Opinion
No. 108,423.
2013-12-27
Lisa GARD, M.D., Appellant, v. KANSAS HEALTH CARE STABILIZATION FUND, Appellee.
Appeal from Shawnee District Court; Rebecca W. Crotty, Judge. Michael W. Blanton, of Bayer & Carey, P.C., of Denver, Colorado, and Lynn R. Johnson and Douglas R. Bradley, of Shamberg, Johnson & Bergman, Chartered, of Kansas City, Missouri, for appellant. Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, for appellee.
Appeal from Shawnee District Court; Rebecca W. Crotty, Judge.
Michael W. Blanton, of Bayer & Carey, P.C., of Denver, Colorado, and Lynn R. Johnson and Douglas R. Bradley, of Shamberg, Johnson & Bergman, Chartered, of Kansas City, Missouri, for appellant. Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Lisa Gard, M.D., appeals the district court's decision granting summary judgment in favor of the Kansas Health Care Stabilization Fund (Fund). The district court found that Gard's bad faith claim against the Fund was barred by Aves v. Shah, 258 Kan. 506, 906 P .2d 642 (1995), which holds that Kansas law does not recognize a claim against the Fund for an excess judgment against a covered health care provider on the grounds that it failed to negotiate a settlement within the coverage limits. Gard claims that the Kansas Supreme Court has departed from its position in Aves to the point that it is no longer controlling precedent. In the alternative, Gard claims that Aves is factually distinguishable and does not control the outcome of this case. We disagree with Gard on both claims; thus, we affirm the district court's judgment.
Factual and Procedural Background
On February 5, 2006, Gard treated a minor, M.L.M., in the emergency room in Salina, Kansas. At the time, Gard was licensed in Kansas and carried primary professional medical malpractice liability coverage as required by the Kansas Health Care Provider Insurance Availability Act (the Act), K.S.A. 40–3401 et seq. , and excess professional medical malpractice liability coverage through the Fund. Sometime after Gard treated M.L.M., she moved out of Kansas, wrapped-up her Kansas practice, and terminated her Kansas primary insurance coverage. After Gard moved from Kansas, she retained $800,000 of coverage she had purchased from the Fund pursuant to the provisions of K.S.A. 40–3403(m)—“tail coverage”—for the period during which she was a nonresident inactive health care provider.
On September 26, 2006, M.L.M., by and through her mother, filed a medical malpractice lawsuit in federal district court against Gard and the hospital stemming from the February encounter. M.L.M. later settled with the hospital, but M.L.M.'s lawsuit against Gard continued.
The Fund assumed Gard's defense and employed a law firm to defend her in the medical malpractice lawsuit. In August 2007, M.L.M. sent a demand letter claiming $14,425,054 in damages. Prior to a settlement conference, Gard's counsel sent a letter to Rita Noll, chief attorney for the Fund, summarizing the case and estimating that the potential damages ranged from $3,000,000 to $4,500,000, with Gard liable for 40 to 45 percent of the damages. Nevertheless, Gard's counsel recommended that the Fund offer to settle for an amount up to, but not exceeding $350,000. In a January 2008 letter, M.L.M. stated she was willing to accept $800,000—the limit of Gard's tail coverage—to settle all claims against Gard. In a letter to Noll and Gard, Gard's counsel provided a copy of M.L.M.'s letter, acknowledging that a plaintiff's verdict at trial would likely exceed the limits of the Fund's coverage, yet recommending that they decline the offer. The settlement offer was rejected.
The trial was scheduled to begin in April 2008 but was continued to March 2009. In a March 2008 letter to Gard and copied to Noll, Gard's counsel stated that he and Noll had discussed the case further and had decided to wait to see if M.L.M. would contact them regarding settlement negotiations. In January 2009, Gard's counsel filed an offer of judgment in the amount of $300,000, which M.L.M. rejected. M.L.M. stated again that she would be willing to accept a settlement of $800,000. Gard's counsel sent a letter of this offer to Noll and Gard and reiterated his recommendation that they defend the case at trial, stating, “Based upon our discussions, the two of you agreed [to do so].”
