Illinois State Medical Ins. Services, Inc. v. Cichon, 3-93-0399

• Court: United States Appellate Court of Illinois
• Citation: 196 Ill.Dec. 277,629 N.E.2d 822,258 Ill.App.3d 803
• Docket Number: No. 3-93-0399,3-93-0399
• Parties: , 196 Ill.Dec. 277 ILLINOIS STATE MEDICAL INSURANCE SERVICES, INC., As Attorney-in-Fact for Illinois State Medical Inter-Insurance Exchange, Plaintiff-Appellee, v. Joseph J. CICHON, D.O., G.H., a Minor, by her Mother and Next Friend, R.H., and R.H., individually; N.B., individually and as Mother and Next Friend of A.B., a Minor Child, and R.B., individually; Deanne Moore; A.J., a Minor, by her Mother and Next Friend, J.P.; J.F., a Minor, by her Mother and Next Friend, K.N.; C.B., a Minor, by her Mother and Next Friend, L.B.; Angelea Gillis; S.K., a Minor, by her Mother and Next Friend, C.K.; C.K., a Minor, by her Mother and Next Friend, L.K.; Leonda Kilpatrick; Lisa Thacker; and Leita Allen, Defendants-Appellants.
• Decision Date: 18 February 1994

Page 822

629 N.E.2d 822 258 Ill.App.3d 803, 196 Ill.Dec. 277 ILLINOIS STATE MEDICAL INSURANCE SERVICES, INC., As
Attorney-in-Fact for Illinois State Medical
Inter-Insurance Exchange, Plaintiff-Appellee,
v.
Joseph J. CICHON, D.O., G.H., a Minor, by her Mother and
Next Friend, R.H., and R.H., individually; N.B.,
individually and as Mother and Next Friend of A.B., a Minor
Child, and R.B., individually; Deanne Moore; A.J., a
Minor, by her Mother and Next Friend, J.P.; J.F., a Minor,
by her Mother and Next Friend, K.N.; C.B., a Minor, by her
Mother and Next Friend, L.B.; Angelea Gillis; S.K., a
Minor, by her Mother and Next Friend, C.K.; C.K., a Minor,
by her Mother and Next Friend, L.K.; Leonda Kilpatrick;
Lisa Thacker; and Leita Allen, Defendants-Appellants. No. 3-93-0399. Appellate Court of Illinois,
Third District. Feb. 18, 1994.

Page 824

[258 Ill.App.3d 804] [196 Ill.Dec. 279] James R. Lindig (argued), Law Offices of Peter F. Ferracuti, P.C., Ottawa, for G.H., R.H., S.T., Cheryl Taylor, A.J., J.P., J.F., K.N., C.B., L.B., Angelea Gillis, S.K., C.K., C.K., Leonda Kilpatrick.

Michael P. Reynolds (argued), Neil E. Holmen, Winston & Strawn, Chicago, for Ill. State Medical Ins. Services.

Louis L. Bertrand, Anthony C. Raccuglia & Associates, Peru, for N.B., A.B., R.B., Deanne Moore, Lisa Thacker, Leita Allen.

Carl W. Telford, Law Offices of Carl Wm. Telford, Ltd., LaSalle, for Joseph Jerome Cichon.

Justice LYTTON delivered the opinion of the court:

This appeal arises out of a dispute concerning professional [258 Ill.App.3d 805] liability insurance coverage under a policy issued by Illinois State Medical Insurance Services, Inc., (insurer) to Dr. Joseph J. Cichon, D.O. After 13 actions alleging medical negligence were filed against Dr. Cichon in LaSalle County, the insurer brought a declaratory judgment action to determine whether it is obligated under the policy to defend and indemnify Dr. Cichon for any liability he may incur in those actions. The trial court entered summary judgment in favor of the insurer as to nine of the original plaintiffs (claimants), holding that two policy exclusions relieve the insurer of liability, and those claimants appeal from that judgment. The insurer cross-appeals from the trial court's denial of summary judgment as to three additional defenses to coverage. We reverse in part and affirm in part.

FACTUAL BACKGROUND

The underlying causes of action reveal a variety of circumstances giving rise to the claims of medical malpractice.

(1) G.H., a minor, alleges that she was erroneously diagnosed by Dr. Cichon as suffering from a curvature of the spine, that during 1987 and 1988 he used a thermographic camera for purposes of diagnosis and that he rubbed lotion and salves on her back, buttocks and chest when such treatment was not necessary.

(2) S.T., a minor, also alleges an erroneous diagnosis of curvature of the spine and the taking of photographs and the rubbing of lotions and salves on her back and chest during 1989.

(3) A.J., a minor, similarly alleges a misdiagnosis of curvature of the spine, and additionally alleges that during 1987 through 1989, Dr. Cichon performed a rectal examination without use of gloves or lubricants, purportedly to determine whether she had a yeast infection although such an exam was not a medically necessary technique.

