Opinion
No. 3:19-cv-00113
07-21-2021
Douglas BURKA, M.D., Plaintiff, v. VANDERBILT UNIVERSITY MEDICAL CENTER, Defendant.
Clinton H. Scott, Gilbert McWherter Scott & Bobbitt, PLC, Jackson, TN, Emily Alcorn, J. Brandon McWherter, Jonathan L. Bobbitt, McWherter Scott & Bobbitt PLC, Franklin, TN, for Plaintiff. Anne M. Frazier, Gail Vaughn Ashworth, Thomas Anderton Wiseman, III, Wiseman Ashworth Law Group PLC, Nashville, TN, for Defendant.
Clinton H. Scott, Gilbert McWherter Scott & Bobbitt, PLC, Jackson, TN, Emily Alcorn, J. Brandon McWherter, Jonathan L. Bobbitt, McWherter Scott & Bobbitt PLC, Franklin, TN, for Plaintiff.
Anne M. Frazier, Gail Vaughn Ashworth, Thomas Anderton Wiseman, III, Wiseman Ashworth Law Group PLC, Nashville, TN, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE This insurance-coverage dispute is about whether Defendant Vanderbilt University Medical Center ("VUMC") owed Plaintiff Dr. Douglas Burka a duty to defend in two state-court lawsuits filed against him. Dr. Burka filed a breach of contract claim against VUMC, alleging that VUMC did not fulfill its duty to defend him under the relevant statement of liability coverage. VUMC, in turn, filed a counterclaim for a declaratory judgment that it had no duty to defend Dr. Burka in those lawsuits.
In denying the parties’ cross-motions for summary judgment (see Doc. No. 115), the Court indicated on the record at the May 13, 2021 hearing how it would rule on certain questions of law in this case, including how to interpret the relevant statement of liability coverage. (See Doc. No. 116). Those rulings are repeated and finalized below in more detail. But because the parties’ arguments on summary judgment focused primarily on how to interpret the statement of liability coverage, the Court reserved for trial the sub-issue of whether Dr. Burka was arguably acting within the scope of his duties for VUMC when he accessed his wife's medical records without authorization.
The Court held a bench trial on July 8, 2021, during which Dr. Burka, Dr. Kyla Terhune (a resident surgeon at VUMC while Dr. Burka worked there), and Terri Hartman (Director of the Privacy Office at VUMC) testified. Based on the record before the Court and the parties’ arguments, the Court finds that Dr. Burka did not meet his burden to show that VUMC owed him a duty to defend.
In support of this conclusion, the Court enters the following Findings of Fact and Conclusions of Law in accordance with Federal Rule of Civil Procedure 52(a).
The Court's Findings of Fact do not encompass a complete recitation of the record. Accordingly, the omission of any particular detail in this section should not be construed as the Court's failure to consider that detail or inferences it would support, but rather, should indicate merely that some details were omitted in the interest of conveying a manageably concise presentation of the relevant evidence and details that the Court considered ultimately dispositive. And except where the Court discusses differing testimony on a specific issue, the Court has considered and rejected any contrary testimony regarding that matter in favor of the specific fact found. Last, for ease of reference, the Court will refer to the exhibits admitted at trial as follows: Plaintiff's Exhibits ("P. Ex.") and Defendants’ Exhibits ("D. Ex.").
A. Dr. Burka's Employment and Job Duties at VUMC
1. Dr. Burka worked as a surgical resident at VUMC from July 1, 2010 through June 30, 2012. (Doc. No. 81 at ¶ 1).
2. There is no written job description for surgical residents at VUMC. But based on the testimony from Dr. Burka and Dr. Terhune, the Court finds that Dr. Burka's job duties included evaluating and examining patients, reviewing their medical records, and supporting the surgical department at VUMC, all under the supervision of a board-certified attending surgeon. B. Statement of Coverage
3. From July 1, 2010 through June 30, 2011, VUMC provided professional and general liability coverage to VUMC employees, including medical residents like Dr. Burka, through a document titled: Statement of Professional and General Liability Coverage (hereinafter, "Statement of Coverage"). (D. Ex. 1).
4. Section I of the Statement of Coverage, titled "PURPOSE ," provided, in relevant part:
A. Vanderbilt University Medical Center (VUMC) and any company, affiliate, partnership, joint venture, subsidiary, or entity newly acquired or created, will pay on behalf of any Covered Person (as hereinafter defined) all sums which the Covered Person shall become legally obligated to pay as damages or expenses and costs (as hereinafter defined) because of injury to which this Statement of Coverage applies caused by, arising out of, or resulting from an Incident as defined in Section II - Coverage Agreement-Medical Professional Liability and Section III - Coverage Agreement-General Liability which occurs during the term of this Statement of Coverage.
B. VUMC shall have the right and duty to defend any Suit against the Covered Person seeking damages because of such injury even if any of the allegations of the Suit are groundless, false or fraudulent. VUMC may make such investigation and settlement of any Claim or Suit as it deems expedient. VUMC shall not be obligated to pay any claim or judgment or to defend any Suit after the applicable limit of liability has been exhausted by payment of judgments or settlements. The authority for settlement of claims shall be as defined in the Plan Document, Sections I.B.4. and II.B.
...
D. General Definitions
1. When used in this Statement of Coverage, "Coverage" means the protection afforded by this Statement of Coverage.
2. "Suit" includes any action either at law or at equity, as well as any arbitration proceeding to which the Covered Person is required to submit or to which the Covered Person has submitted with VUMC's consent as a defendant.
3. "Covered Person" means any person or organization qualifying under Sections II.B and Section III.B (the "Covered Persons" provisions) of this Statement of Coverage.
