[00:00:01] Speaker 01: Everyone looks like they've collected their materials. [00:00:04] Speaker 01: So our next case for argument is Ad Health Limited versus Portercare Adventist Health Systems Docket 24-1273. [00:00:15] Speaker 01: Counsel, please proceed when you're ready. [00:00:19] Speaker 04: Thank you, Your Honor. [00:00:20] Speaker 04: May it please the Court, Marshall Galinsky from Anderson-Kill for the appellant. [00:00:25] Speaker 04: This case is an insurance coverage dispute. [00:00:28] Speaker 04: It involves coverage for under a hospital professional liability insurance program. [00:00:34] Speaker 04: It's a $40 million insurance program that sits above, made up of two layers of excess insurance, that sit above a $2 million self-insured retention. [00:00:45] Speaker 04: Coverage applies based on medical, per medical incident. [00:00:50] Speaker 04: The significance of that, Your Honors, is that you need to have a $2 million loss in indemnity costs for a given medical incident to exhaust the $2 million self-insured retention and to attach to the excess coverage that's provided. [00:01:08] Speaker 04: That coverage applies in a way so that you have more than a $2 million loss for a given medical incident. [00:01:16] Speaker 04: You then have [00:01:18] Speaker 04: up to $40 million worth of coverage for each medical incident. [00:01:24] Speaker 04: There's also a non-stacking provision in the insurance program that says that where you have a medical incident that results in claims across numerous policy periods, that all of those claims are grouped together for that medical incident into a single policy year under the year in which the first claim was made. [00:01:43] Speaker 04: The claims that we're dealing with here involve Porter Hospital in South Denver. [00:01:48] Speaker 04: In 2018, there were a number of lawsuits that began in 2018 and 2019. [00:01:55] Speaker 04: They were all alleging it was a mass tort litigation, some were class actions, some were mass tort cases that all involved the same problem. [00:02:04] Speaker 04: There was an alleged breach in the surgical sterilization procedure at the hospital from June 2016 to April of 2018. [00:02:13] Speaker 04: That resulted in a large number of these cases that were all brought against the hospital involving that same problem. [00:02:20] Speaker 04: The question here is, that needs to be resolved by the court, is whether that sort of mass tort or class action litigation brought on behalf of thousands of different patients is grouped together under the hospital's insurance program as a single medical incident and therefore is subject to one $2 million self-insured retention and one policy limit [00:02:43] Speaker 04: in one policy year, that's Porter's position, is that these, because they all involve the same actor or mission, that they're grouped together as a single medical incident, or whether, as the insurance company contends, [00:02:55] Speaker 04: You can group them together under one policy year and one policy limit, but simultaneously split them apart into thousands of separate medical incidents in order to impose thousands of $2 million self-insured retentions. [00:03:08] Speaker 04: The net result of that would, of course, be to eliminate all insurance coverage for the hospital for the cost of resolving the sterilization claims that are at issue. [00:03:18] Speaker 03: Could you walk us through [00:03:20] Speaker 03: the language of the medical incident provision itself and explain how the district court erroneously construed the plain language of that provision? [00:03:30] Speaker 04: Of course. [00:03:30] Speaker 04: And the definition of medical incident is, of course, the most important part of the policy in terms of answering this important question. [00:03:38] Speaker 04: It's found, I have it here, and I imagine your honors have studied it as well. [00:03:42] Speaker 04: It's found on page 172 of the appellate record. [00:03:47] Speaker 04: Medical incident definition begins by referring to an act or omission. [00:03:53] Speaker 04: And then it lays out a number of different types of hospital services that are performed that could relate to the act or omission. [00:04:02] Speaker 04: It's the first paragraph that is most important here, Your Honors. [00:04:06] Speaker 04: So the definition then defines medical incident to mean at any act or omission, [00:04:11] Speaker 04: in the providing of professional health care services to the participants' patients. [00:04:17] Speaker 04: