The Medical Protective Company v. Gronbeck

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

THE MEDICAL PROTECTIVE :

COMPANY, :

: Case No. 3:24-cv-292

Plaintiff, :

: Judge Thomas M. Rose

v. :

: Magistrate Judge Caroline H. Gentry

DONALD ALEXANDER :

GRONBECK, et al., :

:

Defendants.

______________________________________________________________________________

ENTRY AND ORDER GRANTING, IN PART, AND DENYING, IN PART,

MOTION OF DEFENDANT DONALD ALEXANDER GRONBECK TO

PARTIALLY DISMISS PLAINTIFF’S COMPLAINT (DOC. NO. 35)

______________________________________________________________________________

Currently before the Court is the Motion of Defendant Donald Alexander Gronbeck to

Partially Dismiss Plaintiff’s Complaint (the “Motion”) (Doc. No. 35). Plaintiff The Medical

Protective Company (“MedPro”) has filed its Complaint for Recission and Declaratory Judgment

(the “Complaint”) (Doc. No. 1), whereby MedPro seeks to rescind professional services insurance

policies issued to Defendants Donald Alexander Gronbeck (“Gronbeck”) and Yellow Springs

Primary Care, Inc. (“Yellow Springs”), due to allegedly material misrepresentations made

pertaining to Gronbeck’s sexual misconduct toward patients between 2013 and 2021. (Id. at

PageID 6-13.) The Complaint would also have the Court declare that MedPro has no duty to

defend Gronbeck and Yellow Springs under the policies, against several suits now pending in the

Montgomery and Greene Counties Court of Common Pleas. (Id. at PageID 13-16.)

Gronbeck Moves for partial dismissal of the Complaint, arguing that MedPro has failed to

satisfy the general tender-back rule applicable to recission claims (Doc. No. 35 at PageID 262),

and, because Gronbeck’s sexual misconduct is alleged to have occurred in the course of providing

medical services, MedPro cannot claim that it has no duty to defend Gronbeck for lack of coverage

(Id. at PageID 271-74). For the reasons discussed below, the Court GRANTS, IN PART, and

DENIES, IN PART, the Motion of Defendant Donald Alexander Gronbeck to Partially Dismiss

Plaintiff’s Complaint (Doc. No. 35).

I. BACKGROUND

As stated at the outset, this matter concerns professional services insurance policies issued

by MedPro to Gronbeck—formerly Dr. Gronbeck—and Yellow Springs. After receiving his

application for coverage, MedPro issued Gronbeck a professional services policy on March 31,

2014, which was renewed annually until April 7, 2022 (the “Gronbeck Policy”). (Doc. No. 1 at

PageID 6, 8.) By February of 2019, Gronbeck acquired another professional services policy from

MedPro on behalf of Yellow Springs, a primary care provider, in his capacity as sole shareholder

thereof (the “Yellow Springs Policy”). (Id.) Once approved in 2019, the Yellow Springs Policy

was renewed each year until coverage ended on April 7, 2022, much like the Gronbeck Policy.

(Id. at PageID 10.)

In 2022, Gronbeck began facing accusations of sexual misconduct for acts allegedly

committed upon his patients during medical examinations from 2013 through 2021. (Id. at PageID

11-12.) For clarity, although MedPro alleges that Gronbeck was aware of similar accusations as

early as March 2018 (Id. at PageID 12), no formal action was taken against Gronbeck until 2022.

In January of 2022, the State Medical Board of Ohio suspended Gronbeck’s license to practice

medicine after initially investigating him for sexual misconduct. (Id. at PageID 11.) Within the

following two months, Gronbeck voluntarily surrendered his medical license, in lieu of involuntary

revocation. (Id. at PageID 12.) On October 20, 2022, Gronbeck was charged in the Greene County

Court of Common Pleas with 50 criminal counts, alleging rape, sexual battery, gross sexual

imposition, and/or sexual imposition. (GREENE COUNTY COURT OF COMMON PLEAS, COURTVIEW,

https://courts.greenecountyohio.gov/eservices/search.page.7?x=*xhM3ZGOnG4EzNuSfVvC4Q

(last visited Apr. 10, 2025).)1

In addition to the criminal charges against him, Gronbeck is now a defendant in four civil

cases pending in the Greene County Court of Common Pleas and one civil case pending in the

Montgomery County Court of Common Pleas. (Doc. No. 1 at PageID 13-14.) The first of these

suits was filed in August 2022, even before Gronbeck was indicted. (MONTGOMERY COUNTY

COURT OF COMMON PLEAS, PROV3, https://pro.mcohio.org/ (last visited Apr. 10, 2025).) In any

event, the plaintiffs in Gronbeck’s civil suits are 21 of his former patients—all of whom have been

named as defendants in the present action based on their interest in the outcome of this litigation.

