Gulf Insurance Co. v. Gold Cross Ambulance Service Co.

• Citation: 327 F. Supp. 149
• Decision Date: 28 May 1971
• Docket Number: Civ. No. 70-359.
• Court: U.S. District Court — Western District of Oklahoma
• Parties: GULF INSURANCE COMPANY, a corporation, Plaintiff, v. GOLD CROSS AMBULANCE SERVICE COMPANY, a corporation, and Irene Ward, Defendants.

327 F. Supp. 149

GULF INSURANCE COMPANY, a corporation, Plaintiff, v. GOLD CROSS AMBULANCE SERVICE COMPANY, a corporation, and Irene Ward, Defendants.

Civ. No. 70-359.

United States District Court, W. D. Oklahoma.

May 28, 1971.

James W. Shepherd and George W. Dahnke of Foliart, Shepherd, Mills & Niemeyer, Oklahoma City, Okl., for plaintiff.

Richard Morris of Fulkerson & Morris, Oklahoma City, Okl., for defendant Gold Cross Ambulance Service.

Ed Abel of Lampkin & Wolfe, Oklahoma City, Okl., for defendant Irene Ward.

MEMORANDUM OPINION

EUBANKS, District Judge.

This is an action for a declaratory judgment, pursuant to 28 U.S.C. § 2201, brought by Gulf Insurance Company, a corporation organized and having its principal place of business outside of the State of Oklahoma hereinafter called "Gulf" against Gold Cross Ambulance Service, Inc., a corporation organized and existing under the laws of the State of Oklahoma hereinafter called "Gold Cross", and Irene Ward, a citizen of Oklahoma. This Court has jurisdiction of this cause by virtue of diversity of citizenship, 28 U.S.C. § 1332, the requisite diversity and amount in controversy having been found to exist.

Gulf seeks a declaratory judgment by this Court that a certain insurance policy, No. GA 5 39 88 05, commonly known as a General-Automobile Liability Policy, issued by Gulf to Gold Cross and in full force and effect on May 11, 1970, does not obligate Gulf to appear for or defend Gold Cross in a pending state action or any other suit therein seeking damages on account of alleged injury to or death of one Elvis Ward, deceased, nor to pay any judgment which may be rendered against Gold Cross in any such suit.

The action in the state court, styled, Irene Ward, wife and next surviving kin of Elvis Ward, deceased, vs. Gold Cross Ambulance Service, Inc., No. CJ-70-1869 in the District Court in and for Oklahoma County, Oklahoma, grows out of an occurrence of May 11, 1969, on which date Elvis Ward, deceased, husband of Irene Ward, became ill and died. The plaintiff alleges in her petition therein, that on said date, pursuant to her request, an ambulance owned by Gold Cross and driven by its employees arrived at her home but that said employees refused to transport her husband to the hospital and negligently caused his death in that they knew or should have known that plaintiff's husband was in acute distress and that any delay in transporting him to the hospital would likely cause his condition to deteriorate or cause his death, for which acts of alleged negligence plaintiff seeks to recover damages.

The insurance policy, respecting which Gulf seeks a declaratory judgment, contains an "Exclusion" sub-styled "Malpractice and Professional Services", which provides that the policy does not cover bodily injury due to rendering of or failure to render any service of a professional nature. Gulf contends that the circumstances giving rise to the suit in the state court fall within the "Exclusion". The interpretation of an insurance policy, like any other contract, is a question for the court. Western Casualty & Surety Co. v. Pacific Employers Ins. Co., D.C.Okl., 1951, 97 F.Supp. 956. The coverage of such a policy, absent a statutory mandate, is governed by the terms and conditions of the insurance contract. Freedom of contract is the general rule. The parties may delineate coverage or noncoverage as they see fit subject only to limitations prescribed by public policy. In Fidelity and Casualty Company of New York v. Reece, CA 10, 1955, 223 F.2d 114, Judge Murrah said:

Parties may contract to extend or limit insurance liability risks as they see fit, and the issue to be determined here—the scope of liability insurance —is determined from the contractual intent and objectives of the parties as expressed in the policy and its endorsement. Citations omitted Doubtful or ambiguous provisions defining or limiting the scope of the risk must weigh against the insurer. Citations omitted But the extent or limits of the risks, if unambiguous, must be accepted in their plain, ordinary and popular sense, and liabilities clearly not contemplated under a fair and reasonable interpretation of the contract with its omnibus provisions may not be imposed upon the contracting parties. Citations omitted

