The Medical Protective Company v. Kyrsten Sutton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1721

FIRST PROFESSIONALS INSURANCE COMPANY,

Plaintiff,

v.

KYRSTEN E. SUTTON, MD,

Defendant and 3rd-Party Plaintiff – Appellee,

v.

THE MEDICAL PROTECTIVE COMPANY,

Third Party Defendant – Appellant.

No. 13-1722

FIRST PROFESSIONALS INSURANCE COMPANY,

Plaintiff - Appellee,

v.

KYRSTEN E. SUTTON, MD,

Defendant and 3rd-Party Plaintiff– Appellant,

v.

THE MEDICAL PROTECTIVE COMPANY,

Third Party Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard Mark Gergel, District
Judge. (2:12-cv-00194-RMG)

Argued: January 28, 2015 Decided: June 8, 2015

Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed in part and vacated and remanded in part by unpublished
opinion. Senior Judge Davis wrote the opinion, in which Judge
King joined. Judge Floyd wrote an opinion concurring in part and
dissenting in part.

ARGUED: Gabriela Richeimer, TROUTMAN SANDERS LLP, Washington,
D.C., for Appellant The Medical Protective Company. George J.
Kefalos, GEORGE J. KEFALOS, P.A., Charleston, South Carolina,
for Appellee/Cross-Appellant Kyrsten E. Sutton, M.D. Thomas C.
Salane, TURNER PADGET GRAHAM & LANEY P.A., Columbia, South
Carolina, for Appellee First Professionals Insurance Company.
ON BRIEF: John T. Lay, Laura W. Jordan, Janice Holmes, GALLIVAN,
WHITE & BOYD, P.A., Columbia, South Carolina; John R. Gerstein,
TROUTMAN SANDERS LLP, Washington, D.C., for Appellant The
Medical Protective Company. Oana D. Johnson, GEORGE J. KEFALOS,
P.A., Charleston, South Carolina, for Appellee/Cross-Appellant
Kyrsten E. Sutton, M.D. R. Hawthorne Barrett, TURNER PADGET
GRAHAM & LANEY P.A., Columbia, South Carolina, for Appellee
First Professionals Insurance Company.

Unpublished opinions are not binding precedent in this circuit.

2
DAVIS, Senior Circuit Judge:

These cross-appeals arise out of an insurance coverage

dispute related to claims for alleged birth injuries resulting

from professional negligence. Dr. Kyrsten Sutton attended the

birth of Richard and Amy Moore’s son, Nathan. The Moores filed

suit in state court for medical malpractice against Dr. Sutton.

Dr. Sutton’s former insurers, First Professional Insurance

Company (“FirstPro”) and the Medical Protective Company

(“MedPro”) disagree as to which, if either, insurer owes Dr.

Sutton a duty to defend the lawsuit; accordingly, FirstPro filed

this declaratory judgment action in federal court. After a

bench trial, the district court ruled that MedPro, but not

FirstPro, has a duty to defend Dr. Sutton and pay damages as may

be required under the MedPro policy. For the reasons that

follow, we affirm in part and vacate and remand in part.

I.

A.

Dr. Sutton is a board certified obstetrician-gynecologist

who has practiced medicine in South Carolina since 2000. She

admitted Amy Moore to St. Francis Hospital in South Carolina for

labor and delivery of her child, Nathan Moore, on June 22, 2004.

When Nathan was born, he “was documented to be abnormally

depressed with poor color, muscle tone, and respiratory effort,”

3
and “required resuscitation in the delivery room.” J.A. 715.

Eventually, he was transferred to the Medical University of

South Carolina Hospital after experiencing seizures in the

nursery.

After Nathan’s birth, Amy Moore continued to be treated by

Dr. Sutton. With respect to her son’s prognosis, she told Dr.

Sutton at first that Nathan’s treating physicians were uncertain

about it, but then “informed [her] that [they] expected him to

have some deficits but they may be mild.” Id. During a later

visit with Dr. Sutton in August 2004, Amy Moore told her that

Nathan’s tests were expected to be normal and that Nathan’s

treating physician “was hopeful there would be little to no

residual [health] problems.” Id. at 716. During this time, Amy

Moore never complained to Dr. Sutton about her care, treatment,

or the delivery, and never expressed an intention to bring a

lawsuit.

When Nathan was nearly four years old, Dr. Sutton received

a letter from the Risk Management Department at St. Francis

Hospital disclosing that it had received a request for Amy

Moore’s medical records from June 22, 2004 (the day Nathan was

born). The letter noted that it was informing Dr. Sutton of the

request because of “ongoing Risk Management activities to

identify potential claims within our health care system.” J.A.

596. The letter further stated that Dr. Sutton could review the

4
medical record, but gave no further details about any treatment

or hospitalization provided. At the time she received the

letter, Dr. Sutton did not remember Amy Moore as her patient or

the treatment she provided her; thus, the only information she

knew about Amy Moore was contained in the St. Francis letter.

Critical to the district court’s findings and conclusions

in this case, Dr. Sutton testified that upon her receipt of the

letter, she called her then-insurance company, MedPro, whose

policy provided coverage from May 1, 2003 to May 1, 2009. She

further testified that during this call, she advised the MedPro

representative with whom she spoke of the contents of the letter

from St. Francis. There is no documentation of this call in the

files of MedPro, and Dr. Sutton has none.

In 2011, Dr. Sutton received a notice of intent to sue from

counsel for the Moores, acting as parents and guardians ad litem

of Nathan, for the injuries he suffered in connection with his

birth (“the Moore Lawsuit”). She referred this claim to her

then-current insurer, FirstPro, whose policy insured her from

April 1, 2009 to April 1, 2012.

In January 2012, FirstPro filed a complaint based on

diversity jurisdiction against Dr. Sutton in the District of

South Carolina, seeking a declaratory judgment that FirstPro

“has no duty to defend or indemnify [Dr.] Sutton for the claims

made in the [Moore] Lawsuit.” J.A. 26. FirstPro argues that

5
the claim is excluded from coverage based on three exclusions in

the relevant policy. Only one of these provisions, Exclusion

11(b), was considered by the district court. That provision

states that FirstPro refuses to “defend or pay” for injury or

damages “arising out of a medical incident or committee incident

which prior to the effective date of this policy was” “reported

to an insurer.” J.A. 644. FirstPro argues that this exclusion

was triggered because Dr. Sutton’s 2008 call to MedPro

disclosing her receipt of the medical records request qualifies

as a “medical incident” that was reported to another insurer.

In response to the declaratory judgment action, Dr. Sutton

counterclaimed against FirstPro and filed a third-party

complaint against MedPro, arguing that if FirstPro did not owe

her coverage, then MedPro did. MedPro argues that it does not

owe coverage to Dr. Sutton because it has no record of receiving

the call from Dr. Sutton in 2008, and thus, Dr. Sutton failed to

notify MedPro about the potential claim as required under the

MedPro policy. MedPro’s policy explicitly states that “the

Company shall have no duty to defend or pay damages” “on a

potential claim unless it was reported to the Company during the

term of this policy and the report includes all reasonably

obtainable information, including the time, place and

circumstances of the incident; the nature and extent of the

patient’s injuries; and the names and addresses of the patient

6
and any available witnesses.” J.A. 592. Dr. Sutton denies that

the medical records request put her on notice of a potential

claim arising from her delivery of Nathan. In any event, she

contends that her call was enough to relieve her of (or satisfy)

her duty to report to MedPro a potential claim.

In due course, the Moores intervened as defendants and

argued that FirstPro owed Dr. Sutton coverage for the Moore

Lawsuit. 1

B.

After the close of discovery, the insurers moved for

summary judgment, each arguing, inter alia, that as a matter of

law, it had no duty to provide coverage for the Moore Lawsuit.

