UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

General Star Indemnity Co.

v.

Adam P. Beck, M.D., et al. Civil No. 18-cv-108-JD Opinion No.

v.

General Star Indemnity Co. et al

O R D E R

General Star Indemnity Company brought a declaratory

judgment action, seeking a determination that it may rescind the

liability insurance policy issued to Adam P. Beck, M.D. or in

the alternative that there is no coverage under the policy.

General Star also named Beck’s company, New England Eye

Specialists, P.C., James F. Kelly, Goldie Morrow, John Morrow,

and David Dennis as defendants because the company, along with

Beck, is seeking insurance coverage for claims made by Kelly,

the Morrows, and Dennis. Beck, proceeding pro se, brought

counterclaims against General Star and others, and then amended

the counterclaims. Counsel has now entered an appearance on

behalf of Beck and New England Eye Specialists, P.C.

General Star moves to dismiss Counts III, IV, V, VI, VII,

and IX of the counterclaim in Beck’s amended answer. Beck did not file a response to the motion to dismiss within the time

allowed.

Standard of Review

In considering a motion to dismiss, the court accepts all

well-pleaded facts as true, disregarding mere legal conclusions,

and resolves reasonable inferences in the plaintiff’s favor.1

Galvin v. U.S. Bank, N.A.,

(1st Cir. 2017).

Taken in that light, the complaint must state sufficient facts

to support a plausible claim for relief. In re Curran,

(1st Cir. 2017). The plausibility standard is satisfied

if the factual allegations in the complaint “are sufficient to

support the reasonable inference that the defendant is liable.”

In re Fidelity ERISA Float Litig.,

(1st Cir.

2016) (internal quotation marks omitted). The complaint need

not include “a high degree of factual specificity” but “must

contain more than a rote recital of the elements of a cause of

action.” Carcia-Catalan v. United States,

(1st Cir. 2013) (internal quotation marks omitted).

1 General Star filed its answer to the counterclaim on the same day that it filed the motion to dismiss. Because the answer has been filed, the motion should have been for judgment on the pleadings under Rule 12(c). Nevertheless, because the same standard applies under Rule 12(b)(6) and Rule 12(c), the court proceeds to consider the motion. Kando v. R.I. St. Bd. Of Elections,

(1st Cir. 2018).

2 Background

During the events at issue in the case, Adam Beck was a

licensed medical doctor with a specialty in ophthalmology. New

England Eye Specialists, PC, was his professional corporation.

General Star was an insurance company, authorized to do business

in New Hampshire.

General Star issued a Physicians & Surgeons Professional

Liability Insurance Policy to Beck based on his application and

supporting statement dated July 31, 2017. General Star contends

that Beck made material misrepresentations in his application

and supporting statement because he did not disclose that a

complaint with the New Hampshire Board of Medicine by Doris

Newell or another patient remained open and that a complaint had

been filed against him by James Kelly. He also did not disclose

that a lawyer, on behalf of two of his patients Goldie Morrow

and David Dennis, had requested medical records.

After General Star issued the policy, medical malpractice

actions were brought against Beck on behalf of Morrow, Dennis,

and Kelly. Beck also entered a settlement agreement with the

New Hampshire Board of Medicine with regard to either Newell’s

complaint or another patient’s complaint.2 General Star seeks

2 The settlement agreement does not name the female patient who made the complaint.

3 rescission of the policy, or alternatively, a declaratory

judgment that there is no coverage for the actions against Beck.

In his amended answer, Beck alleges that he has paid his

premiums for the coverage in the General Star policy. Beck

notified General Star of the underlying lawsuits brought by

Morrow, Dennis, and Kelly. General Star has refused to provide

coverage for those suits.

Beck alleges eight counts in his counterclaim brought

against General Star Indemnity Company, General Star Management

Company, General Star Corporation, General Star LLC, General

Star National Insurance Company, General Star Start LLC, and

individuals identified as directors of General Star.3 Beck

identifies the defendants collectively as General Star,

indicating that he did not intend to bring claims against the

listed defendants individually.

In Count I he seeks a declaratory judgment that General

Star is obligated to provide a defense in the underlying

lawsuits, and in Count II he alleges that General Star has

breached its duty to defend. Count III is titled “Negligence”

but also allege defamation and includes citations to New

Hampshire and Massachusetts statutes, along with the Health

Insurance Portability and Accountability Act (“HIPAA”). In

3 The counts in the counterclaim are numbered I, II, III, IV, V, VI, VII, and IX. There is no Count VIII.

4 Count IV, Beck alleges violation of the New Hampshire Consumer

Protection Act but also lists other New Hampshire statutes, and

in Count V, he alleges violation of the Massachusetts Consumer

Protection Act. Count VI is titled “Libel and Defamation,” and

Count VII is titled “False Light,” but include citations to

state statutes and HIPAA. There is no Count VIII. Count IX is

a claim for intentional infliction of emotional distress, but

also cites a string of New Hampshire and Massachusetts statutes.

