MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, Chief Judge.

Pending before the court are the defendant's motion for summary judgment [Docket 91], cross-motion for summary judgment [Docket 100 (by way of response) ], and motion to exceed page limit [Docket 90]. Also pending are the plaintiff's motions for summary judgment [Dockets 92, 94, and 97]. For the following reasons, the defendant's cross-motion for summary judgment [Docket 100] and motion to exceed page limit [Docket 90] are GRANTED. The defendant's motion for summary judgment [Docket 91] is GRANTED in part and DENIED in part. The plaintiff's motions [Dockets 94, 97] are DENIED. The plaintiffs motion as to Boggs IV [Docket 92] is also DENIED as premature, and the claims regarding Boggs IV are DISMISSED without prejudice.

I. Background

A. The Boggs Suits

In September 2001, Hilda Boggs was admitted to Camden-Clark Memorial Hospital ("Camden-Clark") for surgery related to a broken ankle. Seven days later, she died. On June 30, 2003, Bernard R. Boggs ("Boggs"), individually and as administrator of the Estate of Hilda Boggs, filed a complaint in the Circuit Court of Wood County, West Virginia, asserting wrongful death and intentional tort claims. See Bernard R. Boggs, as Administrator of the Estate of Hilda Boggs, deceased as personal representative of the statutory beneficiaries of the wrongful death claim herein asserted and in his own right v. Camden-Clark Mem. Hosp. Corp., United Anesthesia, Inc., and Manish I. Koyawala, M.D., Civ. Action No. 03-C-296 ("Boggs II").1 The complaint alleged that Camden-Clark, United Anesthesia, Inc., and Dr. Manish Koyawala breached the applicable standard of care, which resulted in Hilda Boggs's death. Specifically, Boggs alleged that the defendants over-sedated Hilda Boggs prior to administering anesthesia, inappropriately dosed hyperbolic lidocaine, and inadequately monitored her. Boggs also alleged negligent hiring, retention, and privileging; destruction or despoliation of evidence; falsification of medical records; fraudulent concealment; and fabricating or falsifying evidence on the part of Camden-Clark.

The resulting procedural history is quite convoluted but undisputed by the parties. On October 20, 2003, the state court dismissed Boggs II for failure to comply with certain pre-suit requirements. Boggs appealed the court's dismissal. While the appeal was pending with the West Virginia Supreme Court, Boggs filed a third state court lawsuit, Civil Action No. 03-C-623 ("Boggs II"), to protect the statute of limitations. On May 4, 2004, attorney for Camden-Clark, Richard Hayhurst, filed an answer and counterclaim to Boggs III. Seven months later, on December 8, 2004, the Supreme Court reversed the Boggs II dismissal, and Boggs filed an amended complaint in that action, which effectively mooted the Boggs III claim. Hayhurst filed another answer and counterclaim to the amended complaint in Boggs II on May 23, 2005. Both counterclaims filed by Hayhurst, which are substantively identical, alleged that Boggs's suits were frivolous and without merit. Although the counterclaims were eventually voluntarily dismissed without prejudice, Boggs nonetheless filed another action in state court on September 29, 2005, alleging that the counterclaims in Boggs II and III constituted malicious prosecution and/or abuse of process. That action is styled Boggs v. Camden-Clark Memorial Hospital Corporation, Civil Action No. 05-C-527 ("Boggs IV"). It remains pending in state court.

Dr. Koyawala and United Anesthesia settled out of court prior to the trial, agreeing to pay Boggs $2,000,000. Boggs II proceeded to trial on February 28, 2006, against Camden-Clark alone. Boggs presented evidence of medical negligence by Dr. Koyawala and Evelyn Melvin, a nurse anesthetist, and he also argued that the hospital instructed Camden-Clark employees to destroy Hilda Boggs's medical records, misled Hilda Boggs's family, directed witnesses to lie under oath, and otherwise falsified medical records and evidence. The totality of this conduct, Boggs argued, rose to the level of the tort of outrage.

