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New Mexico Physicians Mutual Liability Co. v. Lamure8/31/1993
." This coverage clause is qualified by the specific exclusion from coverage of liability arising from criminal acts. These clauses are not ambiguous because they can be reasonably construed in only one way -- liability from "rendering professional services" is covered unless it stems from "criminal acts." Our focus therefore turns to interpreting these operative contract terms in context.
Except for LaMure's first attack on Kristopher, LaMure's assaults did not occur under the guise or pretense of medical care or treatment and therefore cannot be attributed to the "rendering professional services." Nor do we believe that Kristopher's injuries from LaMure's first sexual assault, although committed under the pretense of medical care, resulted from "rendering
professional services." Several other jurisdictions have addressed the question of whether a sexual assault on a patient by a health care professional arises or results from rendering "professional services" under the coverage provisions of professional liability insurance like LaMure's. These cases generally fall into three categories.
The most common scenario involves a physician or dentist who sexually assaults a patient at his office during medical treatment or examination. These cases hold that "professional services" in professional liability insurance coverage clauses do not include sexual assaults on patients, regardless of the location of the assault or the pretense of medical care used by the insured to catch his victim unaware. The most frequently cited authority for this proposition is Hirst v. St. Paul Fire & Marine Insurance Co., 106 Idaho 792, 796, 683 P.2d 440, 444 (Ct.App.1984). In Hirst, a physician who drugged and sexually assaulted a young male patient during the examination of a hand injury was not covered by his professional liability insurance because the assault did not constitute "professional services." Like many other cases interpreting medical malpractice insurance policies, Hirst adopts the definition of "professional services" articulated in Marx v. Hartford Accident & Indemnity Co., 183 Neb. 12, 157 N.W.2d 870 (1968). Defining "professional services" in a policy covering "malpractice . . . in rendering or failing to render professional services," Marx states:
Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind. . . . A "professional" act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual. In determining whether a particular act is of a professional nature or a "professional service" we must look not to the title or character of the party performing the act, but to the act itself.
157 N.W.2d at 871-72 (citations omitted). Other decisions denying indemnification to the insured medical professional under similar facts and reasoning as Hirst include: St. Paul Insurance Co. v. Cromeans, 771 F. Supp. 349, 352-53 (N.D.Ala.1991) (denying indemnification under a malpractice policy covering "professional services" to a physician for his sexual abuse of patients, noting that all contracts insuring against damage from intentional misconduct are void as against public policy under applicable Alabama law); Standlee v. St. Paul Fire & Marine Insurance Co., 107 Idaho 899, 693 P.2d 1101, 1102 (Ct.App.1984) (denying indemnification under facts similar to Hirst except that the assault did not involve drugs or occ
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