BENCH JUDGMENT: $59,820 ($58,600 emotional distress, $200 for “last” birthday party, $1,020 for pre-need funeral agreement), VA doctor misdiagnosis of terminal brain cancer, prognosis of imminent death, when correct diagnosis was stroke… Molloy.

Mark Templin arrived at Fort Harrison ER complaining of acute chest pain 1/28/09. He underwent cardiac catheterization with stent placement. In the days until his discharge 2/4 he developed word recall difficulty, memory & speech deficiencies, unsteady gait, and headaches. On 2/4 he had acute right lateral visual field loss. His internist Patrick Morrow requested an ophthalmology consultation. Paul Berner found homonymous hemianopsia consistent with stroke and recommended a CT scan to identify sources of the possible embolus. Morrow acknowledges Templin’s symptoms including trouble with balance, finding words, and vision were consistent with a stroke, that stroke was a working diagnosis after the ophthalmologist consult, and the determination of homonymous hemianopsia further signified a CVA/stroke. A non-contrast CT scan was ordered. Morrow acknowledges that a non-contrast CT is adequate to show brain abnormalities but inadequate to differential the cause. Neuroradiologist Randy Sibbitt’s impression of the CT was: “Probable metastatic tumor to brain. The only other considerations would be cerebritis with abscesses.” He discussed with Morrow a variety of diagnoses including stroke. Morrow left with the clear understanding that the abnormalities could have been from one of many possible etiologies including stroke. Sibbitt’s interpretation of the CT was communicated to Morrow as his impressions and not a definitive diagnosis. Sibbitt discussed the possibility of further testing to narrow possible etiologies. While the Court finds it highly unlikely that Sibbitt and Morrow discussed multiple differential diagnoses, it does not foreclose the possibility that Sibbett’s interpretation of the scan and limited formal documentation of his impressions encouraged Morrow to prematurely reach a definitive diagnosis of metastatic brain cancer. Morrow presented Templin’s case to oncologist Karl Guter and the Tumor Board. Guter believed was based on a definitive study. Morrow presented it as a strong suspicion of metastases to the brain. Guter was under the impression that the scan was contrast-enhanced and therefore did not suggest an MRI. When dictating notes from the meeting he noted that an MRI would help solidify the diagnosis. Morrow did not present the stroke diagnosis at the meeting. After the meeting his working diagnosis was metastatic neoplasm. He testified that he told Templin that his “greatest fear” was metastatic tumors of the brain and that further diagnostics were needed and that he advised an MRI, but there is no indication in Templin’s medical records that Morrow suggested an MRI or further diagnostic workup. Morrow confirms that medical records are intended to memorialize and document care & treatment, including communications with a patient. Given the non-specific nature of his memories of communications with the Templin family, the Court finds his entries in medical records more reliable. Templin and his family understood his communication of the results of the non-contrast CT as a diagnosis of brain cancer. His daughter Donna Patterson asked Morrow how her father would die. He said one of the tumors would grow “like cauliflower” and he would die from a brain bleed. Morrow testified that Templin went home with the understanding that he had a grim prognosis that proceeded “from the point of view of cancer treatment.” Templin said he did not want cancer treatment involving chemo, biopsy, or surgery. Morrow stated in his notes that Templin “understands that his prognosis is grim and that any treatment would be palliative and not curative,” and that he did not want to sacrifice “quality of life for any potential increase in quantity.” His discharge summary states that Templin was not interested in any kind of treatment. He prescribed Decadron and Dilantin, both suggested for brain cancer patients. Decadron is contraindicated for stroke patients. Morrow ordered hospice care.

Templin terminated hospice services 6/26/09. On 7/1 he had another CT scan. Michael Strekall informed him that it showed old infarcts consistent with stroke, not metastatic brain tumor. On hearing this, Templin was amenable to further testing. Another CT showed old infarcts consistent with stroke. An MRI confirmed stroke activity and not metastatic brain cancer. Chief of Staff Faust Alvarez sent a letter to Templin 1/13/10 stating that the MRI and CTs “failed to demonstrate any abnormal enhancement suggestive of tumor process,” but instead “appear to represent previous stroke activity.” He indicates that these statements do not amount to admission of fault or that diagnosis was actually faulty as no investigation of the underlying complaint had taken place. His testimony is not credible. The letter was intended to communicate acceptance of fault for the misdiagnosis. Strekall noted the changed diagnosis in an adverse event disclosure: “No brain cancer existed and the previous diagnosis was discussed to be in error.”