On March 10, 2006, the jury returned a verdict that found and awarded the following: (1) that Camden-Clark fraudulently concealed information about Hilda Boggs's death from Boggs and awarded $100,000 in damages for fraudulent concealment; (2) that Camden-Clark's conduct toward Boggs was so outrageous that a reasonable person could not have been expected to endure it, and awarded Boggs $250,000 for past emotional distress, and $125,000 for future emotional distress; (3) that Camden-Clark was negligent toward Hilda Boggs and that such negligence was a proximate cause of Hilda Boggs's death; (4) that Boggs and the statutory beneficiaries of the wrongful death claim were entitled to a total of $1,570,000 in damages; and (5) that the conduct of Camden-Clark was so outrageous, wrongful, or intentional that punitive damages should be awarded against Camden-Clark in the amount of $3,000,000.2 The net judgment award entered against Camden-Clark was $4,834,380.3

On the tort of outrage award, the jury verdict form asked only the following question: "Do you find that Camden-Clark Memorial Hospital's conduct toward Ray Boggs was so outrageous that a reasonable person could not have been expected to endure it?" The jury answered "Yes," and awarded Boggs $250,000 in past emotional distress and $125,000 in future emotional distress.

On the punitive damages award, the jury verdict form asked only the following questions: "Do you find that conduct of Camden-Clark Memorial Hospital separate and apart from any conduct of Dr. Koyawala or Evelyn Melvin was so outrageous, wrongful or intentional that punitive damages should be awarded?" The jurors answered "Yes." The form then asked "What amount of punitive damages do you award against Camden-Clark Memorial Hospital?" The jurors answered "$3,000,000.00."4

B. The Insurance Policy

At the time of the actions giving rise to Boggs II, Camden-Clark was insured by the defendant in this case, St. Paul Fire and Marine Insurance Co. ("St. Paul"), under a Health Care Medical Professional Commercial General Liability Protection policy, bearing the policy number 566XM2102 (the "Policy"). The Policy's effective dates were July 1, 1999, to July 1, 2002. The Policy provides three separate types of coverage: basic coverage, excess coverage, and umbrella insurance.

The basic coverage provides $1,000,000 for "medical professional injury," "bodily injury and property damage," "personal injury liability," and "advertising injury." (Policy [Docket 96-2] at 1102-1104.) Under the "medical professional injury" provision, St. Paul agreed to cover "amounts any protected person is legally required to pay as damages for covered medical professional injury that results from health care professional services provided, or which should have been provided" by a protected person. (Id. at 1102.) The Policy does not contain an exclusion for punitive damages, but it does contain an exclusion for "bodily injury or property damage that's expected or intended by the protected person." (Id. at 1118.) The Policy also contains a $2,000,000 self-insured retention ("SIR").5 The excess coverage provides the same coverage as the basic coverage, but with a $15,000,000 limit for damages incurred in excess of those covered by the basic coverage. It also provides excess insurance for automobile liability and employer's liability insurance. The umbrella insurance provides some instances of coverage where there is no underlying coverage and contains a $10,000 deductible.

On March 4, 2002, Camden-Clark notified St. Paul that the Boggs action was filed, and St. Paul opened a file on the case and assigned a case manager one month later. Based on an understanding that the verdict would likely not reach the SIR limit, however, St. Paul closed the file in early June 2002. But soon thereafter, St. Paul reopened the case file based on a June 20, 2002 letter from Camden-Clark's lawyer, Hayhurst, stating that he "could not guarantee that the excess liability layer would not be exposed." (Hayhurst Letter [Docket 97-8].) The case proceeded through the procedural permutations discussed above, and Boggs II survived as the main case for which Camden-Clark had a potential claim for coverage.

