Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Boone County, Missouri The
Honorable Jon Edward Beetem, Judge
Mark D. Pfeiffer, P.J., Edward R. Ardini, and Thomas N.
N. Chapman, Judge
Sherman appeals the judgment of the Boone County Circuit
Court in favor of Missouri Professionals Mutual-Physicians
Professional Indemnity Association ("MPM"). Ms.
Sherman filed this equitable garnishment action against MPM
seeking to satisfy a $500, 000 judgment against MPM's
insured, Michael Kaplan, M.D., in a medical malpractice
action. The trial court determined that MPM did not violate
its duty to defend and that MPM was not responsible for a
judgment entered in accordance with a section 537.065
agreement between Ms. Sherman and Dr. Kaplan. The judgment is
and Procedural Background
issued a medical professional liability policy to insureds,
Dr. Kaplan and Dr. Kaplan's corporate entity, Plastic
& Reconstructive Surgery of Mid-Missouri, Inc., for the
policy period of August 1, 2013, to August 1, 2014, with a
policy limit of $500, 000 per each medical incident.
April 18, 2014, Dr. Kaplan performed an abdominoplasty
("tummy tuck") surgery on Ms. Sherman. Following
the surgery, Ms. Sherman developed an infection near the
15, 2014, Ms. Sherman filed a petition for damages related to
the tummy tuck surgery against Dr. Kaplan, his wife Christine
Bell-Kaplan, Plastic & Reconstructive Surgery, and CH
Allied Services Inc. d/b/a Boone Hospital Center. The case
was filed in the Boone County Circuit Court, case number
14BA-CV02328. The petition set forth three counts: Count I
for general negligence against Mrs. Kaplan and Plastic &
Reconstructive Surgery; Count II for medical malpractice
against Dr. Kaplan and Plastic & Reconstructive Surgery;
and Count III for medical malpractice against Boone Hospital
Center. MPM provided a defense to Dr. Kaplan and Plastic
& Reconstructive Surgery. It also provided a courtesy
defense to Mrs. Kaplan while the case was pending against Dr.
Kaplan and Plastic & Reconstructive Surgery, although she
was not insured under the policy and not a licensed
healthcare provider. Dr. Kaplan, at all times, has denied
liability for any damages suffered by Ms. Sherman.
the defense provided by MPM, Dr. Kaplan, Mrs. Kaplan, and
Plastic & Reconstructive Surgery filed a motion to
dismiss based on Ms. Sherman's failure to file an
affidavit of merit required by section 538.225, RSMo 2016. On
April 6, 2015, the trial court dismissed Ms. Sherman's
claims against Dr. Kaplan and Plastic & Reconstructive
Surgery without prejudice, based on the failure to file a
section 538.225 affidavit of merit. The general negligence
claim against Mrs. Kaplan was not dismissed. No appeal was
taken by Ms. Sherman from the dismissal of her medical
negligence claims against Dr. Kaplan. After April 6, 2015,
there was no action pending against Dr. Kaplan in case number
14BA-CV02328. On April 21, 2015, Boone Hospital Center was
(by stipulation) dismissed with prejudice. The only action
remaining in case number 14BA-CV02328 as of April 22, 2015,
was Ms. Sherman's general negligence claim against Mrs.
7, 2015, Jonathan Downard, the Executive V.P. and General
Counsel for MPM, notified Dr. Kaplan by letter that, because
the action against him and Plastic & Reconstructive
Surgery had been dismissed and Ms. Sherman had not appealed
the decision, and because Mrs. Kaplan was not insured under
the policy, MPM would no longer provide a defense for Mrs.
Kaplan. The next day, July 8, 2015, Ms. Sherman
filed a motion for leave to file an amended petition in case
number 14BA-CV02328. The proposed amended petition (which was
attached to her motion for leave) included the general
negligence claim against Mrs. Kaplan in Count I and added a
fraud claim under the Missouri Merchandising Practices Act
("MMPA") against Dr. Kaplan and Mrs. Kaplan in
Count II.  The Proposed Amended Petition (with MMPA
Claim) did not include a medical negligence claim against Dr.
