ray quinney & nebeker p.c. - frank carney mediation...8. in october 2006, dr. saltz performed an...

Kristine M. Larsen (9228) Blake M. Biddulph (15541) RAY QUINNEY & NEBEKER P.C. 36 South State Street, Suite 1400 P.O. Box 45385 Salt Lake City, Utah 84145-0385 Tel: (801) 532-1500 Fax: (801) 532-7543 [email protected] [email protected] Mark D. Malloy (pro hac admission pending) MEISSNER TIERNEY FISHER & NICHOLS S.C. 111 East Kilbourn Avenue, 19th Floor Milwaukee, Wisconsin 53202 Tel: (414) 273-1300 Fax: (414) 273-5840 Attorneys for UMIA Insurance, Inc.

IN THE THIRD JUDICIAL DISTRICT COURT

SALT LAKE COUNTY, STATE OF UTAH

UMIA INSURANCE, INC.,

Plaintiff,

vs.

RENATO SALTZ, M.D., SALTZ PLASTIC SURGERY, P.C., and CONILYN JUDGE,

Defendants.

COMPLAINT FOR

DECLARATORY JUDGMENT

Civil No. Judge

Plaintiff UMIA Insurance, Inc. (f/k/a Utah Medical Insurance Association) (“UMIA”), by

and through its attorneys, as and for a Complaint for Declaratory Judgment, alleges and shows

the Court as follows:

mailto:[email protected]

2

NATURE OF THE ACTION

1. This is an action for declaratory judgment, pursuant to Utah Code Ann. § 78B-6-

401, to determine an actual controversy among the parties with respect to their respective rights

and obligations under an insurance policy issued by UMIA to Defendant Renato Saltz M.D.

(“Dr. Saltz”), as it relates to the claims asserted against Dr. Saltz and Defendant Saltz Plastic

Surgery, P.C. (“Saltz Plastic Surgery”) by Defendant Conilyn Judge (“Ms. Judge”) in Conilyn

Poulsen Judge v. Renato Saltz, MD, et al., Salt Lake County Case Number 090900609 (“the

Judge Lawsuit”).

PARTIES

2. UMIA is an Oregon reciprocal insurance corporation with a principal place of

business located at 310 East 4500 South, Suite 600, Salt Lake City, Utah 84121.

3. Dr. Saltz is a resident of the State of Utah who is a board certified plastic

reconstructive surgeon, with a principal place of business of 5445 South Highland Drive,

Holladay, Utah, 84121.

4. Defendant Saltz Plastic Surgery, P.C. (“Saltz Plastic Surgery”) is a Utah

professional services corporation in the business of plastic reconstructive surgery, with a

principal place of business of 5445 South Highland Drive, Holladay, Utah, 84121.

5. Defendant Conilyn Judge (“Ms. Judge”), upon information and belief, is and was

at all times relevant to the Judge Lawsuit an adult resident of the State of Utah.

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JURISDICTION AND VENUE

6. This Court has jurisdiction over the parties to this case pursuant to Utah Code §

78B-3-205 because they are natural persons and corporations domiciled in this state.

7. Venue is proper in Salt Lake County pursuant to § 78B-3-305 because Dr. Saltz

and Saltz Plastic Surgery conduct substantial business in Salt Lake County and all actions which

give rise to the claims stated herein occurred in Salt Lake County.

FACTUAL BACKGROUND

8. In October 2006, Dr. Saltz performed an abdominoplasty, breast augmentation

and mastopexy on Ms. Judge. During the course of the surgical and recovery process, Dr. Saltz

took preoperative and postoperative photographs of Ms. Judge (‘the preoperative and

postoperative photographs”).

9. On or about January 8, 2008, Ms. Judge and Dr. Saltz agreed to take part in a

television news story on the topic of how women could protect themselves from bad cosmetic

surgeons and bad surgical outcomes. Ms. Judge and Dr. Saltz agreed to be interviewed for the

news story to provide the viewers with an example of a positive surgical outcome.

10. During the course of the interview with the news station, Ms. Judge and Dr. Saltz

were filmed while doing a simulated examination to provide the viewer with information

regarding the process of the surgical procedure that was performed in October 2006.

11. On or about January 31, 2008, the news story – “Plastic Surgery Nightmares” –

was aired. The preoperative and postoperative photographs were aired on the broadcast. After

the news story aired, the news story was posted on the news organization’s website. This posting

included the preoperative and postoperative photos.

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12. On January 12, 2009, Ms. Judge filed a lawsuit against Dr. Saltz and Saltz Plastic

Surgery, case number 090900609 (“the Judge Lawsuit”). A true and correct copy of the

Complaint filed in the Judge Lawsuit is attached and incorporated as Exhibit A.

13. In the Judge Lawsuit, Ms. Judge made the following allegations against Dr. Saltz:

a. Dr. Saltz intentionally released the preoperative and postoperative photographs to Fox News, who intentionally released the preoperative and postoperative photographs by broadcasting them on television, and publishing them on the Internet and its website.

b. Dr. Saltz falsely communicated to Fox News and to the general public that Ms. Judge had exercised her judgment by consenting to and authorizing the release of the preoperative and postoperative photographs for broadcast on television and the internet.

c. The release of the preoperative and postoperative photographs

constituted a public disclosure of private facts that was highly objectionable to the reasonable person of ordinary sensibilities, and for which there was no legitimate public interest.

d. The release of the preoperative and postoperative photographs

placed Ms. Judge before the public in a false light.

e. The release of the preoperative and postoperative photographs resulted in a substantial intrusion upon the solitude and seclusion of Ms. Judge that was highly offensive to her and would be highly offensive to the reasonable person.

f. Dr. Saltz breached his fiduciary duty to Ms. Judge by not

preventing the unauthorized release of the preoperative and postoperative photographs to Fox News.

g. Saltz Plastic Surgery breached its duty to supervise and direct its

employees so as to prevent the unauthorized disclosure of the preoperative and postoperative photographs to Fox News.

h. The release of the preoperative and postoperative photographs

caused damage to Ms. Judge in an undetermined but reasonable sum.

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i. Dr. Saltz acted with reckless disregard for the falsity of the communication to the public that Ms. Judge consented to and authorized the release of the preoperative and postoperative photographs and the false light in which Ms. Judge was placed.

j. Dr. Saltz’s conduct in authorizing the release of the preoperative

and postoperative photographs was willful and malicious and/or manifested a knowing indifference or disregard for the rights of Ms. Judge, such that Dr. Saltz is liable for punitive damages.

14. In the Judge Lawsuit, Ms. Judge asserts the following causes of action against Dr.

Saltz: (1) Publicity of Private Facts; (2) False Light; (3) Intrusion upon Seclusion; (4) Breach of

Fiduciary Duty.

15. In the Judge Lawsuit, Ms. Judge asserts the following cause of action against

Saltz Plastic Surgery: (1) Negligent Employment and Supervision.

16. In the Judge Lawsuit, Ms. Judge denies that the allegations made against Dr. Saltz

and Saltz Plastic Surgery, and/or the causes of action arising out of such allegations, derive from

the provision of medical services by Dr. Saltz to Ms. Judge.

17. Dr. Saltz and Saltz Plastic Surgery deny all material allegations made by Ms.

Judge in the Judge Lawsuit.

POLICY PROVISIONS

18. At all times material to the Judge Lawsuit, Dr. Saltz and Saltz Plastic Surgery was

insured by an insurance policy issued to Dr. Saltz by UMIA, policy number UT015265, with a

policy period of January 1, 2008 to January 1, 2009 (“the Saltz Policy”). A true and correct copy

of the Saltz Policy is attached hereto and incorporated herein as Exhibit B.

19. Section I of the Saltz Policy provides for Professional Liability Coverage. The

insuring agreement of Section I states the following:

6

We will pay on your behalf damages you are legally obligated to pay resulting from:

(1) The medical services which you personally provided or should have provided to your patients;

(2) The medical services provided, or which should have been provided, by others for whom you are legally responsible, except for:

(a) Physician assistants, certified registered nurse anesthetists, certified registered nurse midwives, certified registered nurse practitioners and perfusionists unless they are named in an endorsement and the required premium for them is paid; and

(b) A physician you employ unless he or she is covered for the claim by another professional liability policy;

(3) Your professional service on a formal medical accreditation board or any committee responsible for making decisions regarding credentials, privileges or quality assurance matters .

Your group shares your limits of coverage to the extent it is legally responsible for claims for which you are covered by this policy.

20. Section II of the Saltz Policy provides for Professional Premises Liability

Coverage. The insuring agreement of Section II states the following:

We will pay on your behalf amounts you are legally obligated to pay as damages because of bodily injury or property damage caused by an accident occurring at your professional office premises. Injury which is covered by this section includes bodily injury, sickness or disease, including death, sustained by any person. Accidents which are covered are events which are neither expected not intended by you or others, and which do not involve administration of medical services including treatment, making diagnoses, rendering opinions or providing advice. Accidents which are covered by this section must result solely from your

7

ownership or use of your professional office premises identified in the Declarations Sheet.

21. Sections I and II of the Saltz policy exclude coverage for punitive or exemplary

damages.

UMIA DEFENSE OF THE JUDGE LAWSUIT

22. On or about January 12, 2009, Dr. Saltz and Saltz Plastic Surgery tendered

defense of the Judge Lawsuit to UMIA. UMIA accepted that tender of defense and has provided

a defense to Dr. Saltz and Saltz Plastic Surgery since that time.

23. On January 21, 2009, UMIA wrote a letter to Dr. Saltz informing him that they

would be providing a defense to Dr. Saltz and Saltz Plastic Surgery in the Judge Lawsuit but that

certain damages claimed in the lawsuit, punitive damages, were not covered by the Saltz Policy,

and informing Dr. Saltz that he should retain counsel to represent his personal interests in the

Judge Lawsuit. A true and correct copy of the January 21, 2009 letter is attached and

incorporated herein as Exhibit C.

24. Upon information and belief, Dr. Saltz has retained counsel to represent his

personal interests as it relates to the claims made in the Judge Lawsuit.

25. On October 24, 2016, UMIA wrote a letter to Judge Saltz informing him that

UMIA was reserving its right to seek a declaration of its defense and indemnity obligations

under the Saltz Policy, as it relates to the claims made and damages sought in the Judge Lawsuit.

A true and correct copy of the October 24, 2016 letter is attached hereto and incorporated herein

as Exhibit D.

8

COUNT I - DECLARATORY JUDGMENT

26. UMIA realleges and incorporates by reference the allegations of Paragraphs 1 - 25

as if fully set forth herein.

27. There is no coverage under the Saltz Policy for the claims made against Dr. Saltz

and Saltz Plastic Surgery in the Judge Lawsuit for several reasons, including but not limited to

the following:

a. There is no coverage under Section I of the Saltz Policy because the claims made and the damages sought in the Judge Lawsuit do not arise out of medical services provided or not provided to Ms. Judge by Dr. Saltz and Saltz Plastic Surgery.

b. There is no coverage under Section II of the Saltz Policy because the claims made and the damages sought in the Judge Lawsuit do not arise out of bodily injury or property damage caused by the accidental conduct of Dr. Saltz and Saltz Plastic Surgery.

c. There is no coverage under Section II of the Saltz Policy because

the claims made and the damages sought in the Judge Lawsuit do not result solely from Dr. Saltz and Saltz Plastic Surgery’s ownership or use of the professional office premises described in the Saltz Policy.

d. There is no coverage under Section I or Section II of the Saltz

Policy for Ms. Judge’s claim for punitive damages in the Judge Lawsuit.