Morrow advised Templin and his family to get his affairs in order since he did not want treatment for the purported cancer. Patterson notified her sister Karen Chilcoat that their father had been diagnosed with terminal brain cancer. Chilcoat joined the family at the family residence. Patterson and Templins were crying. She describes that time as “pretty devastating for my dad to hear that he had terminal brain cancer and had to go home to get his affairs in order.” Patterson and Chilcoat met with Morrow 2/6. He spoke in terms of weeks to months. He completed Chilcoat’s FMLA forms in which he specified that Templin had metastatic brain tumors for which he would need increasing care, up to total care, until his death, and that the illness would probably be less than 6 months. At the family residence after his discharge Mrs. Templin was sitting on the couch crying and Templin just sat in his recliner and cried. He lived in a state of depression for months. After his initial deep depression his outlook improved and he began to cope with the diagnosis. He and his family endured significant mental & emotional distress in preparation for his anticipated death. He testified that he tried not to let his family know, but he cried many times and even thought of shooting himself. He described emotional episodes interrupting his business while he was under the impression that he had metastatic brain cancer. Patterson saw him come to the home with all of his guns, rifles, and ammunition and put them on the bed. She called the family to retrieve them because he said he wanted to take his life to spare the family from the pain & distress associated with his diagnosed terminal illness. He often sat in his chair and did not move much when Chilcoat visited. She said he cried often and slept a lot. She saw that he did not get on with his life for months and remained depressed and suicidal through 4/09. Templins still cry sometimes about his misdiagnosis. He wondered each day whether it would be his last. His wife often greeted him in the morning with a question about whether the day would be his last. He signed a do not resuscitate order which was displayed on the fridge. He had to advise his extended family of his diagnosis and arranged for some of them to visit a final time. The family held a “last birthday” dinner which cost $200. The weekend after he was discharged the family arranged for his funeral and paid $1,020. Chilcoat’s husband made a wooden box for his ashes. Templin sold his truck and gave away many things. Morrow advised him that he could not drive, so he quit working as a driver. Had the abnormalities on the 2/4/09 CT been diagnosed as consistent with stroke, his driving would have been similarly restricted. He continued to worry that the doctors might be wrong again after his diagnosis was changed to stroke. Mrs. Templin was permanently injured in an MVA in 2007 and is disabled and very dependent on him. The family feared that she would wake up after he died during the night. They tried to make sure that Templins were not alone at the home.

It is uncontested that Morrow was within the scope of his employment and for his employer’s benefit as a physician at Ft. Harrison. Thus sovereign immunity for the tort claim is waived under the FTCA. Expert testimony in a medical malpractice case is required unless the conduct is readily ascertainable by a layperson. Willson (Mont. 2011). Even though expert testimony is present here, a layperson could readily ascertain that a doctor abiding by the standard of care should not jump to diagnostic conclusions and communicate imminent death based on incomplete information or leave a patient with a mistaken belief as to his health unsupported by a firm diagnosis or reasonable differential diagnosis. A physician has a duty to exercise ordinary care to assure that when he advises a patient about his condition it comports with the standard for his profession. Webb (Mont. 1997). This requires the doctor to make exam results available to the patient. Id. Morrow acknowledged that the entire clinical picture is integral to decisions about a patient and that it is important to clearly tell a patient to the best of the doctor’s ability the options and provide information for the patient to make an informed decision. He testified that it can be important to tell the patient the differential diagnoses, and the doctor must sometimes explain why further testing is warranted, especially where a diagnosis is uncertain and further testing is needed for a definitive diagnosis.

Plaintiff’s expert internist Thomas Bulger testified that Templin should have been informed of the preliminary nature of the non-contrast CT instead of the firm diagnosis of metastatic brain cancer.

Defendant’s expert ER physician Gregory Moore opined that Morrow provided good care to Templin in that he rapidly addressed his cardiac emergency to a favorable outcome, and that his investigation of his other symptoms was expedient and met the standard. His opinion as to Morrow’s communication to Templin does not support the conclusion that he met the standard. He opines that a doctor should tell a patient about the worst-case scenario and that limitations of diagnostic testing must be presented and all material facts must be disclosed so a patient can make an informed decision, and it is incumbent on a doctor with an unconfirmed diagnostic hypothesis to present its conditional nature along with the need for further diagnostic workup. He interpreted entries in Templin’s record to mean that he left the hospital with the impression that he had brain cancer and refused further treatment because of this.