Kaplan. Ms. Sherman never noticed up this particular motion
for leave to file first amended petition for hearing, and it
was never ruled on by the judge in case number 14BA-CV02328.
29, 2015, Mr. Downard of MPM sent a letter to Dr. Kaplan
advising him that MPM had received a copy of Ms.
Sherman's Proposed Amended Petition (with MMPA Claim).
The July 29, 2015 MPM letter specifically indicated that
"[t]he amended petition fails to make a claim for
medical malpractice against [Dr. Kaplan]," and then went
on to explain why there was no coverage for the currently
filed (or proposed) claims. MPM reiterated its denial of
coverage of the currently filed (or proposed) claims against
Mrs. Kaplan, who was not a named insured. MPM further stated
that the claim alleging a violation of the Merchandising
Practices Act against Dr. Kaplan (and Mrs. Kaplan) was a
claim for an intentional act of misrepresentation and/or
fraud and not one for a medical malpractice, and that the
policy excludes such fraud claims from coverage. It denied
coverage, both defense and indemnity, for the MMPA fraud
claim against Dr. Kaplan. The July 29, 2015 letter made it
clear that its refusal to defend was limited to the claims
then pending (general negligence against Mrs. Kaplan only) or
then proposed (MMPA claims against them both), and, in fact,
contrasted them to the type of claims (medical malpractice)
it was obligated to defend and indemnify:
"Based on the information contained in the
Plaintiff's First Amended Petition for Damages, the
policy provisions, and [policy] language set forth above,
MPM-PPIA must deny coverage, both defense and indemnity in
this matter. You are advised to retain your own separate
attorney to represent you and defend the claims excluded
from coverage under the MPM-PIAA policy." (emphasis
the July 7, 2019 letter, nothing in the July 29, 2015 letter
addressed (or denied) the provision of a defense and coverage
of a malpractice claim against Dr. Kaplan (should it be
refiled). Both letters stated why MPM was providing no
defense or coverage of the then currently filed general
negligence claim (against Mrs. Kaplan) or for the MMPA claim
(against them both) in the Proposed (but never actually
filed) First Amended Petition. Neither letter terminated or
refused MPM's continued obligation to defend Dr. Kaplan
should a medical malpractice claim be filed.
August 5, 2015, Dr. Kaplan's personal attorney sent a
letter to Mr. Downard demanding that MPM fully defend and
indemnify Dr. Kaplan and Mrs. Kaplan, and threatening that
the Kaplans would enter into a 537.065 agreement with Ms.
Sherman if MPM refused, but did not discuss the terms of the
proposed agreement. Dr. Kaplan's August 5, 2015 letter
did not respond to the reasons stated in the MPM letter for
denying defense of the remaining claim against Mrs. Kaplan
(or the proposed MMPA claim against Dr. Kaplan). The August 5
letter made no mention of Ms. Sherman's intention to
refile the medical malpractice claim against Dr. Kaplan,
which had been omitted in the Proposed Amended Petition (with
later, in a letter dated August 12, 2015, MPM's attorney
responded to Dr. Kaplan's attorney's August 5, 2015
letter, again explaining that the policy did not cover Mrs.
Kaplan because she was not a named insured on the policy,
that there was no claim of medical negligence against Dr.
Kaplan alleged in the Proposed Amended Petition (with MMPA
Claim), and that the only proposed claim against Dr. Kaplan
(under the MMPA) was excluded from coverage under the policy.
The August 12, 2017 letter was very clear in limiting its
denial of defense and coverage to the claims then filed or
The only pending count against Dr. Michael Kaplan M.D. is
alleged under the Missouri Merchandising Practices Act, RSMo.
407. (sic) Therefore, taking into account the procedural
posture in this cause and the explicit language in the
Policy, no damages can result from the medical negligence of
an Insured because there is no claim pending for medical
negligence as these counts have been previously dismissed.
August 12, 2015 MPM letter then went on to explain why there
was no coverage for the intentional acts alleged in the
proposed (but ultimately never filed) MMPA claim, and then
concluded, "You are advised to retain your own separate
attorney to represent you and defend the claims
excluded from coverage under the MPM-PIAA Policy. Should
you have any questions ...