4. "Claims" means any action, whether formal or informal, communicating an allegation of wrongdoing or request for money damages.
(Id. at 1–2).
5. Section II of the Statement of Coverage, titled "COVERAGE AGREEMENT – MEDICAL PROFESSIONAL LIABILITY ," provided, in relevant part:
A. VUMC will pay on behalf of any Covered Person (as defined in this section) all sums which the Covered Person shall become legally obligated to pay as damages or expenses and costs (as defined in Section I) because of injury to which this Statement of Coverage applies caused by a Medical Incident, as defined, which occurs during the term of this Statement of Coverage.
B. Definitions
When used in this Statement of Coverage, "Medical Incident" means any act or omission:
1. In the furnishing of professional health care services by the Covered Person, (a) an employee of the Covered Person, or any person acting under the direction, control or supervision of the Covered
Person or (b) in the service by any Covered Person as a member of a professional board or committee of VUMC, whether formal or ad hoc, or as a person charged with the duty of executing directives of any such board or committee.
a. In the furnishing of professional health care services, including furnishing or dispensing food, beverages, medications or appliances in connection with such services to a patient at VUMC and its ambulatory services, and in the post-mortem handling of human bodies; or
b. In the service by any Covered Person as a member of a professional board or committee of VUMC, whether formal or ad hoc.
2. Any such act or omission together with all related acts or omissions in the furnishing of such services to any one person shall be considered one Medical Incident.
3. Any incident involving a patient or property of a patient who is on the premises for purposes of treatment is to be deemed a Medical Incident.
C. Covered Persons
Each of the following is a Covered Person under this section of the Statement of Coverage to the extent set forth below:
...
3. Any employee, faculty, clinical fellow, resident, volunteer, executive officer, or director of VUMC while acting within the scope of his or her duties as such, or while acting otherwise at the authorization or direction of VUMC, or while rendering emergency care at the scene of any emergency;
(Id. at 2–3).
6. Section III of the Statement of Coverage, titled "COVERAGE AGREEMENT – GENERAL LIABILITY ," provided, in relevant part, as follows:
VUMC will pay on behalf of any covered person (as defined in this section) all sums which the Covered Person shall become legally obligated to pay as damages or expenses and cost (as defined in Section I) because of injury or damage to property to which this statement of Coverage applies caused by a General Liability Incident, as defined, which occurs during the terms of this Statement of Coverage.
...
A. Definitions
1. When used in this Statement of Coverage, "General Liability Incident" means any situation giving rise to an obligation to pay by reason of the liability imposed by law upon a Covered Person or assumed under contract or agreement by Covered Person because of
a. Personal injury
...
2. "Personal Injury" means bodily injury, mental injury, mental anguish, disease, or disability, including death at any time resulting therefrom, and including injury arising out of false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, discrimination, humiliation, libel, slander or defamation of character, invasion of rights or tortious interference with contractual relations;
...
B. Covered Persons
The following are considered Covered Persons under this section of the Statement of Coverage:
Vanderbilt University Medical Center, its trustees, officers, employees, including professional staff and physicians, students and volunteers while acting within the scope of their duties for Vanderbilt University Medical Center, its affiliates and subsidiaries, as affiliates and subsidiaries are defined in Section II.B.
(Id. at 4–5).
C. Maine Lawsuit
7. In December 2015, Dr. Burka's ex-wife, Allison Cayne Burka, filed a lawsuit against him in the Maine Superior Court, Case No. 16-CV-20 (hereinafter, "Maine Lawsuit"). (D. Ex. 9).
8. The December 2015 complaint alleges, among other things, that "[Dr. Burka] and [Allison Cayne Burka] have been married since 2010 and resided together in Elizabeth, Maine, since 2014, but they are divorcing and have resided separately since April 2015." (Id. ¶ 2). The subsequent allegations are limited to Dr. Burka's conduct in 2015 and do not mention VUMC.
9. In March 2016, Allison Cayne Burka filed an amended complaint in the same case. (D. Ex. 10). The amended complaint alleges that Dr. Burka and Allison Cayne Burka have resided together in Maine since 2012. (Id. ¶ 2).
10. Paragraphs 5–8 of the amended complaint further allege that:
Many of the acts alleged herein occurred while [Allison Cayne Burka] and [Dr. Burka] resided in Maine, were intended by [Dr. Burka] to have consequences in Maine and had consequences in Maine. Many of the other acts alleged occurred elsewhere but had continuing consequences in Maine.
Soon after their marriage, the parties resided in Nashville, Tennessee where [Dr. Burka] was a resident providing services for [VUMC].
On or about April 10, 2011, [Allison Cayne Burka] sought treatment from Vanderbilt; she did so again later in 2011 and in March of 2012.
On or about April 14, 2011, [Dr. Burka], without the consent of [Allison Cayne Burka], accessed her confidential medical records at Vanderbilt. On four other occasions, once in 2011 and three times in 2012, without telling [Allison Cayne Burka] he had done so, and without the consent of [Allison Cayne Burka], [Dr. Burka] accessed her confidential medical records at Vanderbilt.
(Id. ¶¶ 5–8).
11. The amended complaint states three causes of action: (1) Invasion of Privacy; (2) Unlawful Disclosure of Confidential Health Care Information; and (3) Intentional Infliction of Emotional Distress. (Id. ¶¶ 23–34).
12. In support of the Invasion of Privacy claim, the amended complaint alleges that "[b]y reason of [Dr. Burka's] invasion of [Allison Cayne Burka's] privacy in Maine and while she resided in Maine, [Allison Cayne Burka] suffered damages and harm." (Id. ¶¶ 24–27).
