Blake et al v. NCMIC Insurance Company et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRITTANY BLAKE, D.C.; MORGAN
LOFTUS (f/k/a MORGAN MARSH);
RAQUEL OSTERBAUER; PATRICIA
ASMAN; TAMARA RYAN; CYNTHIA
TARANTO; and KERI WILLIAMS,
Plaintiffs,
vs.
NCMIC INSURANCE COMPANY1
Defendant.
Case No. 3:17-cv-00193-JMK
ORDER RE: CROSS-MOTIONS
FOR SUMMARY JUDGMENT
AND MOTIONS TO STRIKE
Pending before the Court are (1) Defendant NCMIC Insurance Company’s
(“NCMIC”) Motion for Summary Judgment at Docket 118 and (2) Plaintiffs’ Motion for
Summary Judgment at Docket 121 (together, the “Cross-Motions”). 	The Cross-Motions
are fully briefed.2 The Court heard oral argument on the Cross-Motions on December 9,
2021; the Court then took the matter under advisement.3 Also pending in connection with
the Cross-Motions are (1) Plaintiffs’ Motion to Strike Certain Evidence at Docket 124 and
1 At Docket 28, the Court dismissed all claims against NCMIC Insurance Services. The
case caption is therefore modified consistent with the above.
2 Docket 123; Docket 125; Docket 126; Docket 127.
3 Docket 136 (text entry).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 1 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 2
(2) Defendant’s Motion to Strike Plaintiffs’ Reply in Support of its Motion to Strike
Certain Evidence at Docket 132. Both Motions to Strike are fully briefed.4
I. 	FACTUAL BACKGROUND
A. 	The Underlying Action
Plaintiffs are seven women who formerly were patients of Dr. Myron
Schweigert, a chiropractor practicing at Chugach Chiropractic Clinic, LLC (the “Clinic”)
in Eagle River, Alaska.5 On December 31, 2015, Plaintiffs filed suit against Dr Schweigert
and the Clinic in Alaska Superior Court (the “Underlying Action”), bringing claims for
(1) professional malpractice relating to Dr. Schweigert’s treatment of each of the Plaintiffs
and (2) breach of the covenant of good faith and fair dealing, sexual harassment, and
wrongful discharge relating to Dr. Brittany Blake’s employment.6 	The Complaint in the
Underlying Action contains allegations that Dr. Schweigert touched Plaintiffs’ breasts,
nipples, genital area, and buttocks during chiropractic treatments.7 	The Complaint also
alleges that certain Plaintiffs experienced pain or bruising following Dr. Schweigert’s
administration of 	Electrotherapeutic Point 	Stimulation Therapy 	(“ETPS”)8 and 	that
Dr. Schweigert administered cortisone injections into the shoulder of one Plaintiff on two
occasions.9 	For 	each 	professional 	malpractice 	claim, 	the 	Complaint 	states 	that
Dr. Schweigert “either lacked the degree of knowledge or skill or failed to exercise the
4 Docket 127; Docket 130; Docket 134; Docket 135.
5 Docket 119 at 7; Docket 121-1 at 2.
6 Docket 121-3 at 8–20.
7 Id. at 3–8.
8 Id. at 6–7.
9 Id. at 7.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 2 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 3
degree of care ordinarily exercised by chiropractors trained in the field of chiropractic care
and was negligent and/or reckless in his chiropractic care.”10 The Complaint alleges each
of the seven Plaintiffs suffered “severe humiliation, mental anguish, and emotional and
physical distress” as a result of Dr. Schweigert’s “negligent and/or reckless conduct.”11
The Complaint seeks “compensatory damages, in excess of $100,000, the exact amount to
be proven at trial,” plus “costs, attorney’s fees and pre-judgment interest,” and “such other
and further relief as the Court deems just and proper.”12
At all times relevant to this action, Dr. Schweigert and the Clinic were
insured under Professional Liability Insurance Policy No. MP00034696 (the “Policy”),
which was issued by NCMIC for the policy period of January 1, 2014, to January 1, 2015.13
After being served with the Complaint in the Underlying Action, Dr. Schweigert and the
Clinic tendered defense to NCMIC.14 On March 22, 2016, counsel for NCMIC sent a letter
to Dr. Schweigert, stating that “NCMIC will provide a defense in the Blake Lawsuit,
pursuant to the Policy’s Supplemental Legal Defense Endorsement and subject to a full
reservation 	of 	rights.”15 	NCMIC 	explained 	that 	the 	Supplemental 	Legal 	Defense
Endorsement (“SLD Endorsement”) provides a “maximum $25,000 limit of liability for
defense costs incurred in any covered proceeding,”16 which includes a civil action “where
the insured is alleged to have committed sexual misconduct in the course of providing
10 Id. at 8–17.
11 Id.
12 Id. at 19–20.
13 Docket 120-2 at 1.
14 Docket 121-1 at 3–4.
15 Docket 121-7 at 1.
16 Id.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 3 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 4
professional services to a patient.”17 	NCMIC also advised that “coverage is otherwise
unavailable for this matter, which arises out of sexual impropriety specifically excluded
from coverage under the Policy.”18 	NCMIC stated that the allegations in the Complaint
were outside the scope of coverage because (1) allegations of sexual impropriety are not
“professional services” as defined by the Policy; (2) the alleged injuries were not “caused
by an accident arising from an incident” under the Policy because they were the result of
intentional 	sexual 	conduct; 	and 	(3) 	Plaintiffs’ 	allegations 	of 	emotional 	distress,
humiliation, and anguish do not constitute an “injury” under the Policy.19 	NCMIC also
stated that “[t]he allegations asserted in the Blake Lawsuit are clearly within the purview
of [Exclusion F], as each cause of action rests upon allegations that Dr. Schweigert engaged
in sexual impropriety.”20 NCMIC informed Dr. Schweigert that, under the limited defense
provided by the SLD Endorsement, NCMIC will appoint counsel to represent him,
however, pursuant to Alaska Stat. § 21.96.100, he may select independent counsel to
represent him and have all reasonable expenses incurred by such counsel paid by NCMIC
up to the applicable $25,000 limit.21
Dr. Schweigert and the Clinic responded through counsel in a letter dated
March 25, 2016.22 	The letter indicated that Dr. Schweigert disputed NCMIC’s denial of
coverage, stating that the causes of action in the Underlying Action arose from “certain
17 Id. at 4.
18 Id. at 1.
19 Id. at 3–4.
20 Id. at 4.
21 Id. at 5.
22 Docket 120-5 at 1.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 4 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 5
recognized chiropractic treatments” and Plaintiffs do not claim that Dr. Schweigert
committed intentional sexual misconduct.23 	The letter explained that “[a]n insurance
company is required to defend the whole case even if some of the allegations are not within
the policy coverage.”24 	Dr. Schweigert’s counsel attached medical literature explaining
the chiropractic procedures described in the Complaint and urged NCMIC to reconsider its
coverage denial.25 	Dr. Schweigert also invoked his right to independent counsel and
retained Laura Farley to represent him in the Underlying Lawsuit.26 	On April 5, 2016,
Dr. Schweigert’s counsel supplemented the March 25, 2016, letter with an Alaska Supreme
Court case discussing the standard for an insurer’s duty to defend.27 	Dr. Schweigert’s
counsel indicated that “there are allegations of negligence contained in the Complaint . . .
