International Chiropractors Ins. Co. v. Gonstead
| Decision Date | 02 March 1976 |
| Docket Number | No. 618,618 |
| Citation | 71 Wis.2d 524,238 N.W.2d 725 |
| Parties | INTERNATIONAL CHIROPRACTORS INSURANCE COMPANY, Respondent, v. Clarence S. GONSTEAD, D.C. and Douglas B. Cox, D.C., Appellants, Gonstead Chiropractic Clinic et al., Defendants. (1974). |
| Court | Wisconsin Supreme Court |
Robert R. Studt and Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, for appellant, Douglas B. Cox, D.C.
Axley, Brynelson, Herrick & Gehl, Madison, for respondent.
This is an insurance coverage case. The general issue on appeal is whether the plaintiff-respondent, International Chiropractors Insurance Company, insured Douglas Cox, a Mount Horeb chiropractor, against chiropractic malpractice in its insurance policy issued to Clarence Gonstead, a chiropractor with whom Cox was associated in chiropractor practice. It did not. We therefore affirm the trial court ruling against coverage in a declaratory judgment action commenced by the plaintiff-respondent insurance company against the defendant-appellants Douglas Cox and Clarence Gonstead, and the defendants Gonstead Chiropractic Clinic, Karakahl, Inc., and Tamara and John Tatarchuk. The dispute arises from alleged chiropractic malpractice in connection with treatment of Tamara Tatarchuk by Douglas Cox during July of 1972. The Tatarchuks had commenced a lawsuit for alleged chiropractic malpractice against Douglas Cox (at a later date Clarence Gonstead was added as a party defendant in the Tatarchuk litigation and was subsequently dismissed). Defense of this action was tendered to the plaintiff-respondent company, and after denying coverage that company commenced the declaratory judgment action seeking a ruling to the effect that its policy did not cover the activities of Cox as a chiropractor.
The primary question on this appeal is whether the malpractice insurance policy issued in 1968 and insuring Gonstead provided coverage for the alleged malpractice of Cox. In his 1968 application for a malpractice insurance policy issued by the plaintiff-respondent company, Gonstead, who was a practicing chiropractor in Mount Horeb, Wisconsin, and a major figure at the Gonstead Clinic, listed under the designation 'Additional Assistants to be covered under this Policy,' the name of Cox and other chiropractors practicing at the clinic. He left blank that part of the application which requested a 'Short Statement as to Partnership or other Chiropractic Business Relationship.'
The policy relevant to this appeal was issued on October 1, 1971, and provided coverage until October 1, 1972. It listed only Gonstead as the insured. Under Item 2, 'Names of Nurses, Technicians or Receptionists,' Cox was listed, along with other chiropractors and technicians at the Gonstead Clinic. The policy provided that the coverage was being provided 'in consideration of the representations made in the application of the Insured herein,' and in consideration of the premium payment. The extent of coverage was defined as follows:
'. . . against all sums which the Insured shall become obligated to pay by reason of the liability imposed by law from any claim against the Insured for damages on account of any malpractice in connection with professional services rendered or agreed to be rendered to a patient by the Insured as a chiropractor, including the acts of any technician or nurse employed by Insured while acting under his direction . . ..'
The policy also included the following exclusion:
'No liability shall be accepted by the Company on account of liability to the Insured arising out of agency, partnership or employment.'
Cox was neither a chiropractor's assistant nor a chiropractic technician. He was a licensed chiropractor, and practiced his profession along with the other chiropractors at the clinic.
The plain and simple provisions of the policy make it abundantly clear that Cox's personal liability for alleged malpractice as a chiropractor is not covered by the policy. The policy clearly and unambiguously lists Gonstead as the one named insured, as did the application. Gonstead is covered for sums which he may be obligated to pay for 'any malpractive in connection with professional services rendered or agreed to be rendered to a patient by the Insured as a chiropractor, including the acts of any technician or nurse employed by Insured while acting under his direction.' He is thus covered for any personal liability and for any vicarious liability which may be imposed upon him for the negligence of his assistants while acting under his direction. In other words, this is an individual malpractice insurance policy. Neither the Gonstead Clinic as a separate entity nor Cox as a chiropractor are directly covered.
When the terms of an insurance policy are plain on their face the policy should not be rewritten by courts to bind the insurer to a risk it was unwilling to assume and for which it was not paid. 1 When the provisions of the policy itself are not in any way ambiguous, there is no need to resort to technical rules of construction or to consider extrinsic evidence. The proper procedure is for the court to interpret the words of the policy from the point of view of a reasonable person in the position of the insured. 2
It is true that Cox is listed as a nurse, technician, or receptionist in the policy, and as an assistant in the application. He is in fact neither a chiropractic technician nor a chiropractic assistant, as those terms would be understood by Gonstead, Cox, or any chiropractor. Even if the assumption is made that Cox could under certain circumstances function as Gonstead's employee-assistant, it is clear that the policy would not cover him directly, but would indemnify Gonstead, and only in situations where the assistant or technician is 'acting under his direction.'
It is evident that Cox was not 'acting under (the) direction' of Gonstead in his treatment of Tamara Tatarchuk. Tamara Tatarchuk came to the clinic and asked for Cox personally. He regarded her as his patient and took full responsibility for her treatment. He diagnosed and treated her as a chiropractor, and not as a chiropractor's assistant or technician. The only connection of Gonstead to this treatment came in an X-ray consultation initiated by Cox, and this fact alone did not reduce Cox to an employee-assistant acting under the direction of Gonstead. Cox's treatment of Tamara Tatarchuk is not covered by the terms of Gonstead's malpractice policy.
The appellants raise the further propositions for the first time on this appeal that (a) the insurance company is equitably estopped from denying that Cox is directly and personally...
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