(4) J.F., a minor, alleges that she was erroneously diagnosed as suffering from an abnormal condition causing her to grow prematurely to a state of physical womanhood, that during 1989 and 1990 he manipulated her breasts, buttocks and pelvic area, that he spanked her, and that he instructed her mother to perform various manipulations of her breasts, all for no proper medical purpose.

(5) C.B., a minor, alleges that she sought treatment for stomach pains, that Dr. Cichon failed to conduct a proper examination, and that during 1990 he performed various manipulations and digital penetrations without use of gloves or lubricants for no proper medical purpose.

(6) Angelea Gillis, a developmentally disabled adult, alleges that she was misdiagnosed as suffering from appendicitis, that during 1990 he performed a rectal examination and manipulation of her [258 Ill.App.3d 806] vaginal and rectal areas without gloves, all of which had no proper medical purpose.

Page 825

[196 Ill.Dec. 280] (7) S.K., a minor, alleges that she was misdiagnosed as having a skin disease, that during June and July of 1989 his treatment included applying salves and lotions to her breasts, vagina and buttocks and using ultraviolet light therapy, and that he performed various invasive manipulations, all with no proper medical purpose.

(8) C.K., a minor, alleges that she was misdiagnosed as having a freckling or sunblock condition, that during 1990 he treated her by means of invasive manipulations and application of salves and lotions to her buttocks and vaginal area, and that he took photographs and videotapes of the purported treatment, all with no proper medical purpose.

(9) Leonda Kilpatrick alleges that she consulted Dr. Cichon for back pain, that she was misdiagnosed as having a misalignment of pelvic muscles, that between April of 1989 and June of 1990 he inserted suppositories without gloves or lubricants, that he applied salves and lotions to her vaginal area and buttocks, that he inserted his hand in her vaginal area, and that he administered morphine, none of which was necessary for the treatment of any condition of ill-being.

The insurer's complaint for declaratory judgment sought an adjudication of its duty to defend and indemnify Dr. Cichon with regards to the medical negligence actions under the professional liability policy issued to him.

The insurer sought to deny coverage on five grounds: (1) the policy does not apply to liability arising out of any conduct of a sexual nature; (2) the insured failed to notify the insurer of his drug addiction; (3) as to seven of the claims, the insured did not give insurer notice of the claims within the policy period; (4) the claimants have only alleged psychological injuries, not bodily injuries; (5) acts or omissions which are a violation of a criminal statute are not covered.

After the claimants filed their answers to the complaint, the insurer filed a motion for summary judgment on all counts. Claimants responded and filed a cross-motion for summary judgment. The trial court ruled that the insurer had no duty to indemnify Dr. Cichon for any liability arising out of these claims because the policy excludes liability for conduct of a sexual nature and also because he failed to notify the insurer of his substance abuse problem. The court denied the claimants' cross-motion for summary judgment.

1. DECISION NOT PREMATURE

The claimants first contend that the trial court's determination that the insurer has no duty to indemnify its insured should not have [258 Ill.App.3d 807] been made until his medical malpractice liability has been determined. They rely upon the rule set forth in Bituminous Casualty Corp. v. Fulkerson (1991), 212 Ill.App.3d 556, 561, 156 Ill.Dec. 669, 673, 571 N.E.2d 256, 260, as follows:

"The duty to indemnify arises only when an insured becomes legally obligated to pay damages in the underlying action. [Citation.] Accordingly, it has been held that '[a] declaratory judgment action to determine an insurer's duty to indemnify its insured, brought prior to a determination of the insured's liability, is premature since the question to be determined is not ripe before adjudication.' [Citations.]" Accord, Weber v. St. Paul Fire & Marine Ins. Co. (1993), 251 Ill.App.3d 371, 190 Ill.Dec. 656, 622 N.E.2d 66.

Thus, it would appear that insurer here is premature in seeking a declaratory judgment as to its duty to indemnify prior to a determination of liability in the underlying actions.

However, insurer argues, and we agree, that this case comes within an exception to the general rule which was recognized in Murphy v. Urso (1982), 88 Ill.2d 444, 455, 58 Ill.Dec. 828, 833, 430 N.E.2d 1079, 1084. There the court held that the question of coverage can appropriately be decided in a declaratory judgment action where the issues in the underlying suit are separable from those in the collateral proceeding. According to Murphy, the test is whether collateral estoppel would operate. If the issues are substantially the same so that collateral estoppel would apply to control the resolution of issues in the underlying suit, declaratory judgment would be premature. Such is not the case here.

Page 826

[196 Ill.Dec. 281] The issues in this declaratory judgment action are whether: (1) the medical malpractice complaints allege...