That's plural possessive, participants, patients, plural. [00:04:22] Speaker 04: And then it gives a number of different types of services that hospitals provide to their patients, which results in injury to a patient. [00:04:31] Speaker 04: So again, there's a couple of key components to this. [00:04:34] Speaker 04: It's an N-actor omission. [00:04:37] Speaker 04: in providing services to the participants' patients that results in injury to a patient. [00:04:47] Speaker 04: What Ad Health has argued for and what the district court found is a misinterpretation of that foundation to the definition of medical incident. [00:04:57] Speaker 04: What the district court interpreted that provision to mean, and I'll read from the district court's decision, is that a medical incident exists where an actor omission provides health care services to a patient, singular, not the participant's patients, plural, but to a patient, singular, [00:05:14] Speaker 04: And that act or omission results in injury to that patient, whereas the policy wording refers to a patient, which uses a, an indefinite article, which leaves open which patient the district court found and ad health advocates for an interpretation of that patient using a definite article. [00:05:34] Speaker 03: You're certainly correct about that. [00:05:35] Speaker 03: I mean, we can just know you're right about that by reading the order and then reading the provision. [00:05:40] Speaker 03: My question is, even assuming that that is correct, that the district court misspoke or miswrote or something like that, how do you account for the provision in CY that begins, it's after number three, it begins, 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? [00:06:04] Speaker 04: Right, so the first provision which we've discussed so far has a grouping quality to it. [00:06:10] Speaker 04: If you have multiple patients, again, it specifically speaks to providing health care service to the participants' patients, but they involve the same act or omission that those things are grouped together under the definition of medical insight. [00:06:23] Speaker 01: Pause there. [00:06:23] Speaker 01: Pause with the patients, because that seems to be really the biggest argument that you're making, is the plural there, patients. [00:06:31] Speaker 01: But why would I not read that to simply say, [00:06:36] Speaker 01: to the participant's patience as opposed to some other class. [00:06:40] Speaker 01: First of all, it's got to be your patience. [00:06:42] Speaker 01: And second of all, it's patience, not employees or some other group that you can think of. [00:06:47] Speaker 01: That's my most natural reading. [00:06:49] Speaker 01: Tell me why that's wrong. [00:06:50] Speaker 04: That's exactly the type of claim that's insured under this policy. [00:06:54] Speaker 04: We have a medical malpractice policy. [00:06:57] Speaker 04: What it envisions is claims brought by people who are harmed by the care that's provided by the hospital. [00:07:04] Speaker 04: If there's harm to an employee or someone like that, there's other types of insurance that provide coverage for that type of a claim. [00:07:11] Speaker 01: Well, what if you have 50 botched knee surgeries and the total bill, let's say $40 million, [00:07:19] Speaker 01: Your position would be $40 million in coverage because these are all botched knee surgeries? [00:07:26] Speaker 04: It's hard to see how 40 botched knee surgeries would all involve the same act or omission. [00:07:32] Speaker 04: What we have here in the sterilization claims below, all of those claims allege identical act or omission by the hospital. [00:07:41] Speaker 01: They're separate. [00:07:42] Speaker 01: It wasn't one contamination. [00:07:44] Speaker 01: It was contaminations over time, was it not? [00:07:47] Speaker 04: Yes, the surgeries that happened were over time, but if when you look at the complaints and the motions that were filed by the plaintiffs in those cases and the judge's decisions in consolidating those cases, they are identical from one to the next. [00:08:03] Speaker 04: I don't want to ignore Judge Rossman's question, though, because it's a very important question to understand the two components of the medical incident definition. [00:08:10] Speaker 04: And Judge Phillips, I definitely intend to return to [00:08:14] Speaker 04: the discussion of the facts of the underlying cases as well, because that's also very important. [00:08:20] Speaker 04: There is this separate provision clause toward the end of