The Bubenik Case
In Medical Protective Co. v. Bubenik, No. 09-2324 (8th Cir. 02/18/2010) the Eighth Circuit Court of Appeal was faced with this question and resolved it against the person asserting the privilege and in favor of his insurer who claimed that Bubenik failed to cooperate in his defense by asserting the privilege. Medical Protective Company (MPC) brought a declaratory judgment action against its insured, Dr. James Bubenik, and Joseph and Mary Johnston, who had obtained a state court judgment against the doctor for malpractice, contending that it had no duty to pay because Dr. Bubenik had materially breached the terms of his insurance policy. The district court entered a declaratory judgment in favor of MPC and the Johnstons appealed.
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