Pinheiro v. Medical Malpractice Joint Underwriting Ass'n of Massachusetts

• Decision Date: 14 December 1989
• Citation: 406 Mass. 288,547 N.E.2d 49
• Parties: Edward PINHEIRO et al. 1 v. The MEDICAL MALPRACTICE JOINT UNDERWRITING ASSOCIATION OF MASSACHUSETTS (and a companion case 2 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 49

547 N.E.2d 49

406 Mass. 288

Edward PINHEIRO et al. ¹ v. The MEDICAL MALPRACTICE JOINT UNDERWRITING ASSOCIATION OF MASSACHUSETTS (and a companion case ²).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 12, 1989.

Decided Dec. 14, 1989.

Acheson H. Callaghan (Steven L. Schreckinger, Boston, with him), for defendant.

Michael E. Mone (Rhonda J. Traver, Boston, with him), for Agnes P. O'Connor, administratrix, and others.

Steven L. Hoffman, Boston, for plaintiffs.

James L. Ackerman, David B. Broughel, Boston, and Kathryn A. O'Leary, for American Universal Ins. Co. and another, amici curiae, submitted a brief.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

In these cases, we are called on to decide the scope of a limitation of liability provision in a medical malpractice insurance policy issued by The Medical Malpractice Joint Underwriting Association of Massachusetts (JUA). The provision in question reads as follows:

"The limit of liability stated in the declarations as applicable to 'each claim' is the limit of the company's liability for loss resulting from any one claim or suit or all claims or suits because of injury to or death of any one person."

Specifically, we must decide whether the patient's claim for malpractice, and any claim for the loss of the patient's consortium brought by a spouse or child, constitute a single "claim" or separate "claims" for purposes of the limitation. The answer to this question determines whether the malpractice plaintiff and the consortium plaintiff or plaintiffs each may recover up to the policy's stated limit for "each claim" or whether their aggregate recovery is confined to a single amount. We conclude that the malpractice and consortium claims are distinct and separate claims, each of which is subject to separate "per claim" limits of recovery under the terms of the JUA policy.

The facts have been agreed on and may be summarized as follows.

The Pinheiro case. Edward Pinheiro was treated by a physician in 1976. Pinheiro subsequently sued the physician for negligence, claiming damages for pain and suffering, loss of income, and medical expenses. Additionally, Pinheiro's wife, Maria, and his daughter, Suzanne, brought claims for loss of consortium. At the time he treated Pinheiro, the physician was insured under a 1975 JUA policy which included a liability limit of $100,000 for "each claim" and an "annual aggregate" limit of $300,000. JUA has conditionally settled the claims brought by the Pinheiros, and will pay Maria and Suzanne an agreed-on amount if it is judicially determined that their consortium claims are separate claims under the applicable policy.

The O'Connor case. In 1978, Edward J. O'Connor was treated by a physician. He died the following year, and his widow, as administratrix and individually, sued the physician for negligence, wrongful death, and loss of consortium. A jury returned a verdict for the plaintiff on all claims. The physician was insured under a 1977 JUA policy. The insurer has paid the per claim limit of the policy toward the judgment and has submitted the question of its liability on the remaining unpaid amount, which pertains to the consortium claim, for judicial determination. With these facts established, a judge of the Superior Court reported the coverage question to the Appeals Court. We granted an application for direct appellate review.

1. The JUA's position that the plain language of the limitation precludes a ruling that a consortium claim is a separate "claim" is principally based on two portions of the limitation: (1) the language which concerns a loss resulting from claims "because of injury to or death of any one person," and (2) the language which applies to a loss resulting "from all claims or suits." We discuss each in turn.

"injury to or death of any one person"