The court now turns to consideration of the meaning of the language used in the "Exclusion". The policy contains a section dealing with the definition of words and phrases used, e. g. "automobile", "bodily injury", etc. It does not, however, define the phrase "service of a professional nature" which appears in the "Exclusion". The meaning is to be found in the context in which the phrase appears. The exclusion relied on by Gulf is one among many covering injuries to property as well as bodily injuries, of which all are headed, in bold-faced capital letters as "EXCLUSION". "Exclusion" is singular, not plural, in number. Immediately beneath the bold-faced capital-lettered caption styled "EXCLUSION", bracketed in smaller black letters, appears the phrase "Malpractice and Professional Services". "Malpractice" appears first. It is singular in form. "Professional services" appears second and in plural form.

The "Exclusion" is lengthy but is stated in a single sentence of 102 words. It recites the effective date, the policy number, the names of the insured and insurer, and thereafter reads as follows:

It is agreed with respect to any operation described above or designated in the policy as subject to this endorsement, the insurance does not apply to bodily injury or property damage due to

1. the rendering of or failure to render

(a) medical, surgical, dental, x-ray or nursing service or treatment, or the furnishing of food or beverages in connection therewith;

(b) any service or treatment conducive to health or of a professional nature; or

(c) any cosmetic or tonsorial service or treatment;

2. the furnishing or dispensing of drugs or medical, dental or surgical supplies or appliances; or

3. the handling of or performing of autopsies on dead bodies.

The EXCLUSION recites an agreement respecting operations described or designated in the policy to which "the insurance does not apply." As to such operations the policy does not cover either bodily injury or property damage. The function word "or" is repeated 16 times in the exclusionary sentence. The result is that there are 116 possible operations of the insured to which "the insurance does not apply." Respecting liability for bodily injury, numerical section 1b contains eight exclusions of which two are "the rendering of or failure to render * * * any service * * * of a professional nature." The basic contention of Gulf is that Gold Cross, on May 11, 1970, in doing the acts complained of in the state case, was engaged in rendering "service of a professional nature." Gulf contends that, on May 11, 1970, the operation of an ambulance service by Gold Cross, "for the purpose of delivering ill and disabled persons for hospital treatment is a `service conducive to health or of a professional nature'" and that numerical part 1b of the EXCLUSION is applicable.

It is not without significance that the bracketed subtitle "Malpractice and Professional Services" is printed immediately beneath "Exclusion". "Malpractice" appears first in the sub-title. "Malpractice" is the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent member of the profession with the result of injury to the recipient of those services. Webster's Third New International Dictionary of the English Language, unabridged, 1966. It was originally applied only to physicians but is now applied to all professions and even to non-professionals who have special skills.

Sub-section 1a of the exclusionary endorsement does not limit "malpractice" to physicians but includes as well "medical, surgical, dental, x-ray or nursing services." In reading the enumeration one thinks in terms of help to somebody hurt or sick or being treated. The reader thinks of a liability hazard of the same kind as suggested by the malpractice of physicians. In that context, the phrase in 1b "any service or treatment conducive to health or of a professional nature" leads the reader along the same channel of thought, i. e. of somebody being treated for hurts or sickness. In short, in reading 1a and 1b one thinks of injuries, attendant service or treatment in the healing arts. The EXCLUSION was written by experienced draftsmen. If it was their intent to equate "ambulance service" and "professional service" they could have included "ambulance service" in numerical part 1a immediately following the listing of "nursing service." That is the place in the sequence at which it would appear properly to belong if exclusion had been intended.

Ambulance "service" generally is not professional in nature. In cases where ambulance attendants administer oxygen or administer hypodermics the acts may be professional service although the attendants may not be professional men. The word "service" connotes work. Not all work is professional. "Professional service" traditionally, and as generally understood, means work requiring knowledge of an advanced type in a field of learning or science customarily acquired by a prolonged course of study of specialized intellectual instruction as distinguished from training in the performance of routine, manual, or physical processes.

"Professional service" is said to be predominantly intellectual in character as opposed to physical. The courts have so held. In Marx v. Hartford Accident and Indemnity Co., 1968, 183 Neb. 12, 157 N.W.2d 870, in holding that an employee technician was not, in refilling a hot water sterilizer, "rendering or failure to render professional services", the court said:

A professional act or service is one arising out of a vocation, calling, occupation

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