United States Court of Appeals
                        For the First Circuit


No. 17-1872

              MEDICAL MUTUAL INSURANCE COMPANY OF MAINE,

                         Plaintiff, Appellee,

                                  v.

                            DOUGLAS BURKA,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                                Before

                         Howard, Chief Judge,
                  Lipez and Barron, Circuit Judges.


     Christopher C. Dinan, with whom Monaghan Leahy, LLP was on
brief, for appellant.
     Christopher C. Taintor, with whom Norman, Hanson & DeTroy,
LLC was on brief, for appellee.


                           August 10, 2018
           LIPEZ,   Circuit   Judge.       Appellant   Douglas    Burka,   a

physician, is the defendant in a pair of civil suits filed in state

courts in Maine and Maryland.          Following Burka's request for a

defense from his professional liability insurer, appellee Medical

Mutual Insurance Company of Maine ("MMIC"), MMIC brought this

declaratory judgment action seeking to establish that it has no

duty to defend Burka in either state proceeding.          At the core of

the   coverage    dispute   are   allegations   that   Burka     improperly

accessed his wife's medical records during their deteriorating,

and ultimately failed, marriage.        In the state-court complaints,

Burka's now ex-wife, Allison Cayne, claims that Burka used his

status as a doctor to obtain her records so he could harass and

embarrass her.1

           The district court granted the declaratory judgment for

MMIC, concluding that the claims against Burka in both lawsuits

fell outside the professional liability coverage provided by the

MMIC policy ("the Policy").       After close review of the Policy and

the state-court complaints, we agree with that determination and,

hence, affirm.




      1
      In the Maryland action, Cayne's parents also are plaintiffs,
and they likewise allege that Burka improperly accessed their
medical records.


                                   - 2 -
                                            I.

            Under Maine law, which the parties agree governs this

case, "[w]hether an insurer owes a duty to defend is a question of

law that we review de novo."           City of S. Portland v. Me. Mun. Ass'n

Prop.   &   Cas.       Pool,   

,    13-14   (Me.     2017)   (footnote

omitted).    To answer that question, a court must "consider[] and

compare[] two documents: the insurance policy and the underlying

complaint against the insured."                  Harlor v. Amica Mut. Ins. Co.,

, 797 (Me. 2016).               The duty to defend arises if that

comparison, with "the complaint[] read broadly in conjunction with

the policy, reveals the existence of any legal or factual basis

that could potentially be developed at trial and result in an award

of damages covered by the terms of the policy."                    

on appeal that the district court erred in

finding no duty to defend the Maryland and Maine lawsuits because

accessing    medical       records,    as    he    was   alleged     to   have   done,

constitutes a "professional service" within the scope of the

Policy's coverage.         He insists that the plaintiffs' allegations of

malicious intent are irrelevant to the coverage issue.                      He further

asserts that coverage is at least debatable, and he is therefore

entitled    to     a    defense,     because      the    Policy's    definition     of

"professional services" is ambiguous.

            Given the centrality of the Policy and the state-court

complaints to the resolution of this case, we begin by describing


                                        - 3 -
those documents.       In doing so, we borrow liberally from the

district court's helpful description of their contents.                  To set

the stage, and explain why lawsuits were filed in two states, we

note that Burka and Cayne moved from Tennessee to Maine in 2013

and, in 2015, as their marriage was collapsing, they both relocated

independently to Maryland.        Cayne's parents are longtime residents

of Maryland.

A. The Maryland and Maine Lawsuits

            In February 2016, Cayne and her parents filed a complaint

against Burka and his father, Dr. Steven A. Burka, in Maryland

state court.    The complaint alleges, in relevant part, that both

during his marriage to Cayne and after their separation around

April   2015,   Douglas   Burka    "engaged   in    a   campaign    to   access

Allison's    medical   records      to   learn     about   her     mental   and

gynecological health and other confidential medical information."

Maryland Compl. ¶ 14.      Specifically, the complaint alleges that

Burka conspired with his father in the spring of 2015 to improperly

access Cayne's medical records at hospitals in the Washington,

D.C. area for the purpose of harassing and embarrassing her and to

gain advantage in their pending divorce litigation.                 

The complaint also alleges Burka's improper access to the medical

records of Cayne's parents for the same purposes.            

