defend ems under the policy. first, st. paul contends that the allegations of 107 (agreeing that the denial of prejudgment interest is generally affirmed if "the complaint alleged he was an equal partner with dr. kinports, the employee exclusion haw. rev. stat. 478-2 provides: "when there is no express written contract count vi of dr. rogers's first amended complaint, entitled "intentional and/or 2. tell us or our agent what happened as soon as possible. do this even malpractice. ems settled the underlying lawsuit with dr. rogers, and tendered a recognized insurance contracts as contracts of adhesion, and therefore "they must be we recognize that the complaint does refer to dr. kinports as dr. rogers's would be compensated for that to the same extent as dr. kinports." the complaint -12- argues that the allegations of emotional distress made by dr. rogers do not constitute 661, 665 (haw. 1999) (stating the "general rule" that, under hawaii law, recovery for reviewed for abuse of discretion." tri-s corp., 135 p.3d at 106. the availability of award was reasonable. thus, it seems misplaced for the district court to base its denial demonstrate it suffered prejudice by the insured's untimely notice before the insurer for disclaiming its duty to defend where the complaint in the underlying lawsuit haw. rev. stat. 431:10-242. noted, ems was required to respond to numerous defenses, and the requested fee dr. douglas rogers and his wife, edwardine reis-rogers, (collectively, "dr. cross-motions for partial summary judgment. the district court2 on september 10, 2004, the parties filed cross-motions for partial summary 636-16 "where appropriate, for example, where: (1) the defendant's conduct did not id. "all doubts as to whether a duty to defend exists are resolved against the insurer against the insurer." id. at 106-07 (quotation marks and citation omitted, alterations beginning of the complaint. ems and the district court's interpretation is the only where appropriate, is awardable under [haw. rev. stat.] 636-16 (1993) in the and that st. paul was not prejudiced by the lack of notice. fourth, st. paul claims that applies in this case. delay in receiving notice. the parties then filed a joint stipulation as to the amount ems's only request is that st. paul pay for the attorney fees and costs st. paul argues that the emotional distress dr. rogers suffered is not the "result[]" of of cal. v. haw. ins. & guar. co., 654 p.2d 1345, 1348 n.4 (haw. 1982). the hawaii case was asserted as a separate tort. id. at 987. the court noted that "[a]t best, [the the policy excludes "bodily injury to an employee of the [insured] arising out d. attorney fees the complaint stated that dr. rogers's partnership status was confirmed on that results at any time from such physical harm, sickness, or disease: "bodily injury" because it is "emotional distress that results from . . . physical harm, substantially the same general harmful conditions. protected person, but you or another protected person is aware of having dr. rogers was an employee or a partner is limited by the facts alleged in the from 1981 until december 2000, dr. rogers provided medical services to the commercial general liability insurance policy ("the policy"). st. paul refused the district court erred by finding that ems was entitled to attorney fees, or in the indemnification, 431:10-242 should not apply. we disagree. a court order of done something that may later result in a demand for damages. . . . st. paul also contends that dr. rogers's complaint does not include allegations exists." id. even if the possibility is remote, "the insurer owes the insured a defense." supreme court has held that this is dicta, however, and has reserved the question for ___________ viewed in the context of the case . . . prove[d] to be quite reasonable." as the court st. paul. breach of contract, it may be the date when the breach first occurred. no doubt that dr. rogers was an employee of ems during this time period. the filed: july 26, 2007 insured, the insurer will additionally be required to show that it was prejudiced by the st. paul challenged. the court then ruled that the fees requested by ems, "when 431:10-242, and that, even if the duty to defend is a benefit, the fees the district prejudgment interest to ems. st. paul appeals, arguing that the district court erred insurance policies are subject to the general rules of contract construction, and their amended complaint, an ems representative sent an email to aon, following-up on claim for coverage. ems did not directly notify a st. paul employee until after the what to do if you have a loss on september 16, 2002, ems's controller sent an email to aon risk services additionally, the district court did not abuse its discretion by refusing to deduct i. background ___________ deny an award." it is within the discretion of the court to deny interest pursuant to under a particular statute, however, is a question of law, which we review de novo. where an insurer has contested its liability under a policy and is ordered -2- . . . plausible reading of the complaint because "physical injury to a person" is generally defend and indemnification, did not tell the insurer about the underlying lawsuit until underlying lawsuit was settled, in late may of 2003. ems argues that its initial liability damages covered under this policy. . . . separate, stand-alone claim. purposes."). the dairy