The district court denied both motions. With respect to

MedPro’s motion, the district court stated that there was a

genuine issue of fact as to “whether Dr. Sutton reported the

2008 Letter to MedPro” and “whether the information allegedly

provided by Dr. Sutton to MedPro was sufficient to report a

potential claim regarding Nathan Moore.” J.A. 135, 136. As to

FirstPro’s motion, the court stated that there was a genuine

1
Counsel have disclosed that MedPro and the Moores have
entered into an agreement under which MedPro will provide
coverage no matter the outcome of this appeal, explaining that
“[t]his agreement ensures that Dr. Sutton is not left without
coverage and . . . is not personally exposed to a verdict . . .
.” Reply Br. of MedPro at 11. We are satisfied that this
agreement does not moot the disputes presented in this case.

7
issue of fact with respect to whether Dr. Sutton’s phone call to

MedPro regarding the St. Francis letter triggered Exclusion

11(b) of the FirstPro policy.

To resolve these issues of fact, the district court held a

bench trial on March 2, 2013. It heard testimony from only two

witnesses, Dr. Sutton and Joseph Costy, MedPro’s claims

specialist. Dr. Sutton testified to the following: (1) she

called MedPro and notified the representative that she had

received a medical records request letter from St. Francis

Hospital; (2) she told the MedPro representative the name ‘Amy

Moore’, gave the representative the date for which the medical

records were being requested, and basically read the contents of

the letter to the representative; (3) the MedPro representative

did not instruct her to take any action with regard to the

letter; (4) she received no follow-up communication from MedPro

after she made the call; and (5) she did not follow up with St.

Francis to review any medical records.

The district court then heard testimony from Costy, who

testified as to the procedures of MedPro’s call and claims

system. He testified that he had conducted multiple searches of

MedPro’s records and could find no record of Dr. Sutton’s call

to the company call center in 2008, and that if Dr. Sutton had

called, “the persons answering the phones in the call center

were trained . . . to document any call regarding a possible

8
claim from a South Carolina insured by opening an electronic

‘ticket’ that was then forwarded to him as the assigned claims

adjuster.” J.A. 717. Upon questioning by the district court as

to the reliability of these call center procedures, Costy

testified that the call center staff and procedures were

generally reliable.

Upon conclusion of the bench trial, the district court made

several findings of fact. Critically, the district court found

credible both Dr. Sutton’s testimony that she called MedPro to

report the contents of the St. Francis letter and Costy’s

testimony that he did not receive notification from the MedPro

call center regarding Dr. Sutton’s call. It further found that

it was “more likely than not [that] the MedPro call center

failed to follow company procedures to create an electronic

‘ticket’ regarding the call and to forward the information to

Mr. Costy upon receipt of the call from Dr. Sutton.” J.A. 719.

It concluded that the “MedPro system is dependent upon the call

center operators undertaking a series of tasks to start the

claims process and, in light of Dr. Sutton’s credible and

specific memory of making the call to MedPro, the Court is

unpersuaded from the evidence in the record that the system is

free of human error generally or in this particular matter.”

J.A. 719.

9
 In light of the above findings, the district court

concluded that Dr. Sutton met her burden of showing that she

provided MedPro timely and sufficient notice of a potential

claim under the MedPro policy. With respect to FirstPro, the

court concluded that Dr. Sutton’s call to MedPro about the St.

Francis letter qualified as a report of a medical incident to an

insurer prior to the inception of the FirstPro policy, and as

such, FirstPro met its burden of showing that it is entitled to

exclude coverage under Paragraph 11(b) of its policy.

Consequently, the court stated it was unnecessary to consider

whether the exclusions under Paragraphs 11(a) and (c) of the

FirstPro policy applied.

Following the district court’s decision, MedPro timely

appealed the district court’s order that it had a duty to

provide coverage for the Moore Lawsuit and Dr. Sutton filed a

protective cross-appeal from the district court’s order that

FirstPro was under no duty to do so.

II.

Because the district court’s decision that the exclusion in

Paragraph 11(b) of the FirstPro policy applied rested heavily on

its factual determination that Dr. Sutton notified a MedPro

representative of the contents of the St. Francis letter in

2008, we first address the MedPro appeal and then resolve Dr.

Sutton’s protective cross-appeal.

10
 MedPro presents four bases for reversing the district

court’s judgment: (1) the district court erred as a matter of

law in its interpretation of the MedPro policy; (2) the district

court erroneously shifted the burden of proof from Dr. Sutton to

MedPro; (3) the district court’s factual determination that Dr.

Sutton reported a potential claim to MedPro is clearly

erroneous; and (4) the district court lacked impartiality while

conducting the bench trial. None of MedPro’s arguments are

persuasive, and we therefore affirm the district court’s ruling

that MedPro has a duty to defend Dr. Sutton in the Moore

Lawsuit.

A.

This Court “review[s] a judgment following a bench trial

under a mixed standard of review — factual findings may be

reversed only if clearly erroneous, while conclusions of law,

including contract construction, are examined de novo.” Roanoke

Cement Co., LLC v. Falk Corp., 413 F.3d 431, 433 (4th Cir.

2005). Under South Carolina law, 2 which takes a formalistic

approach to the interpretation of contracts, “‘insurance

policies are subject to general rules of contract construction,’

and therefore, [courts] ‘must enforce, not write contracts of

insurance and . . . must give policy language its plain,

2
The parties agree that South Carolina law governs the
construction of the insurance policies at issue in this case.

11
ordinary, and popular meaning.’” Bell v. Progressive Direct

Ins. Co., 757 S.E.2d 399, 406 (S.C. 2014) (quoting Gambrell v.

Travelers Ins. Co., 31 S.E.2d 814, 816 (S.C. 1983)). Thus, when

a contract is unambiguous, “it must be construed according to

the terms the parties have used.” Id. (internal quotation marks

omitted).

Under the MedPro policy, the insurer only has a duty to

defend or pay damages on a potential claim that “was reported to

[MedPro] during the term of the policy and the report includes

all reasonably obtainable information, including the time, place

and circumstances of the incident; the nature and extent of the

patient’s injuries; and the names and addresses of the patient

and any available witnesses.” J.A. 592. In concluding that Dr.

Sutton’s 2008 call to MedPro satisfied this provision, the

district court construed this provision in two ways that MedPro

now challenges. First, it determined that Dr. Sutton had to

show only substantial, not strict, compliance with the

provision. And second, it found that specific information

relating to “the time, place and circumstances of the incident;

the nature and extent of the patient’s injuries; and the names

and addresses of the patient and any available witnesses” need

only be reported if that information is reasonably obtainable.

MedPro’s reporting provision is properly understood as a

condition precedent because an insured must perform the act of

12
reporting before MedPro’s duty to defend or pay damages arises.

See Springs and Davenport, Inc. v. AAG, Inc., 683 S.E.2d 814,

816-17 (S.C. Ct. App. 2009) (“A condition precedent is any fact,

other than mere lapse of time, which, unless excused, must exist

or occur before a duty of immediate performance by the promisor

can arise.” (internal quotation marks omitted)). Contrary to

the conclusion expressed by the district court, South Carolina

law requires strict, not substantial, compliance with conditions

precedent. See McGill v. Moore, 672 S.E.2d 571, 575 (S.C. 2009)

(holding that party may not “circumvent the contracts condition

precedent by arguing substantial compliance”). In light of the

clear direction from the South Carolina Supreme Court that

insureds must comply strictly with conditions precedent, the

district court erred in finding that only substantial compliance

was necessary. 3

Notwithstanding the district court’s error in determining

what type of compliance was required, it did not err in

determining that the policy requires the specific type of

information listed to be reported only if that information is

reasonably obtainable. MedPro argues that specific information

relating to “the time, place and circumstances of the incident;

the nature and extent of the patient’s injuries; and the names

3
The district court relied on non-South Carolina law in its
conclusion that only substantial compliance was required.

13
and addresses of the patient and any available witnesses” must

be reported under the reporting provision regardless of whether

that information is reasonably obtainable or not. It therefore

views the provision as a “non-negotiable minimum” for coverage.

