The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MAINE MEDICAL CENTER, INC., )
)
Plaintiff, )
)
v. ) Docket No. 2:21-cv-00179-NT
)
GENERAL REINSURANCE )
CORPORATION, )
)
Defendant. )
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Before me are a motion for summary judgment by Defendant General
Reinsurance Corporation (“GRC”) (ECF No. 29) and a motion for summary judgment
by Plaintiff Maine Medical Center (“MMC”) (ECF No. 30). For the reasons set forth
below, the Plaintiff’s motion is DENIED and the Defendant’s motion is GRANTED
IN PART and DENIED IN PART.
FACTUAL BACKGROUND1
I. The Policies
This case concerns a dispute over two successive insurance policies (the
“Policies”) issued by the Defendant, GRC, to the Plaintiff, MMC. The first policy was
effective from April 16, 1995, to January 1, 2001, and the second from January 1,
2001, to January 1, 2003. Joint Statement of Material Facts in Supp. of Parties’ Mots.
1 These facts are drawn from the parties’ Joint Statement of Material Facts (“JSMF”) (ECF No.
28). In addition, I consider documents that are part of the record on these cross-motions for summary
judgment, including the Excess Insurance Policies (ECF Nos. 8-1 & 8-2) and the 2006 Workers’
Compensation Board Order (ECF No. 8-3).
for Summ. J. on Phase I Issues (“JSMF”) ¶¶ 1–4 (ECF No. 28). The Policies have an
“Insured’s Retention” of $500,000. JSMF ¶ 5. Under the policies, GRC is required to
indemnify MMC for certain employee injury claims in excess of the Insured’s
Retention of $500,000. JSMF ¶ 6. The Policies state in relevant part:
This insurance applies to losses paid by the Insured as a qualified self‐
insurer under the Workers Compensation Law for bodily injury by
accident or bodily injury by disease including resulting death, provided:
1. the bodily injury by accident occurs during the period this policy is in
force; or
2. the bodily injury by disease is caused or aggravated by the conditions
of employment by the Insured. The employee’s last day of last exposure
to those conditions of that employment causing or aggravating such
bodily injury by disease must occur during the period this policy is in
force.
JSMF ¶ 6; Answer to Compl. & Countercl. Ex. A (“1995–2001 Policy”), at 2 (ECF No.
8-1); Answer to Compl. & Countercl. Ex. B (“2001–2003 Policy”), at 2 (ECF No. 8-2).
The Policies define “Accident” as follows:
1. Accident means each accident or occurrence or series of accidents or
occurrences arising out of any one event.
2. An accident is deemed to end 72 hours after the event commences.
Each subsequent 72 hours is deemed to be a separate accident period.
JSMF ¶ 6; 1995–2001 Policy, at 5; 2001–2003 Policy, at 5.
II. J.L. and Her Injuries
J.L. worked at MMC as a respiratory therapist from 1973 to 1988 and then as
a perfusionist from 1990 to March 8, 2004, her last day of employment with MMC.
JSMF ¶ 12. In her role as a perfusionist, J.L. operated a heart-lung machine during
cardiac surgery. JSMF ¶ 13. As a perfusionist, J.L. worked under “conditions of
extraordinary pressure,” and her position “require[d] a fair amount of hand and arm
work, in both the set up and operation of the machinery which involve[d] attaching a
number of tubes and placing and removing a number of clamps, as well as pushing
the machine to and from the operating room.” Answer to Compl. & Contercl. Ex. C
(“May 2006 WCB Order”), at 4 (ECF No. 8-3).