28. There is an actual justiciable controversy between UMIA and Dr. Saltz, Saltz

Plastic Surgery, and Ms. Judge regarding UMIA’s coverage obligation to Dr. Saltz and Saltz

Plastic Surgery, if any, with respect to the claims asserted against Dr. Saltz and Saltz Plastic

Surgery in the Judge Lawsuit, and UMIA has no adequate remedy other than that requested

herein to determine the rights of the parties to this action.

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29. Under the terms, conditions, exclusions, endorsements, and/or limitations of the

Saltz Policy, UMIA does not have a continuing duty to defend and/or duty to indemnify Dr. Saltz

and Saltz Plastic Surgery for the claims brought and damages sought from Dr. Saltz and Saltz

Plastic Surgery in the Judge Lawsuit.

WHEREFORE, UMIA prays for judgment as follows:

1. For a declaration under Utah Code Ann. § 78-33-6 that UMIA has no continuing duty

to defend and/or duty to indemnify Dr. Saltz and Saltz Plastic Surgery in the Judge

Lawsuit.

2. An award to UMIA for its attorneys' fees, costs and disbursements; and

3. Such other and further relief that this Court may deem just and proper.

DATED this 23rd day of November, 2016.

RAY QUINNEY & NEBEKER P.C. /s/ Kristine M. Larsen Kristine M. Larsen Blake M. Biddulph

Attorneys for Plaintiff UMIA Insurance, Inc.

Mark D. Malloy (pro hac admission pending) MEISSNER TIERNEY FISHER & NICHOLS S.C. 111 East Kilbourn Avenue, 19th Floor Milwaukee, Wisconsin 53202 Tel: (414) 273-1300 Fax: (414) 273-5840

1393672

EXHIBIT A

Roger H. Hoole (5089) Gregory N. Hoole (7894) HOOLE & KJNG, L.C. 4276 South Highland Drive Salt Lake City, Utah 84124 Telephone: 801-272-7556 Facsimile: 801-272-7557

Attorneys for Conilyn Judge

lN THE THIRD JUDICIAL DISTRICT COURT

SALT LAKE COUNTY, STATE OF UTAH

CONIL YN JUDGE,

Plaintiff,

vs.

SALTZ PLASTIC SURGERY, P.C., RENA TO SALTZ, M.D., and FOX TELEVISION STATIONS, JNC.,

Defendants.

COMPLAINT

Civil No. {)Cjoqoo t,oq

Judge L . .4. DVuf'.fZ....

PlaintiffConilyn Judge ("Ms. Judge") complains of Defendants, Saltz Plastic Surgery, P.C.,

Renata Saltz, M.D. and Fox Television Stations, Inc. and alleges as follows:

PARTIES

I. Defendant Saltz Plastic Surgery, P.C. ("Saltz Plastic Surgery") is a Utah professional

services corporation doing business in Salt Lake and Summit Counties, State of Utah.

2. Defendant Renato Saltz, M.D. ("Dr. Saltz") is a resident of the State of Utah and is

an agent and employee of Saltz. (Saltz Plastic Surgery and Dr. Saltz are sometimes collectively

referred to herein as "Saltz.")

3. Defendant Fox Television Stations, Inc. ("Fox News") is a foreign corporation doing

business in the State of Utah as KSTU television and employing, among others, reporter Andrea

Fujii.

FACTUAL ALLEGATIONS

4. On September 5, 2006, Ms. Judge meet with Dr. Saltz to discuss the possibility of

undergoing plastic surgery. The operation involved an abdominoplasty, breast augmentation and

mastopexy, and is sometimes known as a "mommy makeover."

5. Before the surgery, which took place on or about October 23, 2006, Ms. Judge was

required to be photographed in the nude for clinical purposes by Tara Thompson, a female nurse and

employee of Saltz.

6. Following the surgery, Ms. Judge was again required to he photographed by Ms.

Thompson in the nude for clinical purposes.

7. There was a total of approximately 18 pre and postoperative photographs ("Nude

Examination Photographs") taken of Ms. Judge in a private clinical setting by Ms. Thompson.

8. On information and belief, Saltz knew that these Nude Examination Photographs

constituted the most sensitive part of her confidential medical record.

9. On Janumy 7, 2008, Ms. Thompson called Ms. Judge and told her that Fox News was

doing a story about Dr. Saltz and how women could protect themselves from bad surgeons and bad

2

surgical outcomes. Ms. Thompson indicated that Dr. Saltz wanted Ms. Judge to be interviewed for

that story because she had a positive surgical outcome.

I 0. Ms. Judge agreed to be interviewed in Dr. Saltz's office in conjunction with an

appointment she had at Spa Vittoria, the medi spa associated with Dr. Saltz's office. Ms. Judge was

willing to be interviewed because of her interest in women's health issues and as a favor to Dr. Saltz.

II. On January II, 2008, Ms. Judge went to Saltz's office for the interview.

12. Once at the interview, Tracee Larson, an employee of Saltz, told Ms. Judge that Fox

News wanted to film her in an examination room with Dr. Saltz while she was clothed in a pink

paper examination gown.

13. Ms. Judge had a conversation with Ms. Larson, Andrea Fujii, the Fox News reporter,

and the cameraman expressing her concerns about taping the simulated examination and agreed only

after being reassured that the camera angles would be tasteful and discreet, not showing any cleavage

or thigh.

14. Ms. Larson agreed to watch the taping of the simulated examination to insure that the

agreed conditions were met.

15. After the simulated examination was filmed, as agreed, Ms. Judge changed into her

clothes while Dr. Saltz was being interviewed in another room. After his interview, Ms. Judge was

interviewed herself and then left Dr. Saltz's office.

16. At no time was Ms. Judge asked to authorize or consent to Saltz's release of any of

her Nude Examination Photographs to Fox News, nor did she ever authorize or consent to Fox News

having possession of or using any of her Nude Examination Photographs.

3

17. Fox News knew that it had not obtained Ms. Judge's authorization and consent to

posses or use her Nude Examination Photographs, which were the most sensitive, confidential and

private part of her medical record.

18. On January 12,2008, Fox News reporter Andrea Ft~ii emailed Ms. Judge asking the

question: "[Y]our age, are you comfortable giving that out?" Ms. Judge responded: "After revealing

on TV my boobs are fake and I had a tummy tuck and wearing a paper dress my age is nothing."

19. The fact that Fox News !mew that it had not obtained Ms. Judge's authorization and

consent was further confirmed by the complete absence in Ms. Judge's email of any reference to

releasing Nude Examination Photographs for TV that Ms. Judge had not authorized the release of

her Nude Examination Photographs and had no idea that her Nude Examination Photographs had

or would be provided to Fox News by Saltz.

20. On January 31,2008, Ms. Judge was en route to Los Angeles, California when the

Fox News story titled "Plastic Surgery Nightmares" aired during its 9:00p.m. news broadcast.

21. After arriving in Los Angeles, Ms. Judge received a voicemail message from a friend

about Fox News airing photographs. The message about photographs made no sense to Ms. Judge

because her interview did not include photographs and Ms. Judge thought little more of it until the

next morning.

22. The next morning, Ms Judge received another telephone call and was told that nude

photographs of her had been broadcast on Fox News as part of its story about Dr. Saltz and that the

story, including her Nude Examination Photographs, was available on line.

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23. Stunned that her photographs had been part of Fox News's story, Ms. Judge

immediately recognized the enormous potential impact the broadcast would have on her personally

and professionally and attempted to access the story online to verity what had actually been shown,

but was unable to do so from her hotel Internet connection.

24. She then immediately called Dr. Saltz' office and left an urgent message for Ms.

Thompson, who had taken the Nude Examination Photographs.

25. Then, after locating the number for Fox News, she called Fox News and left another

urgent message for its reporter, Ms. Fujii. She then began emailing Ms. Fujii demanding that the

entire story immediately be taken off the Fox News website.

26. Ms. Fujii did not return Ms. Judge's urgent voicemail messages, so Ms. Judge and

Ms. Fujii communicated by email about Ms. Judge's demand that the entire plastic surgery story be

taken off the website.

27. Ms. Judge's urgent call to Ms. Thompson at Saltz's office was finally returned by Ms.

Larsen who informed Ms. Judge that her Nude Examination Photographs had been emailed by Saltz

to Fox News for its use with Fox News's plastic surgery story and that she thought Ms. Judge had

given her consent to release the photographs.

28. Ms. Larsen promised she would contact Ms. F~jii to ensure that the story did not

re-air and have it taken ofT the website. Ms. Larsen also said she would call Ms. Judge shortly to

give her an update, but she never called back.

5

29. Fox News did not remove the entire story from its website as demanded by Ms.

Judge, or even out of respect for her wanting nothing further to do with it. Rather, Fox News took

down only the Nude Examination Photographs.

30. On information and belief, Ms. Judge's photographs were intentionally released by

Saltz to Fox News for its use and broadcast as free advertisement for Dr. Saltz and to increase his

reputation and income as a plastic surgeon.

31. On information and belief, employees and agents ofF ox News received and shared

copies of all of Ms. Judge's Nude Examination Photographs, decided which ones to broadcast and

ultimately broadcast one preoperative and one postoperative picture after blacking out a small

portion of her breasts and genitalia on the pictures.

32. On January 30,2008 and again before its "Plastic Surgery Nightmares" broadcast on

January 31,2008, Fox News ran ads to promote its story and in its ads showed edited footage of Ms.

Judge saying "its very invasive" to tantalize viewers, including those who knew Ms. Judge, to watch

or record the program.

33. On information and belief, Fox News intentionally delayed airing the story from

January 11,2008 until January 31,2008 because it knew that on that day Fox News's ratings were

being ranked by Nielsen Media Research, Inc. ("Nielsen Media").

34. According to Nielsen Media's ratings, the actual Fox News broadcast was seen on

January 31, 2008 by approximately 83,000 television viewers.

35. The use of Ms. Judge's Nude Examination Photographs depicting a successful

surgical outcome was included gratuitously and inappropriately in a story about Plastic Surgery

6

Nightmares story. Nevertheless, on infonnation and beliefFox News included the nude photographs

to attract viewers in order to increase its ratings, advertising profits and to increase traffic on its

Internet website.

36. Upon information and belief, each rating point is worth approximately $1 ,000,000

in advertising revenue to Fox News.

37. Rather than broadcast the positive and newsworthy message that Ms. Judge had

delivered about women's health in her interview, Fox News briefly showed Ms. Judge talking with

Dr. Saltz and then showed her only slightly redacted Nude Examination Photographs with

simultaneous commentary saying: "This is Coni Judge before" and "This is Coni Judge after" so that

the direct linkage between Ms. Judge and her Nude Examination Photographs was umnistakable.

38. In addition to broadcasting Ms. Judge's Nude Examination Photographs on its

evening news program without Ms. Judge's authorization or consent, Fox News published them on

its website for further dissemination and publicity.