MedPro’s argument is strained, and ultimately unpersuasive,

for two reasons. First, the most natural reading of the

provision is that the phrase “reasonably obtainable” modifies

all of the specific types of information that comes after it.

See Schulmeyer v. State Farm Fire and Cas. Co., 579 S.E.2d 132,

134 (S.C. 2003) (“When a contract is unambiguous a court must

construe its provisions according to the terms the parties used;

understood in their plain, ordinary, and popular sense.”).

Second, even if it can be said that the provision is ambiguous

as to whether it requires the specific types of information to

be reported regardless of whether they are reasonably

obtainable, ambiguity must be construed against both the drafter

of the provision and the insurer, i.e., MedPro. See Chassereau

v. Global Sun Pools, Inc., 644 S.E.2d 718, 722 (S.C. 2007)

(noting that a general principle of contract construction is

that “a court will construe any doubts and ambiguities in an

agreement against the drafter of the agreement”); Helena Chem.

Co. v. Allianz Underwriters Ins. Co., 594 S.E.2d 455, 459 (S.C.

2004) (“Where the words of an insurance policy are capable of

two reasonable interpretations, the construction most favorable

14
to the insured should be adopted.”). Thus, the district court

correctly interpreted the provision to mean that an insured must

only give the specific types of information listed in the

provision if that information is reasonably obtainable.

Viewing this provision as a whole, MedPro’s duty to defend

or pay damages on the Moore Lawsuit only arises if Dr. Sutton

strictly complied with a reporting provision that required her

to report a potential claim during the term of the policy and

supply all reasonably obtainable information. Although it is

undisputed that Dr. Sutton called MedPro during the term of the

policy, the parties disagree as to whether she (1) reported a

potential claim and (2) supplied all reasonably obtainable

information.

Under MedPro’s policy, a potential claim is “an incident

which the Insured reasonably believes will result in a claim for

damages.” J.A. 593. MedPro argues that because Dr. Sutton has

consistently denied reporting a “potential claim” as defined in

the MedPro policy and has never believed that the letter

described an incident that would result in a damages claim, she

did not report a potential claim as required by the policy. Its

argument, however, overlooks a critical point: the term

“potential claim” is measured with respect to an objective, not

subjective, standard. In this light, the proper inquiry is

whether a reasonable person in Dr. Sutton’s shoes would have

15
believed that the May 2008 letter from St. Francis Hospital

described an incident that would result in a claim for damages.

Cf. Matter of Anonymous Member of S.C. Bar, 432 S.E.2d 467, 468

(S.C. 1993) (explaining that Rule 1.7 of South Carolina’s Rules

of Professional Conduct, which states that “a lawyer shall not

represent a client if the representation of that client will be

directly adverse to another client, unless the lawyer reasonably

believes the representation will not adversely affect the

relationship with the other client,” is measured under an

objective test); Hook v. Rothstein, 316 S.E.2d 690, 703 (S.C.

Ct. App. 1984) (interpreting the term “reasonably believes” in

the context of medical malpractice under an objective standard

of whether “a reasonable physician of the same branch of

medicine as the defendant would have disclosed the risks under

the same or similar circumstances”). Because a reasonable

doctor could view a letter from a hospital’s risk management

department relaying a medical records request as a first step in

a patient’s decision to initiate litigation, the evidence here

supports a finding that there could exist a reasonable belief

that the incident would result in a claim for damages.

Therefore, the district court did not err in determining that

Dr. Sutton (even contrary to her own subjective state of mind)

reported a potential claim under the terms of the policy.

16
 We respect the views set forth in our good friend’s

thoughtful dissenting opinion. Contrary to the dissent’s

assertion, however, that “[t]his appeal turns on whether Dr.

Sutton ‘reported’ a ‘potential claim’ to MedPro during the term

of her policy,” post at 1, the outcome of this appeal actually

turns on the correctness, under the proper standard of review,

of the district court’s factual finding that Dr. Sutton did so.

Marshalling support from citations to caselaw 4 that nowhere

makes an appearance in MedPro’s briefs on appeal, and claiming

that “the plain language of the [MedPro] policy requires a

subjective/objective hybrid analysis,” the dissent concludes

4
Darwin Nat’l Assurance Co. v. Matthews & Megna LLC, 36 F.
Supp. 3d 636 (D.S.C. 2014); Greenwich Ins. Co. v. Garrell, No.
4:11-CV-02743-RBH, 2013 WL 869602 (D.S.C. Mar. 7, 2013).
Neither case constitutes controlling authority in this case, nor
is either persuasive. The policies in both Darwin and Garrell
include language that is explicitly subjective. For example, in
Darwin, the policy language provided coverage for a claim only
if the Insured had no basis “(1) to believe that any Insured had
breached a professional duty; or (2) to foresee that any such
wrongful or related act or omission might reasonably be expected
to be the basis of a claim against any Insured.” 36 F. Supp. 3d
at 653 (emphasis added). Similarly, in Garrell, no coverage
existed unless the Insureds had “a basis to believe that [the
act or omission at issue], or any related act or omission, might
reasonably be expected to be the basis of a claim.” 2013 WL
869602, at *7 (emphasis added). In contrast, the policy
language at issue here states that a potential claim is “an
incident which the Insured reasonably believes will result in a
claim for damages,” with the term “reasonably” modifying the
term “believes.” Therefore, while the policy language at issue
in Darwin and Garrell arguably directs a subjective/objective
hybrid inquiry, no similar language compels such a dual inquiry
here.

17
that MedPro owes Dr. Sutton no coverage because she disavowed

any belief that she had done anything wrong that could give rise

to a claim against her, and would summarily reverse the judgment

against MedPro.

The dissent’s application of such an extreme interpretation

of the policy language yields harsh results. As the district

court properly found, however, in reliance on the testimony of

MedPro’s own witness, had MedPro properly handled Dr. Sutton’s

telephone call upon learning the contents of the letter she

received, the proper MedPro official would have obtained the

records and, upon her review, immediately treated the matter as

a potential claim. The policy language did not require the

district court to blink at this compelling evidence.

The dissent’s harsh result is not justified by any

controlling authority. Not a single opinion from the South

Carolina appellate courts or any federal court of appeals has

adopted the dissent’s insistence that the MedPro policy’s use of

the word “Insured” in its definition of “potential claim”

requires such an extravagant reading as the dissent ascribes to

it. Notably, the one published federal appellate case that

presented an opportunity to deal with this MedPro policy

language actually did not deal with it. See Owatonna Clinic-

Mayo Health Sys. v. Med. Protective Co., 639 F.3d 806 (8th Cir.

2011).

18
 In Owatonna, the district court granted summary judgment in

favor of the insured on the issue of whether the insured had an

objectively reasonable belief that a claim would be filed and

conducted a jury trial on the issue of whether the insured

subjectively held that belief. 639 F.3d at 809. The policy

language which necessitated this dual inquiry was materially

different from the language at issue in this case. There, the

claims made policy provided coverage for “any claim for damages”

filed during the policy period and defined a “claim filed” as

the receipt, by MedPro during the term of the policy, of

“written notice of a medical incident from which [Owatonna

Clinic] reasonably believes allegations of liability may

result.” Id. at 811.