Based on the testimony of Bulger and Moore, Morrow had a duty to adequately inform Templin of the preliminary nature of impressions based on the non-contrast CT so he could make informed decisions. Morrow breached the duty he owned to Templin by his communication of the diagnosis of terminal metastatic brain cancer to Templin and his family; failure to communicate the preliminary, nonspecific, non-diagnostic nature of the non-contrast CT; his progress notes and discharge summary indicating metastatic cancer with grim prognosis; his order for hospice care; his certification of Chilcoat’s FMLA forms indicating less than 6 months to live; his presentation of the diagnostic imaging produced from the non-contrast CT to Patterson and his statement that the tumors would grow until he died of brain bleed. Other evidence supporting Morrow’s breach includes Strekall’s “institutional disclosure of adverse events” entry in Templin’s records following the 12/09 MRI which indicates that a misdiagnosis was presented to him, and Alvarez’s letter which states that a misdiagnosis was made.

Templin did not act negligently. His refusal of further testing or treatment was based on the limited and erroneous information from Morrow.

It is difficult to put a price tag on the anguish of a man wrongly convinced of impending death. Templin lived 148 days under the mistaken impression that he was dying of metastatic brain cancer. The earlier months were particularly traumatic. He is due $500/day for the initial period of particularly traumatic & severe mental & emotional distress 2/4/09-4/15/09 when the hospice social worker noted the transition to coping — $35,500. He is due $300/day for the later period of severe mental & emotional distress 4/16/09-7/2/09 — $23,100. He is not entitled to compensation for his hospice care, which was paid in whole by Medicare. He is not entitled to lost wages; his driving restriction would have been similar had he been assigned the correct diagnosis of stroke. He is entitled to $200 for the family dinner celebrating his “last” birthday. He is entitled to $1,020 for the pre-need funeral agreement.

Templin v. US, 40 MFR 310, 5/6/13.

Daniel Buckley (Buckley Law Office), Bozeman, for Templin; AUSAs George Darragh & Michael Shin.

INJUNCTION PENDING APPEAL of Goose Bay mobile home eviction TRO/preliminary injunction denial denied by Lovell, emergency motion for injunctive relief denied by 9th Circuit… BOR not in violation of prior order by terminating water/septic.

The Court 4/22/13 denied Goose Bay Homeowners Association’s request for a TRO/preliminary injunction against removal of its 31 mobile homes on rented spaces in a trailer court on Canyon Ferry Lake near Goose Bay Marina, owned by the US and managed by BOR, which has decided to modernize including reconstructing the septic system. (MLW 4/27/13). HOA requests injunctive relief pending appeal.

HOA asserts that BOR violated the 4/22/13 order by terminating water & septic service. However, BOR informed HOA members in 9/12 that they could remain on-site after 12/31/12 “in a disconnected status” until 4/30, meaning no electricity, water, or septic after 12/31. This was a courtesy so they would not have to remove their homes in the middle of the winter. The “disconnected status” was and is the status quo.

The same standards that apply to a preliminary injunction apply to a preliminary injunction pending appeal. Lopez (9th Cir. 1983). HOA has not raised any issues that have not already been considered. It submits that the 2009 DEA prepared by BOR for its initial planning of the modernization project fails to consider any impact by removal of the homes. Indeed, it barely mentions the homes and certainly does not predict their future. As in its prior brief, HOA claims there is no NEPA documentation to support the eviction. However, they are being evicted because they lost their rental contracts, not because NEPA dictates that they be evicted. The concessionaire lost the right to manage the marina 12/31/12, and that written contract required it to remove its property within 90 days, including the mobile homes. (The trailer spaces were rented by the concessionaire by oral agreements.) The 2009 NEPA documentation relating to the planning process for the marina is simply not related to this eviction. As stated in the prior order, removal of HOA members’ homes is a private action, not a federal action. There has been no final agency action that would allow review of their eviction under APA. The NEPA planning for the future of the marina and the evictions are on separate tracks that do not intersect. Because there is no final agency action appropriate for judicial review, this Court lacks subject jurisdiction of HOA’s NEPA claim. The Court has considered whether HOA is likely to succeed on the merits of its NEPA claim and found it unlikely. The Court has also considered whether it is likely to suffer irreparable harm and finds no likelihood. These are not primary residences, but summer vacation properties. Because they are mobile homes they can be fairly easily transported away from BOR property. Should it be determined later that the owners have the right to rent spaces from BOR, they can be returned just as easily. While HOA members have developed a sentimental attachment to the facility, they have no legal right to use it. Meanwhile BOR’s policy has shifted from prohibiting this type of private exclusive use of public property. 43 CFR 429.31(b). Now that HOA has lost the right to its private exclusive use of the trailer court, it is highly unlikely that it can get it back. It is clinging to a privilege that it no longer possesses and which is no longer granted by BOR policy. An injunction would prevent BOR from continuing to plan for the facility because the entire marina septic system is connected to the trailer court’s failing system (which also unfortunately encroaches on Lefevers’ private land). There is no authorized concessionaire, and BOR cannot request proposals for a new one without planning for, at minimum, a modernized and code-compliant septic system. Thus an injunction would likely halt all planning, and the ability of the marina to function as a public recreation facility would be jeopardized.

