Joseph Pecar v.  St. Paul Fire & Marine Insurance Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JOSEPH PECAR,
Plaintiff-Appellant,
v. No. 02-1866 
ST. PAUL FIRE & MARINE INSURANCE
COMPANY,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-01-1941-AW)
Argued: June 5, 2003
Decided: August 12, 2003
Before WILKINS, Chief Judge, WIDENER, Circuit Judge,
and Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Michael John Winkelman, MCCARTHY & COSTELLO,
L.L.P., Bowie, Maryland, for Appellant. Kevin Joseph Willging, Wil-
liam Jacob Kobokovich, Jr., Baltimore, Maryland, for Appellee. ON
BRIEF: Kevin J. McCarthy, MCCARTHY & COSTELLO, L.L.P.,
Bowie, Maryland, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case arises out of a medical malpractice action that plaintiff
Joseph Pecar filed against the estate of his former doctor, Dr. Arthur
Passarelli, in the Circuit Court for Prince George’s County, Maryland.
Pecar received a default judgment in the amount of $1,265,308.00 in
the state court. Seeking to collect the judgment, the plaintiff filed the
present action against the defendant, St. Paul Fire and Marine Insur-
ance Company, alleging that the defendant had issued a professional
liability insurance policy to the doctor which was in effect at the time
that the malpractice occurred. The plaintiff originally filed his suit to
collect the default judgment in the state court claiming breach of con-
tract and bad faith which was removed to the United States District
Court, based on diversity. The district court granted summary judg-
ment in favor of the defendant on both the breach of contract and bad
faith claims, holding that there was insufficient evidence to support
a finding that the defendant had indeed issued a liability policy during
the time in question. The plaintiff appeals the July 11, 2002 judgment,
claiming that he submitted sufficient evidence to allow a trier of fact
to determine that a St. Paul liability insurance policy was in effect at
the time of the operation which covered Dr. Passarelli. The argument
goes that the district court erred in refusing to apply a spoliation of
evidence rule. We affirm.
I.
On May 27, 1966, when the plaintiff was six months old, Dr.
Arthur Passarelli performed surgery on the plaintiff to repair a bilat-
eral hernia and bilateral hydrocele. Dr. Passarelli died three years later
in 1969. About 30 years after the surgery, upon marriage, the plaintiff
discovered that he was sterile. He then brought suit in a Maryland
court against Dr. Passarelli’s estate, alleging that the doctor was negli-
gent in performing the 1966 surgery, resulting in the plaintiff’s steril-
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ity. Initially, the plaintiff contacted St. Paul and requested that it
defend the doctor’s estate. The defendant refused, however, claiming
that it did not have any record of a policy issued to the doctor for the
time period in question. The plaintiff secured a default judgment
against the estate in the amount of $1,265,308.00.
Seeking to collect the judgment, the plaintiff filed an action in state
court against the defendant. The case was removed to federal court on
July 2, 2001. On that same day, the plaintiff filed an amended com-
plaint seeking: (1) the amount of the state court judgment based upon
his allegation that the defendant insured Dr. Passarelli at the time of
the injury and the failure to pay is a breach of the contract; and (2)
compensation for the defendant’s bad faith in failing to defend the
Estate in the state court action and failing to pay the judgment
amount.
On August 30, 2001, the defendant filed a motion to dismiss as to
the bad faith claim. Following discovery, on February 28, 2002, the
defendant filed a motion for summary judgment as to both counts on
the basis that the plaintiff is unable to carry his burden of establishing
that the defendant issued a professional liability insurance policy cov-
ering the acts of Dr. Passarelli. A hearing was held on July 1, 2002
to address both the motion to dismiss and the motion for summary
judgment.
The following evidence was presented at the hearing. Neither the
plaintiff, nor the Estate’s personal representative, nor the defendant1
had found any record of a professional liability policy that was in
effect for Dr. Passarelli on May 27, 1966, the date of the injury. Riggs
Bank, which initially administered the Estate, had no records relating
to Dr. Passarelli’s insurance coverage for the year 1966. Additionally,
the Orphan’s Court in which the estate was probated did not have any
record of evidence which tended to show an insurance policy in effect
for that time period. In the absence of such a policy, the plaintiff
offered two documents in support of his allegations that he argues
show that the defendant insured Dr. Passarelli on May 27, 1966, and
1There is evidence in the record that the defendant had an in-house
document retention rule, under which an old policy would likely have
been destroyed in the regular course of business after ten years.
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that the policy was such that it covered the type of medical malprac-
tice for which the plaintiff secured his judgment.