After a trial, a jury found that the insured subjectively

believed that a claim for damages would be filed. Id. at 809.

MedPro appealed and the Eighth Circuit affirmed the judgment on

the jury verdict without once mentioning the district court’s

underlying analysis of the relevant policy provision and,

specifically, without any discussion of or any citation to legal

authorities suggesting that the district court’s analysis of the

policy language was correct.

Thus, the dissent is correct in saying, as it does, post at

9, that “Owatonna is inapposite” but not because “the district

court here never conducted this subjective/objective analysis.”

19
Id. Owatonna is inapposite because it tells us nothing about

what the Supreme Court of South Carolina would do when it is

called upon to interpret the MedPro policy language at issue

here. 5 As many precedents show, South Carolina favors coverage

in its interpretation of insurance contracts. See, e.g., M and

M Corp. of S.C. v. Auto-Owners Ins. Co., 701 S.E.2d 33, 35 (S.C.

2010) (“Policies are construed in favor of coverage . . . .”);

5
Ironically, the ancestor of MedPro’s “reasonably believes”
clause is a classic exclusion from coverage found in many, if
not all, automobile insurance policies, i.e., occurrence
policies, not claims made policies. This court is not without
experience with so called “reasonable belief” provisions in
automobile insurance policies. See Emick v. Dairyland Ins. Co.,
519 F.2d 1317, 1325 n.12 (4th Cir. 1975).

In fact, the district court in Owatonna simply cited
generally to an unpublished district court opinion applying
Texas law, Empire Indem. Ins. Co. v. Allstate County Mut. Ins.
Co., Civ. No. 3:06–1415, 2008 U.S. Dist. LEXIS 37764, at *22–23,
2008 WL 1989452 (N.D. Tex. May 8, 2008) (“The Allstate policy
also contains an exclusion provision that applies when any
person uses ‘a vehicle without a reasonable belief that that
person is entitled to do so.’”), in reasoning that the term
“reasonable belief” “in this context has an objective and
subjective component.” Owatonna Clinic-Mayo Health Sys. v. Med.
Protective Co., Civ, No. 08–417, 2009 WL 2215002, at *5 (D.
Minn. July 22, 2009). But the “context” is not the same; it is
black letter law that the interpretation of coverage provisions
is not the same as the interpretation of exclusions from
coverage, not in South Carolina and not anywhere. See McPherson
v. Mich. Mut. Ins. Co., 42 S.E.2d 770, 771 (S.C. 1993) (“[R]ules
of construction require clauses of exclusion to be narrowly
interpreted, and clauses of inclusion to be broadly construed.
This rule of construction inures to the benefit of the
insured.”); Erik S. Knutsen, Confusion About Causation In
Insurance: Solutions for Catastrophic Losses, 61 ALA. L. REV. 957,
967 (2010) (“Most American courts also interpret coverage
clauses broadly and exclusion clauses narrowly.”).

20
S.C. State Budget & Control Bd. v. Prince, 403 S.E.2d 643, 646

(S.C. 1991) (“[I]nsurance contracts are generally construed

against the party who prepares them and liberally in favor of

the insured.”); Walde v. Ass’n Ins. Co., 737 S.E.2d 631, 635

(S.C. Ct. App. 2012) (same); Cook v. State Farm Auto. Ins. Co.,

656 S.E.2d 784, 786 (S.C. Ct. App. 2008) (“In South Carolina,

clauses of inclusion should be broadly construed in favor of

coverage, and when there are doubts about the existence or

extent of coverage, the language of the policy is to be

understood in its most inclusive sense.” (internal quotation

marks omitted)).

Accordingly, we are unpersuaded by the dissent’s arguments

and hold that the district court did not err in discounting Dr.

Sutton’s ill-informed belief about the potential outcome of a

lawyer’s request for medical records for the treatment of one of

her patients.

The only remaining question is whether Dr. Sutton supplied

all reasonably obtainable information when reporting the

potential claim. We note that this is a close question. The

insurance provision lists specific types of information such as

the “time, place and circumstances of the incident; the nature

and extent of the patient’s injuries; and the names and

addresses of the patient and any available witnesses,” J.A. 592,

almost none of which Dr. Sutton relayed to the MedPro

21
representative she called in 2008. Although she fully reported

the contents of the letter, she did not identify Amy Moore as

her former patient or report any details about her labor and

delivery of Nathan. Before reporting the contents of the letter

to MedPro, she did not review Amy Moore’s records because she

had left the practice at which Amy Moore was her patient, and

did not contact St. Francis Hospital to review any medical

records. Therefore, the nature of the information she gave to

MedPro was limited, although she could have obtained at least

two sets of Amy Moore’s medical records (the private practice’s

records and St. Francis Hospital’s records). The district court

reasoned that Dr. Sutton nevertheless complied with the terms of

the provision because she relayed all information that was then

known to her at the time of the call. It further stated:

She could have obviously undertaken further inquiry
and investigation to obtain additional information,
with a consequential delay in reporting the St.
Francis letter to Med Pro, but she provided Med Pro at
the time of her call “all reasonably obtainable
information” then available to her. Had her call
received the proper company follow up, she would have
most probably been requested to obtain (and would have
had the duty to provide) a copy of the hospital and
office notes to provide the company additional
information concerning the nature of the claim and
extent of the child’s injuries. The St. Francis
letter, with the name of the patient, the date of the
hospitalization, and the reference to the matter as a
“potential claim” by the hospital’s Risk Management
Department, provided Med Pro sufficient information to
alert the company of a potential claim and to begin
its claims processing. Med Pro had its duty to
investigate the potential claim, which it would have

22
 undoubtedly done had information concerning Dr.
Sutton's report to the call center been conveyed to
Mr. Costy. Thus, the Court finds that Dr. Sutton
complied with the notice requirements . . . .

J.A. 725-26.

We accept the district court’s finding that Dr. Sutton

testified credibly that she made the call “shortly after”

receiving the letter. In light of its finding, it was not

clearly erroneous for the court to find, as it did, that the

information described above regarding the details of Amy Moore’s

treatment was not reasonably obtainable. Thus, the further

finding that its disclosure was not required to trigger coverage

is likewise not clear error. This is especially so considering

that there was testimony that had the call been properly

processed, Costy would have followed up with Dr. Sutton to

provide additional information. This suggests that both Dr.

Sutton and MedPro had a continuing duty to provide information

and to investigate the claim, and that the term “reasonably

obtainable” must be measured with respect to the time period

during which the information was being given.

In sum, the district court did not commit clear error in

finding that Dr. Sutton provided all reasonably obtainable

information as required by MedPro’s reporting provision. It

therefore did not err in its legal conclusion that Dr. Sutton

23
complied with the required reporting provision under the MedPro

policy.

B.

Next, MedPro argues that, as a matter of law, Dr. Sutton’s

uncorroborated testimony that she called MedPro in 2008 and

reported the contents of the St. Francis letter was insufficient

to carry her burden of proof to show that she met MedPro’s

reporting requirement. But the cases it cites in support of its

argument are inapposite. For example, MedPro relies on S.C.