On December 27, 2005, two months before trial and over three years after St. Paul reopened the case file, Samuel McEwen, St. Paul's Director of Major Case Liability, sent a reservation of rights letter to Sherry Johnston, Camden-Clark's Director of Risk Management. (See McEwen Letter [Docket 97-2].) McEwen stated that St. Paul "will continue to monitor this matter [the Boggs II suit] subject to the reservation of rights set forth below." (Id. at 1.) St. Paul, through McEwen, reserved its right to deny indemnification "for any punitive damages which are awarded to the Plaintiff because of intentional acts by the named insured and/or which arise from, non-covered damages such as spoliation of evidence." (Id. at 5-6.) Finally, the letter advised that St. Paul reserved its "rights to limit or deny coverage on the basis of any other grounds." (Id. at 6.)

After judgment was entered in Boggs II, St. Paul hired attorney Michael Farrell to perform an "interim coverage analysis" based on the insurance policies, the state court complaint, the jury instructions, the verdict form, and several other documents. Farrell sent his conclusions to Camden-Clark's counsel in a letter dated July 18, 2006. (See Farrell Letter [Docket 25-7].) Farrell opined that while "the death of Mrs. Boggs does qualify as a medical professional injury" as defined in the Policy, "the Fraudulent Concealment verdict does not constitute a medical professional injury, personal injury, advertising injury, bodily injury or property damage," and, accordingly, St. Paul did not have a duty to indemnify Camden Clark regarding that cause of action. (Id. at 9.)

Farrell also stated that the verdict on the outrage claim was not covered by the Policy for the same reason—it did not fall within the scope of coverage. (See id.) Finally, Farrell concluded that based on the "Jury Instructions, Jury Verdict, Journal Order and Judgment Entry and related memoranda submitted by the parties," the $3,000,000 punitive damages award was based on Camden-Clark's conduct in destroying records, misleading Hilda Boggs's family, and covering up her cause of her death. (Id. at 11.) Because this conduct does not fall within medical professional injury, personal injury, advertising injury, or bodily injury or property damage, Farrell reasoned, it was not covered by the Policy, and St. Paul had no duty to indemnify Camden Clark for the punitive damages. (Id.)

In response to Farrell's letter, Anita Casey, counsel for Camden-Clark, sent a letter regarding coverage to Laura Toregas, St. Paul's new Director of Major Case Liability. (See Casey Letter [Docket 25-8].) Camden-Clark disagreed with Farrell's analysis. Casey stated that while it was unclear whether damages for fraudulent concealment and outrage would be covered or excluded under the Policy, "it is... well-settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured." (Id. at 4.) Casey also pointed out that "there is no exclusion in the policy for the payment of such [punitive] damages." Accordingly, she asserted, the $3,000,000 should be covered under the Policy. (Id.)

Casey further criticized Farrell's analysis because it was allegedly "not based upon any determination by the jury or ruling by the court but appears to be based upon self-serving arguments set forth in Plaintiff's Opposition to the Hospital's Proposed Judgment Order." (Casey Letter 6.) The letter concluded with a promise that if St. Paul failed to reconsider its coverage position, Camden-Clark was prepared to bring a declaratory judgment action against St. Paul and seek damages for "net economic loss caused by the delay in settlement, as well as an award for annoyance and inconvenience on the part of the hospital." (Id. (internal quotation marks omitted).)

C. The Federal Action

Staying true to its word, Camden-Clark filed this action on December 1, 2006, seeking a declaration that St. Paul owes a duty to provide coverage to and indemnify Camden-Clark under the Policy "for all the allegations asserted and damages awarded against it in the underlying matter." (Compl. 8). The complaint also seeks attorney's fees and defense costs incurred in the litigation and defense of the underlying matter and in this action; damages for net economic loss caused by delay in settlement of the coverage issues under the Policy; damages for annoyance and inconvenience under Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W.Va. 323, 352 S.E.2d 73 (W.Va.1986); attorney's fees and costs for the appeal of this matter to the West Virginia Supreme Court of Appeals; and any additional damages available for St. Paul's "bad faith in handling of this claim and its denial of coverage." (Compl. 8-9).

