Frankenmuth Mut. Ins. Co. v. Kompus, Docket Nos. 65090
| Decision Date | 19 September 1984 |
| Docket Number | 66471,Docket Nos. 65090,66509,65269,66818 and 69239 |
| Citation | 354 N.W.2d 303,135 Mich.App. 667 |
| Parties | FRANKENMUTH MUTUAL INSURANCE CO., a Michigan Insurance Corporation, Plaintiff-Appellee, v. Larry L. KOMPUS, Alfred Mallett, Robert J. Hoag, Roger L. Ennes, and Aetna Life & Casualty Co., Defendants, and Vigilant Insurance Co., Defendant-Appellant. FRANKENMUTH MUTUAL INSURANCE CO., a Michigan Insurance Corporation, Plaintiff-Appellee, v. Larry L. KOMPUS and Medical Protective Co., Defendants, and Alfred Mallett, Robert J. Hoag, Roger L. Ennes, Defendants-Appellants, and Aetna Life & Casualty Co., Defendant-Appellee. FRANKENMUTH MUTUAL INSURANCE CO., a Michigan Insurance Corporation, Plaintiff-Cross-Defendant, v. Larry L. KOMPUS, Defendant-Cross-Defendant, and Ohio Casualty Insurance, Defendant-Cross-Plaintiff, and West American Insurance, Defendant-Cross-Plaintiff, Cross-Defendant, Chubb & Son Inc., Cross-Defendant, and Vigilant Insurance Co., Defendant-Cross-Plaintiff-Appellant, and Aetna Life & Casualty Co., Defendant-Cross-Defendant-Appellee. FRANKENMUTH MUTUAL INSURANCE CO., a Michigan Insurance Corporation, Plaintiff-Appellant, v. Larry L. KOMPUS, Alfred Mallett, Joseph Stroud, Carl Winter, Ohio Casualty Ins., Aetna Life & Casualty Co., and Medical Protective Co., Defendants-Appellees. FRANKENMUTH MUTUAL INSURANCE CO., a Michigan Insurance Corporation, Plaintiff-Appellee, v. Larry L. KOMPUS, Alfred Mallett, Joseph Stroud, Carl Winter, Ohio Casualty Ins., West American Insurance, Vigilant Insurance Co., Defendants, and Medical Protective Co., Defendant-Appellant, and Aetna Life & Casualty Co., Defendant-Appellee. FRANKENMUTH MUTUAL INSURANCE CO., a Michigan Insurance Corporation, Plaintiff-Appellee, v. Larry L. KOMPUS, Alfred Mallett, Joseph Stroud, Carl Winter, and Ohio Casualty Insurance, Defendants, and West American Insurance Co., Defendant-Appellant, and Vigilant Insurance Company and Medical Protective Company, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch, & Clark by Mark E. Morley, Farmington Hills, for Frenkenmuth Mut. Ins. Co.
Collins, Einhorn & Farrell, P.C. by Brian Einhorn and Noreen L. Slank, Southfield, for Aetna Life and Cas. Co.
Zeff & Zeff, P.C. by Patrick J. Bruetsch, Detroit, for Alfred Mallett, Robert J. Hoag and Roger L. Ennes.
Moll, Desenberg, Bayer & Behrendt by Jon P. Desenberg, Detroit, for The Medical Protective Co.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by D.J. Watters and Mary Catherine Rentz, Detroit, for Vigilant Ins. Co.
Bell & Hertler by David C. Hertler, Pontiac, for West American Ins. Co.
Before BRONSON, P.J., and SHEPHERD and SWALLOW, * JJ.
This is a consolidated appeal as of right by several insurance companies and individuals pursuant to GCR 1963, 518.2. The appeals arose out of several orders declaring respective duties to defendant Dr. Larry Kompus, the insured, by the insurance companies involved.