(Doc. No. 1 at PageID 4-5.) Moreover, each complaint in these underlying suits accuses Gronbeck

of committing sexual torts in the course—or under the guise—of performing medical

examinations. (GREENE COUNTY COURT OF COMMON PLEAS, COURTVIEW,

https://courts.greenecountyohio.gov/eservices/search.page.7?x=*xhM3ZGOnG4EzNuSfVvC4Q

(last visited Apr. 10, 2025); see also MONTGOMERY COUNTY COURT OF COMMON

PLEAS, PROV3, https://pro.mcohio.org/ (last visited Apr. 10, 2025).) Thus far, MedPro has

provided defenses for Gronbeck and Yellow Springs in state court. (Doc. No. 1 at PageID 15.)

When applying for the Gronbeck Policy, Gronbeck faced the following pertinent inquiries:

Have you ever been indicted for, charged with, or convicted of, any act committed

in violation of any law or ordinance other than traffic offenses or had your hospital

privileges, DEA license, Medical license or reimbursement privileges refused,

denied, revoked, suspended, restricted, subject to a reprimand, placed on probation

or voluntarily surrendered?[; and,]

1 The Court has accessed this and other state court records for purposes of the instant Motion because (a) the documents

constitute publicly available records, and, (b) the documents are integral to the allegations contained in MedPro’s

Complaint.

Have you ever been accused of sexual misconduct of any kind?

(Id. at PageID 6.) Gronbeck answered, “no,” to both questions and agreed to notify MedPro of

any material changes to any answer provided in his application. (Id.) Gronbeck never notified

MedPro of such changes or altered his application responses when renewing the Gronbeck Policy

each year. (Id.)

Similarly, the Yellow Springs Policy application asked whether Yellow Springs or its

employees had:

Ever been the subject of disciplinary investigative proceedings or a reprimand by a

governmental licensure board or administrative agency, hospital or professional

association?[; or,]

Ever been indicted for, charged with, or convicted of, any act committed in

violation of any law or ordinance, other than traffic offenses, or had hospital

privileges, DEA license, medical license, or Medicaid/Medicare privileges

revoked, suspended, restricted, subject to a reprimand, placed on probation or

voluntarily surrendered?

(Id. at PageID 7.) Gronbeck responded to both of these questions in the negative and agreed to

inform MedPro of any material changes to Yellow Springs’ answers. (Id. at PageID 10-11.)

Gronbeck did not ever notify MedPro of any such changes and did not amend Yellow Springs’

application responses upon renewal of the Yellow Springs Policy each year. (Id. at PageID 6.)

Notably, both the Gronbeck Policy and the Yellow Springs Policy (collectively, the

“Policies”) provide that MedPro will defend the insureds against claims alleging a criminal act, a

willful tort, or a sexual act, so long as coverage otherwise exists under the Policies. (See id. at

PageID 14-15.) Regarding coverage, both Policies offer coverage for claims based on professional

services rendered, including:

(a) the rendering of medical, surgical, dental, or nursing services to a patient

and the provision of medical examinations, opinions, or consultations

regarding a person’s medical condition within the Insured’s practice as a

licensed health care provider. This shall include first aid rendered at the

scene of an accident without expectations of monetary compensation.

(Id. at PageID 14.)

Notwithstanding, on November 2, 2024, MedPro filed the Complaint in this matter. (See

Doc. No. 1.) Therein, MedPro alleges that Gronbeck made material misrepresentations regarding

his sexual misconduct when applying for and renewing the Policies, which warrants the equitable

remedy of recission. (Id. at PageID 6-13.) MedPro further asserts, in relevant part, that it has no

duty to defend Gronbeck or Yellow Springs because the sexual misconduct alleged in the state

courts was committed outside the scope of Gronbeck’s professional services and, therefore,

Gronbeck’s purported conduct is not covered under the Policies. (Id. at PageID 14.)

On January 27, 2025, Gronbeck filed his current Motion. (Doc. No. 35.) MedPro filed its

response in opposition to the Motion on February 17, 2025 (Doc. No. 38), and Gronbeck submitted

his reply brief in support of his Motion on March 3, 2025 (Doc. No. 39). No other briefings have

been lodged by Yellow Springs or the defendants in interest. Accordingly, Gronbeck’s Motion is

ripe for review and decision.

