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Holland v. ProNational Insurance Co.10/6/2005
UNPUBLISHED
Before: Meter, P.J., and Murray and Schuette, JJ.
Defendant ProNational Insurance Company appeals as of right from a declaratory judgment requiring it to defend plaintiffs Hon Chan, D.O. (Chan) and Hon Chan, D.O., P.C. (Chan, P.C.) in a medical malpractice action for all relevant claims unrelated to sexual assault. Plaintiffs Melanie Holland, Dr. Chan, and Chan, P.C. appeal as of right from the same judgment. This case stems from an insurance coverage dispute arising out of a medical malpractice suit filed by Holland against Chan as her psychiatrist and his professional corporation, Chan, P.C. We affirm.
I. FACTS
Chan diagnosed Holland with depression and saw her for supportive therapy and medication management on a monthly basis over the course of approximately six months. Holland filed a medical malpractice action against Chan and his professional corporation. Holland alleged that Chan failed to maintain therapeutic boundaries by hugging her during therapy sessions and indicating that he wished to hire her to work for him. Holland alleged that Chan called her to come to his office for an additional after hours therapy session during which he sexually assaulted her. Chan maintains that the incident was a job interview and denies sexually assaulting Holland. Holland alleged that after the sexual assault, Chan appeared uninvited at her house and inappropriately telephoned her. According to Chan, he went to Holland's apartment and called her at her request to complete the job interview. Finally, Holland claimed that after she went to the police, she was contacted by another doctor who offered her a monetary settlement to resolve the matter. Chan denies any involvement with this phone call and claims that he did not learn of it until several weeks after it occurred.
Defendant, the malpractice insurer for Chan and his professional corporation, notified Chan that it would not indemnify him because his acts were excluded from coverage by the sexual misconduct and criminal acts exclusion clauses contained in the policy. Holland's original malpractice action was dismissed without prejudice until the coverage dispute between Chan and defendant was resolved. Thereafter, Holland, Chan, and his professional corporation filed a declaratory judgment action seeking a declaration that defendant had the duty to defend and indemnify Chan and Chan, P.C. Defendant and plaintiffs filed cross-motions for summary disposition pursuant to MCR 2.116(C)(10). The trial court concluded that defendant "has no obligation to defend [Chan] against any claims related to the sexual assault alleged . . . and . . . has no obligation to indemnify . . . for claims related to sexual assault. As to the allegations of malpractice . . . unrelated to the sexual assault and that are supported by expert testimony in the record below, Defendant ProNational has a duty to indemnify Defendants to the extent that a final judgment is entered awarding damages specifically and only referable to those claims."
Defendant argues on appeal that it has no duty to defend Chan because the allegations of sexual misconduct cannot be separated from the other allegations of misconduct and the other allegations of misconduct are also excluded under its policy. Further, on cross-appeal, plaintiff contends that defendant has an obligation to defend and to indemnify plaintiffs Chan and Chan, P.C. in spite of the sexual misconduct exclusion clause.
II. STANDARD OF REVIEW
A trial court's decision on a motion for summary disposition is reviewed de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion for summary disposition under MCR 2.116(C)(10)
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