Camden-Clark seeks reimbursement from former insurer in Boggs case

By Lawrence Smith | Nov 5, 2010

PARKERSBURG -– A Wood County hospital is suing its former insurance carrier for failing to defend them against an additional lawsuit stemming from a 2002 wrongful death suit.

Camden-Clark Memorial Hospital filed a breach of contract suit against St. Paul Fire and Marine Insurance Company on Oct. 26 in U.S. District Court. In its complaint, C-CMH alleges St. Paul improperly denied them coverage in a malicious prosecution suit a Mineral Wells resident filed against C-CMH after their former attorney accused him of filing a frivolous lawsuit.

According to its suit, C-CMH alleges it had coverage through St. Paul from July 1, 1999 through July 1, 2002. The policy covered personal injury offenses to include, among other things, claims of malicious prosecution.

In June 2003, Bernard Boggs named C-CMH as co-defendant in a wrongful death suit. He alleged Dr. Manish I. Koyawala, who was also named as a co-defendant, administered a lethal overdose of anesthesia on Boggs' wife, Hilda, after she was admitted to C-CMH in September 2001 to undergo surgery for a broken ankle.

Initially, Boggs filed his suit against C-CMH and Koyawala in March 2002. However, it was dismissed on the grounds they had not been timely served with legal papers.

The second suit also would be dismissed. This time on the grounds Boggs failed to provide C-CMH and Koyawala with a 30-day pre-suit notice as required under the recently passed amendments to the Medical and Professional Liability Act.

Though Boggs filed a third suit in December 2003 with the proper pre-suit notice, the state Supreme Court a year later overturned Wood Circuit Judge Robert A. Waters' decision dismissing Boggs II. After Boggs reached a settlement with Koyawala in November 2005 in Boggs III, a jury awarded him a $6.5 million judgment in the remaining claims against C-CMH in Boggs II.

Prior to completion of Boggs II and III, Richard A. Hayhurst, who was then C-CMH's attorney, filed counterclaims in both suits on May 4, 2004, and May 23, 2005. In them, Hayhurst asserted that the claims Boggs raised in both lawsuits were completely without merit, and sought reimbursement for legal fees as well as punitive damages.

Though C-CMH voluntarily withdrew the counterclaims in August 2005, Boggs filed separate malicious prosecution suits against C-CMH in September 2005, and Hayhurst in July 2006. Records show, the cases were later consolidated, and C-CMH reached a confidential settlement with Boggs.

Sometime after Boggs filed his malicious prosecution suit, C-CMH maintains it notified St. Paul of it. In a letter dated Dec. 27, 2005, C-CMH says St. Paul "set forth its reservation of rights and agreed to monitor the underlying action."

Later on July 15, 2006, St. Paul notified C-CMH it would not cover them for any claims arising from Boggs' wrongful prosecution suit. In its letter, St. Paul said the offense occurred after the policy expired in 2002.

However, C-CMH claims St. Paul overlooked a provision in the policy that allows for coverage. The provision calls for St. Paul to "consider any later claims or suits resulting from the same event, offense, or health care professional service to have been reported at the time the first claim or suit was made or brought."

Because the claims made by Boggs in his malicious prosecution suit steam from the original wrongful death suit, when the policy was in effect, C-CMH maintains St. Paul was obligated to cover them. They maintain all litigation expenses regarding Boggs IV have been paid through their general revenue fund.

C-CMH seeks an order declaring St. Paul had a duty to provide it coverage during the Boggs IV, and recovery of court costs and legal fees in both it, and the current one against St. Paul plus interest, and unspecified damages. They are represented by Dino Colombo with the Morgantown law firm of Colombo and Stuhr.

The case is assigned to Judge Joseph R. Goodwin

U.S. District Court for the Southern District of West Virginia case number 10-cv-1258

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