II. STANDARD OF REVIEW

“The purpose of a Rule 12(b)(6) motion to dismiss is to allow a defendant to test whether,

as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint

is true.” Bihn v. Fifth Third Mortg. Co., 980 F. Supp. 2d 892, 897 (S.D. Ohio 2013) (citing Mayer

v. Mylod, 988 F. 2d 635, 638 (6th Cir. 1993)). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when it includes

“factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. This standard is not the same as a probability standard, but “asks

for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint

pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). Thus,

if a plaintiff has “not nudged [its] claims across the line from conceivable to plausible, [the]

complaint must be dismissed.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

When ruling on a motion to dismiss, the Court must accept the factual allegations of the

complaint as true and construe them in a light most favorable to the non-moving party. Id. at 554-

55. However, the Court is not bound to accept as true a legal conclusion couched as a factual

allegation. Id. at 555-56. “In evaluating a motion to dismiss [a court] may consider the complaint

and any exhibits attached thereto, public records, items appearing in the record of the case and

exhibits attached to the defendant’s motion to dismiss so long as they are referred to in the

complaint and are central to the claims contained therein.” Luis v. Zang, 833 F.3d 619, 626 (6th

Cir. 2016) (internal quotation marks omitted).

Finally, “[a] federal court sitting in diversity must apply the substantive law . . . of the state

in which it sits.” Phelps v. McClellan, 30 F.3d 658, 661 (6th Cir. 1994) (citing Klaxon Co. v.

Stenor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021-22 (1941)); Clutter v. Johns-

Manville Sales Corp., 646 F.2d 1151, 1153 (6th Cir. 1981). To the extent that the state’s highest

court has not addressed the issue presented, the federal court must anticipate how the state’s highest

court would rule. Imperial Hotels Corp. v. Dore, 257 F.3d 615, 620 (6th Cir. 2001) (quoting Bailey

Farms, Inc. v. NOR-AM Chem. Co., 27 F.3d 188, 191 (6th Cir. 1994)). Moreover, “[i]f the highest

court has not spoken, the federal court must ascertain from all available data what the state law is

and apply it.” Clutter, 646 F.2d at 1153.

III. ANALYSIS

Initially, the Court finds it useful to state the lens through which it must read the subject

Policies here. In Ohio, “[i]t is a long-standing principle of law that an insurance policy is a

contract, and that the relationship between the insurer and the insured is purely contractual in

nature.” Nationwide Mut. Ins. Co. v. Marsh, 472 N.E.2d 1061, 1062 (Ohio 1984) (citing Ohio

Farmers Ins. Co. v. Cochran, 135 N.E. 537 (Ohio 1922)). Courts interpret insurance contracts by

“reasonably construing” the agreement based on the “ordinary and commonly understood meaning

of the language employed.” Reinbolt v. Gloor, 767 N.E.2d 1187, 1200 (Ohio Ct. App. 2001)

(internal citations and quotation marks omitted). As with all contracts, a reviewing court cannot

read alternative meaning into unambiguous terms of an insurance agreement. Gomolka v. State

Auto. Mut. Ins. Co., 436 N.E.2d 1347, 1348 (Ohio 1982); see also Zinser v. Auto-Owners Ins. Co.,

2017-Ohio-5668, at ¶ 13 (Ohio Ct. App. 2017) (“[a]n insurance policy is a contract; therefore, a

reviewing court must interpret it in accordance with the rules of construction applicable to all other

contracts”). Though, if the terms of an insurance agreement are “susceptible to more than one

interpretation, they will be construed strictly against the insurer and liberally in favor of the

insured.” Reinbolt, 767 N.E.2d at 1200 (quoting King v. Nationwide Ins. Co., 519 N.E.2d 1380,

1383 (Ohio 1988)).

Against this backdrop, the Court considers the viability of: (1) MedPro’s claim for recission

of the Policies; and, (2) MedPro’s plea for a declaratory judgment finding that it has no duty to

defend Gronbeck pursuant to the Policies.

1. Recission – Tender Back

The Court turns then to MedPro’s claim for the equitable remedy of recission. In his

Motion, Gronbeck argues that MedPro’s recission claim cannot stand because MedPro has not

tendered back the consideration paid for the Policies or alleged it is willing and able to do so. (Doc.

No. 35 at PageID 268.) In response, MedPro states that Gronbeck has misconstrued its Complaint

as seeking an equitable remedy requiring the return of consideration, rather than a declaratory

judgment action to void the subject Policies, which does not. (Doc. No. 38 at PageID 284.) This

notion can be dismissed out of hand, as MedPro is the master of its own Complaint, and, the

Complaint does in fact include a standalone claim for recission. (Doc. No. 1 at PageID 6.)