The motion for injunction pending appeal is denied.

 

 

– – – 

 

9th Circuit Judges Trott and Nguyen subsequently denied HOA’s emergency motion for injunctive relief.

Goose Bay HOA v. BOR et al, 40 MFR 301, 4/29/13, 9th Cir. order 4/30/13.

Nathan Wagner (Datsopoulos, MacDonald & Lind), Missoula, for Plaintiffs; AUSA Leif Johnson; Kevin Feeback (Gough, Shanahan, Johnson & Waterman), Helena, for Lefevers.

 

INSURANCE BAD FAITH: Attorney precluded from testifying as to comp claims handling… Cebull.

Suzy Enberg seeks to exclude testimony of Geoffrey Keller, a civil defense attorney retained by Defendants to provide expert testimony as to whether they acted reasonably in handling her work comp claims. Although he is obviously qualified to opine on handling of insurance claims, this Court has consistently prohibited attorneys and legal experts from testifying as to the law and applying the facts of the case to the law. His expert report reads much like a legal memorandum, making legal conclusions, commenting on the applicable law, and applying the law to the facts. It therefore invades the province of the jury and is properly excluded. McDevitt (D. Hawaii 2007).

Moreover, many of Keller’s opinions rely on reasons for denying coverage that are precluded by the Court’s ruling on Enberg’s first motion in limine. For example, he opines that Defendants had a reasonable basis for denying coverage because she had previously fallen while skating and injured her back sledding with her kids. For reasons stated in the 2/12/13 order, Defendants cannot rely on such reasons in arguing that they acted reasonably in denying coverage.

Enberg’s motion to exclude Keller is granted.

Enberg v. American Home Assurance, Sedgwick Claims Management Services, 40 MFR 299, 2/13/13.

Geoffrey Angel (Angel Law Firm), Bozeman, for Enberg; Gerry Fagan & George Kimmet (Moulton Bellingham), Billings, for Defendants.

BUREAU OF RECLAMATION has sovereign immunity from mobile home owners’ contract claim against eviction from marina trailer court following expiration of concessionaire contract and BOR’s plans to modernize facility, HOA is not 3rd party beneficiary, has no legal right to compel BOR action on contract claim, removal of homes from federal land not a major federal action requiring NEPA analysis, TRO/preliminary injunction against eviction denied… jurisdiction over state-law claims against neighbors for septic drain field prescriptive easement/promissory estoppel denied… Lovell.

Goose Bay HOA is comprised of 31 mobile home owners who rent spaces in a 5-acre trailer court on Canyon Ferry Lake near Goose Bay Marina, a 227-acre facility owned by the US and managed by BOR. Gerald & Muriel Reller, private managers of the marina store and trailer court since 1986, allowed their concession agreement (lease & permit) to expire 12/31/12. HOA members had rented their spaces from the concessionaire pursuant to oral agreements. BOR has now decided to modernize the facility including reconstructing the septic system. It gave HOA members notice in 11/11 and 12/11 to remove their mobile homes, and also 6 months notice that it intended to terminate electric & water services by 4/1/13 and a reminder that they must remove their homes by 4/30/13. In response to the impending termination of septic service, the HOA filed a declaratory action in Montana 1st Judicial Dist 3/31/13 claiming to be 3rd-party beneficiaries of the BOR lease & permit. It alleges that the 7/00 lease & permit is void for failure of BOR to provide consideration for modifications it made to the 1986 lease, and that after judicial rescission, BOR should be compelled to renew it for 10 years. It also asserts a prescriptive easement against Lefevers, who are neighbors and private landowners, to maintain the trailer court’s septic field on their property, and that Lefevers should be estopped from demanding that the field be removed because their predecessor allegedly promised a prior concessionaire that it would be allowed in perpetuity. The State Court granted the HOA’s ex parte application for TRO the same day the complaint was filed. However, it appears that it was void or voidable because it was based on a complaint verified upon information & belief of HOA member Scott Joyner and not positively verified per MCA 27-19-303(2)(b). Forbes (Mont. 2011). This Court allowed Joyner to testify and thereby to cure that problem, but in any event the state restraining order has expired by operation of law. Following issuance of the TRO, BOR removed to this Court pursuant to 28 USC 1442 (civil action against the US or any agency thereof). The statute is to be broadly construed to favor removal, and the case will not be remanded as suggested by the HOA. A demand for declaratory judgment and specific performance of a contract filed against a US agency is properly adjudicated in a federal court. However, the Declaratory Judgment Act is permissive only. “If a district court, in the sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to proceed to the merits before staying or dismissing the action.” Wilton (US 1995).