In 2004, J.L. filed six claims before the Workers’ Compensation Board (“WCB”)
under the Maine Workers’ Compensation Act (“MWCA”) alleging injuries suffered on
six dates during her employment and seeking “total incapacity benefits from March
8, 2004.” JSMF ¶ 14; May 2006 WCB Order, at 2. The first injury, alleged to have
occurred on January 1, 1996, claimed repetitive motion injuries to J.L.’s arms, right
elbow, and shoulder “from working the connections and line clamps.” May 2006 WCB
Order, at 4. The Hearing Officer found that this first injury was time-barred. May
2006 WCB Order, at 5. The second injury, alleged to have occurred on September 27,
1996, claimed an injury to J.L.’s back, neck, arms, and lower back, sustained while
moving machinery. May 2006 WCB Order, at 5. The Hearing Officer also considered
the second injury time-barred and noted that there was insufficient evidence
establishing “the existence of a separate work-related injury to J.L.’s back, neck, and
arms on September 27, 1996.” May 2006 WCB Order, at 6.
The Hearing Officer granted J.L.’s third claim, for an “injury to both arms”
alleged to have occurred on October 1, 1997, and her fourth claim, for an “injury
occurring to her upper back[,] neck, and left arm” alleged to have occurred on
December 7, 2000. JSMF ¶ 16. As to the October 1, 1997, injury, the Hearing Officer
wrote:
This claim is for a gradual injury to [J.L.’s] back, neck, arms and
shoulders and related body parts. The employer argues that the medical
records do not support a claim for a new gradual injury as of this date.
But the earlier treatment records reflect problems with [J.L.’s] right arm
that had resolved by May of 1996 while the October 21[,] 1997
Practitioner’s Report . . . indicates a diagnosis of bilateral tendonitis and
the October 27[,] 1997 Provider Report . . . diagnoses bilateral
epicondylitis as well as right upper trapezius spasm. Dr. Upham
indicated that the problem was work-related. On November 6, 1997[,]
the physical therapist . . . noted that [J.L.] reported . . . that she had
problems in the past [with] good results from P T treatment[ ] and that
she had done well []until past month [with increased] work hours as
well as an apparent nonwork-related incident involving carrying a
garment bag. These appear to be new complaints of new injury arising
out of and in the course of [J.L.’s] work activities as a perfusionist. There
is no record of any treatment to her neck or back at this time. The injury
was to her arms. I find and conclude that the employee has met her
burden to establish that she suffered an injury to both arms on October
1, 1997 arising out of and in the course of her employment.
May 2006 WCB Order, at 6–7.
In regard to J.L.’s December 7, 2000, injury, the Hearing Officer wrote:
[J.L.] also claims a gradual injury to her back[,] neck, arms and
shoulders on December 7, 2000. On that date, she saw Gwendolyn
O’Gunn . . . , her primary care physician for left upper back, shoulder
and neck pain, with no history of recent injury. Dr. O’Gunn noted that
[J.L.] worked in surgery and that she had been seen previously for
similar problems through workers compensation. On March 5, 2001[,]
Richard Maguire . . . saw her for what he diagnosed as a work-related
left upper trapezius strain noting that it was aggravated by her work
activities and that it “does appear to be different, at least from the
records [from] her right upper trapezius muscle, which was a problem
previously.” On March 14[,] 2001[,] Ms. Lindeman told the [physical]
therapist . . . that this problem was at times making it painful for it at
work although she was not then missing work as a result. She also
reported that the pain worsened by reaching for the computer at work
and by stress and that she was working on a job site modification. On
April 2, 2001[,] Dr. Maguire characterized her problem as myofascial
pain in the left trapezius. I find and conclude that [J.L.] has met her
burden to establish that she suffered an injury to her upper back[,] neck
and left arm on December 7, 2000[,] arising out of and in the course of
her employment.
May 2006 WCB Order, at 7–8.
J.L. also alleged a fifth injury to her left knee as well as her back, neck, arms,
and shoulders occurring on May 1, 2003. May 2006 WCB Order, at 8. The Hearing
Officer found that J.L. did not establish that the injuries to her knee and back were
work related, and she did not “show any treatment for any additional or different arm
or shoulder problem around this time.” May 2006 WCB Order, at 8. The sixth claim
involved a mental injury due to stress and a gradual physical injury culminating on
March 8, 2004. May 2006 WCB Order, at 9. The Hearing Officer concluded that J.L.
had not met her burden of establishing new injuries as of those dates. May 2006 WCB
Order, at 11.
