R.W. v. Schrein11/1/2002
quoting the trial court's opinion:
"The question of insurance coverage does not turn on whether the conduct was negligent or intentional, or whether or not there was an assault and battery. Regardless of the category in which the underlying complaints are placed, they clearly allege tortious conduct while treating the patients, and seek damages resulting from the providing of professional services. Furthermore, the tortious conduct, if it occurred, took place in the course of and as an inseparable part of the providing of professional services. Consequently, any damages would be those resulting from the providing of professional services by the insured." Asbury, 149 Ariz. at 566, 720 P.2d at 541. Accord, Torpoco, supra; Shernow, supra. See, also, Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 698 A.2d 9 (1997). But see, e.g., St. Paul Ins. Co. of Illinois v. Cromeans, 771 F. Supp. 349, 353 (N.D. Ala. 1991) (rejecting Asbury as "illogical"); Physicians Ins. Co. v. Pistone, 555 Pa. 616, 623, 726 A.2d 339, 343 (1999) (stating Asbury "has no basis in logic"); N.M. Physicians Mut. Liability v. LaMure, 116 N.M. 92, 97, 860 P.2d 734, 739 (1993) (uncertain of Asbury test's "workability or its support in public policy").
However, the Asbury rule has received significant criticism. First, it has been noted that in determining the scope of a liability insurance policy, the issue "is not whether the conduct in question is negligence, but whether a particular contract was intended to cover this conduct." Snyder v. Major, 789 F. Supp. 646, 650 (S.D.N.Y. 1992), modified 818 F. Supp. 68 (S.D.N.Y. 1993). See Volquardson v. Hartford Ins. Co., ante p. 337, 647 N.W.2d 599 (2002). The minority rule would be more logical if presented in the context of a tort action, i.e., expanding the set of wrongs from which tort victims should be protected. See Snyder, supra. However, where the issue is the scope of coverage under an insurance policy, expanding the meaning of "professional services" is inconsistent with our responsibility to give effect to the intent of the parties at the time the contract was written. See Volquardson, supra. In light of the case law set out above supporting the majority rule, along with our own decisions in Marx v. Hartford Acc. & Ind. Co., 183 Neb. 12, 157 N.W.2d 870 (1968), and Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607 (2000), it is unlikely that parties entering into medical malpractice insurance contracts are operating under the assumption that the sexual misconduct of physicians may be covered by the malpractice insurance. It would decrease the likelihood of capturing the parties' intent to hold otherwise. See Snyder, supra.
Furthermore, the minority rule erodes the concept of legal causation until the requirement of proximate cause is essentially meaningless. As stated by one commentator:
The decisions that find coverage for allegations of sexual abuse or molestation against physicians and dentists do so only through flawed reasoning. They appear to apply what amounts to a simple "but for" test: Because the assault occurred during an otherwise proper and necessary medical procedure, the injury arose out of the performance of that professional service. Of course, the "but for" test is virtually boundless, as almost no subsequent event would take place were it not for some antecedent event, and as all events are, at some level, interrelated. It is simply unreasonable to conclude that conduct such as sexual molestation of a patient, which must be known to be only harmful and not beneficial, and which also must be known by the doctor to further no preventive or corrective interest of the patient, is part of a professional medical procedure. It cannot, therefore,
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