the medical incident definition that says, and this also has a grouping function as well. [00:08:31] Speaker 04: It says, any act or omission together with related acts or omissions. [00:08:36] Speaker 04: So this deals with a situation where we have multiple acts or omissions that are at issue in a particular claim. [00:08:43] Speaker 04: in the furnishing of such services to any one person will be grouped together as a medical incident. [00:08:48] Speaker 03: Why doesn't that unambiguously define medical incident by patient? [00:08:55] Speaker 04: These two provisions, these two components to the medical incident definition serve two different purposes. [00:09:03] Speaker 04: The first and the foundational definition where you have any [00:09:08] Speaker 04: A medical incident means any actor omission in providing health care services to multiple patients that results in injury to a patient. [00:09:17] Speaker 04: That has a function of grouping these claims together. [00:09:19] Speaker 04: As long as you have claims by multiple patients that allege the same actor omission. [00:09:26] Speaker 03: But the language is integrated. [00:09:27] Speaker 03: It says any such actor omission. [00:09:29] Speaker 03: I think your reading requires us to bifurcate [00:09:33] Speaker 03: why into these two separate grouping mechanisms, but that provision that we're talking about now seems to integrate them. [00:09:43] Speaker 04: I think you need to read the provision as a whole and understand what it's designed to do as a whole. [00:09:48] Speaker 03: So we just don't think about the word such? [00:09:52] Speaker 04: No, no, I'm not saying that at all, Your Honor. [00:09:54] Speaker 04: What I'm saying when you look at it as a whole, the purpose of the provision is to group claims together. [00:10:00] Speaker 04: And both of the two parts of the provision that we're talking about both do that in different factual scenarios. [00:10:08] Speaker 04: With respect to the first, you're dealing with a factual scenario where you have one actor omission, services to multiple patients, [00:10:15] Speaker 04: an injury to a patient, or one or more of those patients. [00:10:19] Speaker 04: In the second scenario, you're dealing with a situation where you have multiple related acts or omissions in providing services to any one patient. [00:10:29] Speaker 04: And in both situations, you group those things together, and the result is you have one medical incident. [00:10:36] Speaker 04: Think about it this way. [00:10:38] Speaker 04: Any hospital would expect that it would have coverage for mass tort claims that are brought against the hospital that involve the treatment of multiple patients. [00:10:49] Speaker 03: If you contract for them. [00:10:51] Speaker 04: That's correct, Your Honor. [00:10:52] Speaker 04: And Porter believes that it did contract for that here, firmly believes that it did contract for that here. [00:11:01] Speaker 04: If every single patient's claim is always splintered into a separate medical incident, subject to a separate $2 million self-insured retention, there would never be any coverage for one of the worst possible scenarios that a hospital would face. [00:11:18] Speaker 04: That is, mass tort or class action litigation against the hospital. [00:11:22] Speaker 04: That defies the reasonable expectations of a policyholder in putting together its insurance program. [00:11:29] Speaker 04: And Colorado law makes it clear that in interpreting insurance policy provisions, [00:11:36] Speaker 04: It's the job of the court to effectuate the reasonable expectations of the policy. [00:11:41] Speaker 00: But isn't our first job, excuse me, to give the words contained in the contract, their plain and ordinary meaning? [00:11:47] Speaker 00: I mean, isn't that what Colorado law says is our first job? [00:11:50] Speaker 00: And if we can do that, then we don't go beyond that? [00:11:52] Speaker 00: That's correct, Your Honor. [00:11:53] Speaker 04: And I think that the plain and ordinary meaning here is clear. [00:11:56] Speaker 04: We have a provision that groups claims as a medical incident where they involve the same actor omission. [00:12:02] Speaker 04: And if we have multiple actor omissions in providing health care services to any one patient, then those actor omissions are grouped together. [00:12:11] Speaker 00: But your argument about the parties' expectations of coverage, and I believe in your briefs you also talked about the insurance industry customs, but again, [00:12:23] Speaker 