13. In support of the Unlawful Disclosure of Confidential Health Care Information claim, the amended complaint avers that "[Dr. Burka] improperly disclosed to himself and accessed or attempted to access [Allison Cayne Burka's] confidential health care information maintained by healthcare facilities and providers in Maine ... and other healthcare facilities and practitioners associated with or controlled by Maine Health, a Maine nonprofit corporation." (Id. ¶¶ 29–31). These actions allegedly violated 22 M.R.S. § 1711(C)(13)(B), a Maine statute. (Id. ¶ 31). 14. Last, the amended complaint asserts that Dr. Burka is liable for Intentional Infliction of Emotional Distress based on his actions towards Allison Cayne Burka. (Id. ¶¶ 32–34). As background for this cause of action, paragraph 1 of the amended complaint states:
This is an action for damages and injunctive relief arising from a course of conduct by Defendant Douglas Burka that involved emotionally abusive and controlling conduct of the Defendant directed at Plaintiff Allison Burka, involved his unauthorized access to the medical records in Maine of Plaintiff, involved unauthorized access to Plaintiff's online accounts while she was a resident of Maine and involved invasions of Plaintiff's privacy in their home in Maine. All of those actions caused Plaintiff extreme emotional distress.
(Id. ¶ 1).
15. On October 14, 2017, the Maine Lawsuit was settled pursuant to a confidential settlement agreement. (See Doc. No. 71-1 at 11).
D. Maryland Lawsuit
16. In February 2016, Allison Cayne Burka and her family filed another lawsuit against Dr. Burka and his father in the Circuit Court for Montgomery County, Maryland, Case No. 415273V (hereinafter, "Maryland Lawsuit"). (D. Ex. 11).
17. The February 2016 complaint alleges, among other things, that:
Before and after their separation, Douglas Burka engaged in a campaign to access Allison's medical records to learn about her mental and gynecological health and other confidential medical information. Douglas Burka first used his privileges at Vanderbilt to access Allison's mental health records without authorization in or about July of 2011, when Allison was in therapy at Vanderbilt. Douglas Burka accessed Allison's protected health information without authorization on at least five separate occasions within the Vanderbilt system. Douglas Burka also accessed Allison's electronic medical records without authorization on multiple occasions within the Southern Maine Health Care system between 2014 and 2015. These incidents are the subject of a separate lawsuit in Cumberland County Superior Court in Maine, Burka v. Burka, No.16-CV-20.
(Id. ¶ 14).
18. It also alleges that "in or about May 2015, Douglas Burka and [his father] conspired to access Allison's obstetrics/gynecology records and other confidential medical records within [John Hopkins Health System's] medical records systems." (Id. ¶ 15).
19. The February 2016 complaint asserts four causes of action: (1) Violation Under Health-General § 4-309(f) (a Maryland statute); (2) Invasion of Privacy under Health-General Article § 4-309(d) and the federal Health Insurance Portability and Accountability Act ("HIPAA"); (3) Civil Conspiracy; and (4) Intentional Infliction of Emotional Distress (Id. ¶¶ 29–43).
20. In March 2017, the Maryland Lawsuit plaintiffs filed an amended complaint. (D. Ex. 12). The amended complaint repeated the allegations above but dropped the Intentional Infliction of Emotional Distress claim. (See id. ).
21. On October 14, 2017, the Maryland Lawsuit was settled pursuant to a confidential settlement agreement. (See Doc. No. 71-1 at 11).
E. VUMC Declines to Defend Dr. Burka Against the Maine Lawsuit and the Maryland Lawsuit
22. In mid-2016, Dr. Burka contacted VUMC's Office of Risk and Insurance Management and requested VUMC provide him with a legal defense to the Maine Lawsuit and the Maryland Lawsuit. (Doc. Nos. 81 at ¶ 5; 91 at ¶ 18).
23. On July 14, 2016, Sandy Bledsoe, Vice President of VUMC's Office of Risk Management, informed Dr. Burka that:
Based on the information we have, you did not have a physician-patient relationship with your wife, you were not providing professional healthcare services to her, you were not acting in the scope of your duties as a surgical resident and were not acting at the authorization or direction of VUMC when you accessed your wife's records. In addition, your unauthorized access to your wife's medical records constituted a HIPAA violation. Therefore, VUMC is not in a position to provide you a legal defense for any action being brought against you in these matters.
(Doc. No. 6-6 at 2; see also Doc. Nos. 81 at ¶ 8; 91 at ¶ 19).
24. As a result, Dr. Burka claims that VUMC breached the Statement of Coverage by failing to provide him with a defense in the Maine Lawsuit and the Maryland Lawsuit, and VUMC is therefore liable for his costs associated with defending those claims. (Doc. No. 6 ¶ 54). In response, VUMC filed a counterclaim for declaratory judgment stating that it had no duty to defend Dr. Burka under the Statement of Coverage. (Doc. No. 36 at 17–32).
II. CONCLUSIONS OF LAW
A. VUMC's Duty to Defend Under the Statement of Coverage
25. "Under Tennessee law, which the parties agree controls this dispute, an insurer's duty to defend the insured is triggered ‘when the underlying complaint alleges damages that are within the risk covered by the insurance contract and for which there is a potential basis for recovery.’ " Forrest Const., Inc. v. Cincinnati Ins. Co., 703 F.3d 359, 363 (6th Cir. 2013) (quoting Travelers Indem. Co. of Am. v. Moore & Assocs., Inc., 216 S.W.3d 302, 305 (Tenn. 2007) ). "Whether the duty is triggered is determined solely by looking at the allegations contained in the underlying complaint." Id. (citing Moore, 216 S.W.3d at 305 ).