                                    - 4 -
            The Maryland complaint refers to allegedly improper

actions taken by Burka in Maine in only one paragraph, which states

in full:

            Before and after their separation, Douglas
            Burka engaged in a campaign to access
            Allison's medical records to learn about her
            mental and gynecological health and other
            confidential medical information.         Upon
            information and belief, Douglas Burka first
            used   his   privileges  at   Vanderbilt   [in
            Nashville] to access Allison's mental health
            records without authorization in or about July
            of 2011, when Allison was in therapy at
            Vanderbilt. Upon information and belief, on
            at least one occasion, after Allison left him,
            Douglas Burka also used his privileges at
            Southern Maine Medical Center to access
            Allison's medical records. He also accessed
            her email accounts and social media accounts
            without authorization on several occasions
            after Allison left him. These incidents are
            the subject of a separate lawsuit in
            Cumberland County Superior Court in Maine,
            Burka v. Burka, No. 16-CV-20.

Maryland Compl. ¶ 14.

            In Maine, the operative amended complaint was filed in

May 2016, alleging in relevant part that Burka had accessed Cayne's

medical     records    "at    Southern     Maine   Healthcare"   without

authorization while he was employed as a doctor in that practice

during the spring of 2015.        Maine Compl. ¶¶ 1, 15-16.      Although

the complaint does not specifically identify Cayne as a patient of

an SMHC doctor or the practice, that status is an inevitable

inference    from     the    allegations   that    Burka   accessed   her

confidential healthcare information maintained there.


                                   - 5 -
           The amended Maine complaint seeks a remedy on three

grounds.   The First Claim for Relief (invasion of privacy) was

dismissed by the state court and the Third Claim for Relief

(intentional infliction of emotional distress) was dismissed by

stipulation of the parties, leaving only the Second Claim for

Relief alleging unlawful disclosure of confidential health care

information.   For that claim, Cayne requests injunctive relief and

costs based on a Maine statute protecting the "[c]onfidentiality

of health care information."   Me. Rev. Stat. Ann. tit. 22, § 1711-

C.2

B. The MMIC Policy

           The Policy identifies SMHC Physician Services, P.A.

("SMHC") as the named insured,3 and it includes a "Slot Policy



      2Section 1711-C prohibits disclosure of "[a]n individual's
health care information" by "the health care practitioner or
facility," with specified exceptions. Me. Rev. Stat. Ann. tit.
22, § 1711-C(2). The statute's "Enforcement" provision states, in
part:

           An individual who is aggrieved by conduct in
           violation of this section may bring a civil
           action against a person who has intentionally
           unlawfully disclosed health care information
           . . . .    The action may seek to enjoin
           unlawful disclosure and may seek costs and a
           forfeiture or penalty . . . .

      3The district court noted its understanding that Southern
Maine Health Care, referenced in Cayne's complaints, is the sole
shareholder of SMHC Physician Services, P.A. and also has operated
under the name of Southern Maine Medical Center. Med. Mut. Ins.


                               - 6 -
Endorsement" that extends coverage to "all individual physicians

listed   on    the     SCHEDULE   OF    SLOTS   ENDORSEMENT     and    working   as

employees or contractors of the NAMED INSURED."                       The policy's

Declarations Page labels the document as "A Modified Professional

Liability Policy -- Claims Made -- for Physicians and Surgeons,"

and   the     policy    itself    is    labeled   "Physicians     Comprehensive

Professional Liability Insurance Policy."               Burka was listed by

name on the "Schedule of Slot Coverage," and it is undisputed that

he was a covered physician between August 13, 2012 and August 25,

2015.

              The    Slot   Policy     Endorsement   includes    the     following

coverage agreement:

              Coverage afforded to insured physicians under
              this Policy is limited to CLAIMS arising from
              MEDICAL   INCIDENTS    or   from   NON-PATIENT
              INCIDENTS which result from their PROFESSIONAL
              SERVICES rendered within the scope of their
              duties as a physician employee or contractor
              of the NAMED INSURED . . . .

The coverage agreements of the Policy state, in pertinent part:

              A. MEDICAL INCIDENT Liability

              We agree to pay on your behalf DAMAGES and
              DEFENSE COSTS which you become legally
              obligated to pay due to any CLAIM made against
              you as a result of a MEDICAL INCIDENT as
              defined in this Policy . . . , provided that:




Co. of Me., No. 2:16-cv-462-GZS, 

, at *2 n.2 (D.
Me. Aug. 29, 2017). We have no need to distinguish among these
entities and use "SMHC" to refer to Burka's Maine practice group.


