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D.D. v. Insurance Company Of North America11/24/1995
[No. 4284 - November 24, 1995]
Certified Question from the United States District Court for the District of Alaska, James K. Singleton, Jr., Judge.
EASTAUGH, Justice, with whom MOORE, Chief Justice, joins, concurring in part and dissenting in part.
I. FACTS AND PROCEEDINGS
The United States District Court for the District of Alaska certified the following question to this court:
Where a physician practices medicine in a building he owns, and has elected not to procure medical malpractice insurance but has procured a business owners policy of insurance with a medical treatment or services exclusion, is the physician entitled to coverage and a defense under the terms of his business owners insurance when he refers a prospective patient to a colleague for a physical examination and the colleague sexually assaults the patient while performing a gynecological examination of her, if the assault occurs in the building where both physician and his colleague practice medicine and the patient sues the physician on the theory that as a building owner he had a duty to protect her from a colleague whom he had reason to know might sexually assault a patient?
We granted the District Court's request for certification.
The United States District Court summarized the facts of this case in the following manner:
Dr. John Erkmann ("Erkmann") specializes in obstetrics and gynecology. He practices in a building that he owns. Dr. Erkmann considered purchasing medical malpractice insurance but felt that it was too expensive. He did purchase a Business Owners Policy of Insurance from the defendant, Insurance Company of North America ("INA"), which generally provides coverage for claims against Erkmann for bodily injury occurring on his business premises. The policy contains an exclusion which provides as follows:
his insurance does not apply to "bodily injury" . . . "personal injury" . . . arising out of
1. The rendering or failure to render:
a. Medical, surgical, dental, x-ray or nursing service or treatment, or the related furnishing of food or beverages; fn1
b. Any health service or treatment;
D.D. came to Erkmann's office seeking medical care. Erkmann's nurse informed D.D. that Erkmann was not taking additional patients, but that Dr. Burton Ake, M.D., who also specialized in gynecology and obstetrics, could see her. D.D. agreed to become Dr. Ake's patient and on October 10, 1989, submitted to a gynecological examination by him in the suite of offices owned by Erkmann where Erkmann practiced medicine. Dr. Ake sexually assaulted D.D. in the course of the examination. D.D. discovered the assault and complained to the police, and Ake was later convicted of sexually assaulting D.D. and was sent to prison.
D.D. sued Erkmann alleging, inter alia, that Erkmann was negligent in referring her to a colleague whom Erkmann knew, or in the exercise of reasonable care should have known, had a history of sexually inappropriate behavior with patients. Furthermore, D.D. alleged that Erkmann, as owner of the building in which he and Ake practiced medicine, had a duty to exercise reasonable care to protect her against a criminal sexual assault on the premises, and that he had breached that duty. Erkmann tendered the defense of the claim to INA, which declined coverage and refused to defend Erkmann. INA reasoned that all of D.D.'s causes of action depended on a finding that she had suffered "bodily injury" arising out of, i.e., suffered during, the "rendering or failure to render" medical services or treatment. Erkmann then settled with D.D. for $300,000
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