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President v. Jenkins2/6/2003
cordingly, his premium was calculated based on a policy period of February 1, 1998 through January 1, 1999. Zurich, through C&R; issued Jenkins a binder, a certificate of insurance and an "additional insured physician's endorsement" naming him as an additional insured to the master policy of the Garden State Physicians' Alliance (GSPA) effective as of February 1, 1998.
Zurich does not issue medical malpractice insurance directly to individual physicians. Accordingly, C&R;created GSPA for the express purpose of procuring liability insurance for its member health care professionals on a group basis. GSPA is registered and licensed with the New Jersey Department of Banking & Insurance as a recognized "Risk Purchasing Group" as defined in Section 3901 of the Liability Risk Retention Act, 15 U.S.C.A. ยงยง 3901 to 3906. GSPA had a "master policy" with Zurich under policy No. GPC-2727906-01. When a new physician would be added to the policy, an endorsement would be issued containing a "retroactive date", identical to the effective date of the endorsement, on which the additional insured physician would be entitled to insurance under the master policy as an additional insured. In other words, the effective date of coverage for the "additional insured" is the "retroactive" date applicable to each insured physician. On the other hand, a physician who joins the policy on a date after the effective date of the GSPA policy is charged a prorated premium to account for the fact that the physician is not receiving the benefit of coverage for "errors and omissions" that occur prior to the "retroactive" date. The effective date and the expiration date of the master policy are previously established, as the policy was purchased by the GSPA Purchasing Group prior to the addition of the "additional insured physicians."
The policy under which Jenkins was insured was denominated a "claims made" policy. The cover page of the insuring agreement bore the following notice:
THIS POLICY PROVIDES CLAIMS MADE COVERAGE. CLAIMS MUST FIRST BE MADE AGAINST THE INSURED DURING THE POLICY PERIOD AND MUST BE REPORTED IN WRITING TO THE COMPANY DURING THE POLICY PERIOD, OR WITHIN 60 DAYS AFTER EXPIRATION OF THE POLICY OR IF ENDORSED, DURING THE EXTENDED REPORTING PERIOD. PLEASE READ THE ENTIRE POLICY CAREFULLY.
As the binder, certificate of insurance, and each of the four policy endorsements issued to Jenkins plainly indicate, the effective date of coverage applicable to the individual "additional insured" was February 1, 1998, which was also designated the "retroactive" date in those same documents. And as made equally clear in the "coverage" section of the insuring agreement, the "retroactive" date of February 1, 1998 was the inception date on and after which acts of negligence committed by Jenkins, as the additional insured, would be covered provided they were reported during the policy period. Thus, the insuring agreement of the Zurich policy provides in pertinent part:
A. Coverage Provided . . . . Coverage B - Physicians Professional Liability:
We will pay on behalf of a physician, damages that the physician shall become legally obligated to pay because of a claim first made during the policy period arising out of a medical incident which occurred on or after the retroactive date and which is reported to us during the policy period.
[(emphasis added).] Therefore, unlike the standard "claims made" policy, Zurich's policy provided Jenkins no retroactive coverage during its first year. In that year, the coverage provided by the policy applied only to errors and omissions that occurred during the policy year commencing February 1, 1998 and reported to the c
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