that are in no way sexual in nature,” such as the allegations that Ms. Taranto, Ms. Williams
and 	Ms. 	Asman 	experienced 	pain 	or 	bruising 	after 	the 	administration 	of 	ETPS.28
Dr. Schweigert’s counsel claimed that these allegations triggered NCMIC’s duty to defend
the entire action regardless of whether there were other allegations in the Complaint that
fell within a policy exception.29
On June 20, 2016, NCMIC responded to Dr. Schweigert’s letters, reaffirming
its prior denial of coverage.30 NCMIC explained that it reviewed the materials submitted
23 Id. at 1–2.
24 Id. at 3.
25 Id. at 1–38.
26 Docket 120-4 at 1.
27 Docket 120-6 at 1–2.
28 Id. at 2.
29 Id.
30 Docket 121-15 at 1.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 5 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 6
by Dr. Schweigert and determined, as it had before, that coverage for the Underlying
Action was limited to defense costs up to $25,000 pursuant to the SLD Endorsement.31
NCMIC asserted that coverage is governed by Plaintiffs’ factual allegations, not the causes
of action asserted in the Complaint, and Plaintiffs “plainly alleged touching and other acts
of a sexual nature.”32 NCMIC also asserted that, even if some allegations in the Complaint
were not sexual in nature, under the Policy’s definitions, a “‘claim’ would encompass a
written demand for money or services ‘arising out of’ any bodily injuries allegedly
sustained by one patient during the entire course of the patient’s chiropractic treatment.”33
NCMIC concluded that “it is immaterial whether some of the claims asserted in the Blake
lawsuit also include allegations of conduct that is not sexual in nature, as all clearly arise
out of sexually inappropriate conduct,” and therefore “Exclusion F precludes coverage
beyond the $25,000 available for defense costs under the Policy’s SLD Endorsement.”34
Dr. Schweigert’s counsel wrote to NCMIC on June 30, 2016, proposing that
the parties mediate their dispute.35 Dr. Schweigert’s attorneys wrote to NCMIC again on
August 1, 2016, explaining that Dr. Schweigert and Plaintiffs had agreed to a mediator and
that Dr. Schweigert’s counsel “told plaintiffs’ attorney that NCMIC has denied coverage
and therefore they will have a difficult time collecting any judgment.”36 NCMIC declined
to participate in mediation with the parties in the Underlying Action, and Dr. Schweigert’s
31 Id.
32 Id. at 4.
33 Id. at 4–5.
34 Id. at 5.
35 Docket 120-8 at 1–2.
36 Docket 120-9 at 1.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 6 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 7
counsel 	advised 	NCMIC 	that 	the 	parties 	may 	proceed 	to 	mediation 	without 	its
participation.37
In May 2017, the parties in the Underlying Action entered into a settlement
agreement (the “Settlement”) without the involvement of NCMIC.38 	Under the terms of
the Settlement, Dr. Schweigert consented to entry of judgment to the medical malpractice
claims in the Underlying Action for $250,000 in compensatory damages and $19,500 in
attorney’s fees for each Plaintiff.39 The Settlement also contained an Assignment of Claims
and a Covenant Not to Execute, which together provided that all claims Dr. Schweigert
may possess against NCMIC were assigned to Plaintiffs, and Plaintiffs agreed not to
“execute on any assets of Dr. Myron Schweigert other than the proceeds of the assigned
claims against” NCMIC.40 	The Settlement also required Plaintiffs to dismiss all claims
against the Clinic as well as Dr. Blake’s employment-related claims.41 	Dr. Schweigert’s
counsel informed NCMIC of the Settlement on June 20, 2017.42 Consistent with the terms
of the Settlement, the Alaska Superior Court entered a Final Judgment in the Underlying
Action on July 3, 2017.43 	NCMIC paid all defense costs incurred on behalf of
Dr. Schweigert and the Clinic, which never exceed the $25,000 limit under the SLD
Endorsement.44 	On August 3, 2017, Plaintiffs, as assignees under the Policy, filed the
37 Docket 120-10 at 1.
38 Docket 119 at 20.
39 Docket 121-19 at 1.
40 Id. at 13–14.
41 Id. at 2.
42 Docket 120-15 at 1.
43 Docket 121-20.
44 Docket 119 at 40; Docket 120-13.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 7 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 8
present action in Alaska Superior Court (the “Coverage Action”).45 The Coverage Action
was removed to this Court on September 6, 2017.46
B. 	The Policy
The Policy’s limits of liability are $1 million Per Medical Incident, with a $3
million Policy Aggregate.47 The Coverage Agreement provision of the Policy provides in
relevant part:
We will pay on behalf of an insured all sums to which this insurance applies
and for which an insured becomes legally obligated to pay as damages
because of an injury. The injury must be caused by an accident arising from
an incident during the policy period. The injury must also be caused by an
insured under this policy.48
The Policy includes a Defense and Settlement Clause, which provides:
We have the right and duty to defend any claim or suit brought seeking
damages against the insured for an injury covered by this policy. We have
the right to appoint counsel and we may investigate any claim made or suit
brought. With your written consent, we may settle any claim or suit as we
believe may be proper. 	We shall not be obligated to pay any claim or
judgment or to defend or continue to defend any suit after the limit of our
liability is exhausted because of payment of judgments or settlements. Your
consent shall not be required to make a settlement or payment after a
judgment has been entered against you.49
The Policy lists certain exclusions, stating that “this policy does not apply to claims arising
out of, based upon, or attributable to any of the following . . .”50 Policy Exclusion F covers
“[s]exual impropriety, sexual intimacy, sexual assault, sexual harassment or any other
45 Docket 1-1.
46 Docket 1.
47 Docket 120-2 at 1.
48 Id. at 7. Bolded words are defined in the Definitions section of the Policy.
49 Id.
50 Id. at 9.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 8 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 9
similarly defined act.”51 	Policy Exclusion M covers “[t]he prescribing of any substance
that state or federal law prohibits dispensing or that requires a prescription.”52
As is relevant to this action, the following definitions apply to the terms used
in the Policy:
a) 	Claim means a written demand for money or services arising
from an alleged injury to which this insurance applies.
b) 	Injury 	means 	bodily 	injury, 	sickness, 	disease 	or 	death
sustained by any one person.
c) 	Incident means any negligent omission, act or error in the
providing of professional services by an insured or any person for whose
omissions, acts or errors an insured is legally responsible. 	All such
omissions, acts or errors causally related to the rendering of or failure to
render professional services to one person shall be considered one incident.
Causally 	related 	acts, 	errors 	and 	omissions 	includes 	acts, 	errors 	and
omissions that have a common cause or form a causal chain of events. 	An
incident shall be deemed to have occurred at the time of the earliest act, error
or omission comprising that incident.
d) 	Professional Services means services which are within the
scope of practice of a chiropractor in the state or states in which the
chiropractor is licensed.53
The Policy includes the SLD Endorsement, which is listed as an “[a]dditional
coverage[].”54 	The SLD Endorsement states “[t]his endorsement provides supplemental
coverage for defense costs incurred by the insured in certain covered proceedings.”55 The
SLD Endorsement provides that NCMIC’s “liability for defense costs with respect to any
51 Id.
52 Id.
53 Id. at 6–7.
54 Id. at 1.
55 Id. at 13.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 9 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 10
act or series of acts by an insured resulting in one or more covered proceedings is limited
to twenty-five thousand dollars ($25,000) regardless of the number of acts alleged in any
and all such 	covered 	proceedings.”56 	A “covered proceeding” includes a “Civil
Proceeding for Alleged Sexual Misconduct,” defined as
a civil action in state or federal court where the insured is alleged to have
committed acts of sexual misconduct in the course of providing professional
services to a patient. 	Sexual misconduct includes, but is not limited to,
allegations of sexual impropriety, sexual intimacy, sexual assault, sexual
battery, sexual harassment or sexual molestation, that is not otherwise subject
to defense under the attached professional liability policy.57
II. 	PROCEDURAL HISTORY
Plaintiffs assert three causes of action against NCMIC in the Coverage
Action: (1) breach of contract (duty to defend); (2) breach of contract (duty to indemnify);
and (3) bad faith.58 On September 27, 2018, this Court granted in part and denied in part
NCMIC’s Motion to Dismiss, dismissing Plaintiffs’ bad faith claim without prejudice.59
The Court denied Plaintiffs’ motion to reconsider the dismissal of the bad faith claim60 and
twice denied Plaintiffs’ requests for leave to amend the Complaint to reassert the bad faith
claim.61 	Accordingly, the Cross-Motions concern the only two remaining claims in the
Coverage Action: breach of the duty to defend and breach of the duty to indemnify. The
56 Id. at 14.
57 Id. at 15.
58 Docket 1-1 at 15–18.
59 Docket 28.
60 Docket 32.
61 Docket 44; Docket 82.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 10 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 11
parties agree that the employment-related claims asserted by Dr. Brittany Blake in the
Underlying Action are not relevant to the Coverage Action.62
III. 	LEGAL STANDARDS
A. 	Summary Judgment
Federal Rule of Civil Procedure 56(a) instructs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” The initial burden is on the moving
party to show that there is an absence of genuine issues of material fact.63 If the moving
party meets this initial burden, the non-moving party must set forth specific facts showing
that there is a genuine issue for trial.64 	All evidence presented by the non-moving party
must be believed for the purposes of summary judgment and all justifiable inferences are
to be drawn in its favor.65 	In reviewing cross-motions for summary judgment, a court
“review[s] each separately, giving the non-movant for each motion the benefit of all
reasonable inferences.”66 	A court’s function on summary judgment is not to weigh
evidence or determine the truth of the matter, but rather, to determine if there are genuine
issues for trial.67
62 Docket 119 at 12 n.4.
63 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
64 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
65 Id. at 255.
66 Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016) (citing Ctr. for Bio-
Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)).
