Demandre v. Liberty Mutual Insurance Company

Decision Date27 February 1959
Docket NumberNo. 17420.,17420.
Citation264 F.2d 70
PartiesMrs. May Sketchler DEMANDRE, wife of, and Celestin Demandre, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Sidney W. Provensal, Jr., New Orleans, La., for appellants.

John V. Baus, New Orleans, La., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This was a suit for damages instituted by Mrs. Demandre against the Insurer under the Louisiana Direct Action Statute. LSA-R.S., Tit. 22, § 655. The Insurer had issued a Comprehensive General Liability policy to Touro Infirmary, one of New Orleans largest hospitals. The claim was that the hospital had negligently failed to place sideboards on her hospital bed with the result that while under extensive sedation she had fallen out of the bed.

As the policy undertook to "pay on behalf of Touro Infirmary all sums which it shall become legally obligated to pay as damages because of bodily injury, sickness or disease * * * sustained by any person and caused by accident," the problem normally, as in an ordinary suit, would be judged in terms of the basic liability of the hospital. That would involve the question, on usual tort principles, whether the act was negligent, and if so, was a proximate cause of the harm. But there is an added complication here which made this something more than a simple derivative suit.

That stems from the fact that the policy, as one of its principal terms, contains the so-called malpractice endorsement, excluding liability from malpractice or errors in rendering or failing to render medical or other professional service or treatment.1

It was on the basis of this exclusion in the policy and the nature of the allegations of fault in the plaintiff's complaint that the Insurer moved for and obtained summary judgment. The contention successfully pressed below was that the acts of the agents of the hospital, as such acts were described in the complaint, were necessarily those of a professional nature related essentially to the medical care and treatment of Mrs. Demandre.

Our difficulty is not so much with the interpretation of this policy exclusion. Necessarily it uses broad and general terms. But none pose problems exceeding the usual task of judicial interpretation. Our difficulty stems from the procedural manner in which the issue was attempted to be resolved below.

Except for bringing into the case the exclusionary endorsement of the policy, note 1, supra, the Insurer's motion for summary judgment was really nothing but a motion for judgment on the pleadings. It is true that F.R.Civ.P. 56, 28 U.S.C.A., (and see 12(c)) permits this, but the course is tortuous and frequently leads to reversal because it undertakes to determine legal questions on the basis of facts as they are broadly asserted to be rather than what they are or may be found to be. See, e.g., Dyal v. Union Bag-Camp Paper Corp., 5 Cir., 1958, 263 F.2d 387, and Hiern v. St. Paul-Mercury Indemnity Co., 5 Cir., 1958, 262 F.2d 526. Any such process is exposed to the perils of an outright motion under F.R.Civ.P. 12(b) that the complaint fails to set forth facts entitling the party to relief. We have many times pointed out the pitfalls in this maneuver. Millet v. Godchaux Sugars, Inc., 5 Cir., 1957, 241 F.2d 264; Carss v. Outboard Marine Corp., 5 Cir., 1958, 252 F.2d 690. The pitfalls arise because of the nature of the underlying test which we have many times stated and which has been recently restated in the broadest terms. "In appraising the sufficiency of a complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 2d 80.

Consequently whether the "facts" stated in the complaint present a "genuine issue as to any material fact" as F.R.Civ.P. 56 requires is really to be measured by whether no evidence could be offered to support the plaintiff's theory. By the very nature of this complaint, stated as it is in the broad language permitted by the rules, far from showing the absence of controversy, it reflects on its face that many questions of fact are open and still undisclosed.2

This is evident when we consider briefly some of the very few decisions construing this or somewhat similar exclusions. On one side is Maryland Casualty Co. v. Crazy Water Co., Tex.Civ. App.1942, 160 S.W.2d 102, no writ history. There a "tubber" — one who assisted guests of the hotel in taking baths in the famed mineral waters of the establishment — was held not to be engaged in professional services when the tubber's negligence resulted in injury to one of the guests taking a bath prescribed by her doctor. On the other, is Harris v. Fireman's Fund Indemnity Co., 1953, 42 Wash.2d 655, 257 P.2d 221, in which injuries sustained by a patient then undergoing osteopathic treatment when the special treatment table collapsed were held to have arisen out of the rendition of professional services. Similarly, in American Policyholders' Insurance Company v. Michota, 1952, 156 Ohio St. 578, 103 N.E.2d 817, an injury resulting from an unsafe chiropodist's hydraulic chair then being used for treatments was excluded from policy liability. In Liberty Nursing Home, Inc. v. New Amsterdam Casualty Co., 1942, 265 App.Div. 883, 38 N.Y.S.2d 275, appeal denied 265 App. Div. 954, ...

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