39. Fox News eventually removed portions ofthe Plastic Surgery Nightmares story from

its website; however, on information and belief, Ms. Judge's Nude Examination Photographs have

been further disseminated electronically, and the entire Fox News story remains available through

at least one news service.

40. Ms. Judge has no control over where her Nude Examination Photographs have

already appeared or will appear in the future and she remains extremely fearfi.!l that the photographs

have and will be electronically broadcast by individuals with no right to possess, use or view them.

7

41. Throughout her adult life, Ms. Judge has been employed as a corporate

communications and image consultant. She is hired by clients Jc>r her sound and trusted judgment

in advising businesses and individuals on communications issues, including how to improve and

protect their public image and reputation.

42. The false implication from Saltz's release and fox News's broadcast of pictures of

Ms. Judge in the nude is that she exercised extremely poor personal, professional and moral

judgment by knowingly consenting to and authorizing their public release and broadcast.

43. The unauthorized release ofMs. Judge's Nude Examination Photographs by Saltz and

the publication of the photographs by Fox News has all but destroyed her employment and

employability options because she is dependent on clients who can trust and rely on her good

judgment and advice in communication, public relation and image matters and on clients who are

now concerned about their public image being tainted by any association with her.

44. As feared, within days of the broadcast, Ms. Judge's clients started to terminate her

consulting services because her Nude Examination Photographs had been part ofF ox News's story.

As a result, she has lost virtually all of her clients.

45. The Fox News broadcasts of her Nude Examination Photographs has also subjected

Ms. Judge to rude, licentious and suggestive comments, which have been highly offensive to her and

would be highly offensive to any other reasonable person.

46. For example, an employee of one former client told Ms. Judge that he had missed the

broadcast but hoped that he might have a "private viewing."

8

47. At all times material hereto, Dr. Saltz and the other agents and employees of Saltz

were acting within the course and scope of their employment with Saltz when releasing Ms. Judge's

Nude Examination Photographs to Fox News without her authorization and consent, and their

actions are attributable to Saltz for which Saltz is liable.

48. A tall times material hereto, Ms. Fujii and other agents and employees ofF ox News

were acting within the course and scope of their employment with Fox News when they broadcast

and otherwise released Ms. Judge's photographs without her authorization and consent, and their

actions are attributable to Fox News for which Fox News is liable.

49. On September 5, 2008, Ms. Judge, out of an abundance of caution, caused a Notice

oflntent to Commence Legal Action to be served upon Saltz in accordance with the Utah Health

Care Malpractice Act, Utah Code sections 78B-3-401 et seq. ("the Act"), and at the same time filed

a Request for Prelitigation Panel Review with the Division of Occupational and Professional

Licensing of the Department of Commerce of the state of Utah in Accordance with the Act.

50. On October 10, 2008, the parties stipulated to waive the Prelitigation Panel Review

and the Division of Occupational and Professional licensing subsequently issued a Certificate of

Compliance, pursuant to the Act. Therefore, to the extent that any of the causes of action in this

Complaint are subject to the Act, which Ms. Judge denies, Ms. Judge is entitled to bring this action.

9

FIRST CAUSE OF ACTION (Publicity of Private Facts)

51. Ms. Judge incorporates herein the allegations contained in each of the above-

numbered paragraphs.

52. Saltz intentionally released Ms. Judge's Nude Examination Photographs to employees

at Fox News. In turn, Fox News intentionally released Ms. Judge's Nude Examination Photographs

by broadcasting them on television, publishing them on the Internet and its website, and, on

information and belief, by other means.

53. The intentional conduct of Saltz and Fox News as alleged herein caused the public

disclosure of private facts, namely Ms. Judge's Nude Examination Photographs.

54. The public disclosure of Ms. Judge's Nude Examination Photographs was highly

offensive and objectionable to her and would be highly offensive and objectionable to any reasonable

person of ordinary sensibilities.

55. There was no legitimate public interest in having Ms. Judge's Nude Examination

Photographs made available to the public.

56. As a direct and proximate result of the conduct of Saltz and Fox News as alleged

herein, Ms. Judge has suffered and will continue to suffer mental anguish, shock, horror, grief,

physical sickness, shan1e or anger from the public disclosure of the private Nude Examination

Photographs all to her general damage in a reasonable sum.

57. As a further direct and proximate result of the conduct of Saltz and Fox News as

alleged herein, Ms. Judge has suffered, and will continue to suffer, economic losses, including, but

10

not limited to, (I) the loss of income, consulting fees, employment and future earning capacity

caused by the harm to her reputation, standing and judgment in the estimation of local, national and

international communities, which has deterred and will continue to deter would-be local, national

and international clients from retaining, associating or dealing with her; and (2) the loss of income,

consulting fees, employment and future earning capacity caused by mental anguish, shock, hoJTor,

grief, physical sickness, shame or anger that may inhibit her ability to work, all to her special damage

in a reasonable sum.

SECOND CAUSE OF ACTION (False Light)



59. Saltz and Fox News intentionally gave publicity to Ms. Judge in a way that placed

her before the public in a false light. Specifically, Saltz and Fox News's conduct falsely

communicated to the public that Ms. Judge had exercised her judgment by consenting to and

authorizing the release of her Nude Examination Photographs for broadcast on television and the

Internet.

60. The false light in which Ms. Judge was placed by having her Nude Examination

Photographs included in the Fox News broadcast was highly offensive to her and would be highly

offensive to any other reasonable person.

61. Saltz and Fox News knew or acted in reckless disregard as to the falsity of the

communication to the public and the Jalse light in which Ms. Judge was placed.

1 I


herein, Ms. Judge was and continues to be placed in a false light causing her mental anguish, shock,

horror, grief, physical sickness, shame or anger all to her general damage in a reasonable sum.



not limited to, (I) the loss of income, consulting fees, employment and future eaming capacity

caused by the harm to her reputation, standing and judgment in the estimation oflocal, national and

international commnnities, which has deterred and will continue to deter would-be local, national


consulting fees, employment and future earning capacity caused by mental anguish, shock, horror,



THIRD CAUSE OF ACTION (Intrusion upon Seclusion)



65. The intentional conduct of Saltz and Fox News as alleged herein resulted in a

substantial intrusion upon the solitude or seclusion ofMs. Judge that was highly offensive to her and

would be highly offensive to any other reasonable person.


herein, Ms. Judge has suffered a substantial intrusion upon her solitude or seclusion and will

12

continue to suffer a severe substantial intrusion upon her solitude or seclusion, all to her general

damage in a reasonable SLun.



not limited to, (1) the loss of income, consulting fees, employment and future earning capacity

caused by the harm to her reputation, standing and judgment in the estimation oflocal, national and

international communities, which has deterred and will continue to deter would-be local, national





FOURTH CAUSE OF ACTION (Negligence Against Defendant Fox News)

68. Ms. Judge incorporates herein the allegations contained m each of the above-


69. Fox News had a duty to Ms. Judge not to receive, broadcast or otherwise release her

Nude Examination Photographs.

70. Fox News knew that it had not obtained Ms. Judge's authorization and consent to

posses or use her Nude Examination Photographs .

13

71. Fox News knew that Ms. Judge was sensitive about how she would be filmed in the

simulated examination and that she had agreed to the filming only after it agreed to film her in a

tasteful and discreet manner that would not show cleavage or thigh.

72. Fox News knew or should have known that Ms. Judge's Nude Examination

Photographs were the most sensitive, confidential and private part of her medical record.

73. Fox Newskneworshould have known from and the complete absence in Ms. Judge's

January 12,2008 email of any reference to releasing Nude Examination Photographs forTY that Ms.

Judge had not authorized the release of her Nude Examination Photographs .

74. Fox News knew or should have known from and the complete absence in Ms. Judge's

January 12,2008 email of any reference to releasing Nude Examination Photographs for TV that Ms.

Judge had no idea that her Nude Examination Photographs had been or would be provided to Fox

News by Saltz.

75. Fox News breached its duty to Ms. Judge by negligently receiving, broadcasting and

releasing Ms. Judge's Nude Examination Photographs.

76. As a direct and proximate result of the negligent conduct of Fox News as alleged

herein, Ms. Judge's Nude Examination Photographs were released and broadcast by Fox News

without her authorization and consent causing her mental anguish, shock, horror, grief, physical

sickness, shame or anger, all to her general damage in a reasonable sum.



not limited to, (I) the loss of income, consulting fees, employment and future earning capacity

14

caused by the harm to her reputation, standing and judgment in the estimation of!ocal, national and

international communities, which has deterred and will continue to deter would-be local national '





FIFTH CAUSE OF ACTION (Negligent Employment and Supervision Against Defendant Fox News)



79. Fox News had a duty to supervise and direct its employees so as to prevent the

unauthorized publication of piivate and confidential information such as Ms. Judge's Nude

Examination Photographs.

80. This duty arose because Fox News could reasonably be expected, consistent with the

practical realities of its relationship with its employees, to appreciate the threat to the general public

of its employee's actions and to act to minimize or protect against that threat.

81. Fox News breached its duty to Ms. Judge by negligently employing, supervising

and/or retaining employees who published Ms. Judge's Nude Examination Photographs on television

and the Internet without Ms. Judges authorization and consent.

82. As a direct and proximate result of Fox News's breach, Ms. Judge has suffered and

will continue to suffer mental anguish, shock, horror, grief, physical sickness, shame or anger from

15

the public disclosure of the private Nude Examination Photographs all to her general damage in a

reasonable sum.

83. As a further direct and proximate result of Fox News's breach, Ms. Judge has

suffered, and will continue to suffer, economic loSHes, including, but not limited to, ( 1) the loss of

income, consulting fees, employment and futme earning capacity caused by the harm to her

reputation, standing and judgment in the estimation oflocal, national and international communities,

which has deterred and will continue to deter would-be local, national and international clients from

retaining, associating or dealing with her; and (2) the loss of income, consulting fees, employment

and futme earning capacity caused by mental anguish, shock, horror, grief, physical sickness, shame

or anger that may inhibit her ability to work, all to her special damage in a reasonable sum.

SIXTH CAUSE OF ACTION (Breach of Fiduciary Duty Against Defendant Dr. Saltz)



85. Dr. Saltz had a fiduciary duty to prevent the unauthorized disclosme of Ms. Judge's

private medical records, including her Nude Examination Photographs.

86. Dr. Saltz breached his fiduciary duty to Ms. Judge by not preventing the unauthorized

release of Ms. Judge's Nude Examination Photographs to Fox News.

87. As a direct and proximate result of Dr. Saltz's breach, Ms. Judge has suffered and will

continue to suffer mental anguish, shock, horror, grief, physical sickness, shame or anger from the

16

public disclosure of her private Nude Examination Photographs all to her general damage in a

reasonable sum.

88. As a further direct and proximate resultofDr. Saltz's breach, Ms. Judge has suffered,

and will continue to sutTer, economic losses, including, but not limited to, (I) the loss of income,

consulting fees, employment and future earning capacity caused by the harm to her reputation,

standing and judgment in the estimation oflocal, nati~nal and international communities, which has

deterred and will continue to deter would-be local, national and international clients from retaining,

associating or dealing with her; and (2) the loss of income, consulting fees, employment and future

earning capacity caused by mental anguish, shock, horror, grief, physical sickness, shame or anger

that may inhibit her ability to work, all to her special damage in a reasonable sum.

