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A policy lapse means that an insurer does not have to defend an assisted living community from a wrongful death lawsuit, the insurer is arguing in federal court.

Wisconsin-based Church Mutual Insurance Co., now Church Mutual Insurances S.I., filed an insurance coverage lawsuit last week in the 7th Circuit US District Court in Illinois against Texas-based senior living operator Frontier Management and Ohio-based Welltower Tenant Group, doing business as Auberge at Orchard Park, an assisted living and memory care community in Morton Grove, IL. 

In the lawsuit, Church alleges that it is under 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, the son of Bertrand Nedoss, filed a lawsuit in the Circuit Court of Cook County, IL, on Oct. 15, 2021, against Welltower, Auberge at Orchard Park and Frontier Management. The suit claims that in December 2020, Bertrand Nedoss — a resident from July 18, 2017, through Jan. 5, 2021 — drank a COVID-19 sample solution, resulting in pneumonia. Jan. 5, 2021, Nedoss reportedly left the community undetected and later died from hypothermia and cardiac arrest after being outside in cold temperatures for hours.

The wrongful death lawsuit alleges that the community did not supervise Nedoss, whom the suit says was a known flight risk, and did not provide working alarms, properly train staff, conduct hourly checks or respond to door and bed alarms. 

After it received the lawsuit in January 2022, Church Mutual stated that the underlying suit was not covered under professional liability coverage because it was filed after that policy had expired on July 1, 2021. Church Mutual Insurance argued that the policy in effect at the time of the 2021 lawsuit was issued by Everest Indemnity Insurance Co. 

Frontier, in turn, demanded that the Church amend its coverage position to provide full defense and indemnity under the terms of its policy. Church Mutual in December agreed to pay 100% of the defense costs but asserted the right to reimbursement of those costs and the right to start a declaratory judgment action.

Last summer, a federal judge ruled that Church Mutual Insurance did not have to defend Prairie Village Supportive Living, doing business as Eagle’s View Supportive Living and Memory Care in Illinois, in a potential class action wrongful employment practices lawsuit. But the insurer lost a case last July when an appeal court ruled that Church had to defend a since-closed assisted living community in a class action lawsuit brought by former residents alleging breach of contract and negligence.

Frontier Management had not responded to requests for comment from McKnight’s Senior Living as of the production deadline.