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New Mexico Physicians Mutual Liability Co. v. Lamure8/31/1993
ld an exclusionary clause in a homeowner's policy for damages resulting from the intentional acts of the insured. We noted that such exclusionary clauses are designed to prevent indemnifying an insured for liability due to his or her own wilful or intentional wrongful conduct. . In Knowles, we also approved the enforcement of intentional acts exclusions to deny indemnification to the insured for his intentional wrongful acts, although we concluded under the specific facts of that case that the intentional acts exclusion in the personal umbrella policy was unenforceable because it was "repugnant" to the policy's broad insuring clause. . Unlike the policy in Knowles, the criminal acts exclusions in LaMure's policies are not repugnant to the policies' insuring provisions because they do not effectively nullify coverage or reduce it substantially or unreasonably. Although criminal malpractice is not covered, a broad realm of infractions committed in rendering professional services is, including most varieties of what is traditionally considered malpractice. In other respects, our analysis parallels that of Knowles, as we interpret the criminal acts exclusions in LaMure's policies as valid and enforceable supported by the important public policy objective of refusing to indemnify an insured for his or her intentional wrongs.
Courts in other jurisdictions have enforced criminal acts exclusions in similar situations, and their opinions further persuade us that LaMure's acts, although they may constitute malpractice, should not be indemnified against because they are criminal. See, e.g., Medical Mut. Liab. Ins. Soc'y v. Azzato, 94 Md.App. 632, 618 A.2d 274, 280 (enforcing the criminal acts exclusion in a malpractice policy and denying indemnification to a physician who was liable for supplying and encouraging a patient's illegal drug abuse), cert. denied, 330 Md. 319, 624 A.2d 491 (1993); Rivera v. Nevada Medical Liab. Ins. Co., 107 Nev. 450, 814 P.2d 71, 74 (1991) (enforcing the criminal acts exclusion in a malpractice policy of a gynecologist who raped a patient during an examination and rejecting the contention that malpractice insurance policies should be construed to protect the injured party); see also ) (enforcing sex acts exclusion in psychologist's malpractice policy when a patient's malpractice claim alleged that the insured had sexual relations with her negligently).
Gonzalez argues that LaMure's sexual assault of Kristopher, his patient, constitutes malpractice as a matter of law. Citing ), cert. denied, 84 N.M. 37, 499 P.2d 355 (1972), Gonzalez asserts that malpractice is defined as a departure from recognized standards of medical practice in the community and that sexual assault of a patient clearly falls within this definition.
This argument fails because it incorrectly assumes that if LaMure's acts constitute malpractice, they must be covered by his malpractice insurance. LaMure's professional liability policies do not define "malpractice" or otherwise purport to cover "malpractice"; coverage is defined in terms of liability resulting from "rendering professional services." Because the insurer's obligations emanate from LaMure's insurance contract, see , independent definitions of malpractice do not control the Disposition of the coverage issue before us. LaMure's acts may very well meet the legal definition of malpractice, but this does not decide the debate over whether the insurer is contractually obligated to indemnify LaMure.
LaMure and Gonzalez contend that the Medical Malpractice Act expansively modifies the coverage provisions of LaMure's malpractice insurance policie
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