Ultimately, the Hearing Officer found J.L. “totally incapacitated at this time
as a result of the work injuries suffered in 1997 and 2000 and their physical and
psychological sequelae.” May 2006 WCB Order, at 12. MMC filed petitions for review,
and the WCB upheld the May 2006 WCB Order “awarding [J.L.] total incapacity
benefits based on work injuries of October 1, 1997 and December 7, 2000.” JSMF ¶ 18
(citation omitted). MMC appealed the May 2013 WCB Order, which was upheld by
the WCB Appellate Division in 2014. JSMF ¶¶ 19, 20.
MMC alleges that, through May 2021, it has paid wage benefit payments of
$571,993.65 and medical payments of $18,528.61 to J.L. JSMF ¶ 24. MMC seeks
excess loss indemnification for all amounts paid in excess of a single $500,000
retention for J.L.’s injuries. JSMF ¶ 25.
III. Cross-Motions for Summary Judgment
Now, MMC and GRC each move for partial summary judgment on what they
term “Phase I” issues.2 MMC asks me to find that MMC’s claim for indemnification
for J.L.’s injuries is subject to a single $500,000 retention under the Policies. Pl.
Maine Medical Center’s Mot. for S.J. (“MMC’s MSJ”) 1 (ECF No. 30). GRC asks me
to find that (1) MMC’s claim for excess loss indemnification concerns multiple injuries
suffered by J.L., (2) a separate $500,000 retention applies to each separate injury
within the Policies’ lifespans, and (3) even if J.L’s injuries are a single cumulative
injury, the cumulative injury implicates the Policies only if J.L.’s last day of exposure
to the conditions of her employment that caused or aggravated that injury occurred
during one of the policy periods. General Reinsurance Corporation’s Mot. for Partial
S.J. on Phase I Issues (“GRC’s MSJ”) 1 (ECF No. 29).
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “The party moving for summary judgment bears the initial burden of
showing that no” such genuine dispute exists. Feliciano-Muñoz v. Rebarber-Ocasio, 970
2 The parties have agreed that certain issues need not be addressed until Phase 2 of the
litigation. Potential Phase 2 issues include: (1) if multiple retentions apply, the apportionment of costs
between each of Lindeman’s injuries, and (2) when Lindeman’s last day of last exposure to the
conditions that caused or aggravated her injuries occurred, and whether that was outside the policy
period. General Reinsurance Corp’s Pre-Filing Conference Mem. for Phase I Issues 4–5 (ECF No. 21).
F.3d 53, 62 (1st Cir. 2020). Once it does so, “the burden shifts to the nonmoving party . . .
to demonstrate that a trier of fact reasonably could find in his favor” with respect to each
issue on which he bears the burden of proof. Woodward v. Emulex Corp., 714 F.3d 632,
637 (1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir.
1998)). Judgment should be entered “if . . . there can be but one reasonable conclusion”
come trial, but “[i]f reasonable minds could differ,” judgment should not be entered
for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986).
Whether a contract clause is ambiguous, as well as the interpretation of an
unambiguous contact, is a question of law that may be decided on a motion for
summary judgment. See Fowler v. Boise Cascade Corp., 739 F. Supp. 671, 673 & n.2
(D. Me. 1990), aff’d, 984 F.2d 49 (1st Cir. 1991).
“Cross motions for summary judgment do not change the standard.” Perea v. Ed.
Cultural, Inc., 13 F.4th 43, 50 (1st Cir. 2021) (citation omitted). I must “view each motion
separately and draw all reasonable inferences in favor of the respective non-moving
party,” EdgePoint Cap. Holdings, LLC v. Apothecare Pharmacy, LLC, 6 F.4th 50, 57 (1st
Cir. 2021) (citation omitted), and “determine whether either of the parties deserves
judgment as a matter of law on facts that are not disputed,” Alasaad v. Mayorkas, 988
F.3d 8, 16 (1st Cir. 2021), cert. denied sub nom. Merchant v. Mayorkas, 141 S. Ct. 2858
(2021) (citation omitted).