National Bank v. Lumbermens Mut. Cas. Co., 526 F.Supp. 94

(D.S.C. 1981), in which the district court held that the

defendant insurer failed to carry its burden of establishing

that notice of cancellation of the policy was mailed to

plaintiff, where defendant “had neither a certificate of mailing

nor a record or any notation in its file to show that

notification was actually mailed to Plaintiff.” Id. at 95 . It

also cites a tax reporting case in which the Tenth Circuit held

that “absent some proof of an actual postmark or dated receipt,

a presumption that tax documents allegedly mailed to the IRS

were in fact received does not arise based solely upon a

taxpayer’s self-serving testimony.” Sorrentino v. IRS, 383 F.3d

1187, 1195 (10th Cir. 2004). But these cases involve self-

serving testimony that a litigant mailed notice or some other

legally significant paperwork. In the context of mailing, there

24
is usually some other objective evidence, such as a copy of the

paperwork mailed, receipt of mailing, or proof of postmark that

accompanies a mailing. Cf. id. at 1195 (noting that “the

taxpayer is in the best position with the clock running to

protect himself by procuring independent evidence of postmark

and/or mailing, whether by mail receipt, corroborating

testimony, or otherwise”). By contrast, in the context of phone

calls, there is usually no similarly accessible corroborating

evidence that one expects to record the fact of making a phone

call. Thus, the district court’s reliance on Dr. Sutton’s

testimony, which it found to be credible, is not unreasonable

under the circumstances of this case.

Additionally, MedPro relies on the reasoning of Feldman v.

Charlotte-Mecklenburg Board of Education, No. 3:11–cv–34–RJC–

DSC., 2012 WL 3619078 (W.D.N.C. Aug. 21, 2012), for the

proposition that “[c]ourts should put aside self-serving

testimony from a plaintiff where it is unsupported by

corroborating evidence and undermined by other credible

evidence.” Id. at *5 . But here, although there is no

corroborating evidence that Dr. Sutton called MedPro in 2008,

there is no credible evidence that undermines her testimony of

having the “specific memory of sitting at her desk with the

letter and calling MedPro to report the receipt of this

correspondence.” J.A. 719. The only evidence that could be

25
viewed to undermine this testimony is the testimony from Costy

that there was no record of a call from Dr. Sutton to the MedPro

call center in 2008. But whether any member of this panel might

have reached the same finding is of no moment; the district

court found that evidence of “a number of different persons

performing call center duties” and “turnover in those positions

and phones being answered by trainees” showed that MedPro’s

system was prone to “human error or a failure to follow standard

company procedures,” J.A. 718, and that therefore testimony

that MedPro received no call from Dr. Sutton in 2008 did not

undermine her otherwise credible testimony. In this light,

although Dr. Sutton’s specific testimony of calling MedPro in

2008 is uncorroborated, there is evidence in the record to

explain why MedPro might not have had any record of such a call

that is consistent with Dr. Sutton having called and reported

the contents of the letter. It is surely unremarkable to

observe that a litigant’s credible testimony alone may be

sufficient to carry the burden of proof. See, e.g., United

States v. Jones, 977 F.2d 105, 111 (4th Cir. 1992) (“There may

be circumstances under which a defendant’s self-serving

testimony, uncorroborated by other testimonial or documentary

evidence, about events this distant in time could properly be

thought to carry his heavy burden of proof . . . .”).

26
 Considering that MedPro’s cited cases in favor of its

argument are inapposite, that there was no credible evidence in

the record that undermined Dr. Sutton’s credible and specific

testimony of making the call to MedPro, and that there was

evidence in the record to support the district court’s finding

of potential human error in MedPro’s call center, we conclude

that the district court did not err in finding that Dr. Sutton

carried her burden to show that she complied with the reporting

provision of the MedPro policy.

C.

MedPro next argues, in what amounts to a restatement or

variation on its sufficiency challenge to the district court’s

factual findings, that the district court should not have relied

on Dr. Sutton’s testimony that she called MedPro to report her

receipt of the medical request letter. As we have said

repeatedly, we review a district court’s factual findings for

clear error. Roanoke Cement, 413 F.3d at 433. A finding is

clearly erroneous if “although there is evidence to support it,

the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.”

Jiminez v. Mary Washington Coll., 57 F.3d 369, 379 (4th Cir.

1995) (quoting United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948)). “This standard plainly does not entitle

a reviewing court to reverse the finding of the trier of fact

27
simply because it is convinced that it would have decided the

case differently.” United States v. Heyer, 740 F.3d 284, 292

(4th Cir. 2014) (internal quotation omitted). “If the district

court’s account of the evidence is plausible in light of the

record viewed in its entirety, [we] may not reverse it even

though convinced that had [we] been sitting as the trier of

fact, [we] would have weighed the evidence differently.” Id.

(internal quotation omitted). Indeed, as we have said: “In

cases in which a district court’s factual findings turn on

assessments of witness credibility or the weighing of

conflicting evidence during a bench trial, such findings are

entitled to even greater deference.” FTC v. Ross, 743 F.3d 886,

894 (4th Cir. 2014); see also Benner v. Nationwide Mut. Ins.

Co., 93 F.3d 1228, 1234 (4th Cir. 1996) (“On review, we may

neither weigh the evidence nor judge the credibility of

witnesses.”); Pigford v. United States, 518 F.2d 831, 836 (4th

Cir. 1975); United States v. Bagdasian, 291 F.2d 163, 166 (4th

Cir. 1961).

MedPro attacks the district court’s finding that Dr. Sutton

reported a claim to MedPro in two ways: (1) by arguing that the

district court failed to consider the self-serving nature of Dr.

Sutton’s testimony and (2) by arguing that the district court

erroneously found that MedPro’s procedures were subject to human

error. The first assertion is not reviewable on appeal as it

28
essentially asks this Court to review the district court’s

finding that Dr. Sutton was a credible witness. See Benner, 93

F.3d at 1234.

MedPro’s second argument about the district court’s finding

on the reliability of MedPro’s procedures is reviewable. It

argues that there was insufficient evidence in the record of the

unreliability of MedPro’s reporting procedures. The district

court found that human error was possible in MedPro’s reporting

procedures because of turnover; MedPro sought to rebut that

finding by arguing that the only evidence of turnover stemmed

from Costy’s testimony that one of the call center employees

with whom he had been talking had been on the job for only a

year. It is true that the testimony of Costy is alone a thin

basis for determining that there existed a high rate of turnover

that affected the reliability of the call center, and there does

not appear to be other evidence of turnover of employees at the

call center. But the district court relied on more than just

evidence of turnover in concluding that the call center was

prone to human error — it relied on records produced at trial

that showed that a number of different persons were performing

call center duties and that phones were being answered by

trainees. In this light, although the question is close one,

there is sufficient evidence for a finding of unreliability, and

29
the district court’s finding was plausible when viewed in light

of the entire record. See Heyer, 740 F.3d at 292.

Furthermore, after finding both Dr. Sutton and Costy’s

testimony credible, and reviewing records about trainees

answering the phone, the district court reasonably inferred that

the most probable cause for Costy’s lack of documentation of Dr.

Sutton’s call was human error in the call center. The district

court is entitled to draw such reasonable inferences during a

bench trial. Cf. United States v. Bishop, 740 F.3d 927, 935

(4th Cir. 2014) (“In reviewing the district court’s judgment, we

are mindful that, as the trier of fact, that court was in a

better position than we are to evaluate the credibility of

witnesses, take into account circumstances, and make reasonable

inferences.”).

Thus, although the evidence supporting the district court’s

finding that MedPro’s reporting procedures were unreliable is

not particularly robust, we cannot say it reaches the outer

limit of the deferential standard for clear error. The district

court could plausibly find that MedPro’s procedures were prone

to unreliability and that this unreliability explained why Costy

did not receive receipt of Dr. Sutton’s call to MedPro to report

the contents of the St. Francis letter; the district court,

therefore, did not err.

D.

30
 MedPro’s last assignment of error is that the district

court denied MedPro a fair trial by manifesting bias in favor of

Dr. Sutton. “Although courts do not generally address the

standard of review applicable to assessing judicial bias, we

should conduct a plenary review of such an issue because it

raises due process concerns.” ePlus Tech., Inc. v. Aboud, 313

F.3d 166, 178 n.12 (4th Cir. 2002). But, because MedPro failed

to raise the issue of bias in the proceedings below and failed

to make a motion for recusal, “any alleged errors are subject to

plain-error review.” Murphy v. United States, 383 F. App’x 326,

332 (4th Cir. 2010) (unpublished).