26. "If even one of the allegations is covered by the [insurance] policy, the insurer has a duty to defend, irrespective of the number of allegations that may be excluded by the policy." Drexel Chem. Co. v. Bituminous Ins. Co., 933 S.W.2d 471, 480 (Tenn. Ct. App. 1996) (citation omitted). "An insurer may not properly refuse to defend an action against its insured unless it is plain from the face of the complaint that the allegations fail to state facts that bring the case within or potentially within the policy's coverage." Id. (citation and internal quotation marks omitted).
27. "[I]n case of doubt as to whether or not the allegations of the complaint against the insured state a cause of action within the coverage of their liability policy sufficient to compel the insurer to defend the action, such doubt will be resolved in the insured's favor." Southland Mall, LLC v. Valor Sec. Servs., Inc., No. W2003-03066-COA-R3-CV, 2005 WL 762616, at *4 (Tenn. Ct. App. Apr. 4, 2005) (quoting Dempster Brothers, Inc. v. United States Fid. & Guar. Co., 54 Tenn.App. 65, 388 S.W.2d 153, 156 (1964) ).
28. "The duty to defend is broader than the duty to indemnify because the duty to defend is based on the facts alleged, while the duty to indemnify is based upon the facts found by the trier of fact." Moore, 216 S.W.3d at 305. The duty to defend is also broader "because insurance companies may protect themselves by filing motions for declaratory judgment requesting a court to decide whether coverage applies or by filing a ‘reservation of rights,’ which allows them to proceed with the defense but withdraw if it becomes evidence that there is no duty to defend." Forrest, 703 F.3d at 363.
29. As the Court noted above, Section I.B of the Statement of Coverage describes VUMC's duty to defend as follows:
VUMC shall have the right and duty to defend any Suit against the Covered Person seeking damages because of such injury even if any of the allegations of the Suit are groundless, false or fraudulent.
(D. Ex. 1 at 1).
30. Here, there can be no dispute that the Maine and Maryland lawsuits both qualify as a "Suit" under the Statement of Coverage, which "includes any action either at law or at equity[.]" (Id. at 2). Thus, VUMC's duty to defend arises only if it received enough information from the allegations in the Maine Lawsuit or the Maryland Lawsuit to understand that any of the causes of action may be directed at Dr. Burka as a "Covered Person" under the Statement of Coverage. See Forrest, 703 F.3d at 363.
31. The parties agree that the definition of "Covered Persons" in Section III.B reads as follows:
Dr. Burka does not allege that the Maryland or Maine lawsuits involved "Medical Incidents," which are governed by Section II of the Statement of Coverage. (See Doc. No. 83 at 12 n.5).
The following are considered Covered Persons under this section of the Statement of Coverage:
Vanderbilt University Medical Center, its trustees, officers, employees, including professional staff and physicians, students and volunteers while acting within the scope of their duties for Vanderbilt University Medical Center , its affiliates and subsidiaries, as affiliates and subsidiaries are defined in Section II.B.
(D. Ex. 1 at 5) (emphasis added).
32. The parties dispute, however, whether this language qualifies Dr. Burka as a "Covered Person" even if he was not acting within the scope of his duties as a surgical resident employed by VUMC. Because the Court must interpret language in the Statement of Coverage to resolve this issue, it is helpful to begin the analysis with some general contract interpretation principles under Tennessee law.
B. Contract Interpretation Under Tennessee Law
33. "Tennessee law is clear that questions regarding the extent of insurance coverage present issues of law involving the interpretation of contractual language." Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012) (citations omitted). And under Tennessee law, "[i]nsurance contracts are subject to the same rules of construction as contracts generally[.]" Clark v. Sputniks, LLC, 368 S.W.3d 431, 441 (Tenn. 2012) (internal quotation marks and citation omitted).
34. "The cardinal rule for interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention, consistent with legal principles." Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975). "If the language of the contract is clear and unambiguous," the Court will determine the parties’ intent from the four corners of the contract by interpreting the contract "according to its plain terms as written" and "giv[ing] reasonable meaning to all of the provisions of the agreement, without rendering portions of it neutralized or without effect." Maggart v. Almany Realtors Inc., 259 S.W.3d 700, 704 (Tenn. 2008) (citations omitted); see also Union Realty Co. v. Family Dollar Stores of Tenn., Inc., 255 S.W.3d 586, 591 (Tenn. Ct. App. 2007). The reasonable "meaning envisioned is the meaning which the average policy holder and insurer would attach to the policy language," and "[t]he language of an insurance contract must be read as a layman would read it." S. Tr. Ins. Co. v. Phillips, 474 S.W.3d 660, 667 (Tenn. Ct. App. 2015) (citations and internal quotation marks omitted). "The court, at arriving at the intention of the parties to a contract, does not attempt to ascertain the parties’ state of mind at the time the contract was executed, but rather their intentions as actually embodied and expressed in the contract as written." Rainey v. Stansell, 836 S.W.2d 117, 119 (Tenn. Ct. App. 1992). In the absence of fraud or mistake, "courts should construe unambiguous written contracts as they find them," even if "the contract later proves to be burdensome or unwise." Ellis v. Pauline S. Sprouse Residuary Tr., 280 S.W.3d 806, 814 (Tenn. 2009) (citing Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 223 (Tenn. Ct. App. 2002) ).
