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New Mexico Physicians Mutual Liability Co. v. Lamure8/31/1993
Opinion
This appeal from a declaratory judgment requires us to determine whether an insurer must indemnify a physician under his medical malpractice insurance policies for liability resulting from allegations of criminal sexual assault. Plaintiff-appellee New Mexico Physicians Mutual Liability Company (the insurer) filed suit to establish nonliability for coverage under medical malpractice insurance policies issued to defendant-appellant, David S. LaMure, Sr., M.D. LaMure had been sued by Lillian Gonzalez on behalf of her minor son, Kristopher Gonzalez, for damages resulting from LaMure's sexual assault of Kristopher. Gonzalez intervened in this declaratory action. Granting summary judgment for the insurer, the district court held that LaMure's malpractice insurance did not cover damages resulting from the underlying sexual assault litigation and that the insurer was not obligated to indemnify LaMure. The district court specifically found that LaMure's acts were criminal and did not constitute "rendering or failing to render professional services" within the coverage provisions of his insurance. We affirm.
FACTS
In 1991, LaMure was convicted for the sexual assault of Kristopher Gonzalez.
The conviction included five counts of criminal sexual contact of a minor, two counts of criminal sexual penetration, and a count of extortion. Specifically, LaMure was found guilty of touching or applying force to Kristopher's intimate parts by grabbing his groin, unlawfully and intentionally causing him to touch LaMure's penis, wrongfully compelling Kristopher to perform the act of fellatio on LaMure against his will by threatening to harm his family and impugn his reputation, and causing Kristopher to engage in fellatio by touching LaMure's penis to Kristopher's mouth through force or coercion.
Based upon the same acts of abuse against Kristopher that supported the criminal convictions, Lillian Gonzalez sued LaMure in federal court for civil damages on behalf of her son in Gonzalez v. LaMure, No. CIV 90-0104 JC (D.C.N.M.1990). The federal complaint alleged that on August 18, 1987, LaMure undertook to care and treat Kristopher for an infected thumb. Under the pretense of treating Kristopher for the infected thumb, LaMure forced Kristopher into homosexual behavior. LaMure continued to engage in a homosexual relationship with Kristopher for eighteen months. With the exception of the first sexual assault, LaMure's abuse of Kristopher did not occur under the guise of medical treatment. The insurer financed LaMure's defense in the federal action under an express reservation of rights until the district court in the present declaratory action ruled that it had no obligation to do so.
The insurer issued three medical malpractice policies to LaMure, identical in all respects but covering different periods of time continuously from December 1, 1986 to February 19, 1989. It is undisputed that the acts alleged in the federal complaint occurred within this period of time. Under the policy section entitled "Indemnity," the insurer agreed:
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or personal injury resulting from rendering or failing to render, during the policy period, professional services by the insured, or by any person for whose acts or omissions the insured is legally responsible, performed in the practice of the insured's profession. . . .
The policies also contained several express exclusions. The criminal acts exclusion stat
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