As to a district court’s questioning of litigants during

bench trials, we have stated:

The judge, for example, is entitled to propound
questions pertinent to a factual issue which requires
clarification. He may intercede because of apparent
inadequacy of examination or cross-examination by
counsel, or to draw more information from relevant
witnesses or experts who are inarticulate or less
than candid. This privilege or duty, however, is
subject to reasonable limitations. A trial judge must
assiduously perform his function as governor of the
trial dispassionately, fairly, and impartially. He
must not predetermine a case . . . .

Crandell v. United States, 703 F.2d 74, 77-78 (4th Cir. 1983).

MedPro argues that the district court’s questioning of Costy and

Dr. Sutton revealed a predetermination that Dr. Sutton had

reported the contents of the St. Francis letter to MedPro in

2008. This is not so. MedPro’s characterization of “grilling”

31
Costy with “extensive” questioning is not borne out by the trial

transcript. There were only three periods during Costy’s

testimony in which the district court asked questions, which can

hardly be viewed as extensive or overwhelming for Costy. It is

clear that the district court’s purpose in asking these

questions was to gain greater insight into the procedures used

by MedPro to document incoming calls from insureds.

Specifically, the district court questioned Costy as to the

reliability of MedPro’s reporting procedures — something that

counsel had not yet specifically addressed in great detail in

its questioning of Costy. Its questioning, therefore, did not

reveal a prejudgment in favor of Dr. Sutton as much as an intent

to understand what procedures might have or have not been in

place that could explain Dr. Sutton credibly testifying that she

had placed the call and Costy credibly testifying that MedPro

lacked documentation of such a call.

MedPro further contends that the district court’s hostility

towards Costy during its questioning also reveals bias against

MedPro and in favor of Dr. Sutton. But we discern no such

hostility. In fact, the district court explicitly stated in its

findings of fact that it found Costy’s testimony to be credible,

and during the bench trial, the district court stated that it

found Costy to be “a very fine [and very honest] witness.” J.A.

356. And, although the district court certainly followed up

32
Costy’s responses with additional questions, its questioning was

measured; indeed, the district court stopped questioning Costy

on a particular point when he stated that he did not know or was

unsure of the answer. MedPro therefore cannot show hostility

towards Costy that evinces a bias against MedPro or in favor of

Dr. Sutton.

In any event, hostility towards or critical questioning of

one party does not in and of itself equate to bias:

[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair
judgment impossible. Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.

Liteky v. United States, 510 U.S. 540, 555 (1994). What MedPro

actually challenges is the district court’s opinion and judgment

stemming from the testimony of Dr. Sutton, that Dr. Sutton

testified credibly, and its resulting inquiry into MedPro’s

reporting procedures based on that reasoned opinion. But

without a scintilla of evidence that the district court formed

these judgments on the basis of “extrajudicial sources,” see

id., these determinations must be challenged on their merits,

not on the basis of bias.

* * *

33
 In sum, MedPro has failed to point to persuasive

indications that any one of its bases for reversal of the

district court’s judgment has merit. We therefore affirm the

district court’s judgment that MedPro has a duty to defend Dr.

Sutton against the Moore Lawsuit and pay damages as may be

required under its policy.

III.

Although we are not required to do so, see supra n.1, in

the interest of a thorough treatment of the issues presented by

the parties, we next address Dr. Sutton’s protective cross-

appeal of the district court’s judgment that FirstPro has no

duty to defend Dr. Sutton in the Moore Lawsuit. The district

court found that Dr. Sutton’s call to MedPro constituted a

report of a medical incident to an insurer prior to the

inception of the FirstPro policy, which triggered Exclusion

11(b) of the FirstPro policy.

The legal issue presented here is narrow: whether Dr.

Sutton’s call to MedPro to convey the contents of the St.

Francis letter constitutes a report of a medical incident under

the FirstPro policy. Dr. Sutton correctly contends that the

district court’s finding that Dr. Sutton gave MedPro notice of a

potential claim does not automatically mean that Dr. Sutton

reported a medical incident under exclusion 11(b) of the

FirstPro policy. That is because the terms “notice” and

34
“potential claim” are not necessarily equivalent to the terms

“report” and “medical incident.”

Whether an exclusion is triggered is a question of contract

construction that we review de novo. See Roanoke Cement Co.,

413 F.3d at 433. “Insurance policy exclusions are construed

most strongly against the insurance company,” and FirstPro, as

the insurer, “bears the burden of establishing the exclusion’s

applicability.” Owners Ins. Co. v. Clayton, 614 S.E.2d 611, 614

(S.C. 2005).

Exclusion 11(b) of FirstPro’s policy reads:

We will not defend or pay under this coverage part for:

* * *

11. Any injury or damages:

b. arising out of a medical incident or committee
incident which prior to the effective date of
this policy was:

I. reported to any insurer; or
II. a pending claim or proceeding; or
III. a paid claim

J.A. 644. As FirstPro points out, this provision is a “prior

knowledge provision” which is designed to ensure that insurers

do not “contract to cover preexisting risks and liabilities

known by the insured.” Bryan Bros. Inc. v. Continental Cas.

Co., 419 F. App’x 422, 425 (4th Cir. 2011) (unpublished).

“Thus, it is generally the insured’s duty to provide truthful

35
and complete information so the insurer can fairly evaluate the

risk it is contracting to cover.” Id.

“Medical incident,” as defined by the FirstPro policy,

means “any act, error or omission in the providing of or failure

to provide professional services to a patient by [the doctor] or

by persons described in the Individual Professional Liability

Coverage Part for whom [the doctor is] determined to be legally

responsible.” J.A. 636. Of particular importance to this case

is that the policy treats “all bodily injury(ies) caused by a

course of treatment(s) of a patient or of a mother and fetus (or

fetuses) from conception through postpartum care” as a single

medical incident. J.A. 637. The term “report” or “reported” is

not defined by FirstPro’s policy in the same manner as “medical

incident.” Because the FirstPro policy does not define the term

“reported,” we look to its “commonly accepted meaning.”

Bardsley v. GEICO, 747 S.E.2d 436, 440 (S.C. 2013). According

to the Oxford English Dictionary, the verb “to report” is

commonly defined as “to give an account of (a fact, event,

etc.),” “to describe,” or “to convey, impart, pass on (something

said, a message, etc.) to a person as knowledge or information.”

Oxford English Dictionary Online (last visited April 17, 2015)

(saved as ECF opinion attachment). As FirstPro points out in

its brief, it is therefore commonly understood as communicating

or conveying information to someone, synonymous with the term

36
“to inform.” Against this background, when Dr. Sutton called

MedPro to convey the contents of the St. Francis letter, she

“reported” the information in the letter.

But she did not necessarily report a “medical incident” as

defined by the FirstPro policy. Beyond reporting the contents

of the St. Francis letter, which merely identified Amy Moore as

a patient who visited Dr. Sutton on June 22, 2004, Dr. Sutton

did not report to MedPro any details about the acts she

performed, any treatment she provided, or any potential errors

or omissions that arose during her interactions with Amy Moore.

The sparse information provided, detailing merely the fact that

Amy Moore was a patient of Dr. Sutton’s, can hardly be said to

describe a medical incident. Because the policy defines

“medical incident” as “any act, error, or omission in the

providing of . . . professional services,” it contemplates the

reporting of acts, errors, or omissions beyond the mere fact of

a doctor’s provision of professional services. We therefore

decline to adopt FirstPro’s argument that reporting the mere

fact of having seen a patient can qualify as a “medical

incident” when that report includes no description of any acts,

errors, or omissions that took place during the provision of

services. Thus, Dr. Sutton’s call to MedPro to report the

contents of the St. Francis letter does not trigger the

exclusion in 11(b) of the FirstPro policy.