Camden-Clark moved for partial summary judgment on November 21, 2007 [Docket 21], arguing that St. Paul's denial of coverage for the award of punitive damages was erroneous under the Policy's basic or excess coverage. Because issues of state law governed the resolution of the summary judgment motions, on February 20, 2008, the court certified two questions to the West Virginia Supreme Court of Appeals. The court explained,

Camden-Clark Mem. Hosp. Corp. v. St. Paul Marine & Fire Ins. Co., No. 6:06-cv-1013 at 9-10 (S.D.W.Va. Feb. 20, 2008) [Docket 50]. Accordingly, the court certified the following questions to the state Supreme Court:

Id. at 10.

The case was stayed until the West Virginia Supreme Court answered the certified questions. On June 25, 2009, the court answered the questions as follows:

Camden-Clark Mem. Hosp. Corp. v. St. Paul Fire & Marine Ins. Co., 224 W.Va. 228, 682 S.E.2d 566, 577 (2009) (the "State Court Opinion") (emphasis added). The State Court Opinion also provided an exception to this general rule:

Id. at 576-77 (emphasis added) (the "Exception").

The stay was lifted on August 26, 2009, and the parties proceeded with discovery. The parties filed respective motions for summary judgment on March 30, 2010. They are now ripe for review.6

II. Standard of Review

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. Discussion

There are three separate issues to be addressed in the parties' summary judgment motions: (1) in light of the State Court Opinion, who has the burden of proving that coverage exists or does not exist on all disputed claims under the terms of the Policy, (2) whether the Policy's umbrella insurance provides coverage for the disputed claims, and (3) whether the Policy covers potential damages in the Boggs IV state action. I will address each in turn.

A. Who Has the Burden to Prove Existence of Coverage, and is the Burden Met?

Some damages awarded against Camden-Clark are types of damages covered by the Policy; i.e., damages for wrongful death awarded to the beneficiaries of the estate and prejudgment interest.7 By their motions, however, the parties dispute coverage on the following damages: $100,000 awarded for fraudulent concealment; $375,000 awarded for outrageous conduct; and $3,000,000 awarded in punitive damages against Camden-Clark.

The party with the burden is charged with showing whether the damages awards arose from "medical professional injury that results from health care professional services" to Hilda Boggs (in which case the damages are covered under the Policy), or whether the damages fit the intentional act exclusion for "bodily injury or property damage that's expected or intended by" Camden-Clark (in which case they are not). (Policy at 1118.)8 Because the jury verdict form did not ask for a verdict that is allocated based on negligent versus intentional conduct, however, the party with the burden will have no way of meeting it. The court now turns to a discussion of who shoulders this burden.

1. Camden-Clark has the burden to prove existence of coverage.

It is undisputed that the Policy imposes no duty to defend upon St. Paul. (See Policy at 1104 ("[W]e have no duty to investigate or defend any claim or suit or perform other acts or services under this agreement, even if the amount of damages or claim expenses exceeds the self-insured retention that applies.").)9 It is also clear that Camden-Clark controlled the defense in Boggs II. The parties disagree, however, on whether St. Paul fits the Exception. If so, then St. Paul has the burden to prove non-coverage. If not, Camden-Clark has the burden to prove coverage. Looking to the language of the State Court Opinion, this issue boils down to two important questions: whether Camden-Clark requested that St. Paul participate in its defense in Boggs II, and if so, whether St. Paul affirmatively chose not to participate.

The State Court Opinion is not in any way equivocal about the requirements for the Exception. It is clear that if (1) the insured "requests the insurer to participate in the defense," and (2) the insurer "affirmatively chooses not to participate in the defense," then the insurer will carry the burden of proving non-coverage. Camden-Clark, 682 S.E.2d at 576-77. In this case, there is no evidence that Camden-Clark requested that St. Paul participate in the defense, and no evidence that St. Paul declined to participate after such a request.