DISCUSSION
I. Interpreting the Policies
While the parties disagree about the interpretation of the Policies and the
WCB Order, they agree that the issues before me are questions of law that can be
decided on the stipulated record. GRC’s MSJ 8; MMC’s Opp’n to GRC’s MSJ 1 (ECF
No. 31). Certain cannons of construction guide my analysis. Whether a term in a
contract is ambiguous is a question of law. Jipson v. Liberty Mut. Fire Ins. Co., 2008
ME 57, ¶ 10, 942 A.2d 1213. Unambiguous terms in insurance contracts are to be
given their plain meaning, see Johnson v. John Hancock Mut. Life Ins. Co., 507 A.2d
559, 560 (Me. 1986), but ambiguous terms are interpreted in favor of the insured,
Patrons Oxford Mut. Ins. Co. v. Marois, 573 A.2d 16, 19 (Me. 1990). The insured has
the burden of proving the existence of coverage and the amount of the loss. See Pelkey
v. Gen. Elec. Cap. Assurance Co., 2002 ME 142, ¶ 10, 804 A.2d 385. The insurer bears
the burden of proving the applicability of any exclusion. Patrons Oxford Ins. Co. v.
Harris, 2006 ME 72, ¶ 19 n.6, 905 A.2d 819.
A. Clearing Up Misconceptions about the Policies
I begin by clearing up some of the confusion generated by both parties’
imprecise presentation of the language of the Policies. The Plaintiff claims that the
Policies “unambiguously provide[ ] that GRC will indemnify MMC for any ‘loss’ under
the [Workers’ Compensation] Law in excess of the insured’s retention.” MMC’s MSJ
17–18. This is a misleading and incomplete construction of the text. What the Policies
actually state is that GRC will indemnify MMC for “loss . . . under the Workers
Compensation Law in excess of the Insured’s retention stated in Item 6 on the
Information Page.” 1995–2001 Policy, at 2; 2001–2003 Policy, at 2. Item 6 on the
Information Page explains that the Insured’s Retention is for “each accident or each
employee for disease.” 1995–2001 Policy, at Information Page; 2001–2003 Policy, at
Information Page. In other words, the Policies unambiguously provide that GRC will
indemnify an insured, not for any losses paid, but rather for losses related to each
accident or each employee for disease in excess of the $500,000 retention. The Policies
go on to elaborate that “Accident means each accident or occurrence . . . arising out
of any one event.” 1995–2001 Policy, at 5; 2001–2003 Policy, at 5. Further, “[a]n
accident is deemed to end 72 hours after the event commences. Each subsequent 72
hours is deemed to be a separate accident period.” 1995–2001 Policy, at 5; 2001–2003
Policy, at 5.
For its part, the Defendant repeatedly states that the Policies have “an
unambiguous requirement of a per-injury retention.” GRC’s MSJ 3, 10, 17. That, too,
is incorrect. The Policies apply the $500,000 retention either per accident or per
employee for disease, and they clearly do not apply on a per injury basis. See 1995–
2001 Policy, at Information Page; 2001–2003 Policy, at Information Page.
With those clarifications, I tackle the parties’ arguments as to how to interpret
the Policies.
B. Resolving How the Policies Treat “Gradual Injuries”
The Plaintiff takes the position that the payments to J.L. “are for a single,
uninterrupted period of time as a result of a gradual injury.” MMC’s MSJ 19. The
Plaintiff contends that gradual injuries fall within the category “injuries by accident”
despite the Policies’ 72-hour temporal limit on accidents that makes such a
construction impossible on the facts before me. To get around the inconvenient and
unambiguous contractual language which confines accidents to a 72-hour period,3 the
Plaintiff points to a provision in each policy that states: “If terms of this policy are in
conflict with any law applicable to this policy, this statement amends this policy to
conform to such law.” 1995–2001 Policy, at 11; 2001–2003 Policy, at 11.