SEVENTH CAUSE OF ACTION (Negligent Employment and Supervision Against Defendant Saltz Plastic Surgery)



90. Saltz Plastic Surgery had a duty to supervise and direct its employees so as to prevent

the unauthorized release of his patients' private medical records.

91. This duty arose because Saltz Plastic Surgery could reasonably be expected,

consistent with the practical realities of its relationship with its employees, to appreciate the threat

to its patients of its employee's actions and to act to minimize or protect against that threat.

17

92. Saltz Plastic Surgery breached this duty to Ms. Judge by negligently employing,

supervising and/or retaining employees who disclosed Ms. Judge's Nude Examination Photographs

to Fox News.

93. As a direct and proximate result of Saltz Plastic Surgery's breach, Ms. Judge has

suffered and will continue to suffer mental anguish, shock, horror, grief, physical sickness, shame

or anger from the public disclosure of the private Nude Examination Photographs all to her general

damage in a reasonable sum.

94. As a further direct and proximate result of Saltz Plastic Surgery's breach, Ms. Judge

has suffered, and will continue to suffer, economic losses, including, but not limited to, (1) the loss

of income, consulting fees, employment and future earning capacity caused by the harm to her

reputation, standing and judgment in the estimation oflocal, national and international communities,

which has deterred and will continue to deter would-be local, national and international clients from

retaining, associating or dealing with her; and (2) the loss of income, consulting fees, employment

and future earning capacity caused by mental anguish, shock, horror, grief, physical sickness, shame

or anger that may inhibit her ability to work, all to her special damage in a reasonable sum.

PUNITIVE DAMAGES

95. The conduct of Saltz and Fox News a' alleged herein was willful and malicious, or

manifests a knowing and reckless indifference toward, and a disregard of, the rights of Ms. Judge

for which they are each liable in punitive damages.

96. The wrongful conduct as alleged herein by employees or agents of Saltz and Fox

News was committed or specifically authorized by managerial agents of Saltz and Fox News or were

18

committed by an unfit employee who was recklessly employed or maintained by Saltz and Fox

News.

WHEREFORE, Plaintiff, Coni Judge, prays for judgment against Defendants Saltz and Fox

News as follows:

a. for special damages in amounts to be proven at trial;

b. for general damages in an amount to be proven at trial;

c. for punitive damages in an amount to awarded at trial;

d. for prejudgment interest on all items of special damage;

e. for post judgment interest on all damages; and

f. for such additional relief as may be proper in the premises.

DATED this l21h day of January, 2009.

& KING, L.C.

rL, Roger H. H Gregory N. oole Attorneys for Conilyn Judge

19

EXHIBIT B

UTAH MEDICAL INSURANCE ASSOCIATION THIS IS NOT A BILL. ATTACH TO YOUR POLICY "AN INTERINSURANCE 1:-'XCHANG£"

310 East 4500 South, Suite 550

Salt Lake City, Utah R4107

PROFESSIONAL LIABILITY PROFESSIONAL PREM!l!ES LlABJL:rTY NO-FAULT MEDICAL PAYMENTS MEDEFENI!E COVEllAGE

UMIA (801)5310375

Fa~ 1801) 531-0381

www.umJa.com

Coverage is limited to those claims for professional services performed on or after the Retroactive Date

stated below while the policy is in continuous force.

Name and Address oflnsured Policy Nrnnber UT015256 Retroactive Date 6/ 1 / 2 0 0 2

Renata Saltz MD 5445 South Highland Drive Holladay, UT 84121

In eonsideration of the required premillDl, the poHey is effedive fr am: 1 j 112 0 08 to 1/1/2 0 09 12:01 a.m. Standard Tbne at the address ofruuned insured as stated.

Insurance is afforded only with respect to the Coverage Part(s) for which a premirnn charge or "NO CHARGE" is indicated. The limit of the Exchange's liability shall be as stated, subject to all the provisions of the policy, attached hereto.

SECTION I PROFESSIONAL IlABILITY COVERAGE

(X) A. Individual Coverage ( ) B. Professional Corporation Coverage

The insured's principal practice is Plastic Surgery

A. Individual Coverage B. Corporate/Partnership Coverage C. Professional Employees D.

SECTION lA CREDITS AND DISCOUNTS Loss Free Discount Physician Organization

SECTION II PROFESSIONAL PREMISES COVERAGE

E. Injury

Limits of Liability

Specialty 80156

Premium Section I

Premium Section lA

$1,000,000 $3,000,000

Class 6

$1,000,000 $3,000,000

each loss limit aggregate limit

$67,302.00

67 302.00

$16,153.00-$10,230.00-

$26,383.00-

each loss limit aggregate limit

F. Property Damage $50,000 each loss limit

Principal Location Address 5445 South Highland Drive, Holladay, UT 84121 1820 Sidewinder Drive, Park City, UT 84060

Premium Section II $50.00 SECTION III NO-FAULT MEDICAL PAYMENTS BENEF1TS

SECTION IV MEDEFENSE COVERAGE G. Deductible H. Co-Insurance, if applicable I. Reimbursement Coverage

$1,000 each disciplinary proceeding 25%

$25,000 each disciplinary proceeding $25,000 aggregate limit

Issued by: Utah Medical Insurance Association (A reciprocal Insurance Company, organized in Utah, herein called the Exchange.)

Premium Section III

$5,000 $5,000

each person aggregate limit

NO CHARGE SECTIONV EMPLOYMENT PRACTICES COVERAGE J. Deductible K. Co-Insurance, if applicable

L. Limit Per Insured Event M. Aggregate Limit

TOTAL PREl\flUM

Authorized Representative

$2,500 per insured event 25%

$25,000 $25,000

$40,969.00

UMIA UTAH MEDICAL INSURANCE ASSOCIATION "AN INTERINSURANCE EXCHANGE"

To Our Policy Holders

THIS IS A "CLAIMS-MADE" POLICY. COVERAGE IS LIMITED TO THOSE

CLAIMS OF HARM OR LOSS ARISING FROM PROFESSIONAL SERVICES

PERFORMED ON OR AFTER THE RETROACTIVE DATE OF THIS POLICY

AND WHICH ARE REPORTED TO US WHILE THIS POLICY IS STILL IN

FORCE. ANY CLAIM OR INCIDENT (WHICH MAY LATER RESULT IN A

CLAIM) WHICH IS FIRST REPORTED TO US AFTER CONTINUOUS

COVERAGE WITH THE UMIA HAS LAPSED WILL NOT BE COVERED

UNLESS YOU HAVE OBTAINED AN EXTENDED REPORTING

ENDORSEMENT (TAIL COVERAGE).

UMIA- ER5- JAN 06

, ) ; This page intentionally left blank.

2

Introduction

We have written this policy in language which is simple and straightforward. Although you may not have read your insurance policy in the past, we hope you will take the time to read and become familiar with tb.is one.

"'We", "our" and "us" refer to the UMIA. "You" and Hyour'' refer to the individual physician named in the Declarations Sheet of this policy. Your "group" refers to the partnerships, association and corporation with which you are affiliated if the group is named in the Declarations Sheet to this policy.

This policy provides five different types of protection for you and your group. Professional Liability Coverage applies to claims for damages which are brought against you as a physician or surgeon while providing or failing to provide medical professional services. Professional Premises Liability Coverage protects you against claims resulting from accidents at your office which do not involve direct patient treatment. Medical Payments Coverage allows us at your request to pay up to $5,000.00 for medical expenses any of your patients may incur within a year of any accident which occurs as a part of your treatment or at your office. Payments can be made whether or not the accident was your fault. By using Medical Payments Coverage benefits to avoid financial hardship, we hope to prevent accidents from turning into claims. Medefense coverage provides for the reimbursement of up to $25,000 of legal expenses you incur to defend disciplinary proceedings instituted against you. Finally, Employment Practices Coverage provides you with protection against claims made against you by employees by providing a $25,000 limit for the reimbursment of legal expense and/or loss you incur in defending Insured Events.

If you have any questions, please contact us.

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4

Table of Contents

Section I

Section II

Professiunal Liability Coverage

How this section protects you

Who is covered under this section

When

Limits of your coverage

Each loss limit

Aggregate limit What this section does not cover

Exclusion for sexual misconduct

Exclusion for violation of law

Exclusion for other business pursuits

Exclusion for matters of medical licensure, credentials or privileges

Exclusion for injuries to your employees

Exclusion for contractual obligations

Exclusion for violation of license restrictions Exclusion for goods or products

Exclusion for antitrust violations Exclusion for use of vehicles

Exclusion for fee disputes

Exclusion for punitive or exemplary damages

Exclusion for status liability

Additional benefits

Professional Premises Liability Coverage How this section protects you


When you are covered When a claim is made

What sections covers


Each loss limit

Aggregate limit

What this section does not cover

Exclusion for sexual misconduct

Exclusion for violation of law

Exclusion for injuries to your employees

Exclusion for contractual obligations

Exclusion for alcohol-related events

Exclusion for use of vehicles

Exclusion for damage to your property

Exclusion for pollution

Exclusion for punitive or exemplary damages

Additional benefits

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7

8 8 8

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8 8 9 9

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10

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11 11

11 11 11

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Section III No-Fault Medical Payments Benefits 13

What this section provides 13 When benefits can be paid 13

Limits on the benefits available 13 What this section does not cover 13

Section IV Medefense Coverage 14 What this section provides 14 Who is covered by this section 14 When you are covered 14 When a disciplinary proceeding is instituted 14 What this section covers 14 Limits to your coverage 15

Each disciplinary proceeding limit 15 Aggregate limit 15

What this section does not cover 15 Recovering from a third party 15 Free choice of attorney 15 Waiver of co-insurance 16

Section V Employment Practices Coverage 17 What this section provides 17 Who is covered under this section 17

When you are covered 17 When an insured event is instituted 17

What this section covers 17 Settlement Approval 19 Limits of your coverage 19

Each Insured Event Limit 19 Aggregate Limit 19

What this section does not cover 19 Recovering from a third party 20 Free choice of attorney 20 Waiver of Co-Insurance 20

Section VI General Rules 21 Your duties if you have a claim 21 Premiums and risk classification 21 Payment of dividends 21 Policy changes 21 Cancellation of your policy 21

How you can cancel 21 How we can cancel if you don't pay your premium 22 How we can cancel for other reasons 22

Non-renewal of your policy 22 How you can appeal a decision to cancel or not renew 23

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6

Extended Reporting Endorsement (Tail Coverage)

How to purchase this endorsement

Limits of coverage

Retirement

Death or disability

When you are covered by this endorsement

Return to practice

Fraud and misrepresentation

Territorial limitation

Cooperation with risk management

Conformity with state statutes

Arbitration

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23 24 24 24

24 24

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25 25 25

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Section I. Professional Liability Coverage



When you are covered

When a claim is made

What this section covers


In consideration of the payment of premium and compliance with all terms of this policy and section, we will defend you and provide insurance protection against medical professional liability claims for damages which are brought against you as a physician or surgeon while providing or failing to provide medical services.

