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

• Decision Date: 31 December 1984
• Docket Number: No. 14939,14939
• Court: Idaho Court of Appeals
• Parties: Donna Sue STANDLEE, as Guardian Ad Litem for a Minor Child and Donna Sue Standlee, Individually, Plaintiff-Appellant-Cross-Respondent, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, a foreign corporation, Defendant-Respondent-Cross-Appellant.

Page 1101

693 P.2d 1101

107 Idaho 899

Donna Sue STANDLEE, as Guardian Ad Litem for a Minor Child and Donna Sue Standlee, Individually, Plaintiff-Appellant-Cross-Respondent, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, a foreign corporation, Defendant-Respondent-Cross-Appellant.

No. 14939.

Court of Appeals of Idaho.

Dec. 31, 1984.

Jeff Stoker, Twin Falls, for plaintiff-appellant-cross-respondent.

J. Walter Sinclair, Benoit, Alexander & Sinclair, Twin Falls, for defendant-respondent-cross-appellant.

BURNETT, Judge.

The principal question presented in this appeal is whether a doctor's professional liability and office liability insurance policies cover a sexual tort committed upon a patient. We also are asked to decide whether the insurance company breached a duty to defend the tort claim. The district court, in two orders for summary judgment, held that there was no coverage of the claim but that the insurer breached a duty to defend. We affirm.

The material facts are undisputed. This case is similar to Hirst v. St. Paul Fire & Marine Insurance Co., 106 Idaho 792, 683 P.2d 440 (Ct.App.1984). In both cases the same doctor sexually molested young male patients. There are slight variations in the fact pattern. In Hirst the tort occurred at the doctor's office and at the patient's home. In this case it occurred at a hospital. In Hirst drugs allegedly were used to render the patient susceptible to sexual contact. In this case there is no allegation that drugs were used.

The instant case also bears a procedural similarity to Hirst. Suit was filed against the doctor by the patient's guardian, Donna Sue Standlee. When informed of the suit, the doctor's insurer, St. Paul Fire & Marine Insurance Company, denied coverage and refused to defend the claim. The doctor subsequently settled the claim, consenting to judgment against him for $75,000 and assigning to the claimant any cause of action he might have against St. Paul. In exchange, the claimant agreed not to execute against the doctor on the judgment.

The claimant then filed the instant suit against St. Paul, seeking to collect the judgment plus any damages sustained by the doctor as a result of the insurer's refusal to defend. As noted, the district court judge ruled in favor of St. Paul on the issue of coverage, thus precluding collection of the $75,000 judgment. However, the court adjudged St. Paul liable for $900 in attorney fees expended by the doctor in settling the claim after St. Paul refused to defend it. Both sides have appealed.

The question of coverage focuses initially upon the same professional liability policy we examined in Hirst. There, acknowledging a division of authority in other jurisdictions, we held that a medical malpractice insurance policy of the type issued by St. Paul did not cover sexual torts committed by a doctor. We said that the question of professional liability coverage turns upon the nature of the tortious act, not upon the mere circumstance that the tortfeasor is a doctor. The Minnesota Supreme Court, in a majority opinion, recently has adopted a similar view. See Smith v. St. Paul Fire & Marine Insurance Co., 353 N.W.2d 130 (Minn.1984).

We believe Hirst governs the issue here. Although the sexual tort in this case, unlike Hirst, was unaccompanied by any alleged use of drugs, this is a distinction without a difference as far as our holding in Hirst is concerned. Neither is it significant that the tort occurred in a hospital rather than at a doctor's office or in the patient's home. The nature of the doctor's conduct is the same. Because the location does not change the conduct, it does not affect the coverage provided by the professional liability policy. We conclude that the policy does not cover...