Bergh v. Canadian Universal Ins. Co., 1-130
| Decision Date | 18 April 1967 |
| Docket Number | No. 1-130,1-130 |
| Citation | 197 So.2d 847 |
| Parties | M. B. BERGH, Appellant, v. CANADIAN UNIVERSAL INSURANCE COMPANY, a corporation, Appellee. |
| Court | Florida District Court of Appeals |
Reinstine, Reinstine & Panken, Jacksonville, for appellant.
Howell, Kirby, Montgomery, Sands & D'Aiuto, Jacksonville, for appellee.
This is an appeal from an adverse declaratory decree holding that the appellee is not liable to appellant under a professional liability policy it had issued to him respecting a given claim being litigated against the physician by a former patient.
The liability insurer denied coverage for the claim because of the insured's failure to give the company timely notice as required by condition two of the policy which states:
'Upon the insured becoming aware of any alleged injury covered hereby, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable, together with the fullest information obtainable.'
The appellant, Dr. Bergh, is a physician practicing medicine in Clay County, Florida. He performed professional services upon a patient. Those services included a hysterectomy operation in January, 1964, which the court below found resulted in substantial complications, and an operation in June, 1964, for an intestinal obstruction. The latter operation, the Chancellor found, also was followed by substantial complications.
Immediately after the patient was discharged following the latter operation, she came under the care of another physician who testified that at that time the patient's life was in peril and might have been lost but for the timely intervention by other physicians and admission at another hospital.
On October 26, 1964, the patient's attorney wrote the appellant that he was representing his former patient in regard to a claim she was asserting against the doctor for alleged negligence connected with the surgical procedures and treatment related above. Although the patient's attorney requested the physician to contact him about the matter, Dr. Bergh seems to have ignored the letter and its contents. He did not at this point notify his professional liability carrier.
On February 20, 1965, the patient instituted an action against the appellant here alleging acts of negligence arising out of the medical procedures described above. Still notice of his patient's claim was not given to the insurance company. It was not until about April 1, 1965, that Dr. Bergh furnished the company with its first notice that a claim had been asserted against him by a patient.
Shortly after being noticed of the existence not only of the asserted claim, but the fact that it had already been in litigation some five weeks, the insurance company procured from Dr. Bergh a nonwaiver agreement. This occurred on April 12, 1965. Said agreement permitted the company to:
'* * * proceed to investigate the said accident, or undertake the defense of any suit growing out of the said accident, without prejudice to the rights of the said company, and that no action heretofore or hereafter taken by the company shall be construed as a waiver of the right of the company, if in fact it has such a right, to deny liability and withdraw from the case.'
Thereafter, the company took control of the suit that the patient had filed against its insured and continued in such control until filing its motion to withdraw as counsel for Dr. Bergh on December 10, 1965. In said motion to withdraw, the insurer asserted Dr. Bergh's failure to give notice as soon as practicable as required by the liability policy. The insurer also asserted the nonwaiver agreement entered into on April 12, 1965. By said motion, the insurer also asserted the several reservation of rights letters that it had served on the insured at various stages of its handling of the damage suit under the nonwaiver agreement. Presumably, resort to the...
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