First, the plaintiff produced a Certificate of Insurance dated
November 1, 1962 that was issued by the defendant to Holy Cross
Hospital, which relates that it provided liability insurance coverage
for Dr. Passarelli2 effective May 1, 1962 and expiring May 1, 1963.
Second, the plaintiff offered a Statement of Transactions, which
was filed by Riggs Bank, the original representative of Dr. Passarel-
li’s estate, in the Orphan’s Court for Prince George’s County, Mary-
land, after the doctor’s death in 1969. That statement indicates that
the doctor had personal catastrophe insurance coverage from March
27, 1969 until September 1, 1970, as evidenced by the following nota-
tion:
J. Blaise Desibour & Co.
St. Paul Policy 566XB5903 $1,000,000
Top Brass Personal Catastrophe Liab
3/27/69 to 9/1/70 R PR
The parties do not know who prepared this document or the source
of the information contained in the document. There is evidence that
the number 5 at the beginning of the policy number indicates that it
is a liability policy, that the number 66 indicates that the policy was
issued from the company’s headquarters, that the letters XB show that
it was an excess policy, and that the last four digits indicate the num-
ber of Top Brass policies sold during that time. An excess policy
means that any coverage that it provided was in excess over a specifi-
cally listed primary policy, such as an umbrella over a homeowner’s
policy. The Top Brass excess policy could have been written over
another primary policy issued by the defendant or a primary policy
issued by some other company. There is no reference in the statement
from the records of the Orphan’s Court to any type of primary policy.
In order to prove coverage on May 27, 1966, the plaintiff offered
additional evidence that the company that issued the 1962-63 Certifi-
2In 1962, Dr. Passarelli maintained offices in Silver Springs, Maryland
and Chillum, Maryland, and also practiced and performed procedures at
Holy Cross Hospital.
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cate of Insurance for St. Paul was succeeded in business by J. Blaise
Desibour, the company that was listed on the statement to the
Orphan’s Court as having issued the excess policy.
Following a presentation of all of the evidence, the district court,
on July 11, 2002, granted the defendant’s motion for summary judg-
ment as to both counts. The district court held that the plaintiff failed
to produce evidence of the existence or terms of a liability insurance
policy issued by the defendant that would cover the acts of Dr. Passa-
relli on May 27, 1966, and that he failed to make a threshold showing
under Rule 1004 of the Federal Rules of Evidence to introduce sec-
ondary evidence to establish the existence and contents of the policy.
Additionally, the district court held that because there was no evi-
dence that the defendant knowingly, intentionally, or willfully
destroyed the policy, if a policy existed, the plaintiff could not rely
on the spoliation of evidence rule.
In summary, the plaintiff was unable to prove that St. Paul ever
issued a liability policy which covered the acts of Dr. Passarelli on
May 27, 1966. The district court correctly assumed, for the purposes
of its decision, that the Certificate of Insurance was proof of such lia-
bility insurance from 1962 until 1963, and the statement from the
records of the Orphan’s Court was proof of such liability coverage
from 1969 until 1970. But it correctly held that there was no evidence
to prove liability coverage for the acts of Dr. Passarelli on May 27,
1966.
The situation which the district court faced at the time of the hear-
ing on the motion for summary judgment was the implicit claim of
Pecar that the in-house rule of St. Paul in which such records were
destroyed after ten years amounted itself to a spoliation of evidence
because professional liability policies for physicians were based on
occurrences, which might have been the subject of litigation more
than ten years after the date of the occurrence. The district court
declined to apply a spoliation of evidence rule because it declined to
find that such a liability policy existed on May 27, 1966, or that St.
Paul had knowingly, intentionally, or wilfully destroyed any such pol-
icy, if it existed.
As did the district court, we have examined all of the documents
offered by the plaintiff as evidence of coverage in this case, and we
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have examined the various depositions and other evidence which has
been filed. With respect to the sufficiency of the evidence, the district
court concluded:
Going to trial with this lack of evidence would be asking the
finder-of-fact to assume, presume or speculate about the
ultimate fact of coverage, and then to guess about the terms
of coverage.
As to the spoliation of evidence, the district court concluded:
Here plaintiff has produced no evidence, nor does the court
find any evidence, that supports an inference that defendant
knowingly, intentionally or wilfully destroyed the policy, if
any such policy existed. Thus, the court finds the spoliation
of evidence rule inapplicable.
Upon our examination of the record and following argument of
counsel, we are of opinion that the district court came to the correct
conclusion in this case.
The judgment of the district court is accordingly
AFFIRMED.
6 PECAR v. ST. PAUL FIRE & MARINE INS.

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