The jury trial commenced in March 2009, and the jury returned a verdict against Gard and awarded damages of $12,100,000. The district court entered a modified judgment of $12,050,000. The Fund tendered payment to M.L.M. of the coverage limitation to satisfy its coverage of Gard.
On January 24, 2011, Gard filed a petition in Wyandotte District Court alleging that the tail coverage created an express or implied contract of insurance between her and the Fund and that the Fund violated its duty to defend and settle claims against her in good faith and without negligence. The Wyandotte District Court transferred venue to Shawnee County, and the parties filed a stipulation that Gard's claims arose entirely out of her complaint that the lawsuit was not settled within the limits of her tail coverage and ultimately resulted in a judgment in excess of the coverage. The Fund then filed a motion for summary judgment, asserting that the Kansas Supreme Court's decision in Aves controlled and disposed of the case because it held that the Fund may not be held liable for an excess judgment against a covered health care provider on the grounds that it failed to negotiate a settlement within the coverage limits.
Gard filed a memorandum and brief in opposition to the summary judgment motion. Gard agreed with the Fund that the only issue was a question of law “as to whether Kansas law recognizes a breach of contract action against the Fund for negligent or bad faith failure to settle,” but argued that Aves did not bar her common-law cause of action against the Fund for negligent or bad faith refusal to settle the claim within coverage limits. Further, Gard asserted that Aves was incorrectly decided and was factually distinguishable from her case.
On June 6, 2012, the district court heard arguments and took the matter under advisement. On June 12, 2012, the district court filed its memorandum decision and order and found that Aves was controlling. Accordingly, the district court granted summary judgment in favor of the Fund. Gard timely appealed the district court's judgment.
On appeal, Gard argues that the district court erred in granting summary judgment in favor of the Fund. Where there is no factual dispute, as in this case, appellate review of an order regarding summary judgment is de novo. David v. Hett, 293 Kan. 679, 682, 270 P.3d 1102 (2011).
Has the Supreme Court Departed from its Position in Aves to the Point that it is no Longer Controlling Precedent?
Gard first argues that the district court erred in holding that her claim was barred by Aves. Gard asserts that Aves was wrongly decided and is no longer controlling precedent in Kansas. Although she recognizes this court's duty to follow Kansas Supreme Court precedent absent some indication that the court is departing from its prior position, she contends that there is sufficient indication of such a departure to allow this court to consider her position on the merits. Gard contends that more recent caselaw shows the flaws in the Aves court's analysis regarding proper statutory construction. She also contends that Aves is undermined by the fact that it relied upon McVay v. Rich, 255 Kan. 371, 874 P.2d 641 (1994), which she states has been modified by subsequent caselaw.
The Fund responds that Aves is still good law and controls the outcome of this case. The Fund also argues that the plain language of K.S.A. 40–3412(c) prohibits bad faith claims against the Fund. Finally, the Fund argues that the legislature made a rational public policy decision by exempting the Fund from bad faith liability.
K.S.A. 40–3412(c) provides: “Nothing [in this Act] shall be construed to impose any liability in the fund ... for negligent failure to settle a claim or for failure to settle a claim in good faith.” Our Supreme Court in Aves construed this statute along with K.S.A. 40–3403(e) to mean that Kansas law does not recognize a claim of bad faith against the Fund for a judgment in excess of the Fund's statutory limit of liability. 258 Kan. at 527.
As both Gard and the Fund acknowledge, the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication that the court is departing from its previous position. Anderson Office Supply v. Advanced Medical Assocs., 47 Kan.App.2d 140, 161, 273 P.3d 786 (2012). Thus, the threshold question is whether our Supreme Court has given an indication that it is departing from its holding in Aves. To adequately answer that question requires an in-depth look at the Kansas Supreme Court's decision in Aves as well as its prior decision in McVay.
Aves and McVay
Aves came before our Supreme Court on questions certified by the United States District Court for the District of Kansas. One of the questions was “[w]hether, in light of the provisions of the Health Care Provider Insurance Availability Act, Kansas law recognizes a claim of bad faith against the Health Care Stabilization Fund when a judgment is returned in excess of the Fund's statutory limits of liability.” 258 Kan. at 507.