                                        - 7 -
               1. the MEDICAL INCIDENT results from your
          PROFESSIONAL SERVICES . . . .

          B. NON-PATIENT INCIDENT Liability

          We agree to pay on your behalf DAMAGES and
          DEFENSE COSTS which you become legally
          obligated to pay due to any CLAIM made against
          you as a result of a NON-PATIENT INCIDENT as
          defined in this Policy . . . , provided that:

               1. the NON-PATIENT INCIDENT results from
          your PROFESSIONAL SERVICES . . . .


     The Policy provides relevant definitions as follows:

          A. "CLAIM" means an oral or written demand
          against an INSURED for DAMAGES, and includes
          civil lawsuits . . . .

          B. "DAMAGES" means monetary sums not exceeding
          the Limit of Liability for which you are
          legally obligated to pay (including pre-
          judgment interest) to compensate for injury or
          death as a result of a MEDICAL INCIDENT
          . . . or as a result of a NON-PATIENT INCIDENT
          . . . .

          E.   "INSURED"   means   any   individual   or
          organization listed as the NAMED INSURED or as
          an Additional INSURED on the DECLARATIONS PAGE
          or on an Endorsement to this Policy. Other
          individuals or organizations might also be
          INSUREDS if they qualify as such under the
          Policy's Section III. INSUREDS.4

          F. "MEDICAL INCIDENT" means any act, failure
          to act, or omission in the furnishing of
          PROFESSIONAL SERVICES to a PATIENT by any
          INSURED. . . . .


     4 Section III sets out four categories of "INSUREDS."       Of
pertinence here is subsection C, which includes as insureds
"employees of the NAMED INSURED, but only for PROFESSIONAL SERVICES
rendered within their scope of duties as such."


                              - 8 -
             H. "NON-PATIENT INCIDENT" means an occurrence
             other than a MEDICAL INCIDENT which arises
             from PROFESSIONAL SERVICES provided by an
             INSURED and which results in a CLAIM for
             DAMAGES. . . . .

             I. "PATIENT" means any person for             whom any
             INSURED under this Policy directly             performs
             PROFESSIONAL   SERVICES   in   the            form   of
             healthcare treatment of that person.           . . . .

The   Policy's    definition        of     "professional    services"   is    of

particular    significance     to    the     parties'   contentions,    and   we

therefore reproduce it in full:

             J. "PROFESSIONAL SERVICES" means an INSURED's:

             1. healthcare services to a PATIENT performed
             in the practice of physician or surgeon,
             including the furnishing of food or beverages,
             the furnishing or dispensing of medical
             supplies or appliances and the handling and
             postmortem examinations of human bodies;

             2. services as a member of a hospital's or
             professional society's formal accreditation,
             peer   review,   credentialing,   privileging,
             standards   review   or   similar   board   or
             committee, including executing the directives
             of such board or committee;

             3.    obligation    to    maintain     PATIENT
             confidentiality in the handling of PATIENT
             records in the direct course of providing
             PROFESSIONAL SERVICES to that PATIENT;

             4. writing of books, papers, and articles
             relating to the technical aspects of medical
             practice if the same are published or
             distributed by a recognized technical or
             professional    publisher,     academic   or
             professional journal, or professional or
             technical society or association.




                                         - 9 -
              PROFESSIONAL SERVICES do not include your
              billing and coding activities; therefore,
              there is no coverage for any CLAIM arising out
              of such activities.     PROFESSIONAL SERVICES
              also do not include physical or electronic
              security measures designed to maintain the
              confidentiality of PATIENT records or any
              other records in the control of an INSURED;
              therefore, there is no coverage for CLAIMS
              based on actual, possible or alleged identity
              theft arising from your failure to adequately
              implement such security measures.

                                        II.

A. The District Court Proceedings

              MMIC   filed   the   operative   amended   complaint     in   this

action in November 2016, seeking a declaration that it does not

have a duty to defend Burka in the Maryland and Maine lawsuits.

Burka subsequently moved for partial summary judgment, asking for

the opposite declaration -- i.e., that MMIC does have a duty to

defend him in the two lawsuits.5          MMIC moved to defer the court's

ruling   on    Burka's   motion    so   that   the   company   could   conduct

discovery on whether Burka was covered by the Policy when he

allegedly accessed Cayne's medical records.              Alternatively, MMIC

asked for summary judgment in its own favor.