00: Is that relevant at all under Colorado law? [00:12:25] Speaker 04: Absolutely agree with your honor that the key is the policy language and that if the policy language is unambiguous, you don't move beyond that. [00:12:33] Speaker 04: Here I would argue that the rule for determining if a policy language is ambiguous [00:12:38] Speaker 04: is whether or not the policyholder has offered a reasonable interpretation of that language. [00:12:44] Speaker 04: I think the interpretation that Porter has offered here is the correct interpretation of the language. [00:12:49] Speaker 04: At a bare minimum, it is a reasonable interpretation. [00:12:52] Speaker 04: And in that instance, Colorado law is clear. [00:12:55] Speaker 04: You interpret it in favor of coverage and against the insurance companies you're after. [00:12:59] Speaker 01: What if you had a single episode and an injury from an actor occurrence? [00:13:05] Speaker 01: There was a $5 million verdict. [00:13:08] Speaker 01: The policy would cover the hospital for three million, right? [00:13:11] Speaker 01: That's correct. [00:13:12] Speaker 01: In other words, the company, the hospital, is getting something for its premium, which is that. [00:13:19] Speaker 04: Yes. [00:13:20] Speaker 04: And if you had three patients that were seeking coverage that all alleged that same actor omission, then there'd be coverage for that too. [00:13:30] Speaker 04: Excess could be grouped together, and they'd have coverage for that excess of $2 million instead of excess of $6 million. [00:13:37] Speaker 04: I see I'm running low on time. [00:13:39] Speaker 04: I'd like to reserve time for rebuttal. [00:13:40] Speaker 04: And I do, of course, like I said before, want to answer your question to get into a little more detail about the actor omissions issue here. [00:13:46] Speaker 01: Please reserve your time. [00:13:48] Speaker 01: Thank you. [00:13:48] Speaker 04: Thank you, Your Honor. [00:13:53] Speaker 02: Good morning, Your Honors. [00:13:54] Speaker 02: Jane Young, appearing on behalf of Ad Health, may please the court. [00:14:00] Speaker 02: Ad Health here, in this case, is neither splintering claims nor denying coverage. [00:14:05] Speaker 02: The question here is not about a denial of coverage, but rather how the ad health excess policies should respond to the hundreds of different claims alleged against Portercare by the hundreds of different patients. [00:14:18] Speaker 02: The issue to be decided by this court is where the underlying actions filed against Portercare that allege multiple acts or omissions by multiple medical personnel in the furnishing of health care services over a multiple period of years constitute a single medical incident [00:14:34] Speaker 02: under the definition of the policy. [00:14:36] Speaker 02: The answer is no, and thus there is no basis for reversal, and the district court opinion should be affirmed. [00:14:43] Speaker 02: As my colleague had noted, this is an insurance coverage dispute. [00:14:46] Speaker 02: The policy dictates our analysis and the court's resolution. [00:14:52] Speaker 00: Pursuant to the unambiguous definition of medical incident in the... Counsel, can I stop you there and ask you, what is your test for ambiguity? [00:14:57] Speaker 00: Because I just heard [00:14:59] Speaker 00: Mr. Golinski offer a test that differs from how I read your response brief. [00:15:03] Speaker 00: So how would you say or what is the test that we would have to apply under Colorado law to determine whether or not this definition is ambiguous? [00:15:12] Speaker 02: Under Colorado law, the test for ambiguity is whether a policy provision is reasonably susceptible to more than one interpretation. [00:15:19] Speaker 02: If it's not, it's unambiguous. [00:15:22] Speaker 02: And that test is an objective test [00:15:24] Speaker 02: based upon the four corners of the policy language, first and foremost. [00:15:27] Speaker 00: Because they just argued the test is whether the policyholder has offered a reasonable interpretation of the definition. [00:15:33] Speaker 00: So you disagree with that? [00:15:36] Speaker 02: I suppose in practice that may be more semantics than anything else, because the question is whether or not there's more than one reasonable interpretation. [00:15:44] Speaker 02: Whether or not it's presented by the policyholder or whomever, the question is whether or not there's more than one reasonable interpretation. [00:15:50] Speaker 02: And in our view, at this point, there