Darcy Aves, a minor, and her parents brought a medical malpractice action against Dr. Nasreen Shah and the Central Kansas Medical Center for damages arising during Darcy's birth. The Fund assumed Shah's defense and employed an attorney to represent her. The Fund required the attorney to report to and take direction from the Fund. Despite two attorneys telling the Fund that a verdict in excess of the coverage limits, which was $3.2 million, was likely, the Fund rejected offers to settle within the limits. A jury awarded total damages in excess of $23 million; Shah's portion was over $21 million. After the jury verdict, the Aves filed a garnishment action against Kansas' Commissioner of Insurance, who served as Administrator of the Fund, arguing that he acted negligently and in bad faith in conducting Shah's defense and failing to settle the claim. The Commissioner argued that the action was barred by the Act, and the federal district court certified the questions to the Kansas Supreme Court.
Our Supreme Court first stated that insurance policies are typically considered contracts, and that, just as contracts generally contain an implied term that the parties will act in good faith, an insurance contract contains an implied term that an insurer who assumes the defense of its insured will act in good faith and without negligence. 258 Kan. at 511. An insurer breaches this implied term when it negligently or in bad faith refuses to settle a case within the policy limits. 258 Kan. at 511–12. A claim of an insurer's bad faith and negligence in failing to settle a claim must be brought as a contract claim, not a tort claim. 258 Kan. at 512. For purposes of the certified questions, our Supreme Court assumed a contract existed between Shah and the Fund. 258 Kan. at 512.
The Supreme Court reviewed the basic precepts of statutory construction: the intent of the legislature governs when it can be ascertained; legislative intent is determined from consideration of the statutory language, the statute's subject matter, its purpose and design, and the consequences of the statute's construction; statutory words are generally given their common and ordinary meanings; and the courts must give effect to legislative intent rather than determine what the law should be. 258 Kan. at 512. The court also noted that, when ascertaining legislative intent behind a statute, courts must consider and construe all parts of an act together. 258 Kan. at 513.
The first statute that the Commissioner argued barred the Aves' claims, K.S.A. 40–3403(e), stated:
“ ‘In no event shall the fund be liable to pay in excess of $3,000,000 pursuant to any one judgment or settlement against any one health care provider relating to any injury or death arising out of the rendering of or the failure to render professional services on and after July 1, 1984, and before July I, 1989, subject to an aggregate limitation for all judgments or settlements arising from all claims made in any one fiscal year in the amount of $6,000,000 for each health care provider.’ “ (Emphasis added.) 258 Kan. at 510.
The Aves argued that the statute merely set a policy limit on the maximum amount the Fund was required to pay a malpractice victim after a judgment against a health care provider. Relying on the italicized language, the Aves argued that their bad faith action was not pursuant to a judgment against a health care provider relating to an injury which arose out of professional services; rather, it was a claim based on the Fund's bad faith refusal to settle. Our Supreme Court rejected this argument, relying in large part on McVay, in which the plaintiff unsuccessfully made a similar argument. 258 Kan. at 514–15. Because Gard attacks the continuing validity of McVay as well, we will also discuss that case here.
Anita McVay brought a medical malpractice action against Memorial Hospital Corporation and Dr. Joseph Rich for injuries she allegedly suffered during an operation Rich performed at the hospital. The district court granted summary judgment in the hospital's favor on McVay's claim that the hospital was negligent in allowing Rich to practice there. This court affirmed on appeal and the case went to our Supreme Court on the sole question of whether a hospital could be liable for the rendering of or failure to render professional services by a physician who is licensed to practice medicine and covered under the Fund, even if the physician is not an employee or agent of the hospital. 255 Kan. at 372.
K.S.A. 65–442(b), upon which the McVay court relied in affirming the summary judgment, stated:
“There shall be no liability on the part of and no action for damages shall arise against any licensed medical care facility because of the rendering of or failure to render professional services within such medical care facility by a person licensed to practice medicine and surgery if such person is not an employee or agent of such medical care facility.' “ (Emphasis added.) 255 Kan. at 373.
Additionally, K.S.A. 40–3403(h) protected health care providers qualified for coverage under the Fund from “ ‘vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund.’ “ 255 Kan. at 373–74.