However, more substantively, MedPro contends that its current defense of Gronbeck in the state

courts renders a tender-back of consideration received for the Policies impossible. (Doc. No. 38

at PageID 285-86.)

As a rule, when a party seeks recission of a contract, they must return the consideration

received from the contract. Barnes v. Reserve Energy Exploration, 68 N.E.3d 133, 138 (Ohio Ct.

App. 2016). “[M]onies need not have actually been returned prior to raising the claim for recission

of the contract,” but a party seeking recission must make “some statement offering return to [the]

status quo ….” Id. To this end, Ohio courts have long held that it would run afoul of equitable

principles to grant recission to a plaintiff, “and at the same time leave her in possession of that

which she received.” Barnes, 68 N.E.3d at 138 (quoting Miller v. Bieghler, 174 N.E. 774, 776

(Ohio 1931)) (internal quotation marks omitted).

“An exception to the requirement of restoration has been carved out if what plaintiff has

received is of no value to him,” or if a return of consideration is impossible. Cincinnati Gas &

Elec. Co. v. Gen. Elec. Co., 656 F. Supp. 49, 68 (S.D. Ohio 1986) (citing Taft v. Wildman, 15 Ohio

123, 128 (Ohio 1846); Delta Investing Corp. v. Moore, 366 F.2d 516, 520 (6th Cir. 1966)). Still,

exceptions to the general rule are “to be applied in accordance with equitable principles.” Delta

Investing Corp., 366 F.2d at 520 (citing 17A C.J.S. Contracts § 439). This means that a failure to

tender back consideration will be appropriately excused “where such return is rendered impossible

by the party whose conduct affords ground for recission.” Delta Investing Corp., 366 F.2d at 521

(quoting 12 Am. Jur. § 453, p. 1035) (internal quotation marks omitted). By any token, “Ohio

courts have recognized that with respect to the tender-back rule, timing is critical.” Talmer Bank

and Trust v. Malek, 651 F. App’x. 438, 444 (6th Cir. 2016) (citation omitted).

In the case at bar, the Court finds that MedPro’s claim for recission must be dismissed for

failure to adhere to the general rule in favor of restoration. To start, MedPro has simply not

tendered back consideration it received for the Policies it now seeks to rescind, nor has MedPro

stated a willingness to return such consideration.

What’s more, MedPro cannot plausibly state that the consideration it received for the

Policies is valueless or that restoration is impossible here. There is no dispute that the insurance

payments MedPro received from Gronbeck year after year were valuable when paid. Rather,

MedPro would deem those payments to be valueless now that it has expended resources defending

Gronbeck in state court. To the extent Gronbeck’s payments are actually valueless to MedPro,

those payments are valueless because of MedPro. MedPro learned of the alleged cause for

recission of the Policies in 2022, and, instead of filing its claim for rescission then, MedPro would

seem to have defended Gronbeck without complaint for more than two years. As a result, MedPro

exhausted the value of Gronbeck’s consideration of its own volition, as opposed to having the

payments rendered valueless by virtue of Gronbeck’s alleged misrepresentations. The same can

be said for the contention that restoration is impossible. Gronbeck’s allegedly fraudulent conduct

did not cause MedPro mount his defense in state court and make restoration impossible. Assuming

the allegation that Gronbeck made a fraudulent misrepresentation regarding his sexual misconduct

to be true, that misrepresentation is made readily apparent by the state court complaints. Again,

instead of filing the current action when Gronbeck was served with a complaint in 2022, MedPro

made the decision to defend Gronbeck in multiple actions, nonetheless.

In total, MedPro has not satisfied the general tender-back requirement and any

circumstances which might give way to an exception are of MedPro’s own making. Consequently,

the Court GRANTS Gronbeck’s Motion in this respect and DISMISSES MedPro’s claim for the

equitable remedy of recission.

2. Duty to Defend – Coverage

Next, the Court considers whether MedPro has adequately stated a claim for declaratory

judgment inasmuch as MedPro alleges that it has no duty to defend Gronbeck under the terms of

the Policies. Specifically, Gronbeck takes issue with MedPro’s assertion that the Policies do not

provide coverage for the alleged acts giving rise to the suits against him in state court. (Doc. No.