37
 Although the exclusion in 11(b) is not applicable, we

remand to the district court to determine (if the case is not

otherwise resolved) whether the exclusion in 11(c) of the

FirstPro policy applies, an issue the district court did not

reach. That exclusion states that FirstPro will not defend or

pay for any injury or damages “arising out of a medical incident

or committee incident disclosed or which should have been

disclosed on our applications, renewal applications, or during

the application or renewal process.” FirstPro argues that Dr.

Sutton should have disclosed the Moore medical incident in

response to two questions in the application for insurance.

Question 5(a) of the Application states: “Do you know or is it

reasonably foreseeable from the facts, reasonable inferences or

circumstances that any of the following circumstances might

reasonably lead to a claim or suit being brought against you,

even if you believe the claim will not have merit: a request for

records from a patient and or attorney related to an adverse

outcome.” J.A. 597. Relatedly, Question 7 of the application

states: “Do you know or is it reasonably foreseeable from the

facts, reasonable inferences or circumstances that there are

outstanding incidents, claims, or suits (even if you believe the

outstanding claim or suit would be without merit) that have not

been reported to your current or prior professional liability

carrier.” J.A. 597. Dr. Sutton responded “no” to these

38
questions. J.A. 597. We remand to the district court to

determine whether it was reasonably foreseeable that the St.

Francis medical records request letter might reasonably lead to

a claim or suit being brought against Dr. Sutton and whether the

claim arising from the birth of Nathan Moore was reasonably

foreseeable, thereby triggering the exclusion in 11(c).

IV.

For the reasons set forth, the judgment is

AFFIRMED IN PART AND
VACATED AND REMANDED IN PART.

39
FLOYD, Circuit Judge, concurring in part and dissenting in part:

I agree with all of the majority opinion except for its

conclusion that Dr. Sutton reported a potential claim as defined

by the MedPro policy. I therefore dissent from part II.A. of

the majority opinion.

I.

This appeal turns on whether Dr. Sutton “reported” a

“potential claim” to MedPro during the term of her policy – a

condition precedent to coverage. J.A. 592. The policy defines

a potential claim as “an incident which the Insured reasonably

believes will result in a claim for damages.” J.A. 593

(emphasis added). Both below and here on appeal, Dr. Sutton has

consistently denied believing that she ever reported such a

claim. Because South Carolina law requires strict compliance

with conditions precedent, her admission would seem to end the

matter. But the majority concludes her subjective belief is

irrelevant, and instead misconstrues the policy as imposing a

solely objective test.

I disagree for two reasons. First, the plain language of

the policy requires a subjective/objective hybrid analysis. And

second, even assuming that a purely objective standard applies,

the record is devoid of any evidence or factual findings

supporting the majority’s conclusion that a reasonable physician

40
in Dr. Sutton’s shoes would have viewed the medical records

request as a first step to a medical malpractice action.

Accordingly, I would reverse.

II.
As my friends in the majority correctly recognize, South

Carolina law requires that we enforce insurance contracts

according to their plain terms. Maj. Op. at 11-12 (citing Bell

v. Progressive Direct Ins. Co., 757 S.E.2d 399 (S.C. 2014)).

Here, MedPro’s policy defines a “potential claim” as “an

incident which the Insured reasonably believes will result in a

claim for damages.” J.A. 593. By focusing on the Insured’s

reasonable belief, this language requires a mixed

subjective/objective analysis. First, did the Insured believe

the relevant incident would result in a claim for damages? If

the answer to that question is yes, we turn to the second

question: is that belief reasonable? Here, Dr. Sutton denies

believing that the records request would lead to a claim for

damages. Accordingly, we never get past the first step. 1 As

such, I would hold that Dr. Sutton failed to comply with the

1
The word “reasonably” modifies the phrase “believes will
result in a claim for damages.” Because Dr. Sutton never had
any such belief we need not consider whether her non-existent
belief is reasonable.

41
notice requirements in the MedPro policy, and so MedPro does not

owe her any coverage.

Courts that have interpreted similar insurance policy

language repeatedly apply a similar two-step

subjective/objective inquiry. See Owatonna Clinic-Mayo Health

Sys. v. Med. Protective Co. of Fort Wayne, Ind., No. CIV. 08-

417DSDJJK, 2009 WL 2215002, at *5 (D. Minn. July 22, 2009), as

amended (Aug. 10, 2009), aff’d in part, 639 F.3d 806 (8th Cir.

2011) (holding that a MedPro policy conditioning coverage on

receipt of notice of an incident which the insured “reasonably

believes allegations of liability may result” requires both “an

objective and subjective” analysis); Darwin Nat’l Assurance Co.

v. Matthews & Megna LLC, 36 F. Supp. 3d 636, 653-54 (D.S.C.

2014) (applying a hybrid subjective/objective standard in

analyzing so-called “prior knowledge” provisions in insurance

contracts, which exclude coverage for unreported incidents

predating the policy period which the insured knew or should

reasonably have known would give rise to a claim); Greenwich

Ins. Co. v. Garrell, No. 4:11-CV-02743-RBH, 2013 WL 869602, at

*7 (D.S.C. Mar. 7, 2013) (citing Seiko v. Home Ins. Co., 139

F.3d 146, 152 (3rd Cir. 1998)) (same). 2

2
Cf. Am. Cont’l Ins. Co. v. Phico Ins. Co., 512 S.E.2d
490, 493 (N.C. Ct. App. 1999) (“The policy sets up a subjective
standard . . . under which a claim is deemed filed if the
(Continued)
42
 Yet the majority concludes the MedPro policy calls for an

“objective, not subjective, standard.” Maj. Op. at 15.

According to the majority, the “proper inquiry” is “whether a

reasonable person in Dr. Sutton’s shoes” would have believed

that the medical records request “described an incident that

would result in a claim for damages.” Maj. Op. 15-16. But that

is not what the policy says. Rather, the policy plainly states

that Dr. Sutton’s reasonable belief controls. Simply put, the

majority is not free to rewrite the definition of a “potential

claim” by swapping the phrase “what a reasonable person in Dr.

Sutton’s shoes believes” for the phrase “what the Insured

reasonably believes.” See, e.g., Torrington Co. v. Aetna Cas. &

Sur. Co., 216 S.E.2d 547, 550 (S.C. 1975) (“[P]arties have a

right to make their own contract and it is not the function of

this Court to rewrite it or torture the meaning of a policy to

extend coverage never intended by the parties.”).

The majority only musters two cases purportedly supporting

its conclusion that the phrase “reasonably believes” means an

objective analysis applies: In re Anonymous Member of the South

Carolina Bar, 432 S.E.2d 467 (S.C. 1993), and Hook v. Rothstein,

insured reasonably believes that an express demand for damages
will be forthcoming. Therefore, we must view Ms. Chapman’s
actions to determine whether she . . . had a reasonable belief
that a suit would be filed in the Watson case.”).

43
316 S.E.2d 690 (S.C. Ct. App. 1984). In my view, both are

inapposite. Neither addresses contract law, much less language

in insurance policies similar to the language at issue here.

And both are distinguishable on their facts.