You as the individual named in the Declarations Sheet and your group, if also named in the Declarations Sheet are covered under this section. You and your group share the same coverage limits.

A claim must meet two requirements to be covered under this section: (I) The claim must result from medical service which was provided or

which should have been provided on or after the retroactive date stated on your Declarations sheet; and

(2) The claim must be made for the first time during the policy period. A claim or potential claim reported to a previous insurer is not covered under this section.

A claim is made on the date you first report to us the specific circumstances of a claim or potential claim. Specific circumstances would include the date, time and place of the event, the identity of individuals involved, a description of medical services provided and the nature of claimed injuries.


(I) The medical services which you personally provided or should have provided to your patients;

(2) The medical services provided, or which should have been provided, by others for whom you are legally responsible, except for: (a) Physician assistants, certified registered nurse anesthetists,

certified registered nurse midwives, certified registered nurse practitioners and perfusionists unless they are named in an endorsement and the required premium for them is paid; and


(3) Your professional service on a formal medical accreditation board or any committee responsible for making decisions regarding credentials, privileges or quality assurance matters.


Two limits apply to the amount we will pay for medical professional liability claims. These limits are stated on the Declarations Sheet.

Each loss limit. This is the most we will pay for any one loss. By loss, we mean all covered claims for damages resulting from a medical service, or series of services, causing injury or death, regardless of the number of:

7


8

(a) persons injured; (b) claims made; (c) claimants making claims; (d) subsequent related claims; or (e) the number of named insureds in any endorsement to this policy. A mother and her unborn children are considered to be one patient and injury to them constitutes one loss

which is subject to the each loss limit. Aggregate limit. This is the most we will pay in any policy period for the

sum of all separate and unrelated losses.

Coverage for damages resulting from medical services you provide or fail to provide is not cumulative with coverage for your membership in your group. In the event a claim is made against both you and your group arising from the same loss, the limit of our liability is the same as though a claim had been made against you only.

In the event that any person or group named as an insured in any endorsement to this policy is also named as an insured in any other UMIA policy or endorsement which provides coverage for the same loss, then the limit of our liability under this policy is reduced by the amount of our liability for damages paid or payable under other

policies.

There are certain claims which this policy section will not cover. These exclusions

apply even if they conflict with other terms of this policy. We will neither defend nor pay damages because of any claim which results from any of the following:

Exclusion for sexual misconduct. We will not cover any claim resulting

wholly or partially from your actual or alleged sexual misconduct. By sexual misconduct, we mean any sexual intimacy, sexual molestation, sexual harassment, sexual exploitation, sexual assault, or any treatment, procedure, conduct or behavior which leads to or may lead to a sexual act. This exclusion applies even if it is contended that such sexual misconduct occurred in the course of medical professional services.

Exclusion for violation oflaw. We will not cover any claims resulting from your acts which are in violation of any law, statute, ordinance or regulation.

Exclusion for other business pursuits. We will not cover any claims resulting from your involvement in other business pursuits which are not directly related to your providing or failing to provide medical services to patients or your professional services on a formal medical accreditation board or any committee responsible for making decisions regarding credentials, privileges or quality assurance matters.

Exclusion for matters of medical licensure, credentials or privileges. We will not defend you in any action, inquiry, hearing or other proceeding before any board, committee, agency, regulatory authority or other entity for matters of medical licensure, credentials or privileges, even if such matters arise out of your medical professional services which may otherwise be covered under this policy. We also will not pay any money for fines, penalties or other claims which may result from any such matters.

Exclusion for injuries to your employees. We will not cover any claim for injuries to persons caused in the performance of their duties while employed by you or your group and we have no obligation for Worker's Compensation, unemployment compensation, disability

benefits or any similar law.

Additional benefits

Exclusion for contractual obligations. We will not provide coverage for obligations you assume by contract which would not otherwise be covered by this policy. A contract in which you agree to indemnify or hold harmless a PPO, HMO or other organization for claims arising because of your own acts and omissions would not affect your coverage under this policy.

Exclusion for violation of license restrictions. We will not cover any claim arising from conduct which would violate any restriction imposed on your license to practice or which would violate any restriction imposed upon your license to prescribe and dispense controlled substances.

Exclusion for goods or products. We will not cover any claims arising from goods or products, including computer software programs, you or your group develop, manufacture, assemble, sell or distribute except those used in patient care you or members of your group personally provide.

Exclusion for antitrust violations. We will not cover any liability for actual or attempted violation of state or federal antitrust, unfair competition, or consumer protection laws.

Exclusion for use of vehicles. We will not cover any claim arising from the use or ownership of any automobile, motor vehicle, watercraft or aircraft.

Exclusion for fee disputes. We will not cover any dispute involving fees for patient treatment.

Exclusion for punitive or exemplary damages. We will not pay any punitive or exemplary damages. We will defend you, however, against any claim for such damages as long as they result from a claim for damages otherwise covered by this section.

Exclusion for status liability. We will not pay claims made against you solely because of your status as a member, director, shareholder or partner of your group or any other organization. This exclusion includes claims made against you based on medical services provided or which should have been provided by another physician in your group. We will defend you, however, against any such claim if it arises from acts or omissions of a group member for whom the UMIA provides coverage.

We will provide additional benefits which will not reduce the lintits of your coverage. However, we will not provide these additional benefits after your aggregate limit is used up paying claims.

We will defend any suit brought against you for claims for damages covered by this section. We will do this even if the suit is groundless or fraudulent. We have the right to investigate any suit or claim if we think that is appropriate, but we will not settle any suit or claim without your prior consent.

We will pay all costs of defending a suit including the costs of your defense counsel whom we will select for you. You may also have your own personal counsel to advise you, but we have no obligation to pay attorney's fees or costs of your personal counseL

We will pay all costs a court may impose against you in any lawsuit except penalties imposed for contempt of court or other willful failure on your part to comply with any court order.

We will pay interest on that part of any judgement that does not exceed the each loss limit. We will also pay premiums for appeal bonds or bonds to release property being used to secure a legal obligation. We will pay premiums for bonds valued up to your each loss limit.

We will also pay all reasonable costs you incur at our request while helping us to investigate or defend a claim or suit against you. We will also pay you $500.00 per day for your attendance at trial.

9

Section II. Professional Premises Liability Coverage



When you a1·e covered

When a claim is made



10

In consideration of the payment of the premium and your compliance with all terms of this policy and Section, we will provide insurance protection against liability claims for bodily injury or property damage caused by an accident occurring at your professional office premises.

In addition to protection for you as an individual, this section provides coverage for your group and its members and employees if your group is named in the Declarations Sheet.

A claim must meet two requirements to be covered under this section: (I) The claim must result from an accident at your office premises which

occurred on or after your retroactive date; and (2) The claim must be made for the first time during the policy period.

A claim or potential claim reported to a previous insurer cannot be made under this section.

A claim is made on the date you first report to us the specific circumstances of a claim or potential claim. Specific circumstances would include the date, time and place of the event, the identity of individuals involved, a description of the accident and the nature of claimed injuries.

We will pay on your behalf amounts you are legally obligated to pay as damages because of bodily injury or property damage caused by an accident occurring at your professional office premises. Injury which is covered by this section includes bodily injury, sickness or disease, including death, sustained by any person. Accidents which are covered are events which are neither expected not intended by you or others. and which do not involve administration of medical services including treatment, making diagnoses, rendering opinions or providing advice. Accidents which are covered by this section must result solely from your ownership or use of your professional office premises identified in the Declarations Sheet.

Two limits apply to the amount we will pay for professional premises liability claims. These limits are stated on the Declarations Sheet.

Each loss limit. This is the most we will pay for any one loss. By loss, we mean all covered claims for bodily injury or property damage caused by an accident occurring at your professional office premises, regardless of the number of: (a) persons injured or items damaged; (b) claims made; (c) claimants making claims; (d) subsequent related claims; or (e) the number of named insureds in any endorsement to this policy.

Aggregate limit. This is the most we will pay in any policy period for the sum of all separate and unrelated losses.

The limits of our liability are not increased by including others as named insureds and endorsements to this policy. Coverage for damages resulting-from accidents is not cumulative with coverage for your membership in a partnership, association or corporation.


Additional benefits

In the event a claim is made against both you and your group or any other person or entity insured by this section arising from the same accident, the limit of our liability is the same as though a claim had been made against you only.

In the event that any person, partnership, association or corporation named as an insured in an endorsement to this policy is also named as an insured in any other UMIA policy or endorsement which provides coverage for the same accident, then the limit of our liability under this policy is reduced by the amount of our liability for damages paid or payable under the other policies.

There are certain claims which this policy section will not cover. These exclusions apply even if they conflict with other terms of this policy. We will neither defend nor pay damages because of any claim which results from any of the following:

Exclusion for sexual misconduct. We will not cover any claim resulting wholly or partially from your actual or alleged sexual misconduct. By sexual misconduct, we mean any sexual intimacy. sexual molestation~ sexual harassment, sexual exploitation, sexual assault, or any treatment, procedure, conduct or behavior which leads to or may lead to a sexual act.

Exclusion for violation of law. We will not cover any claims resulting from your acts which are in violation of any law, statute, ordinance or regulation.

Exclusion for injuries to your employees. We will not cover any claims for injuries to persons caused in the performance of their duties while employed by you or your group and we have no obligation for Worker's Compensation, unemployment compensation, disability benefits or any similar law.

Exclusion for contractual obligations. We will not provide coverage for obligations you assume by contract which would not otherwise be covered by this policy.

Exclusion for alcohol-related events. We will not cover any claims arising from the furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol nor will we cover claims arising from, causing or contributing to the intoxication of any person.

Exclusion for use of vehicles. We will not cover any claim arising from the use or ownership of any automobile, motor vehicle, watercraft or aircraft.

Exclusion for damage to your property. We will not cover any claim for damage to real or personal properly you, your group or others insured by this section own, occupy1 rent, use or control.

Exclusion for pollution. We will not cover any claim having to do with pollution of land, water or atmosphere.

Exclusion for punitive or exemplary damages. We will not pay any punitive or exemplary damages. We will defend you, however, against any claim for such damages as long as they result from a claim for damages otherwise covered by this section.

We will provide additional benefits which will not reduce the limits of your coverage, However, we will not provide these additional benefits after your aggregate limit is used up paying claims.

We will defend any suit brought against you for claims for damages covered by this section. We will do this even if the suit is groundless or fraudulent We have the right to investigate any suit or claim if we think that is appropriate. We will pay all costs of defending a suit including the costs of your defense counsel whom we will select for you. You may also have your own personal counsel to advise you, but we have no obligation to pay attorney's fees or costs of your personal counsel.

1!

12

We will pay all costs a court may impose against you in any lawsuit except penalties imposed for contempt of court or other willful failure on your part to comply with any court order.

We will pay interest on that part of any judgement that does not exceed the each loss limit. We will al,so pay premiums for appeal bonds or bonds to release propeny being used to secure a legal obligation. We will pay premiums for bonds valued up to your each loss limit.

We will also pay all reasonable costs you incur at our request while helping us to investigate or defend a claim or suit against you. We will also pay you $500.00 per day for your attendance at trial.