35 at PageID 271-72.) Gronbeck contends that, because the Complaint alleges Gronbeck’s sexual

misconduct was committed during medical examinations, any liability flowing from that conduct

is necessarily covered as professional services rendered. (Id. at PageID 273-74.) For its part,

MedPro retorts that, even acknowledging Gronbeck’s alleged sexual misconduct was committed

during examinations, professional services simply do not include the acts of rape, sexual battery,

and sexual imposition. (Doc. No. 38 at PageID 288.)

“Under Ohio law, ‘whether an insurer has a duty to defend an action against an insured is

initially determined by the scope of the pleadings’” levied against the insured. NCMIC Ins. Co. v.

Smith, 389 F. Supp. 3d 535, 540 (S.D. Ohio 2019) (quoting M/G Transp. Servs., Inc. v. Water

Quality Ins. Syndicate, 234 F.3d 974, 977 (6th Cir. 2000)). Along those lines, “[t]he duty of the

insurer to accept the defense of a claim attaches whenever the complaint states a covered claim, or

potentially or arguably does so.” M/G Transp. Servs., Inc., 234 F.3d at 977 (citing City of

Willoughby Hills v. Cincinnati Ins. Co., 459 N.E.2d 555, 558 (Ohio 1984)) (emphasis in original).

Where a complaint against an insured alleges no claim which possibly falls within the insured’s

policy, an insurer will have no duty to defend. Wedge Prods., Inc. v. Hartford Equity Sales Co.,

509 N.E.2d 74, 76 (Ohio 1987) (citations omitted). “However, once a court determines the insurer

must defend against one claim within a complaint, ‘it must defend the entire lawsuit, even though

other claims may not come within the coverage of the policy.’” NCMIC Ins. Co, 389 F. Supp. 3d

at 540 (quoting Holloway Sportswear, Inc. v. Transp. Ins. Co., 177 F. Supp. 2d 764, 769 (S.D.

Ohio 2001)).

Here, the Court finds MedPro’s claim decrying a duty to defend Gronbeck for lack of

coverage to be entirely plausible. In essence, MedPro’s duty to defend Gronbeck, or lack thereof,

will turn on whether the state court suits implicate the appropriate standard of care. See Nye v.

Ellis, 2010-Ohio-1462, at ¶ 33 (Ohio Ct. App. 2010) (“It is well settled in Ohio that in order to

prevail in a medical malpractice claim, a plaintiff must demonstrate … the treatment provided did

not meet the prevailing standard of care”) (citation omitted). The state court complaints certainly

allude to Gronbeck’s alleged sexual conduct in a way that refers to his medical services rendered.

Yet, the underlying complaints do not necessarily sound in medical malpractice. Instead, the main

thrust of each suit is made up of allegations of Gronbeck’s allegedly intentional sexual impropriety.

That the allegedly tortious conduct occurred during medical examinations does not mean that all

of Gronbeck’s actions were subject to the standard of care. For instance, if during a medical

examination, Gronbeck had pulled out a gun and shot the patient, he would have been performing

an act far outside the scope of his role as a physician. Gronbeck’s alleged sexual misconduct could

likewise fall outside this scope, depending on the surrounding factual circumstances.

In short, there is not enough factual context to say that MedPro does or does not have a

definitive duty to defend Gronbeck. The Court has looked to the underlying state court documents

to inform this analysis, but would refrain from making a conclusive finding based on them. To do

so without context from the Parties would be speculative.

Ultimately, the Court is just left with MedPro’s plausible claim. MedPro has alleged that

Gronbeck’s alleged misconduct falls outside the bounds of professional services, as defined by the

Policies, and at this stage MedPro’s allegations must be believed. (Doc. No. 1 at PageID 15.)

Therefore, the Court DENIES Gronbeck’s Motion regarding MedPro’s claim that the Policies at

issue do not cover a duty to defend Gronbeck in state court actions against him.

IV. CONCLUSION

For the reasons explained herein, the Court GRANTS, IN PART, and DENIES, IN

PART, the Motion of Defendant Donald Alexander Gronbeck to Partially Dismiss Plaintiff’s

Complaint (Doc. No. 35). The Court specifically finds as follows:

1. Gronbeck’s Motion is GRANTED with respect to MedPro’s recission claim.

Accordingly, Count One of MedPro’s Complaint is hereby DISMISSED;

2. Gronbeck’s Motion is DENIED to the extent he argues MedPro cannot state a claim

that it does not have a duty to defend Gronbeck for lack of coverage under the

Policies; and,

3. This Order is not dispositive of the entire action and this matter shall remain active

on the Court’s docket.

DONE and ORDERED in Dayton, Ohio, this Tuesday, April 15, 2025.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE