Rivera v. Nevada Medical Liability Ins. Co.

Decision Date27 June 1991
Docket NumberNo. 21183,21183
Citation814 P.2d 71,107 Nev. 450
PartiesElizabeth Ann RIVERA, Appellant, v. NEVADA MEDICAL LIABILITY INSURANCE COMPANY, Respondent.
CourtNevada Supreme Court

ROSE, Justice:

Appellant Elizabeth Ann Rivera (Rivera) went to see her gynecologist on Saturday January 2, 1988, because she noticed a dark discharge from her breast. Dr. Kimble McNair (McNair) performed a breast, vaginal, and rectal examination on Rivera. McNair informed her that the results of her examination were favorable, but that he was concerned that he may have injured her during the rectal examination and needed to examine her again. Then McNair pulled Rivera across the table with her face down and sodomized her.

After this incident, Rivera contacted Rape Crisis and filed a police report and a medical malpractice complaint before the Nevada Medical-Legal Screening Panel. Dr. McNair was subsequently convicted of sexual assault.

At the time of the incident, respondent Nevada Medical Liability Insurance Company (NMLIC) insured McNair for professional liability. The policy covered damages incurred by the insured "as a result of claims made against the insured because of injury arising out of the rendering or failure to render professional services by the insured performed in the practice of the insured's profession." The policy contained a list of twenty-three exclusions, three of which are pertinent to this case. These three exclude coverage for criminal acts, intentional injuries, and sexual acts which arise out of the rendering of professional services. The exact wording of the exclusions are as follows:


This insurance does not apply:


(k) to claims made against an insured which resulted from the performance of a criminal act or services rendered while under the influence of any intoxicants, narcotics or psychoactive drugs;


(o) to claims made against an insured which result from the commission, authorization, or ratification of any act intended by the doer thereof or by the insured to inflict injury or damage;


(r) to claims made against an insured which result from sexual intimacy, sexual molestation, sexual harassment, sexual exploitation, or sexual assault....

Rivera filed a declaratory relief action asking the district court to find that NMLIC must provide coverage for this sexual assault. The court granted NMLIC's motion for summary judgment, holding that NMLIC's policy did not cover McNair's action. Rivera now appeals, asserting that she should recover under McNair's policy because (1) coverage is proper when the sexual act is so much a part of the rendering of professional services that it is considered malpractice; (2) the "arising out of" language in the policy is ambiguous and therefore must be construed generally, and in Rivera's favor; (3) McNair did not intend injury, making exclusion "o" inapplicable; and (4) the need to compensate the victim should make the criminal and sexual act exclusions ("k" and "r") void as a matter of public policy. We conclude that none of these contentions have merit and affirm the order of the district court.


Rivera asserts that her injury is covered by the policy because it resulted from the rendering of professional services. The policy states that it covers acts that "arise out of the rendering of or failure to render professional services." Rivera asserts that the term "arising out of" is broader than the term "caused by." Cf. Carter v. Bergeron, 102 N.H. 464, 160 A.2d 348 (1960) (arising out of only means that the use was connected with the injury); MANUFACTURERS Cas. Ins. Co. v. Goodville Mut. Cas. Co., 403 Pa. 603, 170 A.2d 571, 573 (1961) (arising out of means causally connected and not proximately caused by). Therefore, the terms of the policy require only a general causal connection between the injury and the services, and the ambiguous term "arising out of" must be construed against the insurer and cover McNair's act.

NMLIC denies that the sexual assault arose out of the rendering of professional services. However, NMLIC need not make this argument. 1 The policy specifically excluded coverage for sexual misconduct. Even though NMLIC's policy has broad language that otherwise might cover McNair's act, the exclusions preclude coverage in this case.

Rivera asserts that the exclusions only preclude coverage for injuries that stem from tortious conduct which is separate and distinct from the rendering or failure to render professional services. In fact, NMLIC would not need to exclude a separate and distinct act like a rape outside the office, because such an act would not fall within the purview of a professional liability policy. Therefore, when the policy excludes sexual assault, it specifically means sexual assault that arises out of professional services.

One court did find that a gynecologist's act of sexual misconduct was covered by his malpractice policy. St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 720 P.2d 540 (1986). However, in that case, the policy contained no exclusions for injuries that result from unprofessional acts. Id. 720 P.2d at 541. Since this policy specifically excludes sexual misconduct in three separate clauses, the reasoning in Asbury does not apply in this case.


Rivera contends that exclusion "o," the intent to injure clause, does not apply because McNair intended the rape, but not her injuries. Some courts have held that intent to injure must be proved even in a case of sexual misconduct. State Auto Mut. Ins. Co. v. McIntyre, 652 F.Supp. 1177 (N.D.Ala.1987) (intentional injury exclusion does not apply to all injuries which are the natural and probable consequences of an act; instead, it applies when the insurer proves intent); Allstate Ins. Co. v. Troelstrup, 768 P.2d 731, 732 (Colo.App.1988) (intentional injury exclusion did not apply to the sexual molestation of minors because the insured had no subjective intent to cause harm).

However, at least five jurisdictions have held to the contrary. 2 The courts in those states determined that intent to injure is inferred when an insured commits a sexual assault on a minor. Although Nevada has no case law on point, two federal cases have interpreted Nevada law to hold the same way. State Farm Fire & Cas. Co. v. Smith, 907 F.2d 900 (9th Cir.1990) (Nevada law conclusively presumes that molesting a child is harmful in every case--NRS 201.230 (lewdness with a minor)); Allstate Ins. Co. v. Foster, 693 F.Supp. 886 (D.Nev.1988) (lewdness with a minor is so nearly certain to produce injury that intent to injure is inferred).

At least one court inferred injury when an adult was the victim of a sexual assault. Altena v. United Fire and Cas. Co., 422 N.W.2d 485 (Iowa 1988) (an act of forcible intercourse with a 20 year old is of such a character that intent to cause injury can be inferred as a matter of law). We agree that for purposes of insurance coverage, forcible rape is an act which the assailant knows with substantial certainty will cause harm to a victim of any age. Therefore exclusion "o" precludes Rivera's claim regardless of McNair's subjective intent.


Professional liability policies exist for the protection of both the insured tortfeasor and the injured party. Rivera asserts that if coverage were allowed, NMLIC could sue McNair for indemnification. Therefore, nullifying the exclusions could compensate Rivera without punishing NMLIC. Insurance companies generally may exclude coverage for intentional acts as a means of limiting their liability and deterring wrongful conduct. However, Rivera reasons that permitting these exclusions makes bad public policy when the tortfeasor never contemplated that his or her intentional act was insured. She asserts that McNair probably did not purchase insurance to cover his own wrongful conduct and hence his act should remain covered. See New Amsterdam Casualty Co. v. Jones, 135 F.2d 191 (6th Cir.1943) (victim of intentional shooting could recover from tortfeasor's policy because the shooting could not have been in contemplation of the insured when he purchased the insurance).

There are three problems with Rivera's rationale. First, how does one distinguish between an act that the tortfeasor would have...

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1 books & journal articles
  • Issues for excess insurer counsel in bad faith and excess liability cases.
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