DR. STEVEN HAYNE
THE DOCTORS COMPANY AND THE DOCTORS COMPANY INSURANCE SERVICES
DATE OF JUDGMENT: 12/28/2012.
HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. WILLIAM A. GOWAN, JR.,
FOR APPELLANT: CHRISTOPHER TYLER KENT, JOHN MICHAEL DUNCAN.
FOR APPELLEES: KAREN KORFF SAWYER, WILLIAM E. WHITFIELD, III.
BEFORE DICKINSON, P.J., KITCHENS AND CHANDLER, JJ. DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.
¶1. Dr. Steven Hayne seeks reversal of the trial court's grant of summary judgment in favor of his former medical malpractice insurer, The Doctors Company and The Doctors Company Insurance Services (collectively, " The Doctors" ). The Doctors has refused to cover Hayne for lawsuits brought by exonerated criminal defendants against whom Hayne had testified as a State's witness. Kennedy Brewer sued Hayne for malicious prosecution, fraud, and negligent misrepresentation in the Circuit Court of Noxubee County, Mississippi, and later in federal district court. Hayne sought coverage under a medical malpractice insurance policy he had purchased from The Doctors. The Doctors declined to provide coverage, arguing tat Brewer was not a " patient" under Hayne's medical malpractice insurance (" medmal" ) policy, and that the company therefore was under no obligation to cover Hayne in relation to the suit brought by Brewer.
¶2. Dr. Hayne filed suit in the present action against The Doctors, arguing that The Doctors knew when it issued the policy exactly what kind of medicine he practiced, and that the insurance policy covered him for the types of medical malpractice suits he might face, including the suit filed by Brewer. The Doctors moved for summary judgment, arguing that the policy language was clear and unambiguous in the kind of coverage provided, and that this lawsuit by an exonerated nonpatient regarding testimony that Dr. Hayne had given as an expert witness did not fall within the policy's coverage. The Circuit Court of the First Judicial District of Hinds County agreed, and, despite a lack of in-depth discovery, granted the motion for summary judgment. We affirm.
FACTS AND PROCEDURAL HISTORY
¶3. Dr. Steven Hayne is a medical doctor licensed in Mississippi who practices " forensic, anatomical, and clinical pathology."
Over the course of his career, Hayne often has worked as a forensic pathologist in death investigations for the State of Mississippi. In 1992 he conducted an autopsy on the body of Christine Jackson, a three-year-old girl who was raped and murdered in Noxubee County near Brooksville, Mississippi. During the autopsy, he observed what he described as bite marks. Along with Dr. Michael West, a dentist, Hayne identified Kennedy Brewer, the boyfriend of the victim's mother, as the person who had made those marks, based upon a comparison with an upper-palate imprint obtained from Brewer. At Brewer's trial, Hayne testified that he had no doubt that nineteen of the marks on the victim's body had been made by Kennedy Brewer. This so-called bite-mark evidence was the " centerpiece of the prosecution." Brewer was convicted of capital murder and sentenced to death.
¶4. However, semen had been found on the victim, and years after his conviction, Brewer was able to gain access to the semen for DNA testing. The testing excluded Brewer as the source of the semen that had been found on the deceased victim, and his capital murder conviction was vacated in 2002. The State persisted in its pursuit of rape and murder charges against Brewer, based in part on the bite-mark testimony provided by Hayne. Thus, Brewer was moved from the state prison system to the Noxubee County Jail to await retrial. But, after further DNA testing positively identified Albert Johnson as the perpetrator--a man the police initially had considered a suspect--Brewer was released in 2007. Overall, Brewer had spent fifteen years behind bars, with seven of those on death row. In 2008, Brewer filed suit against Hayne in the Noxubee County Circuit Court. That lawsuit eventually was dismissed and refiled in the United States District Court for the Southern District of Mississippi. Brewer sued Hayne for malicious prosecution, fraud, and negligent misrepresentation.
¶5. Hayne's insurance policy with The Doctors ran continuously from July 1987 to July 1, 2003. Hayne states that, when he obtained this coverage, he provided extensive information to The Doctors regarding his medical practice, which included information about his work as a pathologist for the State of Mississippi in criminal prosecutions. Neither the application for this policy nor other underwriting memoranda or documents was placed before the trial court in this case. When the Brewer complaint was filed, Hayne notified The Doctors. The Doctors informed Hayne that his policy did not provide coverage for the type of suit that Brewer had filed against him. In 2011, Hayne brought suit against The Doctors in the Circuit Court of the First Judicial District of Hinds County, arguing that his medmal policy did, in fact, cover the claims made against him by Brewer and another exoneree, Tyler Edmonds.
¶6. The Doctors argued that the unambiguous language of the policy excluded coverage for this type of claim. The language of the policy states that The Doctors will defend Hayne for claims brought against him for incidents occurring during the coverage period, with " claim" defined as a suit alleging " injury, disability, sickness, disease, or death to a patient arising from [Hayne's] rendering or failing to ...