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First Professionals Insurance Co.10/5/2005
m is made. The 4590i notice letters in this case did not assert a liability claim against Heart & Vascular; therefore, those notice letters could not provide written notice of a liability claim or intent to sue Heart & Vascular.
Although we disagree with the Dallas court's implication that a claims-made policy can only be triggered by a 4590i notice letter, we agree that coverage of Heart & Vascular under First Professionals' policy could not be triggered until the plaintiffs asserted a claim against Heart & Vascular. The assertion of claims against the individual physicians in the Heart & Vascular group was not sufficient. As the El Paso court has explained:
Although the notice requirements of a "claims made" policy appear to be harsh, the ability to make a choice based on need and financial ability is in the public interest. We must not convert claims-made policies to occurrence policies by judicial acts. The policies in question are "clear, unequivocal and hence unambiguous and therefore its terms are enforceable.
Hirsch, 808 S.W.2d at 565.
Conclusion
Because no claim was asserted against Heart & Vascular in the 4590i notice letters sent to Dr. Carey and Dr. Wilks, the notice provided to First Professionals regarding those letters was not notice of a claim against Heart & Vascular. Accordingly, the trial court erred in rendering judgment in favor of Heart & Vascular. The portion of the trial court's judgment relating to liability as between Heart & Vascular and First Professionals is reversed, judgment is rendered that Heart & Vascular take nothing against First Professionals, and the cause is remanded to the trial court for further proceedings consistent with this opinion on the issue of attorney's fees and costs.
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