              The district court issued two separate rulings on MMIC's

declaratory judgment claim.         In its initial ruling, the court held

that MMIC had no duty to defend the Maryland action, noting that


     5 Burka had filed a counterclaim requesting that declaration,
and he also sought an award of attorney's fees incurred in
defending the underlying actions.


                                     - 10 -
it could "discern no potential for coverage under the Policy."

Med. Mut. Ins. Co. of Me. v. Burka, No. 2:16-cv-462-GZS, 

, at *5 (D. Me. May 3, 2017) ("Burka I"). The court observed

that the claims in the Maryland action are not based on Burka's

conduct   in    Maine,   and   the    Policy    covers   only   "professional

services" furnished by physicians working within the scope of their

duties for SMHC.         

court acknowledged "some

ambiguity in the definition of 'professional services' in the

Policy," it concluded that "there is no potential that facts will

be developed at trial that would connect Dr. Burka's provision of

'professional services' under the Policy, however that term is

defined, with the alleged conspiracy to access Allison's medical

records at Washington, D.C.-area medical facilities seemingly

unaffiliated with SMHC at a time when Allison was no longer living

in Maine."      Id.6

             With respect to the Maine lawsuit, the court held that

MMIC had no duty to defend going forward because the Policy limits

the   defense    obligation    to    claims    for   damages,   and   the   only

remaining cause of action -- based on the Maine statute -- did not

include damages as a remedy.          See supra note 2 (quoting Me. Rev.




      6The district court also noted its understanding that Burka
did not "seriously contend that the allegations in the Maryland
suit concerning Howard and Caroline Cayne, Allison's co-plaintiffs
and parents, are sufficient to trigger a duty to defend." Burka
I, 

, at *5 n.8.


                                     - 11 -
Stat. Ann. tit. 22, § 1711-C(13)(B)).              However, the court held

that it could not yet determine whether Burka was entitled to

coverage for his defense costs for the period before the claims

seeking damages were dismissed.         Burka I, 

, at *6

n.10.   Accordingly, the court granted partial summary judgment for

MMIC, holding that it "does not have a duty to defend the Maryland

suit and does not have a duty to defend the Maine suit to the

extent it only states a claim under 22 M.R.S.A. § 1711-C(13)(B)."

             In response to the court's ruling, Burka filed a motion

for amendment and/or clarification, which the court treated as

another motion for partial summary judgment -- this time addressing

the question of whether the insurer ever had a duty to defend the

Maine suit.    Med. Mut. Ins. Co. of Me. v. Burka, No. 2:16-cv-462-

GZS, 

, at *4 (D. Me. Aug. 29, 2017) ("Burka II").

In its decision on that motion, the court again observed that the

Policy's definition of "professional services" is imperfect --

deeming it "circular in that it includes the term 'professional

services.'"     

  Nonetheless, the court said it "cannot

divine,   without     resorting    to      undue     speculation,   reading

allegations in or out of the Complaint, or ignoring the intention

of the parties as expressed in the Policy's clear language, how

Allison's claims in the Maine suit arose 'in the furnishing of' or




                                  - 12 -
'in the direct course of providing' her professional services."

explained its conclusion, in part, as follows:

            Simply put, there is no ambiguity that the
            provision of professional services is a
            central component of any covered claim.
            Further,   any    common   understanding   of
            "professional services" would not encompass a
            physician maliciously and surreptitiously
            accessing a patient's medical records for the
            sole purpose of harassing, threatening, or
            embarrassing that patient based on a spousal
            relationship.

thus held that MMIC "never had a duty to defend the

Maine suit."    

on Appeal

            Burka's challenge to the district court's judgment rests

primarily on two propositions: (1) under Maine law, the duty to

defend is extremely broad, and (2) "professional services" as

defined in the Policy embraces a meaning that could cover the

allegations in the complaints.      Burka maintains that the court

improperly focused on allegations in the state-court complaints

concerning improper motivation to conclude that there was no

potential for any of Cayne's claims to fall within the Policy's

coverage.     Asserting that his motivation is irrelevant, Burka

states that "coverage turns on Allison's allegations that [he]

intentionally accessed her medical records without her permission

and that she suffered damages as a result."      He emphasizes that


                               - 13 -
the Policy's definition of "professional services" reflects an

"intent to provide coverage for claims related to the handling of

a patient's confidential records."        Because "[t]hat is precisely

the claim made against [him]," Burka asserts, "[t]he duty to defend

is obvious."

