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Legion Insurance Company v. Singh (N.Y.App.Div. 05/25/2000)
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Supreme Court5/25/2000
Calendar Date: January 19, 2000
MEMORANDUM AND ORDER
Cross appeals from an order of the Supreme Court (Lynch, J.), entered July 21, 1999 in Schenectady County, which, inter alia, partially denied a motion by plaintiff for summary judgment and denied a cross motion by defendants Eric Wade and Bruce Wade for summary judgment.
At all times relevant to this action, defendant Lokendra K. Singh was a psychiatrist. From November 1988 to approximately March 1, 1990, Deborah Wade (hereinafter Wade) was under Singh's care for treatment of psychological disorders. In June 1990, Wade and her husband, defendant Bruce Wade, commenced an action against Singh (hereinafter the underlying action) seeking compensatory, punitive and derivative damages for Singh's claimed medical malpractice and intentionally tortious conduct in manipulating his psychotherapeutic relationship with Wade by causing her to fall in love and engage in a sexual relationship with him.
Plaintiff is Singh's medical malpractice insurance carrier. Under the policy issued to Singh, plaintiff was obligated to pay "all sums which shall become liable to pay as damages arising out of acts, errors or omissions in psychiatric services". Basic coverage was furnished for, as relevant here, "payment of damages, including defense costs * * * for claims for injury arising out of * * * sychiatric services that were or should have been rendered with respect to evaluating, diagnosing or treating a mental disorder". Among the express policy exclusions, however, was one providing that the policy shall not apply to " ny damages based in whole or in part on a claim of undue familiarity". In July 1990, Singh notified plaintiff of the underlying action. Plaintiff thereafter notified Singh that it would defend him but that his policy did not provide for payment of punitive damages or indemnity for "allegations of undue familiarity".
In February 1993, plaintiff commenced this action against Singh and the Wades for judgment declaring that it was not required to indemnify Singh under his policy for damages arising from the allegations contained in the complaint in the underlying action. In their answer, the Wades asserted as an affirmative defense that plaintiff had not provided them with timely notice of its disclaimer. Following joinder of issue, plaintiff moved and the Wades cross-moved for summary judgment. Supreme Court granted plaintiff's motion only to the extent of determining that Insurance Law § 3420 had no application to the facts of the case and that plaintiff was therefore not estopped from disclaiming coverage by virtue of any late notice to the Wades. Determining that the broader issue of indemnification must await the trial of the underlying action, however, Supreme Court denied the balance of plaintiff's motion and the Wades' cross motion. The parties cross-appeal.
Initially, we agree with Supreme Court's determination that Insurance Law § 3420 did not entitle the Wades to notice of plaintiff's disclaimer. By no reasonable interpretation could the underlying action be viewed as one for damages "for death or bodily injury arising out of * * * accident occurring within this state" as provided in Insurance Law § 3420(d). Surely, the acts of sexual intercourse that form the basis for the underlying action did not constitute an "accident" (see, Spinosa v. Hartford Fire Ins. Co., 90 AD2d 574, 575; see also, Board of Educ. of E. Syracuse-Minoa Cent. School Dist. v Continental Ins. Co., 198 AD2d 816, 817).
We now turn to plaintiff's appeal. We do not necessarily disagree with the Wades' contention that Singh's malpractice based on his mishandling of the "transf
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