67 Anderson, 477 U.S. at 249.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 11 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 12
B. 	Alaska Insurance Contract Interpretation
This matter invokes the Court’s diversity jurisdiction and, as such, the Court
applies state substantive law when analyzing Plaintiffs’ claims.68 	Under Alaska law,
insurance contracts are interpreted according to the reasonable expectations of the insured,
meaning 	that 	“the 	objectively 	reasonable 	expectations 	of 	applicants 	and 	intended
beneficiaries regarding the terms of insurance contracts will be honored even though
painstaking study of the policy provisions would have negated those expectations.”69 To
determine the reasonable expectations of the parties, Alaska courts look to the (1) language
of disputed policy provisions; (2) the language of other provisions of the insurance policy;
(3) relevant extrinsic evidence; and (4) case law interpreting similar provisions.70 Alaska
courts “construe coverage broadly and exclusions narrowly in favor of insureds.”71
However, Alaska courts “recognize a restriction on coverage if an insurer by plain language
limits the coverage of its policy.”72
IV. 	DISCUSSION
A. 	Motions to Strike
There are several evidentiary issues that the Court must resolve before
proceeding to the merits of the Cross-Motions. 	At Docket 124, Plaintiffs move to strike
68 E.g., Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003); see also
Docket 1 at 4–7.
69 Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1295 (Alaska 1994) (quoting
State v. Underwriters at Lloyds, London, 755 P.2d 396, 400 (Alaska 1988)).
70 Id. (quoting Stordahl v. Gov’t Emp. Ins. Co., 564 P.2d 63, 66 (Alaska 1977).
71 Devine v. Great Divide Ins. Co., 350 P.3d 782, 786 (Alaska 2015) (quoting Hahn v.
Alaska Title Guar. Co., 557 P.2d 143, 144–45 (Alaska 1976)).
72 Whittier Props., Inc. v. Alaska Nat. Ins. Co., 185 P.3d 84, 88 (Alaska 2008).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 12 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 13
(1) evidence that NCMIC did not consider or have in its possession when it denied
coverage in 2016 and (2) the expert testimony of NCMIC’s psychologist expert Janine
Shelby. At Docket 132, NCMIC moves to strike certain arguments in Plaintiffs’ Reply in
Support of its Motion to Strike Certain Evidence or, alternatively, for leave to file a
surreply.
Plaintiffs assert that certain evidence presented in NCMIC’s Motion for
Summary Judgment is irrelevant to the duty to defend and duty to indemnify and may not
be considered by the Court, including expert testimony, testimony from fact witnesses
deposed years after NCMIC denied coverage, and other factual evidence of which NCMIC
was not aware at the time it denied coverage.73 Plaintiffs reason that an insurer’s duty to
defend “must be determined on the basis of facts available to the insurer at the time the
insured tenders the defense,” and therefore, facts and expert testimony developed after
NCMIC denied coverage are irrelevant.74 While the duty to defend “attaches, if at all, on
the basis of the complaint and known or reasonably ascertainable facts at the time of the
complaint,”75 the same is not true for the duty to indemnify, which “arises only when
73 Docket 124 at 2–7.
74 Great Am. Assurance Co. v. Alaska State Fair, Inc., No. 3:11-cv-0185-TMB, 2014 WL
12527211, at *8 (D. Alaska Mar. 21, 2014) (quoting Shade Foods, Inc. v. Innovative Products
Sales & Mktg., Inc., 78 Cal. App. 4th 847, 881 (2000)).
75 Att’ys Liab. Prot. Soc’y, Inc., v. Ingaldson Fitzgerald, P.C., 370 P.3d 1101, 1112
(Alaska 2016), abrogated on other grounds by Buntin v. Schlumberger Tech. Corp., 487 P.3d 595
(Alaska 2021); see also Cont’l Ins. Co. v. U.S. Fid. & Guar. Co., 528 P.2d 430, 434 (Alaska 1974)
(“The proper time to determine whether an insurer is liable upon its policy of insurance is after all
the relevant facts have been ascertained; however, where an insurance contract creates a duty in
the insurer to defend against lawsuits which could fall within the coverage, the scope of that duty
is established by the pleadings in the action and by the facts which are known or reasonably
ascertainable at the time defense is tendered to the insurer.”).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 13 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 14
coverage for a claim actually exists under the policy.”76 The Court may therefore consider
evidence not known or available to NCMIC at the time it denied coverage when assessing
whether Plaintiffs’ claims are actually covered under the Policy.77 	When determining
NCMIC’s duty to defend, the Court may only consider the Complaint in the Underlying
Action, facts reasonably known to NCMIC at the time it denied coverage, and the
undisputed facts of the case.78 Accordingly, Plaintiffs’ Motion to Strike is GRANTED to
the extent that the Court will not consider disputed evidence or evidence unavailable to
NCMIC at the time it denied coverage when evaluating NCMIC’s duty to defend, but is
DENIED to the extent that the Court may consider such evidence when assessing whether
coverage actually exists under the Policy.
Plaintiffs next argue that the Court should strike the testimony of NCMIC’s
expert Dr. Janine Shelby because (1) she is not licensed to practice as a psychologist in
Alaska, and therefore she is not qualified to offer an expert opinion in Alaska, and (2) her
opinions are unreliable and based on speculation because she did not examine the Plaintiffs,
review their medical records relating to their treatment with psychologists, or review videos
76 Great American Assurance, 2014 WL 12527211, at *9; see Portland Gen. Elec. Co. v.
Liberty Mut. Ins. Co., 112 F. Supp. 3d 1160, 1167 (D. Or. 2015) (“The analysis for the duty to
indemnify is not limited to the complaint and the policy.”).
77 See Stephan & Sons, Inc. v. Municipality of Anchorage, 629 P.2d 71, 76 (Alaska 1981)
(“[T]here is no duty to indemnify unless the liability in fact arose or resulted from the construction
work”); see also 43 Am. Jur. 2d Insurance § 676 (West 2023) (The “parties may introduce
evidence during coverage litigation to establish or refute the duty to indemnify. An insurer’s duty
to indemnify hinges not on the facts the claimant alleges and hopes to prove but instead on the
facts, proven, stipulated, or otherwise established that actually create the insured’s liability. 	A
reviewing court is obligated to consider evidence extrinsic to the pleadings and the insurance
policy in determining whether an insurer owes a duty to indemnify.”).
78 Att’ys Liab. Prot. Soc’y, 370 P.3d at 1112; State Farm Fire & Cas. Co. v. Millman, 413
F. Supp. 3d 940, 953 (D. Alaska 2019).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 14 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 15
of Plaintiffs’ depositions.79 Plaintiffs’ first argument is meritless. There is no requirement
under Federal Rule of Evidence 702 or under Alaska law that an expert be licensed in the
state in 	which she 	will provide 	testimony, and 	Plaintiffs 	do 	not otherwise 	attack
Dr. Shelby’s education or experience.80 	As for Plaintiffs’ argument that Dr. Shelby’s
opinion is unreliable, the fact that Dr. Shelby did not review psychological medical records,
video depositions, or personally examine the Plaintiffs does not compel a finding that her
opinions are unreliable. 	Plaintiffs cite to no caselaw that requires a review of medical
records or an in-person examination for psychological expert testimony to be reliable.81
Dr. Shelby applied her experience and training to a review of Plaintiffs’ depositions and
formed an opinion as to Plaintiffs’ responses.82 	Plaintiffs also take issue with the
narrowness of Dr. Shelby’s opinion, specifically, that she will testify that Plaintiffs’
symptoms are consistent with common reactions to sexual forms of violence, not that
79 Docket 124 at 7–11.
80 McRunnel v. Batco Mfg., 917 F. Supp. 2d 946, 952 (D. Minn. 2013) (collecting cases);
Zaukar v. United States, No. 3:20-cv-0163-HRH, 2022 WL 198714, at *5 (D. Alaska Jan. 21,
2022); Martha S. v. State, Dep’t of Health & Soc. Servs., Off. of Children’s Servs., 268 P.3d 1066,
1077 (Alaska 2012) (analyzing issue of whether psychologist who is not licensed to practice
psychology in Alaska may provide expert testimony in Alaska and concluding “Alaska Evidence
Rule 702, governing the admissibility of expert testimony, has no licensing requirement; it only
states that an expert witness can be qualified based on “knowledge, skill, experience, training, or
education.”).
