St. Paul Fire & Marine Ins. Co. v. Asbury

• Decision Date: 19 February 1986
• Docket Number: CA-CIV,No. 2,2
• Parties: ST. PAUL FIRE & MARINE INSURANCE COMPANY, a corporation, Plaintiff/Appellant, v. Stanley ASBURY, D.O.; Susan Slater and David Slater, w/h; Gloria Lund; Chris Wolcott; and Marie Josefowicz and Robert Josefowicz, w/h, Defendants/Appellees. 5543.
• Court: Arizona Court of Appeals

Page 540

720 P.2d 540

149 Ariz. 565

ST. PAUL FIRE & MARINE INSURANCE COMPANY, a corporation, Plaintiff/Appellant, v. Stanley ASBURY, D.O.; Susan Slater and David Slater, w/h; Gloria Lund; Chris Wolcott; and Marie Josefowicz and Robert Josefowicz, w/h, Defendants/Appellees.

No. 2 CA-CIV 5543.

Court of Appeals of Arizona Division 2, Department B.

Feb. 19, 1986.

[149 Ariz. 566] Slutes, Sakrison, Grant & Pelander, P.C. by Tom Slutes, Tucson, for plaintiff/appellant.

Haralson, Kinerk & Morey, P.C. by Carter Morey and Denneen L. Peterson, Tucson, for defendants/appellees Slater, Lund, Wolcott and Josefowicz.

Chandler, Tullar, Udall & Redhair by D.B. Udall, Tucson, for defendant/appellee Asbury.

OPINION

LACAGNINA, Judge.

St. Paul Fire and Marine Insurance Company appeals from a declaratory judgment in favor of Stanley Asbury, D.O., Susan Slater and David Slater, wife and husband, Gloria Lund, Chris Wolcott, and Marie Josefowicz and Robert Josefowicz, wife and husband, providing Dr. Asbury with professional liability insurance coverage for conduct committed while performing gynecological examinations of Slater, Lund, Wolcott and Josefowicz. St. Paul claims Asbury's conduct, intentional and improper manipulation during gynecological examinations, was unprofessional and therefore not covered by his professional liability policy. We disagree and affirm.

The sole issue is whether the language "providing or withholding of professional services" (with no applicable policy exclusions) provides coverage for injuries and damages that result from unprofessional acts of a physician. St. Paul asks us to adopt the definition for "professional services" as stated in Marx v. Hartford Accident & Indemnity Co., 183 Neb. 12, 157 N.W.2d 870 (1968), and accepted by other courts. Bank of California, N.A. v. Opie, 663 F.2d 977 (9th Cir.1981); Gulf Insurance Co. v. Gold Cross Ambulance Service, 327 F.Supp. 149 (W.D.Okla.1971); Standlee v. St. Paul Fire and Marine Insurance Co., 107 Idaho 899, 693 P.2d 1101 (1984); Hirst v. St. Paul Fire and Marine Insurance Co., 106 Idaho 792, 683 P.2d 440 (1984); Multnomah County v. Oregon Automobile Insurance Co., 256 Or. 24, 470 P.2d 147 (1970).

The thrust of Marx, supra, and its progeny is an examination of the act performed rather than the actor and does not include all forms of a doctor's conduct simply because he is a doctor. Stated another way, the question of professional liability coverage turns upon the nature of the tortious act, and not upon the mere circumstance that the tortfeasor is a doctor.

The position of Dr. Asbury and the complaining patients is that his tortious conduct was committed in the course of and as an inseparable part of the professional services rendered. The trial court agreed with this position and stated:

The question of insurance coverage does not turn on whether the conduct was negligent or intentional, or whether or not there was an assault and battery. Regardless of the category in which the underlying complaints are placed, they clearly allege tortious conduct while treating the patients, and seek damages resulting from the providing of professional services. Furthermore, the tortious conduct, if it occurred, took place in the course of and as an inseparable part of the providing of professional services. Consequently, any damages would be those resulting from the providing of professional services by the insured.

The claims are within the language of the insurance policy, and the policy contains no exclusion of coverage which would be applicable. Coverage is therefore afforded.

The judgment of the trial court is supported by St. Paul Fire and Marine Insurance Co. v. Mitchell, 164 Ga.App. 215, 296 S.E.2d 126 (1982); Vigilant Insurance Co. v. Kamby, 114 Mich.App. 683, 319 N.W.2d 382 (1982); Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968).

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