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Hamilton Mutual Insurance Co. v. Genesee Pediatric, P.C.

United States District Court, E.D. Michigan, Southern Division

November 22, 2016

GENESEE PEDIATRIC, P.C., et al., Defendants.


          GERSHWIN A. DRAIN United States District Judge


         On October 23, 2016, Plaintiff Hamilton Mutual Insurance Company (“Hamilton”) filed a Complaint against Defendants Genesee Pediatric, P.C. (“Genesee Pediatric”), and Jillian Donnert, as Personal Representative of the Estate of Lillian Love Ballard, seeking a declaratory judgment from this Court that Hamilton has no duty to defend and indemnify Genesee Pediatric and any of its employees in a lawsuit that Donnert filed on March 23, 2016, in the Genesee County Circuit Court.

         This Court has discretion whether to exercise jurisdiction in declaratory judgment actions. Because Hamilton failed to address all of the relevant factors this Court must consider in the exercise of that discretion, the Court ordered Hamilton to show cause why this case should not be dismissed. Hamilton filed its Response to the show cause order, which is now before the Court.


         Hamilton is an Iowa corporation that insured Genesee Pediatric under a business owner's liability insurance policy. The insurance policy under which Hamilton insured Genesee Pediatric states that Hamilton will pay those sums that an insured is legally obligated to pay because of “bodily injury” caused by an “occurrence” which takes place during the policy period. Hamilton is currently defending Genesee Pediatric in state court litigation stemming from the death of Donnert's daughter, Lillian, after she brought Lillian to a scheduled appointment at Genesee Pediatric on March 27, 2013.

         Specifically, the state court complaint alleges that on March 26, 2013, Donnert took Lillian to Genesee Pediatric with complaints of respiratory distress caused by worsening asthma symptoms. On previous office visits, Dr. Manar Abed Hammoud, as well as the staff at Genesee Pediatric had been informed that, in addition to asthma, eczema and seasonal allergies, Lillian suffered from severe allergies to several food products, including milk, peanuts, tree nuts and pork. This critical information was documented throughout the records at Genesee Pediatric. Because Lillian vomited in the office, her appointment was rescheduled for the following day.

         Donnert brought Lillian in on March 27, 2013. Her respiratory symptoms were worse than the previous day. When Donnert arrived, she was informed that Dr. Hammoud had not yet arrived at the office. She informed the staff that she wanted to take her daughter directly to the hospital, but they asked her to wait so they could contact the doctor to get his input and recommendation. The staff inquired if Lillian had eaten anything that day. Donnert informed them that she had only consumed half a cup of orange juice. One of the staff members gave Lillian something to drink, which appeared to be juice. After drinking about half of it, Lillian began to vomit. She complained that her tongue was burning. When she started to turn blue, Donnert began screaming for help. She realized that her daughter was possibly experiencing anaphylaxis and asked the nurses on staff if she could medicate her daughter with the EpiPen, an injectable cartridge of Epinephrine designed for use in situations of anaphylaxis. The nurses refused Donnert's request.

         Lillian was eventually taken by ambulance to the Hurley Medical Center, where she was placed on a ventilator until March 29, 2013, when her organs were harvested and life-saving support removed. An autopsy was performed by the Genesee County Medical Examiner who reported that Lillian died of an “anaphylactic reaction due to the ingestion of a product containing milk in the setting of a previously documented milk allergy.” The juice drink given to Lillian by the staff at Genesee Pediatric apparently contained milk or other food products to which Lillian was allergic. Donnert brings the following claims in the state court action: (1) medical negligence against Hammoud, (2) negligence against the nurses and medical assistants employed at Genesee Pediatric, (3) negligence against the office staff at Genesee Pediatric, and (4) medical negligence of Genesee Pediatric.

         In the instant matter, Hamilton requests a declaratory judgment that it has no duty under the business owner's liability insurance policy to defend or indemnify Genesee Pediatric or its employees in the state action filed by Donnert. Hamilton specifically relies on certain exclusions from coverage under the subject policy, which state in relevant part:

         B. Exclusions

         1. Applicable to Business Liability Coverage This insurance does not apply to:

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j. Professional ...

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