During the period from 1973 to 1979, Kompus allegedly engaged in homosexual practices with several of his patients under the guise of therapy. Kompus was convicted The following insurance policies were in effect at the time of the alleged occurrences:
of third-degree criminal sexual conduct in connection with these activities. Lawsuits alleging assault, malpractice and other claims were filed against Kompus by five former patients: defendants Mallett, Hoag, Ennes, Stroud, and Winter.
(1) Frankenmuth Mutual Insurance Company--a homeowner's policy effective February 9, 1975, to February 9, 1977, and a Compak (commercial package) policy effective July 1, 1975, to July 14, 1976;
(2) Aetna Life and Casualty Company--a homeowner's policy effective February 10, 1977, to February 9, 1979, and a personal excess indemnity policy effective December 26, 1974, to December 26, 1978;
(3) West American Insurance Company--a special multi-peril policy (SMP) with a comprehensive general liability endorsement effective July 1, 1976, to July 1, 1979;
(4) Vigilant Insurance Company--a medical malpractice policy effective March 15, 1975, to May 1, 1975, and July 7, 1976, to May 1, 1980;
(5) Medical Protective Company--a medical malpractice policy effective July 15, 1971, to July 15, 1976;
(6) Ohio Casualty Insurance Company--umbrella coverage under a personal excess indemnity policy effective December 26, 1978, to December 26, 1981.
On December 9, 1980, Frankenmuth filed a complaint for declaratory relief, requesting a declaration of rights under the above policies. Ohio Casualty and West American filed a cross-complaint for declaratory relief.
On July 9, 1981, defendant Farm Bureau filed a motion for summary judgment, claiming that, based upon the effective termination date of its policy and the professional liability exclusion contained therein, it was not obligated to provide coverage to Kompus. On August 11, 1981, Vigilant filed a motion for summary judgment with respect to Farm Bureau, Frankenmuth, West American and Aetna, requesting a ruling that, as to those allegations of the complaint against Kompus not involving malpractice, the latter four named insurers had a duty to defend. On August 25, 1981, defendant Aetna filed a motion for summary judgment, contending that its homeowner and personal excess indemnity insurance provisions did not provide coverage for the incidents upon which the complaints were based.
Since the complaints against Kompus were all before the same circuit court judge, the Frankenmuth request for declaratory judgment was also assigned to that judge on August 25, 1981. On February 1, 1982, he issued his opinion on the motions for summary judgment and the complaint for declaratory judgment. Essentially, the court held that:
(1) Because insurance coverage under its homeowner policy was arguable, Frankenmuth had a duty to defend Kompus (with regard to incidents occurring during the effective dates of the policy) on Counts I and III of Mallett's complaint, Counts I and II of Hoag's complaint, Counts I, II, III, V, VI and VII of Ennes's complaint, and Counts VII through XX of Winter's complaint.
(2) Under its Compak policy, Frankenmuth had a duty to defend regarding incidents occurring in Kompus's medical office during the effective dates of the policy as alleged in Winter's complaint.
(3) Farm Bureau had no duty to defend under its SMP policy.
(4) Under its general liability endorsement policy, Farm Bureau had a duty to defend against Counts I and II of Hoag's complaint.
(5) Aetna's "business pursuits" clause in both its homeowner's and personal excess liability policies excluded all incidents from coverage, and Aetna had no duty to defend.
(6) West American and Ohio Casualty had no duty to defend against the malpractice counts because of the "professional service" exclusions in their policies. Both (7) The malpractice insurers--Medical Protective, Vigilant and Employers Commercial Union--had a duty to defend against malpractice claims arising from acts which occurred within the effective dates of coverage.
insurers had a duty to defend against other counts.
(8) Public policy would not be advanced by excusing the insurers from the above duties.
Ohio Casualty, Vigilant, Frankenmuth, Commercial Union and Farm Bureau moved for rehearing. Several of the other parties also joined in the motions. On March 25, 1982, the trial judge reaffirmed and clarified his earlier ruling that Aetna had no duty to defend against the Kompus complaints by virtue of the "business pursuits" exclusion. Reconsidering his earlier ruling, however, the trial judge ruled that, under a similar "business pursuits" clause, Frankenmuth had no duty to defend under its homeowner policy. It had a duty to defend only against the Winter complaint and only under its Compak policy.