35. "However, on occasion, a contractual provision may be susceptible to more than one reasonable interpretation, rendering the terms of the contract ambiguous." Maggart, 259 S.W.3d at 704 (citing Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn. 2002)) ; Tata v. Nichols, 848 S.W.2d 649, 650 (Tenn. 1993) ("Where language in an insurance policy is susceptible of more than one reasonable interpretation, ... it is ambiguous."). In determining whether a contractual provision is ambiguous, courts should keep in mind that:
Not every dispute with respect to the proper interpretation of insurance policy language constitutes an ambiguity. An insurance policy is not ambiguous simply because the parties disagree about its meaning. Both the insured and the insurer are likely to take conflicting views of coverage, but neither conflicting expectations nor disputation is sufficient to create an ambiguity. Rather, an objective test is applied to determine whether an ambiguity exists in an insurance policy. Generally, an ambiguity in insurance policy language exists only if the language is fairly or reasonably susceptible to two or more different, but reasonable, interpretations or meanings. A genuine uncertainty or honest difference must exist as to which of two or more meanings is proper; a policy is not ambiguous simply because "creative possibilities" as to its meaning can be suggested by the parties.
A policy term will not be found to be ambiguous simply because it is not defined within the policy, or because it has more than one meaning, or a broad meaning. Additionally, the fact that an insurance policy is a complex instrument requiring analysis or the need to interrelate multiple and various policy provisions, will not alone create an ambiguity ....
Generally, whether insurance policy language is ambiguous, and therefore requires interpretation or construction, is a question of law to be decided by the court[.]
Stonebridge Life Ins. Co. v. Horne, No. W2012-00515-COA-R3-CV, 2012 WL 5870386, at *4–*5 (Tenn. Ct. App. Nov. 21, 2012) (quoting 16 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 49:17 (4th ed. 2003) ).
36. When the Court determines that "the terms of the contract are ambiguous, the intention of the parties cannot be determined by a literal interpretation of the language, and the court[ ] must resort to other rules of construction." Planters Gin Co., 78 S.W.3d at 890. If the pertinent rules of construction do not resolve the ambiguity, then the legal meaning of the contract becomes a question of fact. Id.
37. In that case, the Court may use extrinsic or "parol evidence, including the contracting parties’ conduct and statements regarding the disputed provision, to guide the court in construing and enforcing the contract." Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 612 (Tenn. 2006) (citations omitted). Also, "[w]hen a provision that purports to limit insurance is ambiguous, it must be construed against the insurance company and in favor of the insured." Artist Bldg. Partners v. Auto-Owners Mut. Ins. Co., 435 S.W.3d 202, 216 (Tenn. Ct. App. 2013) (quoting Gates v. State Auto Mut. Ins. Co., 196 S.W.3d 761, 764 (Tenn. Ct. App. 2005) ). In other words, "if the disputed provision is susceptible to more than one plausible meaning, the meaning favorable to the insured controls." Garrison, 377 S.W.3d at 664 (collecting cases).
C. Whether Dr. Burka Must Have Been Acting Within the Scope of His Duties for VUMC to Qualify as a "Covered Person" Under the Statement of Coverage
38. Adhering to these legal principles, the Court must interpret the definition of "Covered Persons" in Section III.B of the Statement of Coverage and determine whether that definition is ambiguous.
39. In support of their respective positions, the parties offer fair but conflicting ways to interpret the limiting phrase "while acting within the scope of their duties for Vanderbilt University Medical Center" in Section III.B. (See D. Ex. 1 at 5). VUMC argues that this phrase modifies the entire series of words after "its," meaning "trustees, officers, employees, including professional staff and physicians, students and volunteers" would all be Covered Persons "while acting within the scope of their duties for Vanderbilt University Medical Center," but would not be Covered Persons if they acted outside the scope of those duties. (Doc. No. 16–17). Dr. Burka contends, however, that "[t]he lack of [a] comma immediately prior to ‘while acting within the scope of their duties for Vanderbilt University Medical Center’ means that this phrase modifies volunteers and students, but does not modify professional staff and physicians, the category to which Dr. Burka belongs." (Doc. No. 83 at 13). Thus, according to Dr. Burka's proposed interpretation, "trustees, officers, [and] employees" (including Dr. Burka himself) are Covered Persons regardless of whether they were acting within the scope of their duties for VUMC. (Doc. No. 80 at 10–11). Because the parties suggest two potential ways to interpret the plain language of Section III.B's definition of "Covered Persons," that provision presents some initial ambiguity when read in isolation. 40. The Court's inquiry does not end there, however, because Tennessee law makes clear that "the entire contract should be considered in determining the meaning of any or all of its parts." Cocke Cty. Bd. of Highway Comm'rs v. Newport Utils. Bd., 690 S.W.2d 231, 237 (Tenn. 1985) (citation omitted) (emphasis added); Charles Hampton's A–1 Signs, Inc. v. Am. States Ins. Co., 225 S.W.3d 482, 487 (Tenn. Ct. App. 2006) ("When interpreting a contract of insurance, the terms of the policy are read in the context of the whole policy."). Indeed, "[i]t is the universal rule that a contract must be viewed from beginning to end and all its terms must pass in review, for one clause may modify, limit or illuminate another." Cocke Cty., 690 S.W.2d at 237.
Dr. Burka misinterpreted VUMC's argument on summary judgment, and in doing so countered that the phrase "while acting within the scope of their duties for Vanderbilt University Medical Center" cannot modify every preceding word in the definition of "Covered Persons." (Doc. No. 83 at 15; but see Doc. No. 90 at 16). The Court agrees that this interpretation would be unreasonable because the definition of "Covered Persons" would read: "Vanderbilt University Medical Center ... while acting within the scope of their duties for Vanderbilt University Medical Center." Moreover, the Court is not supposed to interpret contracts in a way that would render "portions of it neutralized or without effect," and this interpretation would render superfluous the second use of "Vanderbilt University Medical Center." Maggart, 259 S.W.3d at 704. But because VUMC does not propose this interpretation, this issue and Dr. Burka's related arguments are irrelevant.
