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Assurance Co. of American v. American Registry of Radiologic Technologists

United States District Court, D. Minnesota

December 1, 2014

Assurance Company of America, Plaintiff,
v.
The American Registry of Radiologic Technologists, Defendant

Page 1290

Jeanne H. Unger, Esq., Bassford Remele, PA, Minneapolis, MN, appeared on behalf of Plaintiff.

Barbara M. Ross, Esq., Best & Flanagan LLP, Minneapolis, MN, appeared on behalf of Defendant.

Page 1291

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

On October 9, 2014, the undersigned United States District Judge heard oral argument on Defendant The American Registry of Radiologic Technologists' (" ARRT" ) Motion for Partial Summary Judgment [Docket No. 40] and Plaintiff Assurance Company of America's (" Assurance" ) Motion for Summary Judgment [Docket No. 47]. For the reasons set forth below, Plaintiff's motion is granted and Defendant's motion is denied.

II. BACKGROUND

ARRT is a defendant in over 25 lawsuits (the " Underlying Actions" ) filed in New Hampshire by plaintiffs alleging they contracted Hepatitis C while receiving treatment at the Exeter Hospital. Ross Aff. [Docket No. 43] Ex. G; Reid Aff. [Docket No. 42] Exs. B-AA. The Underlying Actions share in common the allegation of misconduct by David Kwiatkowski (" Kwiatkowski" ), a cardiovascular technician certified as an ARRT Registered Technologist. See, e.g., Reid Aff. Ex. B ARRT 00210. Mr. Kwiatkowski, a carrier of Hepatitis C, stole syringes filled with Fentanyl, injected himself with the narcotic, and then refilled the syringes with saline solution.

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See Unger Aff. [Docket No. 51] Exs. B-1 through B-4. The tainted syringes were then used on the Exeter patients who became plaintiffs in the Underlying Actions. Id.

The Underlying Actions allege ARRT was negligent in investigating complaints of Kwiatkowski's use of Fentanyl while working at an Arizona hospital. Am. Countercl. [Docket No. 11] ¶ 15. While the allegations in the Underlying Actions vary somewhat, they share a common theme: ARRT negligently certified Kwiatkowski as a Registered Technologist when ARRT " knew or should have known" that Kwiatkowski failed to comply with ARRT's ethical standards, posed a risk to public safety, and was incompetent to provide care. See, e.g., Reid Aff. Exs. B-AA. In addition to the Underlying Actions, Exeter Hospital named ARRT in a separate lawsuit seeking financial contribution from ARRT and others for settlements reached with the plaintiffs infected with Hepatitis C. Unger Aff. Ex. C. Exeter's claim against ARRT is based on the same factual predicate as the allegations against ARRT in the Underlying Actions. Id. ¶ ¶ 57-60.

A. The American Registry of Radiologic Technologists

ARRT is the world's largest credentialing organization in medical imaging and radiation therapy. Reid Aff. ¶ 3. ARRT tests, certifies, and annually registers radiologic technologists--medical professionals whose work may include taking X-Rays, sonograms, MRIs, mammograms, ultrasounds, bone density scans, nuclear medicine scans, performing radiation therapy, or performing cardiovascular-interventional radiography. Id. ARRT, located in St. Paul, Minnesota, tests, certifies, and annually registers over 300,000 radiologic technologists each year. Id.

Candidates applying for ARRT certification are required to complete an educational and academic program developed by ARRT and meet ethical rules that are linked to specific requirements for professional practice. Id. ¶ ¶ 8, 10. The academic arm of the certification process includes passing a test, completing didactic course work, and documenting competency in an ARRT-specified list of clinical procedures for the discipline in which they are seeking certification. Id. ¶ 8. The ethical component requires candidates to have good moral character, certify they have not engaged in conduct that is inconsistent with ARRT's Rules of Ethics, and agree to comply with ARRT's Rules and Regulations and the Standards of Ethics. Id. ¶ 10.

ARRT investigates all claims of violations of the Standards of Ethics and its Board of Trustees has discretion to reject any application upon determining the applicant does not meet the qualifications for certification. Id. ¶ 11. As part of the credentialing process, ARRT may conduct criminal background checks using public records. Id. ¶ 10. ARRT relies on the applicant's disclosures and any information about the applicant voluntarily provided by third parties, such as state licensing agencies and employers, in assessing the applicant's ability to comply with the Standards of Ethics. Id.

After the initial educational and ethical requirements are met, candidates must pass an examination developed by ARRT that assesses the knowledge and cognitive skills required for intelligently performing the tasks typically required of entry level staff technologists. Id. ¶ 12. The examination questions are written by ARRT-certified and registered radiologic technologists, radiation physicists, and radiologists. Id. ¶ 13. A certificate is issued to candidates who have met all qualifications

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and are eligible for certification. Id. ¶ 14. The certificate grants the individual the right to use the title " Registered Technologist" so long as the registration of the certificate is still in effect. Id. ¶ 14.

To continue using the " Registered Technologist" title, individuals are required to annually renew registration of their ARRT certificate. Renewal requires complying with ARRT's Rules and Regulations and the Standards of Ethics, and meeting ARRT's continuing education requirements. Id. ¶ 15. Again, ARRT relies on the individual's disclosures and information voluntarily provided by third parties. ARRT may conduct further investigation using public records, but it does not independently verify the ethical representations made by renewal applicants. Id. ¶ 16.

All claims of ethics violations of registered individuals that are reported to ARRT are investigated. Id. ¶ 17. The investigations are undertaken by ARRT staff who are not required to have experience or any investigatory training prior to being hired. Id. The Board of Trustees may reject, revoke, or suspend renewal applications or censure an individual if the Board determines--after the initial investigation, an opportunity for a hearing before the Ethics Committee, and an opportunity for an appeal to the Ethics Appeal Board--that the individual has failed to meet the qualifications for registration in the Rules and Regulations, including a violation of ARRT's Standards of Ethics. Id.

B. Assurance Company of America

Assurance is an insurance company that issued two insurance policies to ARRT: a Commercial General Liability policy (the " CGL" policy) and a Commercial Umbrella policy (the " Umbrella" policy).

1. The Commercial General Liability Policy

ARRT purchased from Assurance a CGL policy which began coverage on December 1, 2001. The CGL policy was renewed annually through December 1, 2013. The CGL policy includes, in relevant part, the following Professional Service Exclusion:

2. Exclusions
This insurance does not apply to:
o. Professional
(1) " Bodily injury" or " property damages" arising out of the rendering or failure to render any professional service, including but not limited to:
(a) Accounting, advertising, architectural, drafting, engineering, financial, insurance or legal services, advice and instruction;
(b) Medical, cosmetic, dental, ear piercing, hair dressing, massage, physical therapy, veterinary, nursing, surgical or x-ray services, advice and instruction;
(c) Use of any tanning booth, tanning bed, tanning equipment or tanning device;
(d) Laboratory operations or services, whether medical or not; and
(e) Services performed as a funeral director or as an operator of a cemetery; and
(f) Any service, treatment, advice or instruction for the purpose of appearance or skin enhancement, hair removal or replacement or personal grooming.

Unger Aff. Ex. A ASSUR00066-69.

2. The Umbrella Policy

ARRT also purchased an Assurance Umbrella policy with coverage beginning

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on December 1, 2001. The Umbrella policy was renewed annually through December 1, 2013. The Umbrella policy includes, in relevant part, the following Professional Services Exclusion Endorsement:

DESIGNATED PROFESSIONAL SERVICES OR ERRORS AND ...

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