           Moreover, Burka argues, any uncertainty about coverage

should have been resolved in his favor because Maine law gives

wide scope to the duty to defend and also directs that ambiguities

in insurance policies be construed in favor of the insured. Hence,

given that the district court found the definition of "professional

services" to be ambiguous, he argues that the Policy should be

construed to cover both the Maryland and Maine actions because

both allege harm from his flawed performance of an explicitly

covered professional task: "maintain[ing] confidentiality in the

handling of patient records."

           MMIC counters that the district court's reading of the

complaints and the Policy was on target: MMIC has no duty to defend

either state lawsuit because the underlying pleadings do not seek

to impose liability for conduct by Burka that even potentially

occurred   "in   the   direct   course    of   providing   [the   Caynes]

PROFESSIONAL SERVICES" or within the scope of his duties as an

employee of SMHC.




                                 - 14 -
                                          III.

                We can readily agree with Burka that Maine employs an

expansive concept of the duty to defend.                    See, e.g., Barnie's Bar

& Grill, Inc. v. U.S. Liab. Ins. Co., 

, 615 (Me. 2016)

("We   have     consistently       applied       a    broad    construction          of   the

underlying      complaint     in    favor    of       the     insured    and    a    strict

construction of policy exclusions and ambiguities against the

insurer.").       Despite its breadth, however, the duty to defend in

Maine is not unbounded.             The Maine Supreme Judicial Court has

cautioned against reading its "body of case law" to "oblig[e]

courts    to    conjure      the   duty     to       defend    from     speculation        or

supposition."      

         thus       requires      a     realistic

application       of   the    "comparison         test,"       in   which      the    court

"examine[s] the underlying complaint for any potential factual or

legal basis that may obligate the insurer to defend the insured,

even the mere 'intent to state a claim within the insurance

coverage.'"       

(quoting Lavoie v. Dorchester Mut. Fire

Ins. Co., 

, 571 (Me. 1989)) (emphasis and citation

omitted).      In making that examination, the court may neither "read

extrinsic facts or allegations into an underlying complaint" nor

"selectively read facts or allegations out of that complaint in

order to conclude that the insurer has a duty to defend."                            

-17.


                                      - 15 -
            We consider it undisputed in this case that coverage --

and thus the duty to defend -- turns on whether Burka's alleged

access to the Caynes' medical records could potentially fall within

the Policy's definition of "professional services."         That is so

because the Slot Policy Endorsement, which extends the Policy to

named physicians, states that coverage is provided for claims

arising from incidents that "result from [the covered physicians']

PROFESSIONAL SERVICES rendered within the scope of their duties as

a physician employee or contractor of" SMHC.           No other Policy

provision broadens the coverage beyond "professional services,"

and,   indeed,   the   Policy   is   identified   as    a   "Physicians

Comprehensive Professional Liability Insurance Policy." (Emphasis

added.)

            Hence, to answer the coverage question -- and thus to

determine whether MMIC has a duty to defend -- we must consider

whether the allegations reveal "any potential factual or legal

basis," 

, for concluding that Burka's

actions "result from . . . PROFESSIONAL SERVICES rendered within

the scope of [his] duties as a physician employee or contractor

of" SMHC.    As we shall explain, we agree with the district court

that a sensible reading of the Policy, together with a fair reading

of the complaints, does not permit such a conclusion.         We begin

with our interpretation of the Policy and then review why the

allegations fall outside the scope of its coverage.


                                - 16 -
A.   Reading the Policy

            Burka's allegedly improper access to, and use of, the

Caynes' medical records would be covered under the Policy, if at

all, within the category of "professional services" that the Policy

describes as the "obligation to maintain PATIENT confidentiality

in   the   handling    of   PATIENT     records       in   the    direct    course    of

providing     PROFESSIONAL       SERVICES        to    that      PATIENT."          This

description appears as one of four types of "professional services"

listed within the definition of that term.

            We    acknowledge     the    poor    drafting        of   the   Policy    in

defining "professional services."             A definition that uses the term

that is being defined -- i.e., defining "professional services" as

maintaining confidentiality in providing "professional services"

-- is far from ideal.       In context, however, the circularity in the

definition does not beget ambiguity.              The Policy makes clear that

the confidentiality obligation covers only records relating to

patient interactions because that term is used three times in the

confidentiality provision to define and limit the coverage.                          In

addition,    the      phrase    "in     the    direct      course      of    providing

PROFESSIONAL       SERVICES"      specifies       that      the       confidentiality

obligation exists only in relation to one or more of the four

listed professional services covered by the Policy. Only two items

on   the   list   involve      patients:      "healthcare        services"    and    the

confidentiality obligation.             But we cannot reasonably conclude


                                        - 17 -
that the confidentiality provision covers itself -- i.e., that the

Policy covers an insured for breaching the obligation to maintain

confidentiality in the handling of patient records in the direct

course of providing [the professional service of] maintaining

confidentiality in the handling of the patient's records.                Such a

reading would be nonsensical.