41. Looking to other provisions in the Statement of Coverage for guidance, the Court notes that the limiting phrase "while acting within the scope of ... duties" is used similarly to define "Covered Persons" in Section II.C.3. There, in the context of Medical Professional Liability coverage, a Covered Person includes:
Any employee, faculty, clinical fellow, resident, volunteer, executive officer, or director of VUMC while acting within the scope of his or her duties as such , or while acting otherwise at the authorization or direction of VUMC, or while rendering emergency care at the scene of any emergency[.]
(D. Ex. 1 at 3) (emphasis added).
42. Section II.C.3 highlights the absurdity of Dr. Burka's proposed interpretation because, under his reading of the Statement of Coverage, any employee, faculty, clinical fellow, resident, volunteer, and executive officer would be a Covered Person without limitation, yet directors would only be Covered Persons while acting within the scope of his or her duties for VUMC. This interpretation is clearly unreasonable because it would arbitrarily place a limitation on directors but not on executive officers or even general employees. Instead, the only reasonable interpretation of Section II.C.3 is that the phrase "while acting within the scope of his or her duties" modifies each preceding noun in that provision, not just "director."
43. For the same reasons, the Court concludes as a matter of law that the parties intended the phrase "while acting within the scope of their duties for Vanderbilt University Medical Center" in Section III.B to modify the nouns "trustees, officers, employees, including professional staff and physicians, students and volunteers." (D. Ex. 1 at 4 (emphasis added)). Although it may have been more grammatically accurate to place a comma after the word "volunteers" in Section III.B, it has been the law for almost two centuries that "[p]unctuation is a most fallible standard by which to interpret a writing; it may be resorted to, when all other means fail; but the court will first take the instrument by its four corners, in order to ascertain its true meaning; if that is apparent, on judicially inspecting the whole, the punctuation will not be suffered to change it." Ewing's Lessee v. Burnet, 36 U.S. 11 Pet. 41, 54, 9 L.Ed. 624 (1837). Accordingly, the Court will not ignore the parties’ intentions "embodied and expressed in the contract as written," Rainey, 836 S.W.2d at 119, simply because there is no comma after the word "volunteers."
44. Moreover, Koons v. XL Ins. Am., Inc., 516 F. App'x 217 (3d Cir. 2013) further illustrates why Dr. Burka's proposed interpretation would require the Court to "use a strained construction of the language to find an ambiguity where none exists." Maggart, 259 S.W.3d at 704 (citation omitted). In Koons, the Third Circuit interpreted a similar duty-to-defend provision that defined a covered "Insured" as "The Named Insured" and the named insured's "partners, joint venture members, executive officers, employees, directors, stockholders or volunteers while acting within the scope of their duties as such. " 516 F. App'x at 220 (emphasis added). Without hesitation, the Koons court concluded that "[t]he contract language is clear" and "unambiguously indicates that the relevant individuals are not covered for all of their conduct, but rather only the conduct they commit ‘while acting within the scope of their duties’ as employees or owners of [the named insured]." Id. at 221. The Third Circuit further held that "[s]ince this language is unambiguous, it controls, and we need not address [plaintiffs’] policy-based arguments [or] the reasonable expectations of the parties[.]" Id.
45. Here, too, because the Court finds that the definition of "Covered Persons" in Section III.B of the Statement of Coverage is unambiguous, it does not need to address Dr. Burka's arguments regarding the last antecedent rule of construction (see Doc. Nos. 80 at 11–15; 83 at 13) or the relationship between the Statement of Coverage and other insurance policies (see Doc. Nos. 80 at 15–16; 93 at 2–3). Nor does the Court need to consider extrinsic evidence, such as the House Staff Manual, to interpret the Statement of Coverage. (See Doc. No. 71 at 16–17; see also Doc. No. 36-1).
"The last antecedent rule provides that ‘a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows." Crestwood Farm Bloodstock v. Everest Stables, Inc., 751 F.3d 434, 446 (6th Cir. 2014) (quoting United States v. Hayes, 555 U.S. 415, 425, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) ). Under that rule, Dr. Burka's proposed interpretation would control and the phrase "while acting within the scope of their duties for Vanderbilt University Medical Center" would modify only "students and volunteers." But "[l]ike all canons of interpretation, the rule of the last antecedent can be overcome by textual indication of contrary meaning." Tate v. Gen. Motors LLC, 538 F. App'x 599, 602 (6th Cir. 2013) (quoting Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 625, 133 S.Ct. 1326, 185 L.Ed.2d 447 (2013) (Scalia, J., concurring)). Indeed, the Tennessee Supreme Court has declined to apply the last antecedent rule if, like here, the "interpretation would yield an absurd result." In re Estate of Tanner, 295 S.W.3d 610, 625 n.14 (Tenn. 2009) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000) ).
Although the Court has not interpreted the Statement of Coverage based on policy arguments, the Court agrees that it "makes perfect sense" for a university to limit comprehensive general liability insurance to all students and employees acting within the scope of their duties for the university because "a university does not ‘act’ in a way that might create liability but through its employees, and thus any liability insurance coverage for [a university's] activities necessarily would cover the activities of [its] employees, provided they were acting within the scope of their employment. " Ins. Corp. of Ireland, Ltd. v. Bd. of Trs. of S. Ill. Univ., 937 F.2d 331, 332 (7th Cir. 1991) (emphasis added).
46. In sum, the Court finds that the definition of "Covered Persons" in Section III.B of the Statement of Coverage is unambiguous, and, therefore, VUMC's duty to defend was triggered only if Dr. Burka was acting within the scope of his duties for VUMC when he committed the acts alleged in the Maine and Maryland lawsuits.