The JUA argues that "[i]n the context of a medical malpractice policy, this ... phrase ['injury to or death of any one person'] is not ambiguous and refers to the primary injury, which will ordinarily be a physical injury to or death of the physician's patient." Although the JUA acknowledges, as it must, that the term "injury," as used in its policy, encompasses injuries other than bodily injuries, ³ the JUA's brief consistently argues that their policy should be construed in the context of the "typical malpractice situation in which the patient suffers physical injury or death." In attempting to analogize the policy's language to that of an automobile insurance policy we construed in Liberty Mut. Ins. Co. v. Commissioner of Ins., 395 Mass. 765, 481 N.E.2d 1373 (1985), the JUA argues that, in the Liberty Mut. context, "the phrase 'injury to one person' is not ambiguous, any more than the language of the JUA policy is ambiguous. In context, they both clearly refer to physical injury" (emphasis in original). This interpretation of the words "injury" and "person" would prevent a consortium plaintiff's suit from constituting a separate "claim" because the consortium plaintiff suffered no physical injury and was not a patient of the insured physician. The only independent "claim" would belong to the bodily-injured patient--the malpractice plaintiff. Based on this analysis, JUA concludes that the consortium plaintiff's right to recover under the policy is essentially derivative--that it arises "because of" the injury to the patient--and thus must be consolidated with the malpractice plaintiff's action for purposes of limiting JUA's liability for "each claim."

The obvious difficulty with this interpretation is that the provision purports to cover claims resulting from an "injury to ... any one person" (emphasis added). Thus the provision, by its express language, recognizes that there may be more than one person who suffers an "injury" because of a single act of malpractice. To be sure, the provision encompasses the claim or claims made by the patient. ⁴ But it also encompasses the claim or claims of any other person who is harmed as the result of the malpractice. It is settled that a consortium plaintiff suffers an injury which is separate and distinct from the loss incurred by the injured spouse or patient. ⁵ The limitation straightforwardly promises to pay up to the policy limit for a single claim or multiple claims stemming from the "injury" incurred by each "person" as a result of the malpractice. Although the JUA would like to have the limitation read to substitute the word "patient" for "person," or to insert the word "bodily," or the word "physical," before the word "injury," the clause must be construed as written. See Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605-606, 373 N.E.2d 966 (1978); Ober v. National Casualty Co., 318 Mass. 27, 30, 60 N.E.2d 90 (1945). We conclude that use of the words "injury to ... any one person" in the JUA limitation, fairly and reasonably construed, see Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982), provides that each consortium plaintiff has a separate claim for limitation of liability purposes. ⁶

"all claims or suits"

JUA also relies on the "all claims or suits" language in the limitation as requiring a conclusion in its favor. The use of the plural in this phrase, contends JUA, means that all causes of action brought as a result of a single instance of malpractice constitute only one "claim" for limitation of liability purposes regardless of how many individual plaintiffs are involved.

The JUA's interpretation of this language is reasonable; but it is not the only reasonable interpretation. The language also could be interpreted as stating that "all claims or suits" brought by one person will be treated as a single "claim" for limitation of liability purposes. This interpretation also draws support from the policy language itself. The policy applies an "each claim" limit to "all claims or suits because of injury to ... any one person " (emphasis added). Because a malpractice plaintiff and a consortium plaintiff are separate "person[s]," it is reasonable to read the policy as applying a separate "each claim" limit to (1) "all claims or suits because of injury to [the malpractice plaintiff]," and (2) "all claims or suits because of injury to [the consortium plaintiff]." Under this interpretation, the "all claims or suits" language would serve to preclude an individual plaintiff from alleging several theories of recovery and maintaining that each theory constituted a separate "claim" under the policy language. ⁷ The JUA's contrary interpretation of its limitation clause as "establish[ing] the maximum loss to which the JUA may be exposed from any single act of malpractice by an insured physician," effectively ignores this point and the limiting phrase "any one person." In agreeing with that interpretation, the dissenting opinion does likewise.

Because the "all claims or suits" language is susceptible of at least two reasonable interpretations, JUA is faced with the long-standing rule that, in construing unclear language in an insurance policy, the insured must be favored over the insurer. ⁸ See Morin v. Massachusetts Blue Cross, Inc., 365 Mass. 379, 384, 311 N.E.2d 914 (1974); Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 147, 279 N.E.2d 686 (1972); King v. Prudential Ins. Co., 359 Mass. 46, 50, 267 N.E.2d 643 (1971); Palmer v. Pawtucket Mut. Ins. Co., 352 Mass. 304, 306, 225 N.E.2d 331 (1967). For obvious reasons, we adhere closely to this rule in cases like these, where an insurer is attempting severely to restrict coverage under its policy. See Morin v. Massachusetts Blue Cross, Inc., supra at 389-390, 311 N.E.2d 914. We conclude that the "all claims or suits" language in the limitation means that no matter how many claims "any one person" has because of an "injury" resulting from a physician's malpractice, the insurer will pay damages (loss) to that...