Section III. No-Fault Medical Payments Benefit

What this section provides

When benefits can be paid

Limits on the benefits available


To help discourage the filing of liability claims, at your request we will pay the actual medical expenses your patients incur as a result of an injury caused by your medical treatment or failure to treat or caused by an accident at your office premises. This benefit is available whether or not the injury was your fault.

Medical expenses can be paid if they are incurred within one year after the injury occurs, if the injury occurred after the retroactive date stated on your Declarations Sheet and if you ask us to make the payments during the policy period.

We will pay the reasonable medical expenses any one person incurs within one year after an injury not to exceed $5,000.00. We will not pay more than $15,000.00 in any policy period for the sum of all separate and unrelated injuries and no payments will be made after the insured's aggregate limit has been used up paying claims under Sections I or II of this policy.

We will not pay for the expense patients incur for goods or services which you provide. We will also not pay for medical expenses incurred by you, your family or members of your group and their families. Also, we will not pay for any medical expenses incurred for injuries which, regardless of fault on your part, would not be covered or would be excluded under Section I or Section II of this policy.

13

Section IV. Medefense Coverage




When a disciplinary proceeding is instituted


14

Subject to all terms, conditions and limits of this policy and section, we will reimburse you for legal expenses you incur to defend disciplinary proceedings instituted against you during the policy period.

You as the individual physician named in the Declarations Sheet as the named insured, and your group and other individuals if also named in the Declarations Sheet as additional insureds, are covered under this section.

This section provides reimbursement for reasonable legal expenses you actually and necessarily incur to defend disciplinary proceedings instituted against you and first reported to us during the policy period. To obtain coverage you must notify us no later that 30 days after a disciplinary proceeding is instituted. No coverage is available for disciplinary proceedings arising out of any circumstance or event of which you were aware prior to inception of this coverage and which you could reasonably believe would result in a legal expense. A disciplinary proceeding reported to a previous insurer is not covered under this section.

A disciplinary proceeding is instituted when you first receive written notice that a disciplinary proceeding has or will be brought against you.

We will reimburse you for the reasonable legal expenses you actually and necessarily incur for attorney's fees and reasonable associated expenses you incur to defend disciplinary proceedings instituted against you during the policy period. No judgments or expenses other than for your legal expenses will be covered. Disciplinary proceedings for which legal expense reimbursement coverage is available are limited to the following:

(I) Any professional review action against you by the professional review body of a health care entity with which you have clinical privileges or membership, which action is taken for the purposes of adversely affecting said clinical privileges or membership. The terms used in this paragraph shall be defined in 42 United States Code 11151 Sections 431, Definitions;

(2) Proceedings instituted or threatened by a state licensing authority against you for unprofessional conduct;

(3) Proceedings instituted against you by a professional review organization pursuant to parts 1001 and 1005 of Title 32, Chapter V, Code of Federal Regulations to impose sanctions on you.

(4) Proceedings instituted against you by a state Department of Health Services or the Federal Department of Health and Human Services alleging Medicare/Medicaid fraud and abuse by you or perfmmance of medical services in excess of or in violation of guidelines for appropriate utilization of said services.

(5) Proceedings instituted against you for alleged violation of privacy requirements established by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).



Recovering from a third party

Free choice of attorney

Each disciplinary proceeding limit. Subject to the aggregate limit, the most we will pay for reimbursement of legal expenses you incur for one disciplinary proceeding is $25,000.00 after you pay a deductible of $1,000.00 per disciplinary proceeding and, if applicable, a 25% co-insurance per disciplinary proceeding. Appeals are considered to be part of the original disciplinary proceeding and all related disciplinary proceedings, all consolidated proceedings and all proceedings arising out of the same events are considered to be one disciplinary proceeding. The amount we will pay for one disciplinary proceeding is not increased by the number of policy periods over which the disciplinary proceeding may extend, the number of policy periods over which the conduct giving rise to the disciplinary proceeding occurred, the number of claims made in one disciplinary proceeding, the number of claimants making claims or the number of named insureds listed on you policy who are covered by this section.

Aggregate limit. The most we will pay in any policy period for reimbursement of legal expenses is $25,000.00 for the sum of all separate and unrelated disciplinary proceedings instituted in that policy period.

In the event that any person or group named as an insured in this policy or any endorsement to this policy is also named as an insured in any other UMIA policy or endorsement which provides coverage for the same legal expenses, then the limit of our liability under the policy is reduced by the amount of our liability for payment of legal expenses paid or payable under the other policies.

There are certain claims which this section does not cover. These exclusions apply even if they conflict with other terms of this policy. We will not pay for legal expenses:

(1) Incurred in disputes with respect to this insurance, including questions as to whether legal expenses are reimbursable under this section;

(2) That arise out of any disciplinary proceeding that you conspired with another to institute or have instituted;

(3) Incurred in defense of criminal prosecution. Criminal prosecution means any governmental action for enforcement of criminal laws, including offenses, convictions for which could result in imprisonment;

(4) For services you personally provide whether or not you are duly licensed to practice law; and

(5) Arising out of any dispute or claim other than a disciplinary proceeding as defined in this section.

In the event we make any payment on your behalf under this section, we will have the right to recover in your name against .any other person or organization who is liable to you for the expenses reimbursed. We will be entitled at our own expense to sue or arbitrate to recover those amounts in your name. You must do what is necessary to preserve any right of recovery we may have and to assist us as we may require to secure our right and remedies,

You have the complete freedom of choice to select any attorney duly licensed to practice law to provide services for which legal expenses are reimbursable under this section. There is no infringement upon the professional judgement of that attorney furnishing legal services reimbursable under this section and no attorney providing legal services for which legal expenses are reimbursable under this section will be required to act in derogation of the attorney's professional responsibilities.

15

Waiver of co-insurance

16

Upon receiving notice from you that an insured event has been

instituted against you, we will provide you with a list of approved attorneys. If you retain an attorney from the approved list to defend you in connection with the insured event, we will pay 100% of the legal expenses and/or loss in excess of the deductible up to the limits of your coverage, less any amount previously reimbursed or reimbursable. If you retain an attorney not approved by us, the 25% co-insurance

referred to in the Each disciplinary proceeding limit paragraph under the Limits of yonr coverage section will apply to all payments for legal expenses.

Section V. Employment Practices Coverage


Who is,eovered under this section


When an insured event is instituted


Subject to all terms, conditions, and limits of this policy and section, we will reimburse you for any legal expenses and/or loss you incur arising out of an insured event instituted against you during the policy period.

You as the individual physician named in the Declarations Sheet as the named insured, and your group and other individuals also named in the Declarations Sheet as additional insureds, are covered under this section. Coverage under this section will also extend to include all duly appointed directors, trustees, officers or employees of your group.

This section provides for reimbursement of legal expenses and/or loss you actually or necessarily incur in defending insured events instituted against you by employees which are first reported to us during the policy period.

To obtain coverage you must notify us no later than 60 days from the date an insured event is instituted. No coverage is available for insured events arising out of any circumstances or events of which you were aware prior to inception of this coverage and which you could reasonably believe would result in an insured event. An insured event reported to a previous insurer is not covered under this section. We have no obligation to or any duty to defend you under this section.

An insured event is instituted when you first receive written notice that an insured event has been or will be brought against you.

We will reimburse you for the reasonable legal expenses and/or loss you actually and necessarily incur to defend yourself against an insured event instituted against you during the policy period. An insured event means and is limited to written demands, allegations and lawsuits brought against you by any employee, former employee, or applicant for employment alleging discrimination, harassment, or inappropriate employment conduct. An insured event also includes a charge filed against you with the Equal Employment Opportunity Commission or the State Department of Fair Employment Practices or any state or local agency responsible for administration of Fair Employment Laws. This coverage does not apply to allegations made by patients or fanner patients.

Discrimination means termination of the employment relationship, a demotion or failure or refusal to hire or promote, denial of an employment benefit or the taking of any adverse or differential position

17

18

because of race, color, religion, age, sex, disability, pregnancy, sexual orientation, or national origin, or any other basis prohibited by federal, state, or local law.

Employee means all persons who were, now, or shall be individuals whose labor or services engaged by and directed by you. This includes volunteers, part-time, seasonal, temporary, and leased employees. Employees also include applicants for employment with you and persons who are leased to another employer who are not your employees.

Harassment means unwelcome advances, requests for favors or other verbal or physical conduct of either a sexual or non-sexual nature that are explicitly or implicitly made as a condition of employment, or are used as a basis for employment decisions or that create a work environment that interferes with performance. Harassment also means unwelcome advances, requests for favors or other verbal or physical conduct of either a sexual or non-sexual nature that have been explicitly or implicitly made by an employee to other persons excluding patients or former patients of yours. Harassment also includes allegations of assault and battery but only if they are related to a charge of sexual harassment.

Inappropriate employment conduct means any of the below, but only if employment related and claimed by or on behalf of an employee and only if committed or allegedly committed by you in your capacity as an employer:

(1) termination, actual or constructive, of an employment relationship in any manner which is against the law and wrongful;

(2) allegations of wrongful demotion, retaliation, misrepresentation, promissory estoppel and intentional interference with contract; which arise from an employment decision to employ, terminate, evaluate, discipline, promote or demote;

(3) defamation, infliction of emotional distress or mental anguish, humiliation, false imprisonment, invasion of privacy and other personal injury allegations which arise from the terminating, disciplining, promoting or demoting of an employee;

(4) allegations of breach of an implied employment contract and breach of the covenant of good faith and fair dealing in the employment contract;

(5) employment terminations, disciplinary actions, demotions or other employment decisions which violate public policy or the Family Medical Leave Act or similar state law;

(6) violations of the Uniformed Services Employment and Reemployment Rights Act;

(7) allegations of breach of an Employees' federal, state or local civil rights including but not limited to any violation of the Civil Rights Act of 1886 or 42 U.S.C. Section 1983;

(8) allegations of retaliation against any Insured Member including but not limited to retaliation for filing claims under the Federal False Claims Act, retaliation in connection with whistle blowing, retaliation for union activities or in connection with strikes or lockouts;

Settlement Approval



~--.•- -~ ... ,.

(9) allegations of wrongful deprivation of career opportunity or failure to grant tenure.

(1 0) Discrimination. (11) Harassment.

You will need to obtain our approval prior to agreeing to resolve an insured event made against you by payment of money. Our approval will not be unreasonably withheld.

Each Insured Event Limit: Subject to the aggregate limit, the most we will pay for reimbursement of legal expenses and/or loss you incur for an insured event is $25,000 after you pay a deductible of $2,500 per Insured Event and, if applicable, a 25% co-insurance per Insured Event Any and all appeals are considered to be part of the underlying insured event. The amount we will pay for an insured event is not increased by the number of policy periods over which the insured event may extend, the number of policy periods over which the conduct giving rise to the insured event occurred, the number of allegations made in an insured event, the number of claimants making the allegations or the number of named insureds listed on your policy who are covered by this section.

