 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Physicians' Reciprocal Insurers v. Giugliano10/31/2005
. den. 1996 WL 46219, the Fourth Department held that the duty to defend is broader than the duty to indemnify if the complaint contains facts or allegations which bring the claim even potentially within the policy provisions. In the case at bar, the conduct alleged in the underlying amended complaint can be construed as falling within coverage for professional services as they are not cast solely within the exclusion for sexual acts. The alleged causal relationship between Ms. Dupree's treatment with an antidepressant and the harm she alleges are the defining assertions. Thus, at the very least, PRI has a duty to defend (e.g., Hirst v. St. Paul Fire & Marine Ins. Co., 683 P2d 440).
Plaintiff's reliance on two cases, both arising from Nassau County actions involving PRI and its duty to defend under similar circumstances, is misplaced (PRI v. Loeb, 291 AD2d 541, Nassau County Index No. 27051/99; PRI v. Blank, 258 AD2d 573, Nassau County Index Nos. 014581/97 and 37224/95).
In Blank, the trial court presided over both the declaratory action and the underlying malpractice action. PRI agreed to defend its insured and did so throughout the discovery process. The defendant admitted to consensual sexual intercourse in his answer and at his examination before trial, whereupon PRI disclaimed coverage. The lower court's decision holding that PRI had no duty to defend or indemnify based its conclusion on the fact that disclosure revealed it was uncontroverted that the patient's alleged injuries arose solely from the sex act.
In Loeb, the Second Department's decision was actually based upon the doctrine of collateral estoppel. The medical malpractice action was commenced in a different county. Dr. Loeb was successful in having the cause of action for medical malpractice dismissed, leaving the remaining causes of action sounding in assault, negligence and recklessness, as well as other theories of recovery.
In the declaratory judgment action below, the court found that PRI had a duty to defend and indemnify Dr. Loeb. The appellate division reversed, stating both Dr. Loeb and the alleged victim had a full and fair opportunity to litigate whether the pleading asserted a cause of action to recover damages for medial malpractice. That issue having been determined, the court was barred under the doctrine of collateral estoppel from finding there was no cause of action for medical malpractice.
In the case at bar, the Supreme Court, Suffolk County has already determined that the amended complaint states a cause of action for medical malpractice (Pitts, J., July 25, 2005).
Accordingly, plaintiff's motion is in all respects denied at this juncture with leave to renew after discovery has been completed.
Defendant's cross-motion is granted insofar as PRI has a duty to defend unless and until the undersigned rules otherwise should plaintiff renew its application.
|