First, Camden-Clark provides no evidence that it asked St. Paul to participate in the defense of Boggs II. The following excerpt from Hayhurst's deposition, in fact, indicates that no such evidence exists:

(Hayhurst Dep. 80:5-8, 16-25; 81:1-8 [Docket 97-10]). Camden-Clark argues that the level of involvement on the part of St. Paul was so significant that "there was no need to make a formal request for St. Paul to participate, because they were already participating in the defense of [Boggs II]." (Id. at 81:13-17.) It cites several examples of this involvement. (See Mem. Supp. Pl.'s Mot. Summ. J. Burden of Proof 5-13.) None of this evidence, however, rises to the level of a "request" on the part of Camden-Clark. The record shows that St. Paul did nothing more than closely monitor an insured's potential claim, while sometimes supplying advice and suggestions.

Furthermore, even if there were a request, there is absolutely no evidence of St. Paul's declination of it. Camden-Clark asks this court to expand the State Court Opinion to cover a situation where an insured simply kept in very close contact with an excess insurer about a potential claim. The court declines to do so.

Therefore, because St. Paul did not have a duty to defend under the Policy, and it does not meet the Exception, Camden-Clark has the burden of showing the existence of coverage.

2. Camden-Clark cannot meet its burden.

Camden-Clark simply cannot show that the jury awarded punitive damages based on "medical professional injury that results from health care professional services provided." (Policy at 1102.) As previously discussed, the verdict form does not allocate the damages award between medical negligence and intentional actions on the part of Camden-Clark. Indeed, the trial record shows that Boggs's attorney argued that the hospital "fraudulently concealed the truth about what happened to Mrs. Boggs by telling nurses to destroy notes, by giving the Boggs family a record that didn't tell the true story about what happened, by hiding documents right up until the trial was going on in this case." (Regan Closing Argument at 5 [Docket 96-20].) The attorney told the jury, "I think this conduct is outrageous." (Id. at 17.) He further explained the following on the punitive damages issue:

(Id. at 37 (quoting from jury verdict form).) In light of this argument, and the inability of any party to determine the jury's intent without an allocated jury verdict form, Camden-Clark cannot show that the damages are allocated for negligent conduct resulting in medical professional injury. As such, it cannot show that the disputed damages are covered under the Policy.

For these reasons, Camden-Clark's motion for summary judgment on the burden of proof issue is DENIED, and St. Paul's motion, to the extent it relates to this issue, is GRANTED.

B. Does the Umbrella Insurance Provide Coverage?

Camden-Clark also argues in a separate motion that, if damages arising from Boggs II are not covered by the basic provisions of the Policy, they are covered by the umbrella insurance aspect of the policy (hereinafter, the "Umbrella Policy"). A review of the plain language of the Umbrella Policy, however, shows that this argument is without merit. As St. Paul points out, Camden-Clark "attempts to create a loophole where there simply is not one." (Def.'s Resp. Pl.'s Mot. Summ. J. Umbrella Policy 11.) The pertinent portion of the Umbrella Policy provides the following:

Coverage When Your Basic Insurance Doesn't Apply

(Policy at 1140 (emphasis added).) From the plain language of the Umbrella Policy, it is clear that St. Paul will pay only for damages for injury "covered by this agreement." Camden-Clark cannot identify any provision in the Policy where St. Paul has agreed to cover the relevant damages arising from Boggs II. For this reason, Camden-Clark's motion for summary judgment on the Umbrella Policy is DNIED.

