Snipes v. Southern Baptist Hospital

• Decision Date: 11 January 1971
• Docket Number: No. 4223,4223
• Citation: 243 So.2d 298
• Parties: Wesley W. SNIPES v. SOUTHERN BAPTIST HOSPITAL et al.
• Court: Court of Appeal of Louisiana — District of US

Page 298

243 So.2d 298

Wesley W. SNIPES v. SOUTHERN BAPTIST HOSPITAL et al.

No. 4223.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 11, 1971.

Garon & Brener, Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.

Montgomery, Barnett, Brown & Read, Peter H. Beer, New Orleans, for Commercial Union Ins. Co. of New York (referred to herein as Employers-Commercial Union Ins. Group), defendants-appellees.

Before SAMUEL, BARNETTE and LeSUEUR, JJ.

BARNETTE, Judge.

This is an appeal by plaintiff from a judgment maintaining a motion for summary judgment and dismissing his suit against one of the named defendants.

The plaintiff, Wesley W. Snipes, has alleged that he was a patient in Southern Baptist Hospital under treatment of Dr. Martin Palmer and that he was administered inhalation therapy on July 12, 13 and 14, 1968. He alleged that on July 14 he sustained serious and painful injury to his left lung resulting in an almost complete collapse which necessitated further hospital and surgical care and treatment at another local hospital, all as the result of the joint negligence of the defendants Baptist Hospital and Dr. Palmer. More particularly he alleged a number of specific acts of negligence and omission against the hospital, its employees, therapists, physicians, and certain alleged acts of malpractice against Dr. Palmer. He also named as defendants the liability insurers of the hospital and Dr. Palmer.

Commercial Union Insurance Company of New York (referred to herein as Employers-Commercial Union Insurance Group), one of the liability insurers of Southern Baptist Hospital and made a defendant herein, filed a motion for summary judgment to which it annexed a copy of the policy of insurance issued to the insured hospital. It purports to be a multiperil policy with a 'PROFESSIONAL LIABILITY EXCLUSION ENDORSEMENT' providing, in pertinent part, as follows:

'It is agreed that with respect to any operations 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 * * *.'

Commercial Union contends that plaintiff's suit is based entirely upon allegations of fault or failure in the rendering of professional services in the treatment administered which are specifically embraced in the foregoing exclusionary endorsement. The motion for summary judgment was maintained and plaintiff's suit was dismissed as to this insurer, Commercial Union. It is from that judgment that this appeal was taken.

The applicable codal provision is LSA-C.C.P. art. 966, which is as follows:

'The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.

'The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.'

There were no supporting affidavits filed by either party and the only exhibit submitted in support of the motion for summary judgment was the copy of the insurance policy.

The motion for summary judgment is relatively new in the procedural law of Louisiana, having been included in the Code of Civil Procedure which became effective January 1, 1961. It is based upon the Federal Rule and consequently the jurisprudence upon which the appellate courts of the State relied in the first few years of our experience with Article 966 was federal. We now have well-defined jurisprudential guidelines in the decisions of our appellate courts for the application of Article 966, among which are the following rules.

Summary judgment is not intended as a substitute for the trial of genuine issues of material fact and must be applied with caution in the interest of justice so as not to deny to a litigant his day in court except where it is clearly apparent that a trial will serve no useful purpose. It is not enough that the court has grave doubt that the pleader may prove by a preponderance of evidence a factual basis to legally support his pleaded contention. It is better to impose upon the parties the expense, delay and annoyance of a trial on the merits than to risk the danger of denial of justice. Smooth v. Ethyl Corp., 179 So.2d 650 (La.App.4th Cir. 1965); Darr v. Kinchen, 176 So.2d 638 (La.App.1st Cir. 1965); Brown v. B & G Crane Service, Inc., 172 So.2d 708 (La.App.4th Cir. 1965); Joseph v. Greater New Guide Baptist Church, Inc., 159 So.2d 556 (La.App.1st Cir. 1963); Wilkinson v. Husser, 154 So.2d 490 (La.App.1st Cir. 1963); Haspel v. Treece, 150 So.2d 120 (La.App.4th Cir. 1963); McDonald v. Grande Corp., 148 So.2d 441 (La.App.3d Cir. 1962); Touchet v. Firemen's Ins. Co., 146 So.2d 441 (La.App.3d Cir. 1962); Walmsley v. Gilmore, 144 So.2d 625 (La.App.4th Cir. 1962); Jacobs v. Beck, 141 So.2d 920 (La.App.4th Cir. 1962).

The plaintiff's allegations of fault upon which he bases this tort...