The HOA claims there are multiple factual issues that should be determined by a jury, including whether the US’ failure to renew the 2000 lease & permit was reasonable. The general rule is that there is no right to a jury trial against the US.

The 1st notable problem with HOA’s request for an injunction to prevent BOR from evicting the owners is that the concessionaire has not appeared, it has failed to renew the lease, and it has failed to fix the septic system to fulfill BOR’s condition for renewal. The 2nd notable problem is that the lease has expired and the HOA members no longer have a legal right to remain on this federal property. Nevertheless, HOA claims it has shown a likelihood of success on the merits and the possibility of irreparable injury or serious questions and a balance of hardships tipping sharply in HOA’s favor.

The 1st legal hurdle HOA members face is sovereign immunity as to their contract claim. The 43 USC 390uu, Tucker Act, Little Tucker Act, and APA waivers do not apply. HOA’s claims against BOR are contractually based because they are premised on the concessionaire contract. It presents a classic contract claim, but seeks a remedy (declaratory judgment and injunction) that is impliedly forbidden by the Tucker Act. Important public policy goals are served by strict construction of any purported waiver of sovereign immunity. The 31 HOA members obviously have a long & sentimental attachment to their trailer court, but BOR stands in the shoes of the public at large: thousands upon thousands of individuals who have an equally valid right to benefit from a modernized marina and recreation area as well as a safe & sanitary septic system. Even if the HOA were to fully litigate their claim against BOR on the merits, the Court is inclined to believe that it could not succeed given that BOR desires to redesign the marina and construct a new septic system. To let it stop a government agency in its tracks in its sincere pursuit of the public good would be mischief indeed. Even if there were a waiver of sovereign immunity, HOA could not succeed on a claim as a 3rd-party beneficiary because the concessionaire contract does not clearly give it 3rd-party beneficiary status.

HOA filed an amended complaint following the hearing asserting that “BOR’s refusal to properly consider whether the removal of the mobile homes may result in contamination of the Goose Bay property by asbestos, chrome, mercury, lead paint or other hazardous materials is a violation of NEPA and the APA.” This is not a verified complaint, and HOA provides no material support for the allegation. To suggest that BOR cannot evict 31 unpermitted mobile homes from federal land without a full-blown EA is absurd. This is not a major federal action. Removal of the homes is to be by the private parties at their own expense. NEPA is not applicable to actions of private parties. While it is true that BOR is evicting the HOA members from this federal property, it is not true that any environmental damage caused by their removal of their mobile homes would therefore be caused by the agency. Berryessa (ND Cal. 2007), which BOR argued at the injunction hearing and is now relied on by HOA, is quite different factually, legally, and procedurally. The 7 concessionaire agreements governing operation of 7 resorts on BOR land had not expired, but BOR’s intent to evict 1,200 mobile home owners was set forth explicitly in its final ROD, which was a redesign project for the entire Lake Berryessa area, and an FEIS had been issued in what was without doubt a major federal action. The court still refused to grant a preliminary injunction compelling BOR to rescind its order to the concessionaires requiring them to issue eviction notices and instructions to the long-term permit holders to demolish their homes. The plaintiffs requested at minimum that the court let them continue to live at Lake Berryessa while their NEPA challenge ran its course. The court refused because it was “doubtful that it could order BOR to extend the current contracts or issue permits to the permittees.” Such matters were deemed to be within the agency’s discretion and beyond the reach of the court. So too here. Even were the HOA members in precisely the same circumstances as in Berryessa, the court decided in that case that “the long-term permittees’ legal right to stay on the federal land ends when their permits expire.” The HOA members’ permits already expired 12/31/12 when the lease & permit agreement expired. In any event, because removal of the mobile homes is an action by a private party and is not a major federal action, the NEPA process is not relevant to the eviction.