road partners court also adopted a limited exception, st. paul argues that 431:10-242 does not apply here because the district court appellees/cross-appellants, * possibility of coverage under the policy. dr. rogers's claim of emotional distress is as soon as possible" "[i]f an accident or incident happens that may involve liability even if it were insufficient under the policy, st. paul cannot show prejudice due to the policy. we agree with the district court that dr. rogers's claim of nied is covered complaint did not include allegations that any bodily injury dr. rogers suffered before arnold, bye, and melloy, circuit judges. protection provided" in the policy. the policy also requires the insured to "[s]end [st. -14- provided in this policy, you or any other protected person involved must: fee arrangements for the legal market." conversation, the controller requested that the aon representative put ems's general exclusion." id. suffering, mental and emotional distress, anguish and humiliation on [dr. rogers] and emergency medical services, inc.; * to the complaint as an exhibit. also, in addition to the business-related injuries in the st. paul first argues that the district court erred in holding that dr. rogers's described below when a property loss that may be covered under this ___________ would be. according to st. paul, because ems dismissed with prejudice its claim for fixing a different rate of interest, interest shall be allowed at the rate of ten percent a nonmoving party. . . ." conolly v. clark, 457 f.3d 872, 874 (8th cir. 2006). a grant . . . -7- when it found that ems provided timely notice to st. paul of the underlying lawsuit st. paul also appeals the district court's determination that the employee 3. send us a copy of all written demands. also send us a copy of all legal documents if someone starts a lawsuit. theoriginalcomplaintallegedthefollowingsixcounts:(i)promissoryestoppel a minnesota corporation, * interest is authorized under hrs 636-16[.]"); larsen v. pacesetter sys., inc., 837 emotional distress. the honorable dean whipple, united states district judge for the western policy's notice requirement, but that in any case, st. paul was not prejudiced by the according to the policy, thus notice to aon in this case does not constitute notice to the insured fears potential liability, it should "[t]ell [st. paul] or [its] agent what the commencement date to conform with the circumstances of each case, by the courts to pay benefits under the policy, the policyholder . . . shall as quoted above, under the policy, "bodily injury" means "any physical harm, delay in litigation and deny interest on this basis alone. see tri-s corp., 135 p.3d at employer a number of times, and that dr. rogers filed w2 forms. however, because 5 controller had approximately a week earlier with an aon representative. during this loss of use of tangible property of others that isn't physically be distinguished. in that case, the insured, who was suing for a breach of the duty to auto. ass'n, 120 p.3d 257, 259 (haw. 2005) (quotation omitted). ems asserts that malpractice and business tort claims against ems. on march 15, 2001, dr. rogers we find this argument unpersuasive as well. the policy defines "event" as "an is a general statute that governs interest payments on civil judgments generally, and st. paul contends that dr. rogers was treated like an employee, and is therefore an insurance company, our court held that hawaii law "require[s] an insurer to exclusions contained in the policy: an employee exclusion and an "expected or islands emergency medical service, * that any bodily injury he suffered was"caused by an event" as defined by the policy. filed suit against ems in hawaii state court. v. conclusion of summary judgment is proper when there "`is no genuine issue as to any material ems. ems was the named insured under the policy. in relevant part, the policy argues mandates an award of interest in certain cases, should apply here. to the * appeal from the united states extent that 478-2 applies in this case, ems's argument fails because the hawaii right to have his attorney[] fees paid by his opponent." mikelson v. united servs. 2000), whereas, "[t]he insurer has the burden of establishing the applicability of an indemnity relating to the underlying lawsuit. st. paul removed the case to the united court awarded are unreasonable. both of these arguments are without merit. that the insurer breached its duty to defend, and the court orders the insurer to pay the strokes." accordingtothecomplaint,dr.rogers'sconditiongrewincreasinglyworse edwardine reis-rogers is named as a plaintiff in three of the six counts in the as to partnership representations; (iii) promissory estoppel as to tax representations; unlike the counterclaim at issue in cim, dr. rogers's complaint alleges numerous -5- or death" that "results at any time from such physical harm, sickness, or disease[.]" is caused by an event. state farm fire & cas. co. v. gorospe, 106 f. supp. 2d 1028, 1031 (d. haw. the court's discretion, however, to determine that st. paul's conduct did not cause a of significant cerebral vascular accidents had left dr. rogers permanently unable to "mental injury" must "arise out of a covered offense," and that the nied claim in that employee for purposes of this exclusion. ems argues that because dr. rogers's


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