is not. [00:15:52] Speaker 03: What do we do with the district court's use of the that patient language, which is not what the policy says? [00:16:04] Speaker 02: Yes, Your Honor, and I appreciate that question. [00:16:05] Speaker 02: I myself have given that a great dearth thought as well in preparing for today and today's argument. [00:16:11] Speaker 02: At the end of the day, this court's review is de novo. [00:16:14] Speaker 02: And it is our view that the policy language, the unambiguous policy language, supports affirmance of the district court's order. [00:16:22] Speaker 02: The district court's point when you review her order in totality was refuting and rebutting Portercare's position that the definition of medical incident supports the idea of a pluralality or grouping of multiple patients, acts or omissions together as one medical incident. [00:16:42] Speaker 02: And so I think the district court inartfully used a paraphrase in her order [00:16:47] Speaker 02: to support and rebut the idea from Portercare that this is a plurality versus what the language says, which is a singularity. [00:16:56] Speaker 02: The language speaks to health care services resulting in injury to a patient, and then grouping, as Your Honor has indicated, such act or omission, including all related acts or omissions, based upon whether or not those medical services are provided to one person or more than one person. [00:17:14] Speaker 03: That's helpful. [00:17:15] Speaker 03: Thank you. [00:17:15] Speaker 03: The district court didn't focus much on that any one person language of the medical incident policy or provision. [00:17:23] Speaker 03: It seems clear to me that that supports you. [00:17:29] Speaker 03: Maybe you could explain why I'm right. [00:17:34] Speaker 02: Well, from my perspective, Your Honor, in terms of looking at the definition and the policy in totality, [00:17:39] Speaker 02: It's what makes sense based upon what's provided in the policy language. [00:17:43] Speaker 02: It's also the same language that's in the healthcare trust, which is part of the underlying amounts. [00:17:48] Speaker 02: and that rest as the underlying coverage beneath the excess policy. [00:17:52] Speaker 03: But we don't look at that. [00:17:53] Speaker 03: We're only looking at this. [00:17:54] Speaker 03: Correct. [00:17:55] Speaker 02: But it does go to some consistency in terms of providing the tower of coverage. [00:17:59] Speaker 03: But why doesn't it create two categories or sort of a two-bucketing structure, as the appellant argues? [00:18:08] Speaker 03: Why should we read this provision, any such act or omission to any one-person provision, as integrating? [00:18:15] Speaker 03: That's how I read it. [00:18:19] Speaker 03: Why isn't it possible that it's actually just referring to a different type of bucketing of the claims? [00:18:26] Speaker 02: The phrase that speaks to any such acts or omissions and grouping those related acts or omissions is the only grouping language in the definition. [00:18:41] Speaker 02: The definition of medical incident that starts out in the beginning that refers to any act or omission and the provision or failure of providing health care services [00:18:49] Speaker 02: which results in injury to a patient, isn't grouping anything. [00:18:55] Speaker 02: And it's certainly not grouping claims, because missing from the definition of medical incident is the defined term claim under the policy. [00:19:02] Speaker 02: What that initial phrase is doing with, because again, there's three different sections to the definition of medical incident, one, two, and three. [00:19:10] Speaker 02: We're focused on one, because that's the applicable provision in the definition. [00:19:14] Speaker 02: It's qualifying and identifying in the policy [00:19:18] Speaker 02: what it means to be a medical incident. [00:19:21] Speaker 02: How do you create a medical incident? [00:19:23] Speaker 02: So there isn't actually any grouping language as to how you're grouping any act or omission together. [00:19:29] Speaker 02: You're simply identifying in that first section of the definition what is a medical incident. [00:19:35] Speaker 02: The grouping language then appears towards the later part of the definition and speaks to any such act or omission together with all related act or omissions [00:19:44] Speaker 02: and determining whether or not and how you group them is based upon whether the medical services are provided to one person or more than one person. [00:19:52] Speaker 