D. Whether the Maine Lawsuit or the Maryland Lawsuit Assert Any Cause of Action Potentially Based on Dr. Burka's Conduct While He Was Acting Within the Scope of His Duties for VUMC
47. Given the Court's conclusion above, VUMC's duty to defend arises only if the Maine or Maryland lawsuits assert a cause of action potentially based on Dr. Burka acting within the scope of his duties for VUMC during the Statement of Coverage's term. See Forrest, 703 F.3d at 363. 48. When the parties moved for summary judgment, neither of them offered evidence about what Dr. Burka's job duties were or the extent to which the Maine or Maryland lawsuits may have implicated those duties. Lacking this information, the Court stated that "I can't apply this record for either motion to determine whether or not there's sufficient direct or circumstantial proof for the trier of fact to find that [Dr.] Burka was acting within the scope of his duties when he accessed his wife's medical records or was not." (Doc. No. 116 at 37). The Court then decided that "we need to go to trial to determine whether or not when [Dr.] Burka did that he was acting within his duties of a surgical resident at Vanderbilt." (Id. at 37–38).
49. At the time, the Court believed this factual dispute may be important because other states in the Sixth Circuit, including Kentucky and Michigan, allow courts to look outside the complaint to determine whether there is a duty to defend. See KSPED LLC v. Va. Sur. Co., Inc., 567 F. App'x 377, 383 (6th Cir. 2014) (noting that under Kentucky law, the duty to defend can also depend on the facts known to the insurer at the time it declined coverage); Alticor, Inc. v. Nat'l Union Fire Ins. Co. of Pa., 916 F. Supp. 2d 813, 826 (W.D. Mich. 2013) (noting that under Michigan law, "[t]he duty to defend ... is not limited by the specific language of the pleadings, and the insurer has an obligation to look behind the allegations when analyzing the claim"). Under the law in these states, if VUMC knew that unauthorized access to medical information was outside Dr. Burka's job duties as a surgical resident, VUMC may have been justified in declining coverage for that reason regardless of what the pleadings alleged.
50. Having now considered the parties’ arguments after summary judgment, the Court is convinced that Tennessee law does not permit courts to consider any matters outside the complaint when determining whether an insurer has a duty to defend. See Moore, 216 S.W.3d at 305. Most importantly, the Sixth Circuit maintains that, in Tennessee, "[w]hether the duty [to defend] is triggered is determined solely by looking at the allegations contained in the underlying complaint." Forrest, 703 F.3d at 363 (citation omitted); see also Gen. Agents Ins. Co. of Am., Inc. v. Mandrill Corp., Inc., 243 F. App'x 961, 964 (6th Cir. 2007) (quoting Saint Paul Fire and Marine Ins. Co. v. Torpoco, 879 S.W.2d 831, 835 (Tenn. 1994) ) (holding that "the obligation of a liability insurance company to defend an action brought against the insured by a third party is to be determined solely by the allegations in the complaint in that action"). It would thus be clear error for the Court to consider matters outside the Maine and Maryland lawsuit complaints because "[i]t is a well-settled rule that a district court is bound by the decisions of the circuit court of appeals in which it sits." See Cochran v. Trans-General Life Ins. Co., 60 F. Supp. 2d 693,698 (E.D. Mich. 1999).
51. Accordingly, the Court must look to the allegations in the Maine and Maryland lawsuits (and only those allegations) to determine whether Dr. Burka arguably acted within the scope of his duties for VUMC when he committed the wrongful conduct asserted in the complaints. For the following reasons, the Court finds that neither the Maine Lawsuit nor the Maryland Lawsuit assert any cause of action based on Dr. Burka's job duties at VUMC and, therefore, VUMC did not have a duty to defend Dr. Burka. 1. Maine Lawsuit
Even if Tennessee law allowed the Court to consider evidence extrinsic to the complaints when considering whether VUMC had a duty to defend, the Court would still rule in VUMC's favor because the Court finds credible Dr. Terhune's testimony that "unauthorized access" to medical records was not part of Dr. Burka's job duties as a surgical resident at VUMC. (See D. Ex. 10 at 1 (alleging that the Maine Lawsuit involves Dr. Burka's "unauthorized access to ... medical records); D. Ex. 12 at 5–6 (alleging in the Maryland Lawsuit that Dr. Burka accessed his ex-wife's "mental health records without authorization")).
In making this determination, the Court did not find credible Dr. Burka's argument and testimony that he had a doctor-patient relationship with his former wife that allowed him to access her medical records at VUMC with impunity. And even if he did have a doctor-patient relationship, that relationship would not have been through VUMC because Dr. Terhune testified credibly that only attending physicians, not residents, could have doctor-patient relationships at VUMC. And even if Dr. Burka somehow had a doctor-patient relationship with his former wife through VUMC, VUMC would not have included unauthorized access to medical records as part of his job duties as a surgical resident. Last, based on Dr. Burka's demeanor on the witness stand, the Court also does not find credible his bold testimony that, as the holder of a medical degree, he had unilateral authority to establish a doctor-patient relationship with any person who asked him a medical question while he was walking down the hallway of a hospital.
52. As an initial matter, the December 2015 complaint in the Maine Lawsuit did not trigger VUMC's duty to defend because it has absolutely nothing to do with Dr. Burka acting within the scope of his duties at VUMC. (See D. Ex. 9). The complaint never mentions VUMC and focuses solely on Dr. Burka's conduct in 2015, which was more than three years after he left his residency at VUMC. (Id. ). Thus, VUMC was justified in denying coverage for the December 2015 complaint in the Maine Lawsuit.
53. Nor did the March 2016 amended complaint trigger VUMC's duty to defend. True, the Maine amended complaint alleges that Dr. Burka "was a resident providing services for Vanderbilt Health Services, LLC (Vanderbilt)" when he, "without the consent of [his ex-wife], accessed her confidential medical records at Vanderbilt" on five occasions. (D. Ex. 10 ¶¶ 6, 8). But when these allegations are read in the context of the entire complaint, the Court finds that they merely serve as background information of Dr. Burka's alleged previous bad acts.
