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Risk Management

Berkshire not obligated to defend doctor in opioid death

Judy Greenwald

A Berkshire Hathaway Inc. unit is not obligated to defend or indemnify a Nevada doctor under his professional liability policy in a wrongful death suit filed in connection with a judge’s opioid-related death because he had engaged in a “willful violation” of the law, said a federal appeals court Wednesday, in affirming a lower court ruling.

Dr. Steven A. Holper pleaded guilty and was sentenced to 41 months in prison in July 2019 for unlawfully prescribing addictive opioids including fentanyl, according to the U.S. Department of Justice.

Diana Hampton, who was chief judge of the City of Henderson, Nevada, was found dead in March 2016. Her death was ruled accidental and related to fentanyl “intoxication,” according to court papers in National Fire & Marine Insurance Co. v. Scott Hampton et. al and Steven A Holper. Dr. Holper had prescribed the drug to Judge Hampton without a prescription, according to the court papers.

Judge Hampton’s estate filed a wrongful death suit against Dr. Holper in state court in Nevada.

Berkshire Hathaway unit National Fire filed suit in U.S. District Court in Las Vegas seeking a declaration it had no duty to defend or indemnify Dr. Holper in the litigation under his $1 million professional liability policy.

The U.S. District Court in Las Vegas ruled in the insurer’s favor, and was affirmed by a unanimous three-judge appeals court panel.

The language of the doctor’s professional liability insurance policy “obviously and unambiguously excludes coverage” for “any willful violation of any law, statute, or regulation,” the ruling said. 

The exclusion “clearly applies to this case,” the panel said.

Because of this, the district court “properly relieved National Fire of its duty to defend and indemnify Holper in the wrongful death action,” said the panel, in affirming the lower court’s decision.

Attorneys in the case had no comment or could not be reached.

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