The US Court of Appeals for the Ninth Circuit has decided that an insurer is not obligated to defend or indemnity a Nevada doctor under his professional liability policy in a wrongful death suit involving a judge's opioid-related death. The case is National Fire & Marine Insurance Company v. Scott Hampton, 2:18-cv-01338-JCM-BNW.
Chief judge of the City of Henderson, Nevada, Diana Hampton, was found dead in March 2016. Her death was ruled accidental and related to fentanyl "intoxication." Dr. Steven Holper had prescribed the drug to Judge Hampton unlawfully, without a prescription. According to court papers, Holper later pleaded guilty and was sentenced to more than 40 months in prison for unlawfully prescribing addictive opioids, including fentanyl. His plea agreement stated that Holper intentionally distributed fentanyl "outside the usual course of his professional practice and without a legitimate medical purpose."
Judge Hampton's estate filed a wrongful death suit against Dr. Holper in Nevada state court. National Fire and Marine Insurance Company, (National Fire) filed suit in U.S. District Court in Las Vegas seeking a declaration that it had no duty to defend or indemnify Holper in the litigation under his professional liability policy. The U.S. District Court ruled in favor of National Fire.
Judge Hampton's estate filed an appeal with the U.S. Court of Appeals for the Ninth Circuit. The three-judge panel unanimously affirmed the ruling of the district court.
The ruling said that the language of Holper's professional liability insurance policy "obviously and unambiguously excludes coverage" for "any willful violation of any law, statute, or regulation." The panel stated that the exclusion clearly applied to the case, and that the district court "properly relieved National Fire of its duty to defend and indemnify Holper in the wrongful death action."
Read the rest of the decision here.
Editors Note: Illegal activity is not covered by insurance. In this case, the doctor illegally provided the judge with fentanyl, a powerful synthetic opioid that is similar to morphine but is 50-100 times as potent. Since the doctor provided the drug illegally, the resulting death is not covered by professional liability insurance.