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New Mexico Physicians Mutual Liability Co. v. Lamure8/31/1993
ge accordingly. See, e.g., Aetna Life & Casualty Co. v. McCabe, 556 F. Supp. 1342 (E.D.Pa.1983); St. Paul Fire & Marine Ins. Co. v. Mitchell, 164 Ga.App. 215, 296 S.E.2d 126 (1982), cert. denied (Ga. Dec. 1, 1982); St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698 (Minn.1990); Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968). This group of cases involving mental health professionals and the transference phenomenon are distinguishable on their facts, and we decline to adopt their reasoning here.
The third category of cases, with a contingent of two, finds liability of the insurer when the act of assault by the health care professional is "inextricably intertwined" with health care treatment. See, e.g., St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 720 P.2d 540, 542 (Ct.App.1986) (holding that a gynecologist who intentionally and improperly manipulated patients' genitalia during routine gynecological examinations was covered by his professional liability insurance because his tortious acts were "intertwined with and inseparable from the services provided"); St. Paul Fire & Marine Ins. Co. v. Shernow, 222 Conn. 823, 610 A.2d 1281, 1285 (1992) (holding that a dentist who over-gassed and sexually assaulted a patient in the dentist's chair was covered by his malpractice insurance because the dentist's medically negligent procedure was "inextricably intertwined and inseparable from intentional conduct"). Like Justice Borden, who Dissented in Shernow, we are uncertain of this test's workability or its support in public policy. Regardless of whether this sort of analysis is useful in other situations, we are certain that LaMure's medical treatment of Kristopher's thumb was not "inextricably intertwined" with his sexual assault of Kristopher such that the assault may reasonably be considered "professional services."
Even if LaMure's abusive acts did constitute "rendering professional services," the insurer still would not be liable because we
find the policies' criminal acts exclusions applicable and enforceable. The criminal acts exclusions in LaMure's policies apply to liability from criminal acts for which the insured is prosecuted. Though "criminal acts" are not expressly defined in the policies, it is reasonable for "criminal acts" to include violent felonies for which the insured is found guilty by a jury. Since the federal complaint is based upon acts of felonious criminal sexual assault for which LaMure was convicted and incarcerated, the criminal acts exclusions apply.
Gonzalez argues that criminal acts should be covered by malpractice insurance due to the public policy objective of the Medical Malpractice Act to compensate malpractice victims. Otherwise, she claims, victims of noncriminal medical malpractice will be compensated but victims of criminal malpractice will not, leaving individuals seriously harmed by physicians' misconduct without recourse. Thus, the criminal acts exclusions in LaMure's malpractice insurance should be void as a matter of public policy. Gonzalez adds that the criminal acts exclusions are ambiguous and that the insurance contract must therefore be construed against the insurer to cover the insured. We disagree.
The criminal acts exclusions are enforceable because they are clear, unambiguous, and unoffensive to public policy. See . We have already explained why the policies' coverage provisions are consistent and unambiguous. Although New Mexico courts have not specifically addressed the validity of criminal acts exclusions in medical malpractice insurance, we have enforced intentional acts coverage exclusions. In Safeco v. McKenna, we uphe
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