As noted in Aves, the McVay court held that these statutes barred McVay's claim;
“The clear, unambiguous language of K.S.A. 65–442(b) and K.S.A. 40–3403(h) requires the conclusion that those statutes bar McVay's claim against the hospital. McVay's claim is barred by 65–442(b) because her claim is ‘because of Dr. Rich's rendering or failure to render professional services. McVay would have no claim against the hospital if Rich had not negligently treated her. Her claim against the hospital is derivative of and dependent upon her claim against Dr. Rich.
“Similarly, McVay's claim against Memorial ‘arise[s] out of [Rich's] rendering of or the failure to render professional services,’ so it is barred by K.S.A. 40–3403(h).” 255 Kan. at 377.
See Aves, 258 Kan. at 514.
The Aves court found that the claim and language of the statutes in McVay were directly analogous to the Aves' claim and the statutes upon which they based it: the Aves' claim against the Fund was derivative of and dependent upon their claim against Shah. 258 Kan. at 515. If the Aves had not obtained a judgment against Shah related to an injury arising out of the rendering of Shah's professional services, the Aves would not have had a garnishment action against the Fund. 258 Kan. at 515. Therefore, the court determined that the action arose out of a judgment against a healthcare provider and K.S.A. 40–3403(e) capped the Fund's liability at $3,000,000. 258 Kan. at 515.
The Commissioner also argued that the Aves' claims were barred by K.S.A. 40–3412(c), which provides that “ ‘[n]othing herein shall be construed to impose any liability in the fund in excess of that specifically provided for herein for negligent failure to settle a claim or for failure to settle a claim in good faith.’ “ 258 Kan. at 515. The Aves focused on the language “nothing herein,” claiming that the provision made clear only that the legislature did not create a statutory bad faith action; it did not bar a common-law-based bad faith action. 258 Kan. at 515. Moreover, because other provisions in the Act more clearly abrogate common-law actions, the Aves argued that K.S.A. 40–3412(c) could not be interpreted to do so; if the legislature had wanted to abrogate common-law bad faith liability, it would have done so more clearly.
The Aves also relied upon the Act's legislative history; “[a]s originally enacted, the fund did not have a policy limit.” 258 Kan. at 516–17. Without a policy limit, a healthcare provider could never be personally liable for an excess judgment and there could be no bad faith action against the Fund. 258 Kan. at 517. The Commissioner argued that the Act was originally proposed with a coverage limit, which would have enabled common-law bad faith claims; accordingly, the intent behind K.S.A. 40–3412(c) was to prevent common-law bad faith claims. 258 Kan. at 517. Although the limit was removed during the legislative process, the intent behind K.S.A. 40–3412(c) remained. 258 Kan. at 517. Thus, when coverage limits were reinstated and bad faith claims against the Fund became possible, the statute exempted the Fund from liability as it was meant to do. 258 Kan. at 517. Our Supreme Court agreed with the Commissioner's analysis. 258 Kan. at 517.
The Aves court also rejected the arguments that estoppel or the law of the case doctrine required the court to hold the Fund liable for bad faith or negligence as it would any private insurance company and that K.S.A. 40–3412(c) is an unconscionable contract term, violates due process, and violates equal protection. 258 Kan. at 517–27. In response to the certified question applicable in the instant case, our Supreme Court held that “Kansas law does not recognize a claim of bad faith against the Health Care Stabilization Fund for a judgment in excess of the Fund's statutory limit of liability.” 258 Kan. at 527.
Justice Davis dissented from the majority opinion in Aves and determined that a bad faith claim for failure to settle within policy limits was not a claim arising out of the rendering or failure to render professional services under K.S.A. 40–3403(e) but, instead, was a claim arising from the fiduciary duty owed by the Fund to insured physicians, 258 Kan. at 528–29. In addition, Justice Davis determined that K.S.A. 40–3412(c) merely indicated that nothing in the Act created a statutory cause of action for bad faith, but the statute did not prohibit a common-law claim for bad faith. 258 Kan. at 529.
Has the Supreme Court Departed from its Position in Aves?
