061326P.pdf   02/23/2007  BJC Health System  v.  Columbia Casualty
   U.S. Court of Appeals Case No:  06-1326
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Wollman, Author, with Bowman and Benton, Circuit
   Judges]
   Civil case - Insurance. Under the parties' insurance contract the
   "incurred loss" condition is a condition subsequent, but since the contract
   gave defendant broad discretion to determine incurred loss, plaintiff had
   the burden of showing that defendant exercised its contractual discretion
   to determine incurred loss in bad faith; plaintiff could only do this by
   presenting evidence that defendant's determination of incurred loss was
   directed toward evading the spirit of the contract or denying plaintiff the
   benefit of its bargain; because defendant's broader business motives and
   goals bear on how and for what purposes defendant was exercising its
   discretion, evidence that defendant was seeking to shed malpractice
   claimants like plaintiff was relevant to the inquiry, and the district court
   erred in excluding it; considering as a whole the evidence plaintiff had to
   offer, there was sufficient evidence for a jury to conclude that defendant's
   determinations concerning incurred loss were made in bad faith, and the
   district court erred in granting defendant summary judgment in the case;
   no error in striking plaintiff ATG's claim for punitive damages as the
   complaint did not allege fraud with the degree of particularity required
   under Federal Rule of Civil Procedure 9(b); because plaintiff's calculation
   of compensatory damages relating to the gap between defendant's
   coverage and other coverage it procured was conclusory and
   insufficiently supported by the record, the district court did not err in
   precluding plaintiff from recovering those damages. Case affirmed in
   part, reversed in part and remanded for further proceedings.