03: I appreciate that we're on de novo review here, but was that argument advanced by you and the district court with respect to that, any such provision? [00:20:04] Speaker 02: In terms of our reliance upon the language, Your Honor? [00:20:07] Speaker 03: Yes. [00:20:08] Speaker 03: It seems that the arguments were focused more on why one and less on that last part of the medical incident definition. [00:20:20] Speaker 03: I just want to make sure that I'm not missing somewhere in the record where you were advancing arguments on this part of the medical incident definition. [00:20:28] Speaker 02: No, I think the touchstone of the briefing at the district court as well as to this court is fundamentally based upon that grouping language and our reliance upon it to demonstrate how [00:20:38] Speaker 02: Under this factual scenario, in this particular policy language, the sterilization actions should be applied and how the policies would respond to them. [00:20:49] Speaker 02: I think that language is in our brief and it is referenced and explained as a basis for our position as to how and when any medical incidents would be grouped. [00:21:03] Speaker 02: And in fact, when we think about from the plain language of the definition, how could this language apply? [00:21:10] Speaker 02: In this facture scenario, it does not, in our view, allow Portercare to group these hundreds or thousands of different claims with different patients receiving different treatment as one medical incident. [00:21:21] Speaker 02: But how does it reply? [00:21:22] Speaker 02: So this language, which is one type of many types of language that's available in hospital professional liability policies. [00:21:30] Speaker 02: So let's take for an example. [00:21:32] Speaker 02: A patient is admitted to the emergency room for a broken leg and it's determined that he needs surgery to fix that broken leg. [00:21:40] Speaker 02: He goes through surgery. [00:21:41] Speaker 02: On his way back to his room after surgery, the gurney tips over and he sustains a further injury. [00:21:47] Speaker 02: Then when he returns to his room, he develops a fever because of some sort of infection as a result of the surgery. [00:21:52] Speaker 02: This language is intended to kind of funnel down to the medical services that are provided to and results in injury to that patient. [00:22:01] Speaker 02: All of those [00:22:03] Speaker 02: actual emissions and related actual emissions and providing health care to this hypothetical patient would all be grouped together as one medical incident. [00:22:12] Speaker 02: And in the event the claims or the claim or claims that arise out of this medical incident would exceed the $2 million underlying coverage, there will be coverage available for Portercare up to $40 million per medical incident under the policy. [00:22:30] Speaker 02: And simply because there is [00:22:32] Speaker 02: different language as a division of this court recognized in the American Southwest case in which this court interpreted different related acts language and how related acts are determined. [00:22:45] Speaker 02: We interpret this language based upon the plain language in front of us under Colorado law. [00:22:51] Speaker 02: Now, what's missing from this definition and what Portercare would need to support its interpretation are words like multiple, the same, [00:23:02] Speaker 02: similar, joint, common. [00:23:06] Speaker 02: None of those words are contained in the definition of medical incident that would allow them to group acts or omissions provided in connection with different medical treatment to different patients. [00:23:19] Speaker 01: Are there such policies? [00:23:22] Speaker 01: Do you ensure something like that? [00:23:25] Speaker 02: I believe there are such policies. [00:23:27] Speaker 02: In fact, I think when you look at [00:23:30] Speaker 02: the development of this types of language in terms of how you group treatment or how you group related acts or emissions, this language has developed over the years. [00:23:40] Speaker 02: And there is likely out in the marketplace at this point in time coverage that could be secured. [00:23:46] Speaker 02: In fact, the coverage that was secured for the 2019 policy would provide as such. [00:23:51] Speaker 01: So you're unsure. [00:23:52] Speaker 02: No, I'm not unsure, Your Honor. [00:23:54] Speaker 02: I believe there is. [00:23:55] Speaker 02: And the example of that is [00:23:57] Speaker 02: 2019 policy that was secured by Portercare after this 