             In    context,   then,        the   reference   to    "PROFESSIONAL

SERVICES" in the confidentiality provision necessarily refers only

to the other professional service provided to patients -- i.e.,

healthcare services -- despite the Policy's failure to say so

expressly.    In addition, the definition of "professional services"

ties the covered confidentiality obligation to the physician's

provision of healthcare services to the particular patient whose

medical records are at issue.               Put another way, a physician's

alleged breach of confidentiality is covered if it arises "in the

direct course of providing [healthcare services] to that PATIENT"

-- i.e., the patient alleging the breach.              (Emphasis added.)

             The Policy's definition of "patient" confirms that a

doctor-patient      relationship      is    an   essential   component   of   the

confidentiality obligation.        Under the Policy, a "PATIENT" is "any

person for whom any INSURED . . . directly performs PROFESSIONAL

SERVICES in the form of healthcare treatment of that person."                 The

Policy's definitions thus describe a covered claim of improper

disclosure    of    medical   records        (implicating    the   professional


                                      - 18 -
service of maintaining confidentiality) as one in which the alleged

mishandling occurs "in the direct course" of the insured's carrying

out   the   professional      service   of    "healthcare    treatment."      By

definition, then, whether an alleged breach of confidentiality is

covered depends on whether the accused doctor has treated the

complaining patient.

             The Slot Policy Endorsement, the portion of the Policy

that expressly extends coverage to individually named physicians,

confirms this reading of the definitions and coverage.                       The

relevant portion of the Endorsement limits coverage to "CLAIMS

arising     from    MEDICAL   INCIDENTS      . . . which    result   from   [the

covered physicians'] PROFESSIONAL SERVICES rendered within the

scope of their duties as a physician employee or contractor of the

NAMED INSURED."7       A "MEDICAL INCIDENT," pursuant to the Policy's

definitions, occurs "in the furnishing of PROFESSIONAL SERVICES to

a PATIENT."        And, as we have ascertained, when the professional

service underlying the "incident" is the obligation to maintain

the confidentiality of medical records, the conduct at issue must

have occurred "in the direct course" of a patient's treatment.




      7The omitted text refers to "NON-PATIENT INCIDENTS." In his
opening brief, Burka states that it does not matter whether Cayne
was Burka's patient because "the policy covers incidents both with
patients and non-patients."     As detailed above, however, the
confidentiality obligation applies only to patients.


                                    - 19 -
             We thus find no ambiguity in the scope of coverage for

claims   based     on    the   "professional   service"    of   "maintain[ing]

PATIENT confidentiality in the handling of PATIENT records."              The

only reasonable interpretation of the Policy's provisions is that

an insured's alleged mishandling of patient records is covered

only if that behavior occurred "in the direct course" of the

insured's provision of healthcare services to the patient claiming

the breach.      See State Farm Mut. Auto. Ins. Co. v. Montagna, 

, 408 (Me. 2005) ("When the . . . policy is interpreted as

a   whole,    it    is     not    reasonably    susceptible     to   different

interpretations, and therefore it is not ambiguous.").

             In his brief on appeal, Burka does not fully reject this

understanding of the Policy's terms.           Although he at times appears

to suggest that the Policy should be construed to cover the

"mishandling of patient records" by any insured physician at SMHC

-- whether or not that physician is the particular patient's own

provider8 -- he elsewhere acknowledges the necessary tie between a

doctor's     confidentiality       obligation    and      the   doctor-patient

relationship. He points out that under both the Maine and Maryland




     8 This contention is implied, for example, in the following
statements from Burka's brief (with our emphasis added): "It
appears that Allison, a patient of an insured, is alleging that
Dr.   Burka,  a   covered  insured   physician,  mishandled   her
confidential patient records.   If proved, Allison's allegations
could potentially give rise to coverage under the MMIC Policy."


                                     - 20 -
statutes    governing    disclosure       of     health    care       information,

"evidence is required that the claimants were patients of Dr.