From there, the Plaintiff refers back to the legislative history and judicial
construction of the MWCA with the goal of convincing me that the Policies’ use of the
term “injury by accident” and the 72-hour temporal limit on accidents is inconsistent
with MWCA’s inclusion of gradual injuries. See MMC’s MSJ 3–6. The long and short
of this argument is that in 1975, the MWCA was amended to make clear that gradual
injuries were covered. To do that, the legislature eliminated the “by accident”
modifier from the phrase “injuries by accident.” MMC’s MSJ 4–6. Essentially, the
Plaintiff argues that because Maine amended its workers’ compensation law to
include gradual injuries in the category that was once called “injuries by accident,” I
must interpret the Policies’ “injuries by accident” language as covering gradual
injuries. And to do that, I essentially have to read out of the contract the 72-hour
temporal limitation on accidents.
There are two problems with this argument. First, the MWCA amendment
occurred long before these Policies came into being. See MMC’s MSJ 4. The fact that
the Policies continued to use the “injuries by accident” language and the 72-hour
temporal limit, if anything, should be interpreted as demonstrating an intent not to
3 The Plaintiff argues that the terms “accident,” “occurrence,” and “event” are ambiguous. Pl.
Maine Medical Center’s Mot. for Summ. J. 18 & n.5 (ECF No. 30). Those terms may be ambiguous, but
the language of the Policies that imposes a 72-hour limit on an accident or occurrence is not.
include gradual injuries in the “injuries by accident” category. Presumably the people
who draft and sign these policies have knowledge of fundamental changes in this area
of the law. The parties to the Policies did not change the language of the Policies to
conform with the MWCA, and I cannot now conclude that the unambiguous language
limiting an “accident” to a 72-hour period means something other than what it clearly
says.
Second, the Plaintiff fails to show the conflict between the language of the
excess compensation policy and any Maine law. The Plaintiff cites no Maine law that
requires excess compensation policies to mirror the coverage provided under the
MWCA and no authority for the proposition that the terms and concepts undergirding
the MWCA should be read into the Policies to replace the clear terms agreed to by the
parties. Importantly, excess workers’ compensation policies are not primary workers’
compensation policies. These two types of policies serve different purposes.
Similar arguments to those made by the Plaintiff here were soundly rejected
by the Third Circuit in Neville Chemical Co. v. TIG Insurance Co., No. 21-1616, 2022
WL 1222178, at *3 (3d Cir. April 26, 2022). In that case, the district court had ruled
that three separate back injuries sustained by an employee in 1993, 2000, and 2003,
were not a single “occurrence” and were each subject to separate $500,000 retentions
under the self-insured excess workers’ compensation policy at issue. Id. at *1–2. The
Third Circuit upheld the district court’s decision, and, in doing so, explained why the
plaintiff’s attempt to equate the excess insurance policy to a primary insurance policy
was misguided:
[Neville] argues that the District Court’s reading of the Policy creates
an absurdity at odds with the Policy’s purpose. The District Court’s
reading of the Policy, however, far from creating an absurdity, gives
effect to the purpose of the Policy as an excess workers’ compensation
policy. Whereas the District Court’s interpretation of the Policy is
consistent with the general purpose of excess workers’ compensation
policies, Neville’s interpretation would equate this excess policy to a
primary workers’ compensation policy.
Id. at *3. In upholding the district court, the Third Circuit also rejected the argument
that the definitions in the state workers’ compensation law should be read into the
policy.
References in the Policy to the Pennsylvania Workers’ Compensation
Act do not somehow incorporate the definition of the term “occupational
disease” or the concept of “cumulative injuries” under the Pennsylvania
Workers’ Compensation Act. To read this term and concept into the
Policy to replace the Policy’s definition and clear language would
materially alter the intent of the contracting parties as embodied by the
plain language of the contract.