Discussion

General Star moves to dismiss Counts III, IV, V, VI, VII,

and IX for failure to state a claim.4 In support of the motion

to dismiss, General Star contends that the claims in Counts III,

VI, VII, and IX are based on theories that Beck was defamed by

General Star based on statements made in the General Star’s

amended complaint. General Star interprets Counts III, IV, and

V to allege that it violated Massachusetts and New Hampshire

statutes by failing to provide services and to provide coverage

to Beck. Beck did not file a response to the motion to dismiss.5

4 As is noted above, although Beck lists other defendants along with General Star, his counterclaim is construed to bring claims against General Star, not the listed defendants individually.

5 Although Beck was initially proceeding pro se, he is now represented by counsel. Counsel did not file any response on Beck’s behalf or request an extension of time to do so.

5 I. Applicable Law

Beck alleges claims under both New Hampshire and

Massachusetts law. General Star asserts that New Hampshire law

governs the claims in the case because all three of the

underlying suits against Beck were or will be filed in New

Hampshire and those complaints are directed to Beck at his New

Hampshire address. As such, the insurance risks involved are in

New Hampshire.

In addition, Morrow and Dennis are residents of New

Hampshire, while Kelly is a resident of Missouri. Beck applied

for coverage for New England Eye & Facial Specialists in

Londonderry, New Hampshire, along with coverage for himself at

his address in Andover, Massachusetts. Beck indicated on his

insurance application that he was licensed to practice in New

Hampshire and Massachusetts.

Before undertaking a choice of law analysis, the court

first inquires as to whether the law of interested jurisdictions

actually conflict, that is, whether the outcome would be changed

by application of the law of a state other than the forum state.

A.M. Capen’s Co. v. Am. Trading & Prod. Corp.,

, 472

n.6 (1st Cir. 2000). The party who relies on the law of another

state bears the burden of showing its content. Aftokinito

Props., Inc. v. Millbrook Ventures, LLC¸

, at *3

(D.N.H. Aug. 9, 2010).

6 Here, Beck cites both New Hampshire and Massachusetts law

without suggesting that any conflict exists between them that

would result in different outcomes. Because he did not respond

to the motion to dismiss, Beck provided no support for his

reliance on Massachusetts law. Therefore, in the absence of a

demonstrated conflict, the court will apply the law of New

Hampshire.6

II. Counterclaim

Beck alleges statutory and common law claims. Because New

Hampshire law applies, Count V, which is entirely based on

Massachusetts law, along with those parts of the other claims

that are based on Massachusetts law, are dismissed.

6Even if the court were to undertake a choice-of-law analysis, it would apply the law of New Hampshire. Federal courts sitting in diversity jurisdiction, apply the choice-of-law rules of the forum state, which is New Hampshire here. Klaxon v. Stentor Elec. Mfg. Co.,

(1941). Generally, if the relevant substantive law of another state with substantial interests in the litigation conflicts with New Hampshire law, the court applies a five-factor test to determine which law applies. TIG Ins. Co. v. Eiflow Ins. Ltd.,

, at *4 (D.N.H. Sept. 29, 2015). In cases where a contract such as an insurance policy is at issue, “‘the law of the State with the most significant relationship to the contract will govern questions regarding the contract’s performance.’”

(quoting Glowski v. Allstate Ins. Co.,

(1991)). All of the considerations applicable to the choice-of- law analysis support applying New Hampshire law in this case.

7 A. Claims Based on New Hampshire Statutes

In Counts III and IV, Beck alleges that General Star

violated RSA chapter 358-A, RSA chapter 417, RSA chapter 541,

RSA chapter 541-A, and RSA chapter 400-A through 420-J by

failing to offer him malpractice insurance coverage going

forward and for his prior acts. As General Star points out, the

insurance industry is excluded from the New Hampshire Consumer

Protection Act. RSA 358-A:3, I. Under RSA chapter 417, a

plaintiff can bring suit only after the insurance commissioner

has determined that an insurance company’s practice violates the

chapter, and Beck does not allege such a finding here. RSA

417:19, I; U.S. Bank, Nat’l Ass’n v. Foremost Ins. Co.,

, at *3 (D.N.H. June 14, 2017). As General Star

explains, neither RSA chapter 541 nor RSA chapter 541-A, which

govern administrative procedures, apply to the circumstances

alleged here.

RSA chapter 400-A through RSA chapter 420-J are statutes

governing all aspects of the business of insurance, including

procedures for the insurance department and a myriad of other

areas of regulation. Beck alleges that General Star violated

all of the statutes by failing to provide insurance services as

advertised and by defaming him with allegations in the amended

complaint. As General Star contends, those allegations are not

sufficiently specific to state a plausible claim for relief.