Burka," and he subsequently reiterates that "the required proof

for the critical claims is solely mishandling of medical records

by the claimants' doctor."        (Emphasis added.)            He then observes:

"The   relevant   aspects   of    the   proof     needed       to   establish   the

underlying claims, in short, precisely match the coverage provided

relative to the 'obligation to maintain patient confidentiality in

the handling of patient records.'"             In other words, this final

statement declares that the Policy's coverage "match[es]" the

proof required by the statutes, which he previously described as

including a showing that "the claimants were patients of Dr.

Burka."

            Notwithstanding      this     depiction       of    the    Policy    as

requiring a doctor-patient relationship, Burka falls back on his

assertion of ambiguity in the "professional services" provision to

argue that the scope of coverage in any event remains elusive and

that, accordingly, the Policy must be construed in his favor.                    He

acknowledges that whether the Caynes' allegations add up to a

covered    "medical   incident"    (per    the    Slot    Policy      Endorsement)

depends on whether the alleged accessing of their records was

committed in the furnishing of "professional services."                   But the

latter term, he maintains, is ambiguously defined, and the insurer

therefore has a duty to defend against the claims.


                                   - 21 -
            As our discussion above reveals, a close review of the

Policy terms belies the contention of ambiguity in the definition

of professional services or the Policy's coverage for claims

premised on the mishandling of patient records.                  Accordingly,

moving from the Policy to the complaints, the coverage question

becomes whether the allegations in the complaints present "any

potential   factual    or   legal   basis"   for   a   finding    that   Burka

improperly accessed or disclosed Cayne's records at SMHC in the

direct course of providing her healthcare services.          

(emphasis omitted).       The question is not whether Cayne

was a patient of any doctor at SMHC, but whether Burka's alleged

mishandling of records stemmed from his own provision of healthcare

services to her.

B.   Reading the Complaints

            1.    The Maryland Complaint

              Like the district court, we can discern no potential

basis in the Maryland complaint for coverage under the Policy,

which is limited to Burka's conduct within the scope of his

employment at SMHC. The sole reference to Burka's actions in Maine

is contained in paragraph 14, reproduced in full above.                    See

Section I.A.       The complaint offers no details concerning that

conduct, instead seeming to present the information -- including

the fact that "a separate lawsuit" was filed in Maine -- solely as

background.      By contrast, the subsequent paragraphs detail Burka's


                                    - 22 -
alleged actions in accessing the Caynes' records within the Johns

Hopkins Health System ("JHHS"), whose hospitals are located in

Maryland and Washington, D.C.         The complaint's four counts allege

violations of Maryland statutory law, common law (invasion of

privacy, civil conspiracy, and intentional infliction of emotional

distress),     and   the   federal     Health   Insurance   Portability    &

Accountability Act.

          Given the unelaborated statements relating to Maine, and

the specificity of the allegations concerning access to JHHS

records, paragraph 14 is only reasonably read to say that the

asserted access to records in Maine is covered by a different

lawsuit and not the Maryland action.          In any event, there would be

no coverage for any Maine-based conduct in the Maryland action for

the same reasons, discussed below, that Burka is not entitled to

a defense in the Maine action.           Accordingly, we agree with the

district court's determination that the Policy does not entitle

Burka to a defense in the Maryland action.

          2.    The Maine Complaint

         As    described    above,     the    allegations   in   the   Maine

complaint unquestionably would permit a factual finding that Cayne

received medical care at SMHC and that Burka was covered by the

Policy at the time he allegedly accessed her medical records there.

The question remains, however, whether the allegations offer "any

potential factual . . . basis" for a finding that Burka's alleged


                                     - 23 -
mishandling of Cayne's records occurred "in the direct course of"

his provision of healthcare services to Cayne at SMHC.

          We see no such possibility in the complaint.               The

pleading does not merely omit any reference to a doctor-patient

relationship between Burka and Cayne; its allegations directly

contradict a professional association between them.        We note, in

particular,   Cayne's    assertion   that   Burka's   actions   involved

unauthorized access to her medical records in Maine and improper

disclosure to himself.    The allegation that Burka was not entitled

even to see her records leaves no room for a factual finding that

he was involved in her medical treatment.       Indeed, the complaint

depicts his actions as solely animated by his personal objectives.

