Duty to Cooperate Dr. James Bubenik, a dentist practicing in Missouri, had two patients die while…

Duty to Cooperate Dr. James Bubenik, a dentist practicing in Missouri, had two patients die while under sedation within six months. Bubenik had medical malpractice insurance with Medical Protective Co. (MPC). The families of both patients sued Bubenik for malpractice. MPC pointed out to Bubenik that a clause in his policy stated that the “Insured shall at all times fully cooperate with the Company in any claim hereunder and shall attend and assist in the preparation and trial of any such claim.” During the litigation, however, Bubenik refused to submit to depositions, answer interrogatories, or testify at trial, invoking the Fifth Amendment privilege against self-incrimination. He also refused to communicate with MPC and entered into an agreement with the plaintiffs, stating that he would assist them in pursuing judgment against MPC. MPC requested a declaratory judgment from the court. The insurance company contended that it had no duty to defend Bubenik or counter the claims brought against him because of his refusal to cooperate. Did Bubenik’s constitutional right to invoke the Fifth Amendment take precedence over the insurance policy’s duty-to-cooperate clause? Why or why not? [Medical Protective Co. v. Bubenik, 594 F.3d 1047 (8th Cir. 2010)]

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