In In re Anonymous Member of the South Carolina Bar, the

court addressed Rule 1.7 of the South Carolina Rules of

Professional Conduct. That Rule states that “a lawyer shall not

represent a client if the representation of that client will be

directly adverse to another client, unless the lawyer reasonably

believes the representation will not adversely affect the

relationship with the other client.” 432 S.E.2d at 468. The

court concluded this Rule sets up an objective standard. But

the court did not do so, as the majority implies, because the

phrase “reasonably believes” per se requires an objective

analysis. Rather, it did so only because the comment to that

Rule expressly states that conflicts governed by the Rule are to

be measured under the view of a “disinterested lawyer.” See id.

In contrast, nothing in the MedPro policy states that a

potential claim should be measured under the view of a

“disinterested insured” – rather, the policy is clear that the

view of “the Insured,” Dr. Sutton, controls.

Hook v. Rothstein is similarly inapposite. That case

establishes that whether a physician departed from a standard of

reasonable medical care in a lack-of-informed-consent action is

44
evaluated under the same objective standard applicable to

medical malpractice actions. 316 S.E.2d at 703. Standards for

medical malpractice and lack-of-informed-consent actions have no

bearing on the meaning of a “potential claim” as expressly

defined in MedPro’s policy.

Admittedly, South Carolina courts have yet to interpret

identical contractual language in a published opinion. Contrary

to the majority’s assertion, however, I do not believe they

would apply a purely objective standard. The plain language of

the policy states that Dr. Sutton’s reasonable belief controls –

not, as the majority concludes, the belief of “a reasonable

person in Dr. Sutton’s shoes.” Because South Carolina courts

enforce insurance contracts according to their plain terms,

Bell, 757 S.E.2d at 406, I am confident they would join courts

in other jurisdictions considering similar language and apply a

two-part subjective/objective analysis.

The district court also appeared to recognize that the two-

step inquiry applies in some instances. In fact, it applied an

analogous inquiry in analyzing FirstPro’s claim that Exclusion

11(a) in its policy precluded coverage. J.A. 116. That

exclusion states that FirstPro will not defend or pay for any

injury or damages arising out of claims made before the

effective date if Dr. Sutton “knew or could have reasonably

foreseen from the facts, reasonable inferences or circumstances

45
that a claim might be made.” J.A. 647. As the district court

acknowledged, this language contains “both a subjective and

objective element.” J.A. 116.

Yet the district court concluded that Dr. Sutton’s

subjective belief was entirely irrelevant under the similar

language in MedPro’s policy, i.e. whether she “reasonably

believe[d]” that an incident would “result in a claim for

damages”:

Well, she might not have a reasonable belief of a
lawsuit, I understand your argument there, but the
purpose of the notice provision is to protect, to
bring it to your attention so you can do the
investigation during the policy period. And now you
want to turn it into some, Oh, no, if there is not a
subjective belief by the insured that she’s going to
get sued, then we don’t have to do it. I’m sorry.

J.A. 108. In doing so, the court – like the majority – ignored

the plain language of MedPro’s policy and instead rewrote it to

reflect its purported “purpose.” Because courts “must enforce,

not write contracts of insurance,” Bell, 757 S.E.2d at 406

(quotation omitted), the district court erred as a matter of

law. Accordingly, I would reverse.

III.

Even assuming an objective standard applies as the majority

contends, nothing suggests that this standard was satisfied

here. As an initial matter, the district court never applied an

46
objective standard. Rather, it concluded that the notice

provision was satisfied because MedPro – not Dr. Sutton – would

have considered the medical records request to be a “potential

claim.” J.A. 102-10, 136, 390. 3 In doing so, the district court

rewrote the policy’s definition of a “potential claim” to read

“an incident which MedPro reasonably believes will result in a

claim for damages.” Again, the court was not free to rewrite

the policy in this way. See Hutchinson v. Liberty Life Ins.

Co., 743 S.E.2d 827, 829 (S.C. 2013) (stating that courts can

interpret, but not rewrite, provisions in insurance policies).

The district court relied on Owatonna Clinic-Mayo Health

Sys. v. Medical Protective Co., 639 F.3d 806 (8th Cir. 2011) for

this point. See J.A. 136. But that case is inapposite. In

Owatonna, the district court held that a MedPro policy with

similar notice language required a subjective-objective

analysis. 2009 WL 2215002, at *5. The district court granted

summary judgment as to the objective component, and held a trial

on the subjective component. Id.; see also 714 F. Supp. 2d 966,

967 (D. Minn. 2010). MedPro appealed only the district court’s

3
Similarly, the court concluded that after Dr. Sutton
reported the medical records request to MedPro, MedPro was then
responsible for investigating whether the request amounted to a
potential claim triggering coverage, regardless of Dr. Sutton’s
subjective belief that it would not lead to a claim. J.A. 136.

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ruling on the objective component, but did not appeal the jury’s

findings as to the subjective component. 4

The Eighth Circuit rejected MedPro’s assertions, concluding

that the insured’s belief that it would be sued was objectively

reasonable. 639 F.3d at 813. At a minimum then, Owatonna

establishes that the district court should have applied an

objective analysis here (which it failed to do). And the Eighth

Circuit only declined to address the subjective component

because MedPro did not raise that issue on appeal. 5 As such,

Owatonna does not support the district court’s decision to

ignore the subjective inquiry required by the plain language of

the MedPro policy (and indeed the objective inquiry as well).

Finally, there is little, if any, evidence in the record

that a reasonable physician would have believed that the medical

4
MedPro also made an additional argument on appeal: that
the insured’s notice failed to literally comply with the
requirements of the notice provision because it did not include
any names, addresses, or other details required by the policy.
639 F.3d at 811-13. The Eighth Circuit disagreed, concluding
that the insured’s notice provided sufficient facts to put
MedPro on notice of a claim under Minnesota law. Id. at 812-13.
The district court here appears to have relied on this portion
of the Eighth Circuit’s analysis (see J.A. 136), while
overlooking the portion of the Eighth Circuit’s opinion
analyzing whether the insured’s belief that a claim would be
filed was objectively reasonable.
5
639 F.3d at 810-11 (“In our case . . . the only issue on
which there was a trial was the matter of the [Insured’s]
subjective belief, as to which there was no doubt as to the
sufficiency of the evidence, and as to which, more relevantly,
there is no issue raised on appeal.”).

48
records request would result in a claim for damages. In fact,

the district court’s findings in the related context of

FirstPro’s Exclusion 11(a) suggest just the opposite: that a

reasonable physician would not have believed the request would

result in a claim. For example, in denying FirstPro’s motion

for summary judgment, the district court found that the “record

evidence suggests that a reasonable physician would not view a

request for records by an attorney as a definite sign of an

impending claim.” J.A. 139. And at trial, the court denied Dr.

Sutton’s motion for a directed verdict as to this Exclusion,

finding that additional evidence was needed as to whether Dr.

Sutton’s belief was objectively reasonable. J.A. 260-62.

Ultimately, the court determined a different exclusion applied

as to FirstPro, and thus never decided whether Dr. Sutton’s

belief was objectively reasonable under Exclusion 11(a). The

court’s comments, however, suggest that this was a much closer

issue than the majority suggests. See, e.g., J.A. 363

(inquiring why there was “no evidence [as to] what a reasonable

physician would have” believed).

Moreover, unrebutted testimony established that requests

for medical records typically do not give rise to medical

malpractice claims, but rather arise in other contexts, such as

worker’s compensation claims or personal injury lawsuits. J.A.

104; 208-09. Thus, as I read the record, equally strong

49
evidence exists that a reasonable physician would not have

viewed the medical records request as a first step to a medical

malpractice action. In any event, the district court never

undertook this fact-intensive inquiry. Accordingly, assuming an

objective standard applies as the majority contends, I would

remand to the district court to decide whether Dr. Sutton’s

belief was objectively reasonable in the first instance.

IV.

For the above reasons, I respectfully dissent from Part

II(a) of the majority opinion.

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