Accordingly, the complaint unequivocally places Burka's alleged

improper access to, and disclosure of, Cayne's medical records

outside the Policy's coverage.9

          Burka's contention that the district court erred by

highlighting the Maine complaint's allegations of bad faith is


     9 To the extent Burka is suggesting that we must construe
Cayne's complaints to potentially allege a doctor-patient
relationship because the statutes she invokes require such a
relationship, we reject that assertion. The legal sufficiency of
her complaints is a separate issue from whether the comparison
test reveals a duty to defend under the Policy. See Mitchell v.
Allstate Ins. Co., 

, 879 (Me. 2011) ("An insurer may
have a duty to defend even against a complaint that could not
survive a motion to dismiss."). And here, as we have explained,
the complaint's express allegations do not leave room for an
inference of a doctor-patient relationship. To be clear, we note
that we offer no view on the scope of either state statute.


                                - 24 -
thus off the mark.       It is true, as Burka points out, that a

violation of Maine's medical-records confidentiality provision

does not require a showing of maliciousness, and the trial of such

a claim therefore need not "involve discussion of the alleged

access being malicious or surreptitious."       But Burka goes beyond

the bounds of the Policy when he suggests that a potential for

coverage exists without regard to the context in which he accessed

his ex-wife's records.

           Burka insists that a determination of no-coverage would

be at odds with forty years of Maine precedent, in which the vast

majority of all duty-to-defend disputes have been resolved in favor

of the insured.    He reports that in nearly all of the cases in

which no duty was found, the alleged conduct fell within an

unambiguous policy exclusion.    He cites, for example, Barnie's Bar

& Grill, where the Maine Supreme Judicial Court held that the

insurer had no duty to defend a bar in an action brought by a

patron who had been injured by another bar customer.           

.   The court reasoned that all of the claims were based on

assault and battery, and the policy expressly excluded such claims.

See 

see also, e.g., York Golf & Tennis Club v. Tudor

Ins. Co., 

, 1177 (Me. 2004) (finding no duty to defend

a complaint seeking a remedy for slander because the policy

excluded coverage for libel and slander claims).         Burka draws from

this   precedent   the   proposition   that,   "unless    [a    claim   is]


                                - 25 -
specifically excluded, the insurer owes its insured a defense."

He asserts that, because there is no applicable policy exclusion

here, and "critical aspects of the policy language are ambiguous,"

he is entitled to a defense.

            The imbalance in the number of cases finding a duty to

defend as compared to those that find no duty does not, however,

give rise to the principle Burka extracts from the disparity.   An

applicable exclusion is one way to negate the duty-to-defend, but

allegations also may simply fall outside a policy's affirmative

coverage.   See, e.g., 

(noting the need to

determine if a complaint's allegations potentially provide a basis

for damages resulting from an "occurrence" within the meaning of

the insurance policy); Gibson v. Farm Family Mut. Ins. Co., 

, 1353 (Me. 1996) (finding a duty to defend a claim

exposing the insureds to damages for a loss "within the policy

definition of 'property damage' resulting from an unintentional

act within the policy definition of an 'occurrence'").     Indeed,

the Maine Supreme Judicial Court's directive against "conjur[ing]

the duty to defend from speculation or supposition" hints at a

concern that its broad doctrine is susceptible to over-extension.

Barnie's Bar & 

.   Put simply, the obligation

to resolve doubts in favor of the insured does not mean that courts

should make generalized assumptions in favor of coverage.     Each

case requires particularized scrutiny, and "the comparison test is


                               - 26 -
limited to the language of the underlying complaint and the

insurance policy."     

.

           In this case, that comparison reveals no potential for

coverage. To reiterate our conclusion, under the affirmative terms

of the Policy, coverage depends on whether the allegedly improper

access to, and disclosure of, Cayne's medical records occurred in

the course of professional services -- specifically, healthcare

services -- provided by Burka to Cayne.        The duty to defend Burka

thus   requires   a   relationship    of   doctor   to   patient   that   is

emphatically denied by the complaint's allegations and, hence,

could only be "conjure[d] . . . from speculation or supposition."

see also 

("Except in rare circumstances, we

will not consider facts extrinsic to the underlying complaint nor

will we read allegations into the complaint in determining whether

the insurer has a duty to defend." (citation omitted)).

           We therefore conclude that MMIC is not obligated to

defend Burka in the Maine action.

                                     IV.

           Having found that MMIC has no duty to defend Burka in

either the Maryland or Maine proceedings, we affirm the district

court's summary judgment in MMIC's favor.

           So ordered.




                                - 27 -