As stated above, the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication that the court is departing from its previous position. Anderson Office Supply, 47 Kan.App.2d at 161. Gard does not cite any case that directly overrules Aves, and there does not appear to be such a case. Instead, Gard argues that subsequent cases show that our Supreme Court is departing from its position in Aves such that this court may reconsider whether Aves is still binding precedent. Gard cites to Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009), for the proposition that the Aves court's mode of statutory analysis is contrary to the statutory analysis used in Bergstrom and therefore Aves is no longer good law.
In Bergstrom, a workers compensation case, a majority of our Supreme Court disapproved all prior cases that imposed a requirement that injured workers make a good-faith effort to seek out and accept alternate employment as a condition of making a claim for work disability, 289 Kan. at 607–10. The Supreme Court did so because it found that the Court of Appeals had improperly created this requirement where it was not supported by the plain language of the workers compensation statutes. 289 Kan. at 608–10. The court noted that the prior cases “were decided contrary to the principle that an appellate court must give effect only to express statutory language, rather than speculating what the law should or should not be, and that we will not add something to a statute not readily found in it. [Citation omitted.]” 289 Kan. at 610. Further, the Supreme Court stated: “[A] history of incorrectly decided cases does not compel us to disregard plain statutory language and to perpetuate incorrect analysis of workers compensation statutes, [Citation omitted.] This court is not inexorably bound by precedent; it will reject rules that were originally erroneous or are no longer sound. [Citation omitted.]” 289 Kan. at 610.
Here, Gard argues that the Supreme Court's statutory construction in Aves was likewise incorrect. Gard asserts that this court should apply the Bergstrom court's mode of statutory analysis and decline to follow the holding in Aves. But Gard overlooks the fact that Bergstrom was a Kansas Supreme Court decision overruling a long line of Kansas Court of Appeals decisions. It is well within the purview of our Supreme Court to determine that Court of Appeals analysis is faulty, but the Kansas Court of Appeals does not have the authority to overrule a decision of our Supreme Court that is directly on point. As our Supreme Court recently stated:
“The doctrine of stare decisis maintains that once a point of law has been established by a court, it will generally be followed by the same court and all courts of lower rank in subsequent cases when the same legal issue is raised. A court of last resort will follow that rule of law unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. [Citation omitted.] Stare decisis “ “promote[s] system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court.” “ [Citation omitted.]” Miller v. Johnson, 295 Kan. 636, 653–54, 289 P.3d 1098(2012).
Contrary to Gard's assertions, Bergstrom does not lead to the conclusion that our Supreme Court has departed from its position in Aves such that it is no longer binding precedent. Bergstrom was a workers compensation case that did not speak directly to the analysis or holding in Aves. Further, the Supreme Court has cited Aves with approval in cases since its publication. See Miller, 295 Kan. at 646, 657, 660 (citing Aves as an example of the court considering tort reform statutes and as an example of a case in which the legislature's expressed goals under the Act were accepted as a valid public interest); Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245, 256, 978 P.2d 922 (1999) (citing Aves and stating that “the Fund, under the Act, is immune from bad faith liability”).
Finally, Gard contends that McVay, upon which the Aves court relied, has been modified by subsequent cases to the point that it undermines the continuing validity of Aves. See Aldoroty v. HCA Health Services of Kansas, Inc., 265 Kan. 666, 680–82, 962 P.2d 501 (1998) (finding that McVay was “confined in application to the corporate negligence theory” and therefore inapplicable to the facts before it). This argument is unpersuasive. Although Aldoroty may have limited the application of the court's holding in McVay, it did not find that McVay was incorrectly decided, nor did it speak to Aves. Gard points to no Kansas Supreme Court case that overrules or casts doubt directly onto the continuing validity of Aves. Therefore, because this court is duty bound to follow Kansas Supreme Court precedent absent an indication that the court is departing from its position, we conclude that Aves remains controlling precedent.
Is Aves Distinguishable?
Next, Gard argues that even if Aves is still binding precedent, it is factually distinguishable from her case to the point that the district court erred in finding it controlling. Specifically, Gard points to two distinctions: (1) her claim involves voluntarily purchased tail coverage, whereas Aves involved mandatory coverage for active healthcare providers, and (2) her claim is a direct breach of contract claim, where Aves was a garnishment action.