On May 28, 1982, the trial judge entered an order granting Frankenmuth partial summary judgment on its complaint and denying Vigilant's and Medical Protective's motions for summary judgment against Frankenmuth. On June 11, 1982, an order denying Vigilant's motion for rehearing was entered.
On June 30, 1982, Aetna moved for accelerated and/or summary judgment against cross-plaintiff Vigilant. On August 10, 1982, the court granted the motion on the ground that Aetna owed no duty to defend against the Stroud complaint. By order of August 16, 1982, the court granted Vigilant's motion for summary judgment in part, directing the duties of defense (as set forth above) of the various carriers with regard to the respective Kompus complaints.
The following claims of appeal were filed:
(a) # 65090--By Vigilant, from the orders of May 28, 1982, and June 11, 1982.
(b) # 65269--By Mallett, Hoag and Ennes from the order of May 28, 1982.
(c) # 66471--By Vigilant, from the order of August 10, 1982.
(d) # 66509--By Frankenmuth, a cross-appeal, from the order of August 16, 1982.
(e) # 69239--By Medical Protective on January 26, 1983, an application for delayed appeal from the order of May 28, 1982. This Court granted the delayed appeal on March 8, 1983.
(f) # 66818--By West American, from the order of August 16, 1982.
On December 1, 1982, the trial judge issued his opinion on Farm Bureau's earlier motion for rehearing and granted Farm Bureau's motion for summary judgment. A stipulation to dismiss Farm Bureau's appeal (# 66703, from the order of August 16, 1982) was then presented and an order dismissing that appeal was entered on February 17, 1983. The remaining above cases were consolidated on appeal by this Court's orders of October 14, 1982, and March 8, 1983.
On appeal, this Court must determine whether Frankenmuth, Aetna and West American owe a duty to defend their insured (Kompus) in the lawsuits filed by defendant patients. We conclude that they do not.
Appellants Vigilant, Hoag, Mallett, Ennes and Medical Protective argue that...
To continue reading
Request your trial
-
Nationwide Mut. Ins. Co. v. Pasiak
...from business pursuit is that claim could not legally exist but for employer-employee relationship); Frankenmuth Mutual Ins. Co. v. Kompus, 135 Mich.App. 667, 677, 354 N.W.2d 303 (1984) (insured therapist "was able to commit the complained-of acts [against patients] apparently only because ......
-
Allstate Ins. Co. v. Freeman
...an "occurrence" under the policy before addressing any applicable exclusionary provisions. See Frankenmuth Mutual Ins. Co. v. Kompus, 135 Mich.App. 667, 354 N.W.2d 303 (1984); Western Casualty & Surety Group v. Coloma Twp, 140 Mich.App. 516, 521, 364 N.W.2d 367 (1985); Allstate Ins. Co. v. ......
-
MFRS. AND MERCHANTS MUT. INS. v. Harvey
...393, 558 N.E.2d 958 (1990). Michigan: Linebaugh v. Berdish, 144 Mich.App. 750, 376 N.W.2d 400 (1985); Frankenmuth Mut. Ins. Co. v. Kompus, 135 Mich. App. 667, 354 N.W.2d 303 (1984); State Mutual Insurance Co. v. Russell, 185 Mich.App. 521, 462 N.W.2d 785 (1990). Minnesota: Horace Mann Ins. ......
-
Horace Mann Ins. Co. v. Leeber
...Mich.App. 750, 376 N.W.2d 400 (1985) (sexual contacts, involving penetration, inflicted upon minor); Frankenmuth Mutual Insurance Co. v. Kompus, 135 Mich.App. 667, 354 N.W.2d 303 (1984) (homosexual acts, constituting criminal offenses, by psychiatrist against adult patients), appeal denied ......