The opinion of the court was delivered by: James M. Moody United States District Court
Pending before the Court are Cross-Motions for Summary Judgment, and plaintiff's Motion For Leave To Amend Complaint. For the reasons stated below Plaintiff's Motion for Summary Judgment is granted in part and denied in part (#81), Plaintiff's Motion For Leave To Amend Complaint is granted (#80) and defendants' Motion for Summary Judgment is granted in part and denied in part (#77).
Plaintiff seeks a declaratory judgment with respect to its rights and obligations under a Healthcare Facility Liability Insurance Policy No. HPC 2938113 ("primary policy") and a Supercover Umbrella and Excess Liability Policy No. HXC 298114 ("super policy") collectively known as "the policies." Defendants contend that they are entitled to indemnity and a defense under the policies to a lawsuit filed against them in state court. Alternatively, defendant contends that plaintiff is not entitled to any reimbursement of defense costs and expenses related to this lawsuit.
1. Plaintiff is a private, mutual insurance company providing medical professional liability insurance policies to health care facilities, including nursing homes.
2. Defendant Evergreene Properties of North Carolina, LLC ("Evergreene") is a North Carolina limited liability company.
3. Defendant Alan Curtis, LLC ("Curtis LLC") is a limited liability company organized and existing pursuant to the laws of the State of Arkansas.
4. Defendant Alan Curtis Enterprises, Inc. ("Curtis Enterprises") is a corporation organized and existing pursuant to the laws of the State of Arkansas.
5. Defendant Alan Curtis ("Curtis") is a resident of Forrest city, Lee County, Arkansas and is an employee of Alan Curtis Enterprises, Inc.
6. Evergreene holds the medical needs license for a nursing home facility located in Marianna, Arkansas known as Crestpark Retirement Inn-Marianna ("Crestpark").
7. Curtis Enterprises pursuant to a Management Agreement provides certain on-site management and operational services at Crestpark for the benefit of Evergreene.
8. Plaintiff acquired the policies from Fireman's Fund Insurance company of Ohio and succeeded to the obligations of Fireman's Fund under the policies.
9. Annie Redden was a resident of Crestpark from July, 1997 through January 9, 2003.
10. Ms. Redden died in November of 2003.
11. On March 3, 2005, the Executor of the Estate of Annie Redden filed a lawsuit against Curtis, LLC; Alan Curtis; Evergreene, Curtis Enterprises and several John Doe entities in the Circuit Court of Lee County, Arkansas ("the Underlying Lawsuit").
12. The Underlying Lawsuit was amended several times with a Fourth Amended Complaint being filed on December 20, 2006 against Alan Curtis and Evergreene alleging (1) violations of the Arkansas Long Term Care Residents Rights Act, Ark.Code Ann.§ § 20-10-1201, et seq.; (2) negligence based upon violation of regulations, (3) common law ...