Tail Coverage
The Aves court based its decision in part on K.S.A. 40–3403(e), which by its terms is inapplicable here because it only applied to the rendering of or failure to render professional services on and after July 1, 1984, but before July 1, 1989; the act or failure to act at issue here occurred in 2006. The applicable statutory subsection here is K.S.A.2012 Supp. 40–3403(1), which provides the structure of mandatory coverage for active health care providers and so limits the liability of the Fund “with respect to judgments or settlements relating to injury or death arising out of the rendering of or failure to render professional services on or after July 1, 1989.” Voluntarily purchased tail coverage for inactive health care providers, on the other hand, is covered in K.S .A.2012 Supp. 40–3403(m), which states:
“The fund shall not be liable for any amounts due from a judgment or settlement against resident or nonresident inactive health care providers who first quality as an inactive health care provider on or after July 1, 1989, unless such health care provider has been in compliance with K.S.A. 40–3402, and amendments thereto, for a period of not less than five years. If a health care provider has not been in compliance for five years, such health care provider may make application and payment for the coverage for the period while they are ... nonresident inactive health care providers to the fund.”
Gard asserts that since this subsection does not contain any language comparable to that in K.S.A.2012 Supp. 40–3403(e) or (1) limiting coverage to claims “arising out of the rendering of or failure to render professional services,” there is no such limitation on tail coverage and Aves is inapplicable. She contends that if the legislature had intended such a limitation to apply to tail coverage, it would have clearly stated so and it would be improper for this court to read such a limitation into the statute. Further, Gard argues that the voluntary nature of tail coverage is sufficiently distinct from the mandatory coverage required of an active health care provider to render Aves inapplicable.
But our Supreme Court has stated: “Under the general rules of statutory interpretation, ‘[v]arious provisions of an act in pari materia must be construed together in an effort to reconcile the provisions so as to make them consistent, harmonious and sensible.’ (Emphasis added.) [Citation omitted.]” Kansas One–Call System v.. State, 294 Kan. 220, 233, 274 P.3d 625 (2012). As the Fund points out, to interpret K.S.A.2012 Supp. 40–3403(m) in the way Gard suggests would be contrary to the purpose of the Act and would lead to an unreasonable result. Considering the previous interpretations of the Act as limiting the Fund's liability on claims that arise out of the rendering of or failure to render a health care provider's professional services, it is not harmonious to find that this statutory subsection carves an exception to that limited liability for inactive health care providers. The fact that Gard's claim involves voluntary tail coverage as opposed to mandatory coverage does not distinguish her case from Aves.
Direct Breach of Contract Claim
Next, Gard argues that her case is distinguishable because she brought a direct claim for breach of contract rather than a garnishment action. Gard points out that the Aves, who pursued the garnishment action, were the same plaintiffs in the underlying medical malpractice action, whereas Gard, the plaintiff in the instant case, was not a plaintiff in the underlying medical malpractice action. Accordingly, she contends, because her interest in the current action is not derivative of the rights of the plaintiffs in the underlying medical malpractice action, Aves does not control. As the Fund replies, however, this distinction is largely irrelevant.
The Aves court did not base its holding on the positions of the parties in the garnishment action as related to the underlying medical malpractice case, nor did it rely on the fact that the claim was brought as a garnishment action. The court found that “[i]f the plaintiffs had not received a judgment against a health care provider (Dr. Shah) relating to an injury arising out of the rendering of professional services, then the plaintiffs would not have this garnishment against the Fund.” Aves, 258 Kan. at 515. Likewise, if M.L.M. had not prevailed and received a judgment against Gard relating to an injury arising out of the rendering of or failure to render professional services, then Gard would not have this claim against the Fund. Although Gard was not a plaintiff in the underlying medical malpractice action but a defendant, the instant case is clearly derivative of the underlying action.
In summary, Gard's assertions that her case is factually distinguishable from Aves are unpersuasive. Therefore, the district court did not err in finding that Aves controlled, and accordingly, in granting summary judgment in favor of the Fund.
Affirmed.