Aggregate Limit: For individual physicians, the most we will pay in any policy period for reimbursement of legal expenses and/or loss is $25,000 for the sum of all separate and unrelated insured events instituted in that policy period. For medical groups, the maximum amount we will pay for an insured event made against insureds ln your group is $50,000 if the group is comprised of2-10 physicians and $100,000 if your group is comprised of more than I 0 physicians.

Coverage under this section is subject to the condition that any insured event must arise out of your medical practice and your examination and/or treatment of patients, and not out of any unrelated enterprises you own or operate.

We will not pay for legal expenses and/or loss:

(I) If the Legal Expense and/or Loss are provided, or could have been provided, to you by an insurer or another indemnifying organization, which is or may be obligated to reimburse you for any or all of its liability in the matter under the terms of a liability insurance policy or contract or some other type of indemnification agreement or arrangement. However) this exclusion shall not apply to any out-of-pocket expenses you incur which are less than or equal to your deductible under this section or contract or other type of indemnification agreement or arrangement, and which do not exceed the limits of your coverage.

(2) Incurred in connection with disputes with respect to this insurance, including questions as to whether legal expenses and/or loss are reimbursable under this Section.

(3) Incurred in connection with any matter that you have conspired with another to institute or have instituted.

19

Recovering from a third party

Free choice of attorney

Waiver of Co-Insurance

20

(4) Incurred in connection with any class action suit (5) Incurred in connection with any lawsuit relating to bodily injury

or property damage. (6) Incurred in connection with matters brought by patients or

former or prospective patients, except those alleging violation of state or federal anti-discrimination laws.

(7) Incurred in connection with elder abuse claims brought by any party, even if violation of anti-discrimination laws is alleged.

(8) Incurred in any matter arising out of any circumstances or event of which you were aware prior to the effective date of this coverage.

(9) Incurred in connection with any matter other than the Insured Event

(I 0) Incurred in any proceeding before or investigation by a federal, state or local workers' compensation agency.

(II) Incurred in any proceeding before the National Labor Relations Board, or the equivalent state agency.

(12) Incurred in any proceedings alleging violations offederal, state or local wage and hour laws or regulations.

(13) Incurred in any matter brought by or on behalf of any current or former owner, stockholder or partner, or any alleged owner, stockholder or partner.

In the event we make payment on your behalf under this section, we will have the right to recover in your name against any other person or organization who is liable to you for the expenses and/or loss reimbursed. We will be entitled at our own expense to sue or arbitrate to recover those amounts in your name. You must do what is necessary to preserve any right of recovery we may have and to assist us as we may require to secure our rights and remedies.

You have the complete freedom of choice to select any attorney duly licensed to practice law to provide services for which legal expenses and/or loss are reimbursable under this section. There is no infringement upon the professional judgment of that attorney furnishing legal services reimbursed under this section and no attorney providing legal services for which legal expenses and/or loss are reimbursable under this section will be required to act in derogation of the attorney's professional responsibilities.

Upon receiving notice from you that an insured event has been instituted against you, we will provide you with a list of approved attorneys. If you retain an attorney from the approved list to defend you in connection with the insured event, we will pay 100% of the legal expenses and/or loss in excess of the deductible up to the limits of your coverage, less any amount previously reimbursed or reimbursable. If you retain an attorney not approved by us, the 25% co-insurance referred to in the Each Insured Event Limit paragraph under the Limits of your coverage section will apply to all payments for legal expense and loss.

Section VI. General Rules

Your duties if you have a claim

Premiums and risk classification

Payments of dividends

Policy changes

Cancellation of your policy

If someone makes a liability claim against you or anyone for whose acts you are legally responsible, you must immediately notify us. You must:

(I) Tell us what happened and provide us with the details of the specific circumstances of the claim.

(2) Provide us with medical records we request. (3) Send us copies of all demands, notices or legal documents as soon as you

receive them. You must also:

(4) Give us your full cooperation in the investigation and resolution of the claim. You must attend hearings and trials as requested by the lawyers we provide for you and assist in presenting evidence, records and witnesses.

(5) Refrain from admitting liability, assuming any financial obligations or paying any money without our authorization. We do not have any responsibility to reimburse you for any payment you make voluntarily even though the cost may have been covered under the policy.

The premium that you pay for this policy is based upon rules, rates and classification system for the nature of your practice and the type of coverage you have chosen. Any change that may occur in your practice during the time your policy is in effect should be reported to us within 30 days so that any change in your premium can be calculated and processed for the remainder of the policy period.

The UMIA may declare and pay dividends in amounts and with classifications the Board of Directors determines to be fair and reasonable. The payment of dividends may be contingent on the renewal of any policy and of payments of the full renewal premiums.

This policy can be changed only by a written endorsement signed by one of our authorized representatives. Nothing else, including any statement or promise by any company employee will change this policy or waive any of its terms or stop us from asserting any of our rights under it.

We make changes in our policy forms from time to time. These changes must conform to state law and are filed with the state insurance authorities for approval. While your coverage is in force, we can make any changes in the form of this policy that broadens or extends your coverage. If we do, and the change can be added to your policy without increasing your premium, you will automatically receive the benefit of the extended or broadened coverage.

How you can cancel. You can cancel this policy at any time. To cancel the policy, you must mail or deliver to us written notice stating when you want the coverage to end. You will get a refund for any unearned premium which will be calculated in accordance with the customary pro rata procedure.

21

Non-renewal of your policy

22

How we can cancel if you don't pay your premium. If you fail to pay any premium when due, we can cancel your policy. We will mail or deliver a written cancellation notice to you which will explain that non-payment of premium is the reason for cancellation. We will give you notice at least ten (10) days prior to the effective date of cancellation.

How we can cancel for other reasons. If your policy has been in effect less than sixty (60) days, we can cancel your policy for any reason by sending you a Notice of Cancellation. We will give you ten (I 0) days advanced notice if you practice in Utah or Wyoming, thirty (30) days advanced notice if you practice in Idaho and sixty (60) days advanced notice ifyou practice in Montana.

Once we have insured you for more than sixty (60) days, we have the right to cancel your coverage only for one or more of the following reasons:

(I) Fraud or material misrepresentation made by you or with your knowledge in obtaining the policy, continuing the policy, or in presenting a claim under the policy;

(2) Substantial change in the risk we assumed by insuring you unless we should have reasonably foreseen the change or contemplated the risk when we agreed to insure you;

(3) Substantial breaches of contractual duties, conditions or warranties, including a failure to comply with loss prevention requirements; or

( 4) Such other reasons that may be approved by the Commissioner of Insurance in the state where you practice.

If we cancel your policy for any of these reasons, we will give you thirty (30) days advanced notice if you practice in Utah or Idaho and ninety (90) days advance notice if you practice in Wyoming. If you practice in Montana, we will give you sixty (60) days advanced notice before the effective date of cancellation. We will also refund to you unearned premium which will be computed according to the length of time you are insured rather that by using a short rate table, but payment of the unearned premium is not a condition of cancellation.

You can choose not to renew this policy for any reason. We also have the same right. If we choose not to renew your policy and you practice in Utah, we will send you notice of our intention not to renew the policy at least thirty (30) days before your existing policy expires. If you practice in Montana, we will give you sixty (60) days notice before your existing policy expires. If you practice in Idaho, we will send you a notice of our intention not to renew your policy at least forty-five (45) days before your existing policy expires.

If we agree to renew your policy but on less favorable terms or at a higher rate than is generally applicable to physicians in your class, the new terms or rates will not take effect in Utah or Idaho until thirty (30) days after we send you a notice specifying the new terms. We will also provide you with notice of the amount of the renewal premium not more than forty-five (45) days or less than fourteen (14) days prior to the due date of the premium. If you practice in Montana, we will give you the renewal terms and a statement of premium not less than sixty (60) days prior to expiration or anniversary date of the original policy.

If you practice in Wyoming and we intend to renew your policy on less favorable terms or at higher rates, we will give you notice of the renewal terms and statement of premium due not less than ninety days (90) prior to the expiration or anniversary date of the original policy. If we fail to provide you with the renewal terms and a statement of premium due as required, you may elect to cancel the renewal policy within the ninety days (90) period following receipt of the renewal terms and

How you can appeal a decision to cancel or not renew

Extended Reporting Endorsement (Tail Cove1-age)

statement of premium due. Earned premium for any period of coverage shall be calculated pro rata based upon the premium applicable to the original policy and not the premium applicable to the renewal policy.

If your policy has been in effect for more than sixty (60) days, you may appeal a cancellation or non-renewal to the Board of Governors of the UMIA by delivering or mailing to us a written request for an appeal within ten (10) days after you receive the Notice of Cancellation }'!'Non-Renewal. You VlOuld be entitled to a hearing before the Board of Governors in accordance with the rules the Board has adopted. In the event of a cancellation for non-payment of premiums, an appeal to the Board may be taken only on the issue of whether or not premiums owed were paid prior to the effective date of cancellation.

Your coverage under this policy may end because you or we choose to cancel or not to renew it. If this happens, you have the right to buy an extended reporting endorsement that extends the time for reporting claims unless your policy was cancelled for fraud or material misrepresentation. This endorsement is commonly referred to as the Tail Coverage.

How to purchase this endorsement. If you desire to purchase the extended reporting endorsement, you must notify us of your intent to do so and tbe premium for this coverage must be received by us within sixty (60) days after your policy was cancelled or not renewed. Also, if you owe us premium at the time your policy was cancelled or not renewed, you must first pay us the premium owed before you can exercise your right to buy this endorsement.

The effective date of the extended reporting endorsement will be the date you first notified us of your intent to purchase the endorsement or the date the premium is received by us.

The option to buy this endorsement may be exercised by your group if you choose not to do so.

Limits of coverage. If you purchase this coverage, you have the option of obtaining limits of coverage equal to or less than the limits of liability that applied to your last policy when it was cancelled or not renewed. The aggregate limit is the maximum amount we will pay regardless of the length of the reporting.

If this coverage is provided without payment of any additional premium due to death, disability or retirement, the limits of liability issued will be lowest limit of liability purchased in the five preceding years.

Retirement. If you retire from the practice of medicine upon reaching the age of 50 years or older (except Anesthesiologists who may retire at any age) and have been insured with us for at least one full year at a mature premium rate, we will issue the reporting endorsement without requiring the payment of the endorsement premium.

Death or disability. Should you die or become disabled while this policy is in effect, we will issue the reporting endorsement without requiring the payment of any additional premium. By disability we mean total and permanent disability, resulting from sickness or accidental bodily injury, which prevents you from engaging in any occupation as a physician or surgeon and for which you are under regular care and attendance of a physician other than yourself.

23

Consent to settle

If you have other insurance

Recovery from a third party

Fraud and misrepresentation

Tenitoriallimitation

Voting and annual meeting

Assignment

24

' ,.

When you are covered by this endorsement. A claim must meet two requirements to be covered under the reporting endorsement:

(!) The claim must result from medical service which you provided or should have provided or from an accident which occurred on or after the retroactive date stated in your Declarations Sheet and before your policy was cancelled or not renewed; and

(2) The claim must be made for the first time while the reporting endorsement is in effect.

Return to practice. If you resume the practice of medicine anywhere in a full-time basis after we have given you the extended reporting endorsement without charge due to your disability or retirement, your coverage ends on the date you resume practice. Claims arising from medical care or accidents occurring after your resumption of part-time practice are not covered by the reporting endorsement.

