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New Mexico Physicians Mutual Liability Co. v. Lamure8/31/1993
ed:
This policy does not apply . . . o liability of the insured arising out of the performance of a criminal act; provided, that this exclusion shall not apply with respect to defense of suits unless the insured is connected in the original prosecution based on such acts or omissions for which claim or suit is brought against the insured[.]
"Criminal act" is not defined in the policies, and the policies do not otherwise more specifically address the treatment of "criminal acts" resulting from rendering professional services.
Appellant LaMure and intervenor Gonzalez argue primarily that the federal complaint pleads malpractice covered by LaMure's malpractice insurance. They also contend that the Medical Malpractice Act, NMSA 1978, ยงยง 41-5-1 to -29 (Repl.Pamp.1989 & Cum.Supp.1993), and public policy considerations compel a finding of coverage.
The insurer responds that under the express language of LaMure's policies, liability resulting from the federal complaint is not covered because LaMure's acts do not constitute "rendering or failing to render . . . professional services by the insured." Coverage is also precluded, the insurer
claims, because LaMure's alleged acts are criminal and his malpractice policies expressly exclude coverage for liability resulting from criminal acts. The insurer maintains that such an insurance exclusion should be enforced because it is supported by the public policy of denying indemnification to an insured for his intentional criminal conduct.
Discussion
The central issue for review is whether the insurer is required to indemnify LaMure for damages resulting from the federal litigation. If the allegations of the federal complaint clearly fall outside the provisions of LaMure's professional liability insurance policies, indemnity by the insurer is not required. See . When a court relieves an insurer of liability under the noncoverage provisions of an insurance policy, the insurer is also relieved of any duty to defend the insured from lawsuits over the uncovered acts. .
We interpret unambiguous insurance contracts in their usual and ordinary sense unless the language of the policy requires something different. . An insurance policy should be construed as a complete and harmonious instrument designed to accomplish a reasonable end. . The parties to an insurance contract may validly agree to extend or limit insurance liability risks. . Thus, exclusions in insurance policy coverage provisions that are clear and unambiguous and that do not conflict with public policy expressed by statute will be enforced. . In evaluating whether an exclusionary provision conflicts with a particular statute and is therefore void, our inquiry focuses on the legislative intent behind the statute. .
An insurance policy provision is ambiguous if it is reasonably and fairly susceptible to different constructions. . While ambiguous policies should be construed liberally in favor of the insured, , policies that are not ambiguous and do not contravene public policy must be enforced as written. . The fact that a particular policy contains a broad coverage provision followed by a specific coverage exclusion does not automatically render the policy ambiguous or invalidate the exclusion. See . This is true as long as the exclusion is not so broad or nebulous that it swallows and effectively nullifies a broad insuring clause.
LaMure's malpractice policies contain a broad coverage provision promising to indemnify him for personal liability resulting from "rendering professional services
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