81 See Empire Fire & Marine Ins. Co. v. Patton, No. CV-17-02159-PHX-JJT, 2019 WL
11544461, at *4–6 (D. Ariz. Aug. 26, 2019) (Noting that reviewing depositions and other
documents was reliable method for a psychologist expert when psychologist was not diagnosing
plaintiff with a mental illness); Kanellakopoulos v. Unimerica Life Ins. Co., No. 15-CV-04674-
BLF, 2018 WL 984826, at *2 (N.D. Cal. Feb. 20, 2018) (“The Court is unpersuaded by Plaintiff’s
contention that Dr. Perrillo’s methodology—a review of Plaintiff’s records—was unreliable
because Dr. Perrillo did not examine Plaintiff in person.”).
82 See Empire Fire & Marine, 2019 WL 11544461, at *6 (“[P]sychological testimony is
more properly judged by the experience, knowledge, and training of the expert.”).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 15 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 16
Plaintiffs actually experienced sexual violence; however, this is not a basis for excluding
expert opinion testimony. 	Dr. Shelby’s opinion is appropriately couched in equivocal
terms given the inherent indeterminacy of psychological analysis. Finally, Plaintiffs assert
that Dr. Shelby’s opinion improperly encroaches upon the jury’s function of making
credibility determinations.83 	The Court disagrees. 	Dr. Shelby’s opinion does not
impermissibly 	comment 	on 	Plaintiffs’ 	credibility—it 	describes 	the 	psychological
symptoms that the Plaintiffs’ discovery responses may reveal, which is outside the typical
scope of understanding of a layperson and is therefore helpful to the trier of fact.84
Plaintiffs’ criticisms of Dr. Shelby’s opinions are best suited for cross-examination rather
than exclusion. Plaintiffs’ Motion to Strike is DENIED as to the testimony of Dr. Shelby.
Turning to NCMIC’s Motion to Strike, NCMIC asserts that Plaintiffs
improperly raised new arguments in their Reply in support of their Motion to Strike and
those new arguments should be struck or NCMIC should be allowed a Surreply in response
to them.85 	The “district court need not consider arguments raised for the first time in a
reply brief.”86 	This rule “exists to guard against unfairness and surprise.”87 	However,
arguments and evidence presented in reply are not “new” if they are in direct response to
arguments and proof adduced in opposition to a motion.88 	After reviewing Plaintiffs’
83 Docket 130 at 10.
84 See United States v. Lukashov, 694 F.3d 1107, 1117 (9th Cir. 2012).
85 Docket 132.
86 Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
87 Sunburst Mins., LLC v. Emerald Copper Corp., 300 F. Supp. 3d 1056, 1060 (D. Ariz.
2018). 88 Edwards v. Toys “R” Us, 527 F. Supp. 2d 1197, 1205 n.31 (C.D. Cal. 2007); D. Alaska
Loc. Civ. R. 7.1(c) (“Reply memoranda are optional and restricted to rebuttal of factual and legal
arguments raised in opposition”).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 16 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 17
Reply, the Court, in its discretion, concludes that the brief does not raise new arguments,
it merely “reiterates and elaborates” on the arguments in its opening brief and responds to
the factual and legal arguments raised in opposition, rendering the risk of an unfair surprise
to NCMIC negligible.89 	In fact, NCMIC’s proposed Surreply strays farther from the
parties’ previous arguments than Plaintiffs’ Reply. 	NCMIC’s Motion to Strike at
Docket 132 is therefore DENIED. 	The Court will not strike Plaintiffs’ Reply brief at
Docket 130 and will not treat Docket 132 as NCMIC’s Surreply.
B. 	Cross-Motions for Summary Judgment
This case presents four distinct questions 	for the Court on summary
judgment: First, did NCMIC breach its duty to defend by taking the position that it owed
Dr. Schweigert a limited defense under the SLD Endorsement? 	Second, if NCMIC
breached its duty to defend, does this breach alone render NCMIC liable for the Settlement?
Third, are the claims in the Underlying Action Settlement covered by the Policy? Fourth,
is the Settlement reasonable? The Court addresses each question below.
1. 	Did NCMIC breach its duty to defend?
An insurer’s duty to defend and its duty to indemnify are “separate and
distinct contractual elements.”90 Under Alaska law, the duty to defend is broader than the
duty to indemnify because “an insurer may have an obligation to defend although it has no
89 Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184, 1203 (C.D. Cal.
2007). 90 Sauer v. Home Indem. Co., 841 P.2d 176, 180 (Alaska 1992).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 17 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 18
ultimate liability under the policy.”91 The causes of action asserted in a complaint are not
determinative of the scope of the duty to defend; “[t]he duty to defend arises out of the
facts of the case, not the label placed on the facts by the attorneys.”92 “[T]he scope of an
insurer’s duty to defend is determined by construing the terms of the insurance contract in
reference to the allegations in the complaint.”93 Whenever a “complaint on its face alleges
facts which, standing alone, give rise to a possible finding of liability covered by the policy,
the insured has the contractual right to a proper defense at the expense of the insurer.”94
Relatedly, “[i]f the damages alleged in the complaint are ‘at least potentially outside the
scope’ of a policy exclusion, an insurer has a duty to defend.”95
Here, Plaintiffs alleged facts in the Underlying Action that were potentially
within the Policy’s coverage, triggering NCMIC’s duty to defend. 	Specifically, the
Complaint contains factual allegations that Ms. Taranto, Ms. Williams, and Ms. Asman
experienced pain or bruising during Dr. Schweigert’s administration of ETPS (together,
the “ETPS Allegations”).96 	The ETPS Allegations allege a covered injury and do not
clearly fit within a policy exclusion. 	NCMIC asserts that nearly every other factual
allegation in the Complaint arises out of sexual impropriety and therefore falls within
91 Id. (quoting Afcan v. Mutual Fire, Marine and Inland Ins. Co., 595 P.2d 638, 645
(Alaska 1979)).
92 D.W.J. v. Wausau Bus. Ins. Co., 192 F. Supp. 3d 1014, 1022 n.60 (D. Alaska 2016).
93 Great Am. Assurance Co. v. Alaska State Fair, Inc., No. 3:11-cv-0185-TMB, 2014 WL
12527211, at *5 (D. Alaska Mar. 21, 2014) (quoting O’Neill Investigations, Inc. v. Illinois Emp.
Ins. of Wausau, 636 P.2d 1170, 1173 (Alaska 1981)).
94 Sauer, 841 P.2d at 180 (emphasis in the original) (quoting Afcan, 595 P.2d at 645).
95 Great American, 2014 WL 12527211, at *5 (quoting id. at 181–82).
96 Docket 121-3 ¶¶ 26, 29, 31.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 18 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 19
Policy Exclusion F.97 	The Court agrees that the only reasonable interpretation of the
majority of the allegations in the Complaint is that they allege sexual impropriety,
regardless of Plaintiffs’ “professional malpractice” label.98 	Each Plaintiff asserts that
Dr. Schweigert touched or rubbed their nipples or breasts.99 	The Complaint also alleges
that Dr. Schweigert “touched Ms. Osterbauer in the genital area while adjusting her pelvic
area”; “pushed his slightly erect penis up against Ms. Taranto’s buttocks” while fitting her
with a back brace; and, during a chiropractic adjustment, “Dr. Schweigert’s finger went in
Dr. Blake’s buttocks and touched her anus through her pants.”100 All of these allegations
are unconnected to any bodily injury besides the nature of the touching itself. Plaintiffs’
repeated argument that the Complaint in the Underlying Action contains no allegations of
sexual impropriety therefore strains credulity.101 However, where, as here, the Complaint
alleges facts that fall both within and outside the Policy coverage, the insurer has a duty to
defend the entire action.102 	In other words, “[t]he presence of other allegations in the
97 Docket 119 at 10, 13 n.7; NCMIC acknowledges that there is one other “non-sexual”
allegation—Ms. Marsh alleges that Dr. Schweigert administered cortisone injections into her
shoulder on two different occasions—but this allegation does not describe an injury covered by
the Policy. Docket 127 at 26; Docket 121-3 ¶ 34.