8 Therefore, all claims based on RSA chapter 400-A through RSA

chapter 420-J are dismissed.

B. HIPAA

In Counts III, VI, and VII, Beck mentions HIPAA, without

citing any specific provision. Beck has not alleged that

General Star is a covered entity under HIPAA, and it asserts

that it is not. HIPAA applies in certain situations to health

plans, health care clearing houses, healthcare providers, and

business associates of covered entities. See

; § 164.104. In addition, as General Star asserts,

courts that have considered the issue have found that no private

right of action exists under HIPAA. See Carpenter v. Arredondo,

(5th Cir. 2018); Bond v. Conn. Bd. Of

Nursing,

(2d Cir. 2015) (citing cases).

Therefore, all claims based on a violation of HIPAA are

dismissed.

C. Libel, Defamation, False Light, Intentional Infliction

of Emotional Distress

In Counts III, VI, VII, and IX, Beck alleges that General

Star published false and defamatory statements about him in the

amended complaint. Specifically, Beck objects to allegations

that he misrepresented the status of Newell’s complaint to the

New Hampshire Board of Medicine or failed to disclose another

9 complaint that was then pending before the New Hampshire Board

of Medicine. Beck also objects to the allegation that he

entered into a settlement agreement with the Board of Medicine

that addressed either the Newell complaint or a complaint by

another patient.7

As General Star asserts, allegations made in pleadings

filed with a court, which are pertinent to the proceedings, are

absolutely privileged and cannot be the basis for a civil suit.

Provencher v. Buzzell-Plourde Assocs,

(1998);

McGranahan v. Dahar,

(1979). The statements

about Beck’s misrepresentations to General Star in his

application for insurance are pertinent to General Star’s suit

to rescind the policy based on those misrepresentations.

Therefore, the statements are absolutely privileged.

In addition, claims for defamation, libel, and false light

all require as an element that the challenged statement be

false. See Vention Med. Advanced Components, Inc. v. Pappas, --

- A.3d ---,

, at *5 (N.H. June 8, 2018)

(defamation); Thomas v. Tel. Publ’g Co.,

, 321

(2007) (defamation and libel); Hamberger v. Eastman,

(1964) (false light). Based on the settlement

agreement filed with the amended complaint, the allegations in

7 General Star submitted a copy of the settlement agreement with its amended complaint.

10 the amended complaint appear to be true. Counts VI and VII are

dismissed. To the extent Counts III and IX are based on

theories of defamation, libel, or false light, they are also

dismissed.

D. Negligence

To state a claim for negligence, a plaintiff must allege

that the defendant owed him a duty, breached that duty, and that

the breach caused the plaintiff harm. Yager v. Clauson,

(2016). Beck alleges that General Star had a duty to

defend him in the underlying lawsuits and to provide him with

malpractice insurance and that General Star negligently failed

to do so. As explained above, the cited statutes do not impose

those duties. Beck has not alleged a duty to support his

negligence claim in Count III, which is dismissed.

E. Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional

distress, a plaintiff must allege facts to show that the

defendant “‘by extreme and outrageous conduct, intentionally or

recklessly cause[d] severe emotional distress to another.’”

Saunders v. First Magnus Fin. Corp.,

,

, at *5 (D.N.H. July 16, 2018) (quoting Morancy v.

Morancy,

(1991). To meet that standard, the

accused conduct must have been “‘so outrageous in character, and

11 so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.’”

(quoting Mikell v.

Sch. Admin. Unit No. 33,

(2009)).

Beck alleges a claim for intentional infliction of

emotional distress in Count IX based on General Star’s

allegations in the amended complaint, which he contends were

defamatory and libelous. As is explained above, those

statements are absolutely privileged. In addition, even if they

were not, they would not provide grounds for a claim of

intentional infliction of emotional distress because General

Star alleges what is shown in the settlement agreement between

Beck and the New Hampshire Board of Medicine. Therefore, Count

IX is dismissed.

Conclusion

For the foregoing reasons, General Star’s motion to dismiss

(document no. 35) is granted. Counts III, IV, V, VI, VII, and

IX in Beck’s amended counterclaim are dismissed. The claims

remaining in the amended counterclaim are Counts I and II.

SO ORDERED

______________________________ Judge Joseph A. DiClerico, Jr. United States District Judge August 13, 2018 cc: William J. Amann, Esq. Christopher T. Conrad, Esq.

12 Sabina B. Danek, Esq. Richard E. Fradette, Esq. Mark L. Mallory, Esq. Kenneth D. Murphy, Esq. David A. Wilford, Esq.

13