By way of its response, St. Paul moves for summary judgment on the Umbrella Policy issue. Because Camden-Clark submitted a thorough reply to St. Paul's response, the court will entertain St. Paul's response as a motion for summary judgment on the Umbrella Policy issue. For the reasons above, the court GRANTS the motion in favor of St. Paul.10

C. Does the Policy Provide Coverage for Boggs IV?

Finally, Camden-Clark's third summary judgment motion stems from a case that was filed separately but has been consolidated with the instant matter (originally styled as Camden-Clark Mem. Hosp. Corp. v. St. Paul Fire & Marine Ins. Co., Civil Action No. 6:08-cv-189 (S.D.W.Va. Mar. 12, 2008)). Camden-Clark's complaint in this action seeks, inter alia, a declaration that St. Paul "owes a duty to provide coverage to and indemnify Camden-Clark under [the Policy]." (6:08-cv-189 Compl. 6). In its motion, Camden-Clark asks that the court hold "that any potential damages arising from the allegations of malicious prosecution in [state court] are covered damages under the [Policy]." (Pl.'s Mot. Summ. J. Boggs IV 1).

At this time, Boggs IV remains pending in the Circuit Court of Wood County, West Virginia. The court, therefore, must first determine whether this issue is ripe. "Whether an indemnification issue is ripe for adjudication depends on the facts and circumstances of the case under consideration." A/S J. Ludwig Mowinckles Rederi v. Tidewater Constr. Corp., 559 F.2d 928, 932 (4th Cir.1977). An "important factor" in determining if an indemnification issue is ripe is "whether resolution of the tendered issue is based upon events or determinations which may not occur as anticipated." Id. (citing 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3532 (1975)). In Tidewater, the Fourth Circuit held that the district court prematurely ruled on an indemnification issue where

Id. Indeed, "[a] declaration that A must indemnify B if X comes to pass has an advisory quality; and if the decision would not strictly be an advisory opinion (anathema under Article III) it could be a mistake, because it would consume judicial time in order to produce a decision that may turn out to be irrelevant." Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 583 (7th Cir.2003). See also Columbia Cas. Co. v. Ga. & Fla. RailNet Inc., 542 F.3d 106, 111 (5th Cir.2008) ("[I]n general an insurer's duty to indemnify cannot be determined until after the underlying suit has been resolved.");1 Penn-Am. Ins. Co. v. Mapp, 461 F.Supp.2d 442, 458-59 (E.D.Va.2006) (in declaratory judgment action, declining to rule on whether the insurer was required to indemnify the insured, and dismissing the proceeding from its active docket), rev'd on other grounds, Penn-Am. Ins. Co. v. Mapp, 521 F.3d 290 (4th Cir.2008).

Because Boggs IV is still pending in state court, it would be premature to decide whether St. Paul owes a duty to provide coverage to and indemnify Camden-Clark for potential damages under the Policy. As such, the plaintiffs summary judgment motion (and the defendant's summary judgment motion, as it relates to this claim) is DENIED as premature and the declaratory action regarding Boggs IV is DISMISSED without prejudice.

IV. Conclusion

For these reasons, the defendant's cross-motion for summary judgment motion and motion to exceed page limit [Dockets 90, 100 (by way of response) ] are GRANTED. The defendant's summary judgment motion [Docket 91] is GRANED in part and DENIED in part. It is GRANTED insofar as it relates to the burden of proof and Umbrella Policy arguments, and DENIED as premature on the Boggs IV issue. The plaintiffs motions on the Umbrella Policy and burden of proof [Dockets 94, 97] are DENIED. The plaintiffs motion as to Boggs IV [Docket 92] is DENIED as premature, and the claims regarding Boggs IV are DISMISSED without prejudice.

Another action that has been consolidated with this case alleges bad faith on the part of St. Paul, in violation of the West Virginia Unfair Trade Practices Act, based on its denial of coverage for damages arising from Boggs II and potential damages arising from Boggs IV See Camden-Clark Mem. Hosp. Corp. v. St. Paul Fire & Marine Ins. Co., Civil Action No. 6:08-cv-4 (S.D.W.Va. Jan. 3, 2008). To the extent the complaint in this action alleges indemnification based on Boggs IV, it is also DISMISSED without prejudice.

The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. The court further DIRECTS the Clerk to post a copy of this published opinion on the court's website, www.wvsd.uscourts.gov.