Id.
The Plaintiff seeks to distinguish Neville on the ground that, unlike the policies
issued by GRC to MMC, “the . . . policy in Neville apparently had no provision
specifically stating that any policy provision in conflict with the applicable state’s law
is amended to be in conformity with that state law.” Pl.’s Mem. Regarding Suppl.
Authority 2 (ECF No. 39). The Plaintiff argues essentially that an excess insurance
policy that does not cover gradual injuries would not conform to Maine law and would
be void as against public policy. MMC’s MSJ 19 (“An interpretation of the policy that
renders excess coverage illusory for all gradual injury claims is not a competing
reasonable interpretation.”).
But just because gradual injuries cannot be shoehorned into the “injury by
accident” category does not mean that the Policies do not provide coverage for gradual
injuries. The Defendant takes the position that gradual injuries fall under the
Policies’ “bodily injury by disease” language. GRC’s Opp’n to MMC’s MSJ 7–8 (ECF
No. 32). The Plaintiff finds the idea of treating a gradual injury as an “injury by
disease” preposterous. MMC’s Reply in Supp. of MMC’s MSJ 4 (ECF No. 34) (“Plain
and simple, physical injury to a body part from cumulative physical trauma is not
considered by anyone to be a ‘disease.’ ”). But is it so preposterous?
I do not see why the term “injury by disease” cannot include gradual injuries.
“Disease” is not a defined term under the Policies.4 “When a word in an insurance
policy is undefined, Maine courts look to its ordinary meaning as appearing in
dictionaries.” Ruksznis v. Argonaut Ins. Co., 774 F.3d 784, 787 (1st Cir. 2014) (citation
omitted). Merriam-Webster defines “disease” as “a condition . . . that impairs normal
functioning and is typically manifested by distinguishing signs and symptoms.”
Disease, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/disease (last visited Oct. 21, 2022). A gradual injury can
involve a condition of the body that impairs normal functioning and is manifested by
distinguishing signs and symptoms. And, to the extent that there is ambiguity, I
would interpret the language in favor of coverage. Foremost Ins. Co. v. Levesque, 2005
4 The Policies do state that “[d]isease is an accident only if it results directly from bodily injury
by accident.” Answer to Compl. & Countercl. Ex. A, at 5 (ECF No. 8-1); Answer to Compl. & Countercl.
Ex. B, at 5 (ECF No. 8-2).
ME 34, ¶ 7, 868 A.2d 244. Because I find that the Policies would cover gradual injuries
as injuries by disease, the Policies do not contravene Maine law or any public policy.
II. How to Treat J.L.’s Injuries Under the Terms of the Policies
Having decided how the Policies should be interpreted, I turn to J.L.’s injuries.
Both parties assert that, on this record, I can decide as a matter of law how many
injuries J.L. suffered and the number of retentions applicable to those injuries.5
Despite the parties’ attempts to convince me otherwise, however, I view the WCB
Order as susceptible to two interpretations.
First, a reasonable factfinder could conclude that J.L. suffered two separate
and distinct injuries in 1997 and 2000. The Hearing Officer’s decision treated these
injury dates as representative of two discrete injuries. It found that the 1997 injuries,
which involved the right trapezius, “appear to be new complaints of new injury,”
unrelated to a previous back injury. May 2006 WCB Order, at 7. And then the WCB
specifically quoted one of J.L.’s treating physicians who noted that J.L.’s 2000
injuries, which involved the left trapezius, “appear to be different, at least from the
records [from] her right upper trapezius muscle[,] which was a problem previously.”