98 See NCMIC Ins. Co. v. Smith, 389 F. Supp. 3d 535, 543 (S.D. Ohio 2019) (concluding
that allegations that the defendant “exposed patients’ breasts, touched [their breasts], and placed
his genitals in contact with patients while performing chiropractic procedures . . . ‘unquestionably
allege a pattern of sexual assault and impropriety,’” triggering a policy exclusion).
99 Docket 121-3 ¶¶ 15, 23, 24, 29, 30, 32, 33, 36, 38.
100 Id. ¶¶ 17, 25, 37.
101 Docket 121 at 27, 31, 34; see also NCMIC Ins. Co. v. Smith, 389 F. Supp. 3d 535, 543
(S.D. Ohio 2019) (concluding that allegations that the defendant exposed and touched patients’
breasts 	and 	placed 	his 	genitals 	on 	patients 	while 	performing 	chiropractic 	procedures
“unquestionably allege a pattern of sexual assault and impropriety,” triggering a policy exclusion).
102 See Dutchuk v. Yesner, No. 3:19-cv-0136-HRH, 2020 WL 4606888, at *5 (D. Alaska
Aug. 11, 2020) (collecting cases).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 19 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 20
complaint which are not within policy coverage does not relieve [NCMIC] of its duty to
defend.”103 Accordingly, the presence of the ETPS Allegations in the Complaint triggered
NCMIC’s duty to defend the entire Underlying Action.
NCMIC argues that even if the ETPS Allegations are not sexual in nature,
they still fall within the purview of Policy Exclusion F because (1) each Plaintiff’s
allegations must be viewed as a whole under the relevant Policy definitions and (2) courts
interpret the phrase “arising out of” broadly.104 The Policy affords coverage for “all sums
to which this insurance applies and for which an insured becomes legally obligated to pay
as damages because of an injury . . . caused by an accident arising from an incident during
the policy period.”105 The Policy defines “injury” as “bodily injury, sickness, disease or
death sustained by any one person.”106 	The Policy defines “incident” as “any negligent
omission, act or error in the providing of professional services by an insured” and clarifies
that “[a]ll such omissions, acts or errors causally related to the rendering of or failure to
render professional services to one person shall be considered one incident.”107 Policy
Exclusion F excludes from coverage “claims arising out of, based upon, or attributable to
. . . [s]exual impropriety, sexual intimacy, sexual assault, sexual harassment or any other
similarly defined act.”108 The Policy defines “claim” as “a written demand for money or
services arising from an alleged injury to which this insurance applies.”109 	Under these
103 Sauer v. Home Indem. Co., 841 P.2d 176, 181 (Alaska 1992).
104 Docket 119 at 34–39.
105 Docket 120-2 at 7.
106 Id. at 6.
107 Id.
108 Id. at 9.
109 Id. at 6.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 20 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 21
definitions, NCMIC asserts that “the Policy’s definition of ‘claim’ encompasses a written
demand for money or services arising from any bodily injury . . . sustained by any one
person during the entire course of that person’s chiropractic treatment.”110 Therefore, each
Plaintiff asserts one “claim” in the Underlying Action.111 	NCMIC further argues that
courts interpret the phrase “arises out of” broadly.112 Indeed, when considering the phrase
“arises out of,” Alaska courts “do not require proximate cause in its strict legal sense”;113
however, there must be “some causal connection . . . .”114 Putting this all together, NCMIC
concluded in its coverage letters that
it is immaterial whether some of the claims asserted in the Blake Lawsuit
also include allegations of conduct that is not sexual in nature, as all clearly
arise out of sexually inappropriate conduct. 	In fact, though this is not
required, 	all 	of 	these 	claims 	are 	based 	primarily, 	and 	in 	most 	cases
exclusively, on the alleged sexual misconduct.”115
Plaintiffs assert that NCMIC’s argument that the Court must look to each of
the Plaintiffs’ allegations as a whole is incorrect because it relies on the Policy’s Coverage
Agreement provision and certain Policy Exclusions, while NCMIC’s obligation to defend
is determined by the Policy’s Defense and Settlement Clause, which does not include the
word “incident.”116 This is a distinction without a difference. The Defense and Settlement
Clause provides that NCMIC’s duty to defend extends to “any claim . . . brought seeking
110 Docket 119 at 34.
111 Id.
112 Id.
113 D.D. v. Ins. Co. of N. Am., 905 P.2d 1365, 1368 (Alaska 1995) (quoting Criterion Ins.
Co. v. Velthouse, 751 P.2d 1, 3 (Alaska 1986)).
114 Shaw v. State Farm Mut. Auto. Ins. Cos., 19 P.3d 588, 591 (Alaska 2001) (emphasis in
the original) (quoting Velthouse, 751 P.2d at 3).
115 Docket 120-7 at 5.
116 Docket 123 at 25–28.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 21 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 22
damages against the insured for an injury covered by this policy.”117 	Therefore, it was
correct for NCMIC to conclude that, under the Policy, “to determine whether there is a
duty to defend, you must first determine what is covered under the policy” and therefore
the duty to defend should be analyzed in conjunction with the Coverage Agreement and
Policy Exclusions.118 However, NCMIC’s misstep came from concluding that the ETPS
Allegations were not at least potentially outside the scope of Policy Exclusion F. NCMIC’s
argument that Plaintiffs’ claims must be viewed as whole does not negate the legal
principle that its duty to defend the entire action is triggered if the complaint “alleges facts
which, standing alone, give rise to a possible finding of liability covered by the policy.”119
The ETPS Allegations, standing alone, triggered NCMIC’s duty to defend the Underlying
Action. 	Further, although NCMIC is correct that courts interpret the phrase “arising out
of” broadly, NCMIC concluded, without support, that Ms. Asman, Ms. Williams, and
Ms. Taranto’s non-sexual ETPS Allegations arose out of Dr. Schweigert’s alleged sexual
117 Docket 120-2 at 7 (emphasis added).
118 Docket 125 at 17. 	Plaintiffs’ arguments that Barron v. NCMIC Ins. Co., No. 17-cv-
11969-ADB, 2018 WL 2089357 (D. Mass. May 4, 2018) and NCMIC Ins. Co. v. Smith, 389 F.
Supp. 3d 535 (S.D. Ohio 2019) stand for the proposition that NCMIC’s duty to defend begins and
ends with an analysis of the Defense and Settlement Clause are misleading. Docket 121 at 20–23.
In Barron, the Court criticized the parties for starting with the Policy’s exclusions and the SLD
Endorsement, rather than first assessing whether “a claim covered by the terms of the Policy can
be roughly sketched from GEICO’s allegations.” 	The Court concluded “the Policy does not
broadly cover all claims or suits arising out of the Barron Chiropractors’ rendering of professional
services but is limited to a claim or suit for an ‘injury,’ which is narrowly defined under the Policy.”
2018 WL 2089357, at *6. In Smith, the Court started its duty to defend analysis by analyzing the
term “incident” in the Coverage Agreement and then analyzing the Policy’s exclusions. The Court
stated that “Plaintiff correctly notes that the Defense Settlement Clause limits the duty to defend
to an ‘injury covered by this policy.’” 389 F. Supp. 3d at 542, 544.
119 Sauer v. Home Indem. Co., 841 P.2d 176, 180 (Alaska 1992) (emphasis added) (quoting
Afcan, 595 P.2d at 645).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 22 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 23
misconduct.120 NCMIC argues that its chiropractic expert, Dr. Pfeifer, concluded that the
ETPS injuries alleged in the Complaint arose out of sexual misconduct, but it does not
assert that it had the benefit of Dr. Pfeifer’s expertise at the time Dr. Schweigert tendered
defense.121 	As stated above, the scope of the duty to defend must be determined on the
basis of facts available to the insurer at the time the insured tenders the defense.122 From
the face of the Complaint, there was no indication that the ETPS Allegations were causally
related to Dr. Schweigert’s alleged sexual misconduct. 	NCMIC does not cite to any
information that it had in 2016 that led it to conclude that the allegations regarding ETPS
had any connection with the allegations relating to sexual impropriety. Merely concluding
that Plaintiffs’ claims “all clearly arise out of sexually inappropriate conduct” amounted to
“choosing to accept a version of the facts or an interpretation of the policy which [NCMIC]
finds most favorable,” which cannot defeat the duty to defend.123 	Here, it was unclear
whether there was any connection between the ETPS Allegations and allegations of a
sexual nature. Therefore, the ETPS Allegations triggered NCMIC’s duty to defend because
they were potentially outside the scope of Policy Exclusion F.