We will not settle any medical professional liability claim against you without your consent.

If there is other valid insurance (whether primary, excess, contingent or self-insurance) which may apply against a loss or claim covered by this policy, the insurance provided hereunder shall be deemed excess insurance over and above the applicable limit of all other insurance or self-insurance.

In the event we make a payment on your behalf under this policy, we will have the right to recover in your name from any other person or organization responsible for the loss. You must do what is possible to preserve any rights of recovery we may have.

We have been completely honest and candid with you. We expect you to be the same with us. We have relied on your representations to determine your premium and your eligibility for issuance or renewal of this insurance.

We will deny each and every claim made against the policy and return your full premium if we find that prior to policy issuance you or anyone on your behalf concealed or failed to disclose any important information, misled us or attempted to defraud or lied to us about any important matter concerning this insurance.

Except as many be otherwise provided in an endorsement to this policy, this policy applies only to liability arising out of events occurring in states in which the UMIA is licensed to write business and to gratuitous or Good Samaritan professional services regardless of where they are performed.

As a member of the UMIA, you are entitled to vote, either in person or by proxy, at any and all meetings of the membership. Our annual meeting is held at the same time and place as the annual meeting of the Utah Medical Association. We will provide you with notice of the date, time and place of the annual meeting at least ten (10) days before it is held.

Neither you nor anyone else covered under this policy can assign or turn over your interest in it without our written consent. This includes any claim or cause of action against us, whether in contract, tort, or otherwise, which relates to or arises in connection with this policy, including any claim or cause of action that we did not perform our obligation under this policy in good faith.

Inspection and audit

Cooperation with risk management

Conformity with state statutes

Arbitration

You agree to let us inspect your property and business operations during normal business hours while this policy is in force. We are not, however, required to make inspections nor do we guarantee that your property or opemtions are safe or that they conform to any laws, rules or regulations.

We may also examine and audit your books and records which may relate to the subject of this insurance at any time while the policy is in effect and three years after final termination of the policy.

We have adopted loss prevention programs which we believe reduce the incidence of malpractice and improve the practice, attitude, conduct and loss experience of policy~ holders. You agree to comply with any mandatory loss prevention requirements and to implement to the extent possible the techniques and programs designed for risk management.

It is our intent that the provisions of this policy, as written, conform to the minimum statutory requirements of the state in which the policy is issued. In the event of any conflict in statutory requirements, the statutes in the state in which the policy is issued shall prevaiL

In the event any controversy or claim of any nature arises out of or relates to this policy that involves two or more parties that cannot be settled among the disputing parties, the controversy or claim shall be settled by arbitration with the then current rules of the American Arbitration Association. The arbitrator shall have the power to decide any dispute between the parties concerning the application or interpretation of the terms of this policy. The arbitrator shall have no power to change or add provisions to the policy. Each disputing party shall pay an equally proportionate share of the cost of the arbitration.

For policies issued in the· state of Wyoming, arbitration proceedings shall be conducted in accordance with Title I, Chapter 36 of Wyoming Law.

This General Rule does not apply to policies issued in the state of Montana.

25

EXHIBIT C

,., UMIA

UTAH MEDICAL

INSURANCE AssoCJATION

''AN INTERINSURANCE EXCHANGE"

PERSONAL & CONFIDENTIAL

Renata Saltz, M.D. SALTZ PLASTIC SURGERY 5445 Hlyhlctnu Dr. Salt Lake City, UT 84117

RE: Plaintiff: Conilyn Poulsen Judge Claim #: 195088-1 Policy#: UT15256

Dear Dr. Saltz:

310 East 4500 South I Suite 550

Salt lake City, Utah 84107-3993

t/ 801-531-0375

f/ 801-531-0381

www.umia.com

January 21, 2009

RECEIVED JAN 27 2009

UP!:~, •

Receipt is hereby acknowledged of the Summons and Complaint that was recently filed on the above captioned matter.

Your attention is directed to page 18 of the Summons and Complaint, where the plaintiff asked for an award for punitive damages. We would refer you to pages 7 and 8 of your policy under the heading, "What This Section Does Not Cover," which states as follows:

Exclusion for punitive or exemplary damages. We will not pay · for any punitive or exemplary damages. We will defend you, however, against any claim for such damages as long as they result from a claim for damages otherwise covered by this section.

Therefore, it is the position of UMIA that we would be unable to respond to any award for punitive damages.

As you are aware, the defense of this matter has been referred to Bobby Wright of the law firm of Richards, Brandt, Miller & Nelson, here in Salt Lake City, Utah for the protection of your interests. Please be assured that Mr. Wright will afford you the very best possible defense. Nonetheless, please understand that you have the right to hire your own personal attorney, at your own expense, to represent your personal interests with regard to the above

stated issue. If you choose to do so, we will cooperate with him/her in every possible way.

Please feel free to contact Mike Imbler, if you have any questions regarding this matter.

Cc: Bobby Wright, Attorney at Law Richards, Brandt, Miller & Nelson 299 South Main 151h Floor Salt Lake City, Utah 84111

Gary E. Doctorman Parsons Behle & Latimer

7<\j""Y Yo"'

R. Dougla Smith Vice President, Claims

201 South Main Street, Suite 1800 Salt Lake City, Utah 84111

EXHIBIT D

Coverage without compromise

PERSONAL & CONFIDENTIAL

Renata Saltz, M.D. SALTZ PLASTIC SURGERY 5445 Highland Dr. Salt Lake City, UT 84117

RE: Plaintiff: Conilyn Poulsen Judge Claim#: 195088-1 Policy#: UT15256

Dear Dr. Saltz:

October 24, 2016

On or about January 12, 2009, you tendered defense of Coni/yn Judge v. Saltz Plastic Surgery eta/. ("the Judge Action") to UMIA under policy number UT15256 ("the Policy"). On January 21, 2009, UMIA acknowledged and accepted your tender of defense and informed you that it had retained counsel to defend you in the Action. In that same letter, UMIA advised you that certain claims made by Ms. Judge - claims for punitive damages - were not covered by your policy, and suggested that you should retain counsel to represent your personal interests. You have retained personal counsel, and such counsel is copied on this letter.

This letter supplements the January 21, 2009 letter. In addition to the issue raised in that letter, UMIA reserves its right to deny coverage for the Action based on the following issues:

1. As to Section I of The Policy, the allegations and causes of action asserted against you in the Judge Action do not result from medical services which were provided or which should have been provided to Ms. Judge.

2. As to Section II of The Policy, the allegations and causes of action asserted against in the Judge Action do not arise out of accidental conduct, and do not solely arise from your ownership or use of your professional office premises.

I. FACTS

In late 2007, the local Fox News station approached you regarding participation in a story on the risks and benefits of plastic surgery. Fox News asked whether you had a patient who would be willing to be interviewed as an example of a "positive surgical outcome." Ms. Judge agreed to be interviewed for the story. A year earlier, you performed an abdominoplasty,

UMIA Insurance, Inc.

310 E.ist 4500 South • Suite 600 Salt Laic.- Citj, Utah 114107-3993 t.8015.H.037S • 800.74S.4,80 • f.BOL'i~ l.O.l!ll • 1Uilia.com

breast augmentation, and mastopexy on Ms. Judge. By all accounts, the surgery was successful with no complications.

On January 11, 2008, Fox News interviewed Ms. Judge and you at your office. During the interview, Fox News filmed a "mock examination." After the mock examination, the reporter asked your office manager if she could use the "before and after'' photos taken of Ms. Judge at the time of her procedure. There is a dispute as to whether Ms. Judge consented to the release of the photos. The photos were provided to Fox News, used in the report, and posted on its website.

On January 12, 2009, the Judge Action was filed, setting forth the following causes of action: (1) publication of private facts; (2) false light; (3) intrusion upon seclusion; (4) breach of fiduciary duty; and (5) negligent employment and supervision.

II. POLICY PROVISIONS

Section I of the Policy provides Professional Liability Coverage to you. The insuring agreement of that section identifies the scope of coverage under that section. It states the following:


(1) The medical services which you personally provided or should have provided to your patients;

(2) The medical services provided, or which should have been provided, by others for whom you are legally responsible, except for:

(a) Physician assistants, certified registered nurse anesthetists, certified registered nurse midwives, certified registered nurse practitioners and perfusionists unless they are named in an endorsement and the required premium for them is paid; and


(3) Your professional service on a formal medical accreditation board or any committee responsible for making decisions regarding credentials, privileges or quality assurance matters.


Section II of the Policy provides Professional Premises Liability Coverage to you. The insuring agreement of that section identifies the scope of coverage under that section. It states the following:

We will pay on your behalf amounts you are legally obligated to pay as damages because of bodily injury or property damage caused by an accident occurring at your professional office premises. Injury which is covered by this section includes bodily injury, sickness or disease, including death, sustained by any person. Accidents which are covered are events which are neither expected not intended by you or others, and which do not involve administration of medical services including treatment, making diagnoses, rendering opinions or providing advice. Accidents which are covered by this section must result solely from your ownership or use of your professional office premises identified in the Declarations Sheet.

Ill. RESERVATION OF RIGHTS

For there to be coverage under Section I of the Policy, the claims made by Ms. Judge must arise out of medical services that were provided, or not provided, by you to her. When determining if the claim arises out of "medical services," the inquiry focuses on the act or service performed that forms the basis for the claims, not the mere fact that the alleged wrongdoer was a physician. In this case, Ms. Judge is not making a claim arising out of medical services that you provided to her. Rather, her claims arise entirely out of the alleged non-consensual release of photographs to a news organization. For that reason, there is no coverage for these claims under Section I of the Policy.

For there to be coverage under Section II of the Policy, the Action must allege "bodily InJury or property damage caused by an accident occurring at your professional office premises." The allegations of the Judge Action raise two issues under Section II. First, it is questionable whether any conduct alleged was "accidental" conduct. The photos were provided to the news organization voluntarily by your office. In order for that conduct to be considered "accidental," the result of the conduct must be "unexpected and unanticipated." In this case, it is questionable whether the result of the conduct- that the photos would be used in the news story- was "unexpected and unanticipated." More importantly, Section II makes clear that the "accident" must "result solely from your ownership or use of your professional office premises." The release of these photos for the news story had no connection to the ownership of your office premises. Thus, regardless of whether the conduct was in fact "accidental," there is no coverage under Section II of the Policy.

As noted above, UMIA will continue to provide you a defense under a reservation of rights, reserving the right to deny coverage on the grounds set forth above, and the grounds set forth in the January 21, 2009 letter. Richards, Brandt, Miller & Nelson will continue to represent you in the matter, with a defense paid for by UMIA. Please understand, however, that the defense provided by Richards, Brandt, Miller & Nelson has and will continue to solely relate to the merits of the action, and will not touch on insurance coverage issues. UMIA will not pay for the attorney retained to represent your personal interests related to these insurance coverage issues. If further insurance coverage issues arise as the case progresses, we will promptly inform you of those issues.

If you have any questions or concerns, please feel free to contact me.

Cc: Katherine Venti- (via email) Attorney at Law

Respectfully Yours,

Michael A. Imbler Senior Claim Consultant

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