This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

April 24, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SISTERS OF MERCY HEALTH

SYSTEM, ST. LOUIS, INC.,

Plaintiff-Appellee, No. 06-6167

v. (W.D. Oklahoma)

G. PAUL KULA, M.D.,

Defendant,

and

PATRICIA D. BACHHOFER,

Defendant-Appellant.

(D.C. No. 05-CV-115-F)

ORDER AND JUDGMENT

*

Before LUCERO, MURPHY, and GORSUCH, Circuit Judges.

Defendant-appellant, Patricia Bachhofer, appeals from the district court’s

grant of declaratory judgment in favor of plaintiff-appellee, Sisters of Mercy

Health System, St. Louis, Inc. (“SMHS”). Exercising jurisdiction pursuant to 28

U.S.C. § 1291, this court affirms the district court.
Although the parties originally submitted the coverage matter to the 1

district court on cross-motions for summary judgment, the parties eventually

agreed to have the district court decide the matter pursuant to Federal Rule of

Civil Procedure 52 (setting forth procedures for trial of a matter to the court

without a jury). Nevertheless, in deciding the coverage issue, the district court

relied exclusively on the materials submitted with the parties’ summary judgment

motions and on the transcript of the parties’ oral arguments to the court.

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Doctor G. Paul Kula was, at one time, a psychiatrist on the medical staff of

Mercy Memorial Health Center (“Mercy Memorial”) in Ardmore, Oklahoma;

Bachhofer was his patient. Bachhofer sued Dr. Kula for common law negligence

and intentional infliction of emotional distress, alleging he had engaged in an

improper sexual relationship with her. Mercy Memorial participates in SMHS’s

Pooled Comprehensive Liability Program (the “Program”). Because Dr. Kula was

an employee of Mercy Memorial a question arose as to whether SMHS had a duty

to defend or indemnify Dr. Kula with regard to Bachhofer’s suit. SMHS filed the

instant action, naming both Dr. Kula and Bachhofer as defendants, seeking a

declaration that under the Program it had no duty to defend or indemnify Dr. Kula

in Bachhofer’s underlying lawsuit.

In a lengthy and comprehensive order, the district court granted declaratory

judgment to SMHS. The district court began by quoting at length from the terms 1

of the Program. The district court noted in particular that the coverage issues in

this case were governed by Articles IV and VI of the Program, which limited

coverage to “indemnitees” and defined an indemnitee as an employee “acting

within the scope of his or her assigned duties.” The district court then moved on
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to compare the allegations in Bachhofer’s underlying suit against Dr. Kula with

the duties set out in Dr. Kula’s employment contract with Mercy Memorial. That

examination led the district court to conclude that none of the actions Dr. Kula

was alleged to have undertaken were within the scope of his assigned duties. 

Although recognizing that the Program provision “scope of assigned duties” was

narrower than the common law respondeat superior concept of scope of

employment, the district court noted that its disposition was nevertheless

consistent with Oklahoma case law involving respondeat superior liability.

On appeal, Bachhofer raises eight separately numbered challenges to the

district court’s grant of declaratory judgment in favor of SMHS. Each of these

eight challenges, however, relate to one single dispositive issue: does the Program

impose upon SMHS a duty to defend and indemnify Dr. Kula against Bachhofer’s

claim she was damaged by Dr. Kula’s negligent/intentional medical mistreatment? 

This court reviews de novo the district court’s conclusion that SMHS had no such

duty. Naime v. Cytozyme Labs, Inc., 174 F.3d 1104, 1111 (10th Cir. 1999)

(applying, in a similar procedural context, de novo review because appellant “did

not dispute the existence of the evidence cited by the district court, but rather

argue[d] the district court erred in concluding those documents evidence a binding

contract” and thus the district court’s conclusion “primarily involve[d]

applications of legal principles to the facts”). Upon de novo review of the

parties’ briefs and submission, the district court’s well-stated order, and the entire
-4-

record on appeal, we can discern no error in the district court’s thoughtful

resolution of this case. Because we have nothing to add to the district court’s

reasoning, this court AFFIRMS for substantially those reasons set out by the

district court in its order dated April 13, 2006.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge