A policy lapse means an insurer need not defend an assisted living community from a wrongful death lawsuit, the insurer argues in federal court.
Wisconsin-based Church Mutual Insurance Co., now Church Mutual Insurance SI, last week filed an insurance lawsuit in the U.S. District Court’s 7th Circuit in Illinois against Texas-based senior housing provider Frontier Management and Ohio-based Welltower Tenant Group, which do business as an Auberge at Orchard Park, an assisted living and memory preservation community in Morton Grove, IL.
In the lawsuit, Church alleges it has no obligation to defend the senior living provider and management companies in a wrongful death lawsuit filed by the estate of a former resident who died in 2021.
Charles Nedoss, son of Bertrand Nedoss, filed a lawsuit against Welltower, Auberge at Orchard Park and Frontier Management in the Circuit Court of Cook County, IL on October 15, 2021. The lawsuit alleges that Bertrand Nedoss – a resident from July 18, 2017 to January 5, 2021 – drank a COVID-19 sample solution in December 2020, which led to pneumonia. On January 5, 2021, Nedoss reportedly left the community undetected and later died of hypothermia and cardiac arrest after spending hours outside in frigid temperatures.
The wrongful death lawsuit alleges that the municipality of Nedoss, which the lawsuit says is a known flight hazard, failed to patrol and provide working alarms, properly train staff, conduct hourly checks or respond to door and responded to bed alarms.
After the lawsuit was filed in January 2022, Church Mutual stated that the underlying lawsuit was not covered by professional liability insurance because it was filed after that policy expired on July 1, 2021. Church Mutual Insurance argued that the policy was in effect at the time the 2021 lawsuit was filed by Everest Indemnity Insurance Co.
For its part, Frontier requested that the Church change its coverage position to ensure full defense and indemnification under the terms of its policy. Church Mutual agreed in December to pay 100% of the defense costs but asserted the right to reimbursement of those costs and the right to institute a declaratory judgment.
Last summer, a federal judge ruled that Church Mutual Insurance did not have to defend Prairie Village Supportive Living, which operates as Eagle’s View Supportive Living and Memory Care in Illinois, in a possible class action lawsuit alleging unlawful employment practices. But the insurer lost a case last July when an appeals court ruled that Church had to defend a now-defunct assisted living community in a class action lawsuit brought by former residents for breach of contract and negligence.
Frontier Management had not responded to requests for comment from McKnight’s senior life from the end of production.