2018 policy that we're dealing with today expired. [00:24:05] Speaker 02: So it does exist, but the fact that it does exist from our perspective, Your Honor, does not make this language improper or ambiguous under Colorado law. [00:24:15] Speaker 02: It should be interpreted according to its plain and ordinary terms. [00:24:19] Speaker 02: Now Portercare has also mentioned a couple of other different policy provisions, which it believes supports its position that these hundreds of thousands of different claims should be grouped together as one medical incident. [00:24:31] Speaker 02: One of those provisions is the limitation of liability provision. [00:24:35] Speaker 02: This was addressed by the district court, and the district court determined, yes sir, Judge Phillips, you look like you have a question. [00:24:42] Speaker 01: I oftentimes do. [00:24:44] Speaker 01: It's just general confusion. [00:24:46] Speaker 01: No, I have no question. [00:24:47] Speaker 02: OK, I apologize, Your Honor. [00:24:50] Speaker 02: And Portercare believes that it's this position or this policy provision that groups claims. [00:24:57] Speaker 02: At the end of the day, as the district court noted, with the limitation of liability provision, it's self-explanatory by terms itself. [00:25:05] Speaker 02: It identifies ad health's limit of liability. [00:25:08] Speaker 02: And ultimately, in interpreting this provision, Portercare is conflating, once again, the terms claim and medical incident. [00:25:17] Speaker 02: There can be no dispute [00:25:19] Speaker 02: that more than one claim can arise out of any one medical incident. [00:25:23] Speaker 02: That was identified by the district court. [00:25:25] Speaker 02: And the two cases around the country that have addressed similar language has found the same. [00:25:31] Speaker 02: You can have a situation in which you have more than one claim that arises out of treatment to a patient. [00:25:37] Speaker 03: The district court thought those cases weren't relevant because she relied on the plain language of the medical incident provision. [00:25:43] Speaker 03: Do you like us to endorse that rationale, or do you think we need to review those cases and the other components of this policy in order to discern the plain meaning? [00:25:53] Speaker 02: Well, I think there's two pieces to that, Your Honor. [00:25:55] Speaker 02: One, I believe the plain meaning of this policy is evident, and it can be resolved as such. [00:26:00] Speaker 02: But I do believe the John Patty and the Harris Methodist case do provide, while not binding precedent on this court, [00:26:07] Speaker 02: They are the only two cases around the country that my office has found, or that any of the lawyers representing Ad Health have found, that provide some instruction and guidance with respect to the interpretation of this language, if there's any doubt. [00:26:20] Speaker 02: For example, in the John Patty case, it did interpret this type of language, very similar policy language, in the context of a limitation of liability provision. [00:26:30] Speaker 02: And the Missouri Supreme Court of Appeals noted that more than one claim can arise out of the treatment to any one patient. [00:26:37] Speaker 02: and that reading these two provisions together was actually consistent, and therefore reading the policy as a whole, and that the only reasonable interpretation of this language was that separate treatment to separate patients results in separate medical incidents. [00:26:55] Speaker 03: Counsel, you mentioned in responding to one of Judge Phillips's questions that PorterCare in this case in 2019 secured a policy that provided for the sort of claims batching it contends is already supported by this policy. [00:27:11] Speaker 03: Is that correct? [00:27:12] Speaker 02: Yes, it did secure that coverage with the 2019 policy. [00:27:16] Speaker 03: Was evidence of that 2019 policy before the district court at summary judgment? [00:27:21] Speaker 02: It was. [00:27:21] Speaker 02: That policy is in the record, Your Honor. [00:27:23] Speaker 03: Do you know where? [00:27:24] Speaker 03: Can you tell us where it is? [00:27:28] Speaker 02: May I have just one moment? [00:27:30] Speaker 02: I believe it's in the first volume of the appellate record. [00:27:34] Speaker 03: OK. [00:27:34] Speaker 03: But it's in the record on appeal before us. [00:27:36] Speaker 02: It is. [00:27:36] Speaker 02: I might have a cite, Your Honor. [00:27:39] Speaker 03: And it was definitely before the district