May 2006 WCB Order, at 8. The WCB, on reconsideration, made that construction
even more apparent by upholding the May 2006 WCB Order “based on work injuries
5 The record here consists of a Joint Statement of Material Facts, the Policies, and the May 2006
WCB Order. The Defendant dropped a footnote informing me that at Phase II, the parties would be
conducting discovery about “[t]he precise nature and cause of each injury.” General Reinsurance
Corporation’s Mot. for Partial Summ. J. on Phase I Issues 10 n.2 (ECF No. 29). It strikes me that this
information would be helpful to my decision about how to view the injuries under the Policies. The
parties apparently wanted to confine my analysis to the facts contained within the WCB Order, since
those were the material facts supporting the Board’s decision to award benefits.
of October 1, 1997 and December 7, 2000.” JSMF ¶ 18 (citation omitted). The first
interpretation is thus that J.L. suffered two separate injuries arising from separate
occurrences (or accidents) under the policy. Under this interpretation, two retentions
would apply.
But a reasonable factfinder could also interpret the WCB Order as finding a
single gradual injury. The Hearing Officer noted the “fair amount of hand and arm
work” required by J.L.’s job. May 2006 WCB Order, at 4. While the Hearing Officer
noted that J.L.’s October 1, 1997, injuries, and her December 7, 2000, injuries
impacted slightly different parts of her back, the WCB Order also stated that J.L.’s
complete disability in 2004 was the “result of the work injuries suffered in 1997 and
2000 injury and their physical and psychological sequelae.” May 2006 WCB Order, at
12. The sequelae language suggests that the injuries in 1997 and 2000 may have set
the wheels in motion, but the total incapacitation award was based on those incidents
plus what occurred over the next four years. Under this reading, the entire arc of
injury between 1997 and 2004 could be seen as one gradual injury, which would be
considered an injury by disease subject to a single retention.
III. Putting the Pieces Together
I now turn to the parties’ requests for summary judgment, beginning with the
Plaintiff. In assessing the Plaintiff’s summary judgment motion, I view the facts in
the light most favorable to the Defendant. Under that lens, a reasonable factfinder
could conclude that two separate injuries (whether by accident or disease) occurred—
one in 1997 and the other in 2000. Under this interpretation, viewing the facts in the
light most favorable to the Defendant, two retentions would apply. The Plaintiff’s
motion for summary judgment seeking a finding that a single $500,000 retention
applies must therefore be denied.
In assessing the Defendant’s summary judgment motion, I view the facts in
the light most favorable to the Plaintiff. The Defendant asks me to find that (1)
MMC’s claim for excess loss indemnification concerns multiple injuries suffered by
J.L., (2) a separate $500,000 retention applies to each separate injury within the
Policies’ lifespans, and (3) even if J.L’s injuries are a single cumulative injury, the
cumulative injury implicates the Policies only if J.L.’s last day of exposure to the
conditions of her employment that caused or aggravated that injury occurred during
one of the policy periods. GRC’s MSJ 1.
As to the first request, the Defendant is not entitled to summary judgment
because, as explained in the previous section, the May 2006 WCB Order is subject to
an interpretation that one single cumulative injury by disease occurred. Accordingly,
the Defendant is not entitled to summary judgment on the second request because,
under the single, gradual-injury interpretation, one retention would apply. As to the
third request, however, the Defendant is entitled to summary judgment. If J.L.’s
injuries are a single cumulative injury, they are thus an injury by disease that
implicates the Policies only if J.L.’s last day of exposure to the conditions of her
employment that caused or aggravated that injury occurred during one of the policy
periods.6 As such, the Defendant’s Motion for Summary Judgment is granted in part.
6 The 2001–2003 Policy was in effect through January 1, 2003, and J.L.’s last day of employment
was March 8, 2004. JSMF ¶ 12. The facts are silent as to J.L.’s last day of last exposure to the
conditions of her employment that caused or aggravated her injury.
CONCLUSION
For the reasons stated above, the Court DENIES the Plaintiff’s motion for
summary judgment (ECF No. 30) and GRANTS IN PART and DENIES IN PART
the Defendant’s motion for summary judgment (ECF No. 29).
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 21st day of October, 2022.