Finally, NCMIC argues that, because it fully defended Dr. Schweigert under
the terms of the SLD Endorsement, it did not breach its duty to defend.124 	The SLD
Endorsement provides a maximum $25,000 limit of liability for defense costs from civil
120 Docket 119 at 12 n.5, 13 n.6.
121 Docket 127 at 14–16.
122 Att’ys Liab. Prot. Soc’y, Inc., v. Ingaldson Fitzgerald, P.C., 370 P.3d 1101, 1112
(Alaska 2016), abrogated on other grounds by Buntin v. Schlumberger Tech. Corp., 487 P.3d 595
(Alaska 2021).
123 Docket 120-7 at 5; Sauer v. Home Indem. Co., 841 P.2d 176, 182 (Alaska 1992).
124 Docket 119 at 40.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 23 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 24
actions in which the insured in “alleged to have committed acts of sexual misconduct in
the scope of providing professional services to a patient.”125 	NCMIC’s argument that it
provided a sufficient defense under the SLD Endorsement presupposes that its coverage
determination was correct, and posits that an insurer cannot breach the duty to defend
where it paid all defense costs incurred on behalf of its insured.126 	There is a dearth of
caselaw addressing whether wrongfully providing a limited defense, as opposed to
wrongfully refusing to provide any defense, constitutes a breach of the duty to defend.127
However, given that the scope of the duty to defend “must be assessed at the outset of the
case” and is not affected by events later in the litigation, the Court concludes that agreeing
to provide a limited defense where a full defense is due breaches an insured’s duty to
defend. 	Fulfilling a limited defense “may mitigate damages but will not cure the initial
breach of duty” to defend the entire action.128 Holding otherwise would offer insurers an
incentive to artificially narrow their duty to defend at the outset of a case to cap the amount
of defense costs for which they will be liable. The Court finds that NCMIC breached its
125 Docket 120-2 at 15.
126 Docket 119 at 40–42.
127 See Great Am. Assurance Co. v. Alaska State Fair, Inc., No. 3:11-CV-0185-TMB, 2014
WL 12527211, at *7 (D. Alaska Mar. 21, 2014) (“Great American’s failure to provide any defense
to the Fair, whose complaint stated a claim that potentially fell within the policy’s coverage,
constituted a material breach of the insurance contract.”); Afcan v. Mut. Fire, Marine & Inland Ins.
Co., 595 P.2d 638, 646 (Alaska 1979) (“Here the insurer was fully apprised of the filing and
contents of the amended complaint and yet steadfastly refused to defend. This constituted a breach
of Mutual Fire’s contractual duty to defend Barclay”).
128 Id. at *8 (quoting Shade Foods, Inc. v. Innovative Products Sales & Mktg., Inc., 78 Cal.
App. 4th 847, 881 (2000)); see also Dutchuk v. Yesner, No. 3:19-cv-0136-HRH, 2020 WL
4606888, at *5 (D. Alaska Aug. 11, 2020) (collecting cases).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 24 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 25
duty to defend when it concluded that its duty was limited to the $25,000 in defense costs
under the SLD Endorsement.
2. 	Is NCMIC liable for the Settlement as a result of its breach of the duty
to defend?
Having determined that NCMIC breached its duty to defend, the Court now
addresses the available remedies for that breach. “When an insurer breaches the insurance
contract by wrongfully refusing to defend its insured, the insurer will always be liable for
the reasonable costs and attorney’s fees subsequently incurred by the insured” in the
defense 	or 	settlement 	of 	the 	claim.129 	It 	is 	undisputed 	that 	NCMIC 	paid 	all 	of
Dr. Schweigert’s defense costs incurred in defending and settling the Underlying Action,
which never reached the $25,000 limit under the SLD Endorsement.130 	Therefore, the
standard remedy for breaching the duty to defend is inapplicable in this case. 	Plaintiffs
contend that, “[b]ecause NCMIC breached its duty to defend, it is estopped from asserting
coverage defenses” and therefore is liable for the Settlement “even though the facts may
ultimately demonstrate that no indemnity is due.”131 	NCMIC counters that the coverage
by estoppel is inappropriate here because the Alaska Supreme Court has held that where
“settlement is reached in a suit which alleged several grounds for relief, some within policy
coverage and some not, . . . the insurance company should be permitted to contest
coverage.”132
129 Afcan, 595 P.2d at 646.
130 Docket 119 at 10; Docket 120-13.
131 Docket 124 at 41 (quoting Sauer v. Home Indem. Co., 841 P.2d 176, 183 (Alaska
1992)).132 Afcan, 595 P.2d at 647.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 25 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 26
While coverage by estoppel is “the usual remedy for breaches of the insurer’s
duty to defend,” it is an “extreme remedy.”133 Under Alaska law, the elements of estoppel
are:
(1) the party to be estopped must know the facts; (2) [they] must intend that
[their] conduct shall be acted on or must so act that the party asserting the
estoppel has a right to believe it is so intended; (3) the latter must be ignorant
of the true facts; and (4) [they] must rely on the former’s conduct to [their]
injury.134
In 	the 	insurance 	context, 	the 	last 	element—prejudice—is 	often 	determinative.135
“Generally, prejudice to an insured occurs when an insurer obtains an unfair advantage by
misleading, deceiving, or withholding information from the insured.”136 Where the insurer
engages in misconduct and the insured is harmed by that misconduct, coverage by estoppel
works to prevent the insurer from denying coverage based on a defense related to the
misconduct.137 Examples of when coverage by estoppel applies include where “the insurer
does not communicate its decision to withdraw or explain the basis for its decision but
simply denies coverage”138 and where the insurer gained full access to the insured during
litigation, covertly investigating a later-asserted coverage defense, and never informed the
133 Progressive Cas. Ins. Co. v. Skin, 211 P.3d 1093, 1103 n.38 (Alaska 2009).
134 Att’ys Liab. Prot. Soc’y, Inc. v. Ingaldson Fitzgerald, P.C., 838 F.3d 976, 982 (9th Cir.
2016) (quoting O’Neill Investigations, Inc. v. Ill. Emp’rs. Ins. of Wausau, 636 P.2d 1170, 1178
(Alaska 1981)).
135 Id.; Ivey v. Am. Home Assur. Co., No. 3:03-CV-0202-TMB, 2006 WL 1452686, at *6
(D. Alaska May 19, 2006) (noting that “[p]rejudice is an essential element of any estoppel claim”).
136 Attorneys Liability Protection Society, 838 F.3d at 982 (citing Progressive, 211 P.3d at
1103 and Lloyd’s & Inst. of London Underwriting Cos. v. Fulton, 2 P.3d 1199, 1207–08 (Alaska
2000)).137 See Progressive, 211 P.3d at 1103.
138 Sauer v. Home Indem. Co., 841 P.2d 176, 183 (Alaska 1992).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 26 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 27
insured of their right to independent counsel.139 The misconduct present in those cases is
absent here. 	There was no bait and switch or overreaching on NCMIC’s part. 	This is
plainly not a case where NCMIC “abandon[ed] its insured in the face of a lawsuit over
potentially covered claims and later, in the insured’s action on the policy, [benefitted from
the] factual or legal issues determined in the earlier litigation.”140
NCMIC informed Dr. Schweigert from the outset that it intended to assert
certain coverage defenses, reserved its rights to “deny or limit coverage on any of the
previously stated or other bases,” informed Dr. Schweigert of his right to independent
counsel, and acted consistently with its view that coverage did not exist except under the
SLD Endorsement.141 	Dr. Schweigert’s independent counsel was fully paid for by
NCMIC.142 It would be inequitable to apply the “extreme” remedy of coverage by estoppel
to a situation where, as here, the insurer interpreted its duty to defend too narrowly, but
that interpretation was clearly and consistently communicated to the insured, and the
insured’s defense costs were fully covered.143 	Plaintiffs argue that defending medical
malpractice 	cases 	usually 	costs 	substantially 	more 	than 	$25,000 	and 	limiting
Dr. Schweigert’s defense to that amount harmed him by encouraging him to settle rather
than face out-of-pocket costs for his defense.144 	This prejudice is purely hypothetical.
139 Lloyd’s, 2 P.3d at 1207.
140 Sauer, 841 P.2d at 183.
141 Docket 120-7 at 6; Docket 125 at 30.
142 Docket 125 at 7.
143 Progressive, 211 P.3d at 1103 n.38; see also Ivey v. Am. Home Assur. Co., No. 3:03-
CV-0202-TMB, 2006 WL 1452686, at *6 (D. Alaska May 19, 2006) (“The focus of estoppel is
equity”).