54. Further, the amended complaint's introductory paragraph makes clear that the three causes of action are limited to Dr. Burka's "unauthorized access to [Allison Cayne Burka's] medical records in Maine ... while she was a resident of Maine and involved invasions of [her] privacy in their home in Maine. (Id. ¶ 1 (emphasis added)). VUMC could not possibly have had a duty to defend Dr. Burka's Maine conduct, particularly because the Statement of Coverage expired on June 30, 2011, and the amended complaint alleges that Dr. Burka and his ex-wife moved to Maine after that date. (See id. ¶ 2).
55. The First Claim for Relief then seeks damages for Dr. Burka's alleged "invasion of Plaintiffs’ privacy in Maine and while she resided in Maine[.]" (Id. ¶ 26). The Second Claim for Relief asserts that Dr. Burka violated a Maine statute when he "improperly disclosed to himself and accessed or attempted to access Plaintiff's confidential health care information maintained by healthcare facilities and providers in Maine ... and other healthcare facilities and practitioners associated with or controlled by Maine Health, a Maine nonprofit corporation." (Id. ¶¶ 29–31). And although the Third Claim for Relief seeks damages for intentional infliction of emotional distress without explicitly mentioning Maine, the complaint's first paragraph explains that Dr. Burka's conduct in Maine allegedly "caused Plaintiff extreme emotional distress." (Id. ¶¶ 1, 32–34 (emphasis added)). None of these three causes of action are even arguably based on Dr. Burka's conduct while he was acting within the scope of his duties for VUMC between July 1, 2010 and June 30, 2011.
56. Accordingly, the Court concludes as a matter of law that the Maine Lawsuit did not trigger VUMC's duty to defend under the Statement of Coverage.
2. Maryland Lawsuit
57. The Court also finds that the February 2016 complaint and the March 2017 amended complaint filed in the Maryland Lawsuit (collectively, "Maryland Complaints") did not trigger VUMC's duty to defend.
58. Dr. Burka emphasizes that the Maryland Complaints allege that he "first used his privileges at Vanderbilt to access Allison's mental health records without authorization in or about July of 2011, when Allison was in therapy at Vanderbilt." (D. Exs. 11 ¶ 14; 12 ¶ 14). Notably, however, that one-sentence allegation is immediately followed by a description of Dr. Burka's actions in Maine and a statement that those incidents are subject to "a separate lawsuit" in Maine. (Id. ). The remainder of the Maryland Complaints then focus on Dr. Burka and his father's alleged conduct in Maryland in 2015. Having considered the Maryland Complaints in their entirety, the Court finds that they also refer to Dr. Burka's VUMC conduct merely as background information.
59. For these reasons, the Court does not find the Maryland Complaints assert any causes of action even potentially based on Dr. Burka's conduct while he was acting within the scope of his duties for VUMC. Accordingly, the Court concludes as a matter of law that the Maryland Lawsuit did not trigger VUMC's duty to defend under the Statement of Coverage.
E. The Statement of Coverage's Exclusions are Inapplicable and Irrelevant
60. Given the Court's conclusions above, there is no need to repeat why the Statement of Coverage's exclusions are irrelevant to VUMC's alleged duty to defend. (See Doc. No. 116 at 24–38). The Court explained this finding at the summary judgment oral argument because if any of the exclusions applied, then it would not matter whether Dr. Burka was or was not potentially acting within the scope of his job duties when he engaged in the conduct alleged in the Maine and Maryland lawsuits. But because VUMC had no duty to defend Dr. Burka as an initial matter, the Statement of Coverage's exclusions play no role in the Court's analysis.
F. Declaratory Judgment
61. In addition to defending against Dr. Burka's breach of contract claim, VUMC also filed a counterclaim for a declaratory judgment. (See Doc. No. 36 at 17–32).
62. "[T]he Declaratory Judgment Act ... confer[s] on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants." Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) ; 28 U.S.C. § 2201(a).
63. Normally, the Court would consider the five "Grand Trunk" factors to determine whether the exercise of Declaratory Judgment Act jurisdiction is appropriate. See United Specialty Ins. Co. v. Cole's Place, Inc., 936 F.3d 386, 396 (6th Cir. 2019) (citing Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984) ). But neither party has argued why the Court should or should not exercise its declaratory jurisdiction, meaning both parties have waived their rights to contest jurisdiction. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 554 (6th Cir. 2008) (noting that a challenge to the Court's exercise of declaratory jurisdiction "is not actually a jurisdictional challenge but a question of the propriety of the district court's decision to exercise its discretion with respect to the subject matter jurisdiction granted it by Congress in the Declaratory Judgment Act.... Accordingly, traditional rules regarding the waiver of issues apply").
64. In any event, the Court finds as a matter of efficiency, fairness, and federalism that issuing a declaration would be useful and fair in this case. See Cole's Place, 936 F.3d at 396 (citing W. World Ins. Co. v. Hoey, 773 F.3d 755, 759 (6th Cir. 2014) ).
65. Accordingly, the Court will grant VUMC's request for a declaratory judgment and declare that VUMC had no duty to defend under the Statement of Coverage for the claims and allegations made in the Maine Lawsuit or the Maryland Lawsuit.
III. CONCLUSION
For the foregoing reasons, the Court finds that VUMC is not liable to Dr. Burka for breach of contract, did not have a duty to defend Dr. Burka in the Maine Lawsuit or the Maryland Lawsuit, and is entitled to a declaratory judgment reiterating those findings.
An appropriate order will enter.