court-at summary judgment. [00:27:42] Speaker 02: Yes, Your Honor. [00:27:43] Speaker 02: It was. [00:27:44] Speaker 01: And I apologize. [00:27:44] Speaker 01: I did not have that cite in my outline. [00:27:47] Speaker 01: Excuse me. [00:27:48] Speaker 01: You can look as you sit down and just tell us at the end of the argument. [00:27:51] Speaker 02: OK. [00:27:52] Speaker 02: I will. [00:27:53] Speaker 02: I did not bring that notebook up with me. [00:27:54] Speaker 02: I apologize. [00:27:55] Speaker 03: Thank you. [00:27:56] Speaker 02: And then very briefly, the final policy provision that Portercare is relying upon, which again the district court refuted in support of her opinion, was the anti-stacking clause. [00:28:04] Speaker 02: And Mr. Galinzi has mentioned that this morning. [00:28:07] Speaker 02: At the end of the day, pursuant to its plain meaning, the anti-stacking clause only applies when a claim is going to span more than one policy. [00:28:16] Speaker 02: Here, the claims were only paid under the 2018 policy. [00:28:20] Speaker 02: They were not paid under the 2019 policy. [00:28:22] Speaker 02: And the excess policy is only a prior coverage above the underlying amounts, which is the Porter Care Trust case. [00:28:31] Speaker 02: I see that I am out of time. [00:28:32] Speaker 02: Thank you, Your Honors. [00:28:33] Speaker 02: We ask that the district court affirm the district court's ruling. [00:28:45] Speaker 04: Your Honors. [00:28:48] Speaker 04: Yes, the insurance company agreed [00:28:51] Speaker 04: in responding to the claim that the non-stacking provision applied. [00:28:54] Speaker 04: That's why claims made in 2018 and 2019 were treated only under the 2018 policy. [00:29:00] Speaker 04: And that non-stacking provision groups claim by multiple persons or organizations over multiple policy years involving the same loss event. [00:29:10] Speaker 04: Loss event is defined in the policy to mean medical incident. [00:29:13] Speaker 04: So the reason why all of those claims from 18 and 19 were treated together in 2018 [00:29:20] Speaker 04: was because they involved the same medical incident. [00:29:24] Speaker 04: That is, they involved the same issues regarding the single act or omission that was alleged. [00:29:30] Speaker 04: And so I'd like to return, as I promised I would, to Judge Phillips' question. [00:29:34] Speaker 04: When you look at the complaints in the sterilization actions, they're cut and pasted, one from the next, all making the same allegations. [00:29:42] Speaker 04: Yes, they involve different patients who receive surgery on the different days, but the basis of liability, the statutory conditions involved, [00:29:50] Speaker 04: The punitive damages arguments, the causation, are all identical. [00:29:55] Speaker 04: No one of those cases varies from one to the next regarding anything that happened to any one of those patients. [00:30:02] Speaker 04: On the motions to consolidate what the plaintiffs argued, these cases implicate identical negligence principles, identical outrageous conduct principles, identical statutory principles. [00:30:14] Speaker 04: The claims and defenses are all identical. [00:30:16] Speaker 04: And the judges agreed in consolidating. [00:30:19] Speaker 04: There's no difference one case to the next, patient by patient, that justifies treating them as thousands of different medical incidents. [00:30:27] Speaker 04: They all involve the same act or omission. [00:30:30] Speaker 04: And the policy defines an act or omission in providing medical services to the participants' patients as a medical incident. [00:30:40] Speaker 04: When you have a medical incident, [00:30:42] Speaker 04: and the losses exceed $2 million for that medical incident, you trigger the coverage that's provided here. [00:30:50] Speaker 04: The gurney example... You're out of time. [00:30:53] Speaker 04: Oh, I may not. [00:30:54] Speaker 04: I see it's counting the other direction. [00:30:55] Speaker 01: I just want to be fair on the time, and you're a minute over, and so we appreciate your argument, though. [00:31:01] Speaker 01: Council, did you have the record citation? [00:31:03] Speaker 02: I did. [00:31:06] Speaker 02: The 2019 excess policy is located in Volume 2, pages A, 1647 through [00:31:11] Speaker 01: Okay, thank you. [00:31:12] Speaker 01: And thank you both for your helpful arguments. [00:31:14] Speaker 01: Counselor excused and the case is submitted. [00:31:16] Speaker 01: We will now take approximately ten-minute break.