144 Docket 123 at 40.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 27 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 28
Defense costs were a number of a myriad of factors that Dr. Schweigert’s counsel
considered in assessing whether to recommend settlement to Dr. Schweigert.145 The Court
finds that, although NCMIC breached its duty to defend here, coverage by estoppel is not
an equitable remedy for that breach.
This case is similar to Afcan v. Mutual Fire, Marine & Inland Insurance Co.,
where the insured breached the duty to defend but “clearly communicated its decision to
withdraw from the defense of the case and explained to the insured the basis of its
decision,” and the underlying action then settled.146 In that situation, the Alaska Supreme
Court determined that the insured was liable for only the portions of the settlement that fall
within the policy’s coverage as a result of its breach of the duty to defend.147 Following
the court’s reasoning in Afcan, this Court finds that NCMIC will only be liable for those
portions of the Settlement covered by the Policy as a result of its breach of the duty to
defend. This analysis directly overlaps with the analysis for the duty to indemnify—both
require the Court to assess if any part of the Underlying Action was covered by the
Policy.148 The Court conducts this coverage analysis in the next section.
145 Docket 120-14 at 111:10–16.
146 Sauer v. Home Indem. Co., 841 P.2d 176, 183 (Alaska 1992) (discussing Afcan v. Mut.
Fire, Marine & Inland Ins. Co., 595 P.2d 638, 647 (Alaska 1979)).
147 Afcan, 595 P.2d at 647; see also Steven Plitt, Daniel Maldonado, Joshua D. Rogers,
and Jordan R. Plitt, 14 Couch on Insurance § 205:74 (3d ed. 2022) (“If the insurer fails to defend
an action against the insured where the action is based on claims some of which are within and
some without policy coverage, and the insured unsuccessfully defends the action, then the insurer
will be liable for the recovery against the insured, if such recovery is on a claim covered by the
policy, although no liability for the recovery will rest upon the insurer if the recovery is on a
noncovered claim.”).
148 Great Am. Assurance Co. v. Alaska State Fair, Inc., No. 3:11-cv-0185-TMB, 2014 WL
12527211, at *8 (D. Alaska Mar. 21, 2014).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 28 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 29
3. 	Are the claims in the Underlying Action covered under the Policy?
As described above, “[i]f all of the settled claims were in fact covered claims
under the policy, then [NCMIC] is obliged to indemnify [Plaintiffs] for the liability arising
from those claims—here, the amount of the settlement (if that settlement was both
reasonable and nonfraudulent).”149 The Court finds that the Policy precludes coverage for
the claims asserted by Dr. Blake, Ms. Osterbauer, Ms. Marsh, and Ms. Ryan. 	Coverage
under the Policy extends to “bodily injury, sickness, disease or death sustained by any one
person.”150 	Although the Plaintiffs each assert that they suffered undefined “physical
distress,” none of the allegations concerning these four Plaintiffs describe anything that
could be considered an “injury” under the Policy.151 	The Complaint’s reference to
“physical distress” is too brief and speculative to trigger coverage and Plaintiffs’ other
allegations of “severe humiliation, mental anguish, emotional distress and past and future
wage 	loss” 	fall 	plainly 	outside 	the 	Policy’s 	definition 	of 	“injury.”152 	Further,
149 KICC-Alcan Gen., Joint Venture v. Crum & Forster Specialty Ins. Co., Inc., 242 F.
Supp. 3d 869, 875 (D. Alaska 2017).
150 Docket 120-2 at 6.
151 Docket 121-3 at 3–8; see also Barron v. NCMIC Ins. Co., No. 17-CV-11969-ADB,
2018 WL 2089357, at *6 (D. Mass. May 4, 2018) (construing similar policy and noting that an
“injury” is the “crucial requirement for a claim to be covered under this Policy”); NCMIC Ins. Co.
v. Johnson, No. 04-CV-0221-MJR, 2006 WL 1004862, at *6 (S.D. Ill. Apr. 17, 2006) (construing
policy with the same “injury” definition and concluding that “[a]lthough [Plaintiff’s] allegation
that [Defendant] caused her to “sustain serious personal and emotional injuries . . . in both mind
and body . . .” arguably is vague on this point, the Complaint as a whole make it clear that [Plaintiff]
is not alleging that she was physically injured by Johnson’s sexual “touching.”).
152 See Johnson, 2006 WL 1004862, at *6 (“NCMIC’s policy does not apply to emotional
distress). The Complaint also includes one allegation that Dr. Schweigert administered cortisone
injection into Ms. Marsh’s shoulder on two occasions. 	Docket 121-3 at 7. 	Consistent with the
majority of the allegations in the Complaint, this allegation does not assert that Ms. Marsh suffered
an “injury” under the Policy. Further, Dr. Pfeiffer testified that administering cortisone injections
is outside the scope of professional services for a chiropractor and would require a prescription.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 29 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 30
Dr. Schweigert’s treatment of these Plaintiffs did not fall within the Policy’s definition of
“professional services.” 	Dr. Pfeiffer opined that “[t]here are no chiropractic procedures
that necessitate exposing and palpating the breasts and nipples.”153 Dr. Pfeiffer noted that
Dr. Schweigert’s purported treatments involving Plaintiffs’ breasts constituted “sexual
contact” under Alaska’s Board of Chiropractic Examiners regulations.154 Dr. Pfeiffer also
stated that Dr. Schweigert’s touching of Plaintiffs’ buttocks and genital area were “outside
the scope of generally accepted methods of examination or treatment” and concluded that
Dr. Schweigert’s conduct was beyond the scope of chiropractic care in Alaska.155 	In his
deposition testimony, Dr. Schweigert agreed that there is no chiropractic reason to touch a
patient’s nipples.156 	Dr. Schweigert also testified that the allegation that he touched
Dr. Blake’s 	anus 	during 	treatment 	was 	“absolutely 	insane” 	and 	that 	there 	was 	no
therapeutic reason to touch a patient’s anus while performing a chiropractic treatment.157
Finally, Dr. Blake, Ms. Osterbauer, Ms. Marsh, and Ms. Ryan’s allegations
clearly fall within the purview of Policy Exclusion F and the SLD Endorsement. 	The
allegations 	asserted by these 	four Plaintiffs describe, almost exclusively, 	“[s]exual
impropriety, sexual intimacy, sexual assault, sexual harassment of any other similarly
defined act.”158 	The SLD Endorsement provides coverage where there otherwise would
Docket 120-18 at 76:3–17. Policy Exclusion M precludes coverage for claims arising out of the
prescribing of a substance that requires a prescription. Docket 120-2 at 9.
153 Docket 120-17 at 6.
154 Id. at 7.
155 Id. at 8.
156 Docket 120-19 at 125:23–25, 126:1.
157 Id. at 61:8–9; 65:11–14.
158 Docket 120-2 at 9.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 30 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 31
be none for defense costs incurred “where the insured is alleged to have committed acts of
sexual misconduct in the court of providing professional services to a patient.”159
Plaintiffs’ interpretation of the Policy—that claims alleging sexual impropriety are covered
under the Policy and that the label of “professional malpractice” controls over the substance
of the allegations—has the effect of rendering the SLD Endorsement meaningless.160
Although Dr. Schweigert denies that his actions were sexual in nature,161 his deposition
testimony supports the conclusion that an insured would reasonably expect Policy
Exclusion F to encompass the allegations in the Underlying Action. 	Dr. Schweigert
testified that his understanding of Policy Exclusion F is that NCMIC “would not pay, in
this case on any sexual impropriety, sexual intimacy, sexual assault, sexual harassment, or
anything else along that line.”162 When asked whether he understood Plaintiffs’ allegations
as falling within the scope of Policy Exclusion F, Dr. Schweigert replied “[y]es.”163
Summary judgment is therefore GRANTED in favor of NCMIC regarding the claims
asserted by Dr. Blake, Ms. Osterbauer, Ms. Marsh, and Ms. Ryan in the Underlying
159 Id. at 15.
160 State Farm Fire & Cas. Co. v. Millman, 413 F. Supp. 3d 940, 952 (D. Alaska 2019)
(“[C]ourts will ‘if possible give effect to all parts of the instrument and an interpretation which
gives a reasonable meaning to all its provisions will be preferred to one which leaves a portion of
the writing useless or inexplicable.’”) (quoting Modern Construction, Inc. v. Barce, Inc., 556 P.2d
528, 530 (Alaska 1976)).