Since HOA’s federal claims against BOR fail entirely, diversity is lacking between HOA and Lefevers, and HOA asserts purely state law claims against Lefevers, the balance of factors (judicial economy, convenience, fairness, comity) does not favor supplemental jurisdiction over HOA’s claim for prescriptive easement and promissory estoppel.

Goose Bay HOA v. Bureau of Reclamation, MDFWP, Lefever, 40 MFR 271, 4/22/13.

Nathan Wagner (Datsopoulos, MacDonald & Lind), Missoula, for Plaintiffs; AUSA Leif Johnson; Kevin Feeback (Gough, Shanahan, Johnson & Waterman), Helena, for Lefevers.

INSURANCE: Abstention from coverage declaratory request in deference to state court church sex abuse proceedings… request to add claim arising from discovery of 1994 settlement agreement similarly denied… Lovell.

Travelers (Travelers Casualty, USF&G, St. Paul Fire) seeks a declaration that it is not obligated to defend or indemnify the Roman Catholic Bishop of Helena in pending state litigation and that any coverage that might have existed was forfeited by lack of timely notice. The Bishop urges the Court to abstain because an earlier-filed state court action raises similar or identical issues. There are 3 underlying state cases related to this declaratory action. Whalen v. Diocese of Helena is brought by 235 plaintiffs against the Bishop for injuries alleged from the 30s through the 70s. Doe v. Diocese of Helena and Ursuline Sisters is brought by 89 plaintiffs. Most significant because it is a seemingly parallel state action filed before this one is Whalen v. Catholic Mutual Relief Society (Whalen II), in which the plaintiffs claim they are 3rd-party beneficiaries of the Bishop’s policies and have vested rights in benefits. They have requested the State Court to determine the scope & extent of coverage under all policies issued by the Diocese’s insurers.

Accepting jurisdiction would result in unnecessary determination of state law issues and duplication of judicial effort contrary to comity and federalism. The coverage issues present state law questions. Some of the claims may eventually require determinations of novel state law questions. Travelers asserts non-declaratory judgment claims for reformation of contract and breach of contract. The reformation claim is dependent on its claim that the policy was never issued, and the breach of contract claim would be moot should the Court find that the policy was never issued. Thus these claims are closely related to and dependent on the declaratory claims. They are also declaratory in nature themselves. For instance, a declaration is sought that the 1971-73 USF&G policy affords no liability coverage and a declaration that the Bishop failed to provide timely notice. Travelers disagrees with the Court’s determination that the state action is a parallel proceeding. A parallel proceeding does not require precisely the same issues and parties; it is sufficient if they depend on the same factual circumstances. This definition in state and federal declaratory actions, in the context of multiple carriers and claimants, carries with it the benefit of avoiding inconsistent treatment of claims by similarly situated plaintiffs. Further, the Bishop asserts that it will cross-claim against its insurers in the state coverage action to resolve all coverage issues arising in Whalen and Doe. Moreover, Montana law issues will necessarily be addressed by the state coverage action. As the Bishop points out, such issues may include whether an insurer may deny coverage for sex abuse injuries committed by employees under the guise of whether the supervising church “expected or intended” the injuries, which policies are triggered by the claims of abuse, and how many times each policy must respond to each claim of abuse. It is clear that there will be significant overlap in the coverage issues affecting the insurers and the Whalen and Doe plaintiffs.

Travelers seeks to add a claim arising from its recent discovery of a 1994 settlement agreement that allegedly released St. Paul from any obligation to indemnify the Diocese for future sex abuse claims and allegedly promised that the Diocese would pay the costs of any future claims. Although framed as a non-declaratory claim (for breach of contract), this is another dependent claim that would first require determination of state law which can be raised in the state proceeding. The Court remains convinced that abstention is appropriate. Dismissed without prejudice.

Travelers Casualty & Surety, USF&G, and St. Paul Fire & Marine Ins. v. Roman Catholic Bishop of Helena, 40 MFR 232, 3/22/13.

Patrick Sullivan (Poore, Roth & Robinson), Butte, Frederick Marczyk, Philadelphia, and Robert Vinci, Florham Park, NY (Drinker Biddle & Reath), for Travelers; William Driscoll (Franz & Driscoll), Helena, and James Murray (Dickstein Shapiro), DC, for the Bishop.