161 Plaintiffs suggest that Dr. Schweigert’s denial of liability for the acts alleged in the
Underlying Action is determinative of coverage. Docket 123 at 17–18. However, proof of liability
does not trigger the duty to indemnify after a settlement, “[w]hile courts may require the parties to
establish facts that prove the underlying action was within the policy’s coverage, no court requires
the insured to establish its own liability.” 	Fireman’s Fund Ins. Co. v. Sec. Nat. Ins. Co., 44 F.
App’x 161, 163 (9th Cir. 2002).
162 Docket 120-19 at 164:2–25.
163 Id.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 31 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 32
Action—NCMIC is not liable for any portion of the Settlement arising out of these
Plaintiffs’ claims.
A genuine issue of material fact exists as to whether the ETPS Allegations
asserted by Ms. Taranto, Ms. Williams and Ms. Asman are covered under the Policy.
Unlike every other allegation in the Complaint, the ETPS Allegations allege injuries under
the Policy in the form of pain or bruising.164 Further, it is undisputed that ETPS is within
the scope of professional services for chiropractors in Alaska.165 However, a dispute exists
as to whether the ETPS Allegations fall within the scope of Policy Exclusion F;
specifically, whether the ETPS Allegations “arise out of” the “[s]exual impropriety, sexual
intimacy, sexual assault, sexual harassment or any other 	similarly defined act.”166
Dr. Pfeiffer opined that “even the allegations of pain and bruising resulting from [ETPS]
occurred during treatments involving . . . exposure and touching [of the breast area] that
[was] 	not 	medically 	necessary.”167 	NCMIC’s 	insurance 	expert, 	Ty 	Sagalow,
acknowledged that the ETPS Allegations alleged bodily injury without reference to sexual
assault or touching, but concluded they “took place during and as part of the same type of
sexual assault or other acts of sexual impropriety” that are referenced throughout the
Complaint.168 NCMIC therefore asserts that “all of Plaintiffs’ alleged injuries [arose] out
of Dr. Schweigert’s alleged sexual misconduct, including those which resulted from the
164 Docket 119 at 46 (acknowledging that Plaintiffs Asman, Taranto, and Williams
suffered physical injuries under the Policy).
165 Docket 123 at 36; Docket 121-5 at 138:6-10.
166 Docket 120-2 at 9.
167 Docket 120-17 at 6.
168 Docket 120-38 at 13 n.22.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 32 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 33
ETPS treatments.”169 NCMIC supports this conclusion by pointing out that Ms. Taranto
and Ms. Asman testified that the ETPS treatments were to their breasts and their breasts
were exposed during treatment.170 	Dr. Schweigert testified that Ms. Williams, not
Dr. Schweigert, exposed her breasts during treatment and that he performed ETPS on
Ms. Williams to address tender points on her ribs.171 Dr. Schweigert also testified that he
administered ETPS to Ms. Asman to address chest pain due to asthma and IBS.172
Dr. Schweigert did not have a memory of administering ETPS to Ms. Taranto.173 	Given
the conflicting testimony, the Court cannot conclude, as a matter of law, that the ETPS
Allegations arose out of Dr. Schweigert’s alleged sexual misconduct. Summary judgment
is therefore DENIED as to Ms. Taranto, Ms. Williams and Ms. Asman—a triable issue of
fact remains as to whether the ETPS Allegations asserted by these Plaintiffs fall within the
Policy’s coverage. Because the pain and bruising alleged by Ms. Asman, Ms. Taranto, and
Ms. Williams are the only “injuries” under the Policy alleged in the Complaint, if a jury
concludes that the ETPS Allegations are not excluded from coverage under Policy
Exclusion F, these Plaintiffs can recover for the value of those injuries, but not any of their
other allegations that alleged pure emotional distress.174
169 Docket 125 at 19. 	See also Docket 119 at 13 n.6 (referring to ETPS Allegations as
“part and parcel of the sexually inappropriate conduct in which Dr. Schweigert is alleged to have
engaged”).
170 Docket 127 at 15.
171 Docket 120-19 at 91–93.
172 Id. at 106–112.
173 Id. at 86–88.
174 Grace v. Ins. Co. of N. Am., 944 P.2d 460, 464 n.7 (Alaska 1997) (“We have held that
where an insurer breaches its contract, it is liable for that amount of a reasonable settlement reached
by the insured which falls within the coverage provided by the policy.”).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 33 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 34
4. 	Is the Settlement reasonable?
The Alaska Supreme Court has recognized that “[c]ovenant settlement
agreements can be abused. The insured who is fortunate enough to be able to make such
an agreement has no incentive not to agree to very high damage awards.”175 	Therefore,
“[c]ovenant settlement agreements can only be binding on an insurance company that does
not consent to them if they are found reasonable.”176 	The factors that go into the
reasonableness inquiry include:
[t]he releasing person’s damages; the merits of the releasing person’s liability
theory; the merits of the released person’s defense theory; the released
person’s relative faults [sic]; the risks and expenses of continued litigation;
the released person’s ability to pay; any evidence of bad faith, collusion or
fraud; the extent of the releasing person’s investigation and preparation of
the case; and the interest of the parties not being released.177
NCMIC argues that the Settlement is unreasonable as a matter of law because “[t]he only
physical injuries alleged by . . . Plaintiffs, Asman, Taranto, and Williams, were de minimis,
temporary pain and bruising from ETPS treatments” and Plaintiffs’ insurance expert agreed
that “$250,000 is way beyond what one might expect if the simple allegation is the ETPS
caused bruising.”178 Plaintiffs argue that NCMIC’s coverage arguments are irrelevant to
the question of whether the Settlement was reasonable, which is a question for the jury.179
The Court agrees that the reasonableness of the Settlement is a distinct inquiry from the
question of whether the ETPS Allegations are covered by the Settlement. The Court also
175 Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 609 (Alaska 2003).
176 Id. at 613.
177 Id. (quoting Washington Ins. Guar. Ass’n v. Ramsey, 922 P.2d 237, 248 (Alaska 1996)).
178 Docket 125 at 33 (quoting Docket 120-42 at 153:24–154:6).
179 Docket 123 at 42.
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 34 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 35
agrees that reasonableness is typically a question for the jury.180 Although damages in the
amount of $250,000 for Ms. Asman, Ms. Taranto, and Ms. Williams strikes the Court as
disproportionate to the temporary pain and bruising caused by the ETPS treatment, given
the dearth of evidence regarding the Settlement process and negotiations, the Court cannot
conclude as a matter of law that the Settlement is unreasonable. 	Summary judgment is
therefore DENIED as to the reasonableness of the Settlement.
In sum, the ETPS Allegations are the only allegations that potentially fall
within the scope of coverage under the Policy. 	If a jury concludes that the ETPS
Allegations fall outside the scope of Policy Exclusion F, it then must consider whether the
Settlement was reasonable. If the jury concludes that the ETPS Allegations are covered by
the Policy, but that the Settlement was fraudulent or unreasonable, no portion of the
Settlement may be enforced against NCMIC. The jury will be instructed that, if the ETPS
Allegations are covered by the Policy, Ms. Asman, Ms. Taranto, and Ms. Williams may
only recover for the portion of the Settlement that corresponds to their pain or bruising.
V. 	CONCLUSION
Summary judgment is GRANTED IN PART AND DENIED IN PART
consistent with this Order. 	The remaining issues for a jury are: 	(1) whether the ETPS
Allegations are covered by the Policy, and, if the jury answers in the affirmative; (2) was
the Settlement reasonable.
180 Great Divide, 79 P.3d at 614 (noting that reasonableness factors should be considered
by the jury).
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 35 of 36

Blake et al v. NCMIC Insurance Company 	Case No. 3:17-cv-00193-JMK
Order Re: Cross-Motions for Summary Judgment and Motions to Strike 	Page 36
Within twenty-one (21) days of this Order the parties are directed to file a
Joint Status Report indicating whether they request a judicial settlement conference in
advance of setting a trial date. 	If the parties indicate that they do not wish to pursue a
judicial settlement conference, the Court will issue its Trial Readiness Certification Order.
IT IS SO ORDERED this 26th day of May, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
Case 3:17-cv-00193-JMK Document 140 Filed 05/26/23 Page 36 of 36