Stover v. Garfield

Decision Date12 December 2001
Docket NumberDocket No. 223196.
Citation247 Mich. App. 456,637 N.W.2d 221
PartiesWilliam Charles STOVER, Personal Representative of the Estate of Charles Louis Dolan, Deceased, Plaintiff-Appellee, v. James GARFIELD, D.O., THS Partners I, THS Partners II, and Transitional Health Services, Inc., d/b/a Fenton Extended Care Center, Defendants-Appellees, and Insurance Company of the West, Garnishee, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Max Dean, Flint, for the plaintiff.

Plunkett & Cooney, P.C. (by Robert G. Kamenec), Detroit, for Insurance Company of the West. Before SAWYER, P.J., and RICHARD ALLEN GRIFFIN and O'CONNELL, JJ.


Garnishee-defendant Insurance Company of the West appeals from an order of the circuit court rejecting garnishee-defendant's motion for summary disposition and requiring garnishee-defendant to cover defendant Dr. James Garfield's obligations under a prior consent judgment with plaintiff William C. Stover, personal representative of the estate of Charles L. Dolan, deceased. We reverse and remand.

The decedent was admitted to Fenton Extended Care Center in March 1994, in an advanced state of illness and age that rendered him incompetent. Defendant Dr. Garfield attended to the decedent at the facility until the decedent's death on April 22, 1994. According to the evidence, Dr. Garfield ordered discontinuation of oral and tube feeding and hydration of the decedent and of treatment for the decedent's pneumonia, several days before the latter's death, relying on instructions from the decedent's wife and her personal representative, neither of whom was legal guardian for the decedent. The nursing home had initiated procedures for acquiring the decedent's living will from the decedent's family physician but was lackluster in following up on its request. Dr. Garfield testified during his deposition that he knew of no living will associated with the decedent and had not asked about the existence of either a living will or a legal guardian.

The decedent's living will included a section for indicating treatments that the declarant wished not to be provided once death was unquestionably near. The form specifically listed the following examples: cardiac resuscitation, mechanical respiration, and artificial feeding and fluids by tubes. The decedent specified that only mechanical respiration was to be withheld. The document thus strongly implied that the decedent did not consent to the withholding of artificial feeding or fluids by tubes, as was done in his case.

Plaintiff William Stover commenced action on behalf of the decedent's survivors and estate, alleging that defendants improperly withheld food and water from the decedent, in violation of the latter's written directives. Plaintiff openly took pains to avoid characterizing the action as one sounding in medical malpractice, expressly wishing to avoid the requirement of filing an affidavit of merit from a medical practitioner, as required in such actions by M.C.L. § 600.2912d. The trial court accepted plaintiff's characterizations and excused that requirement.1 Count I of the amended complaint alleged intentional misconduct in causing the decedent's death. Count II alleged gross negligence, false imprisonment, assault and battery, and violations of various state and federal statutes. Count III alleged ordinary negligence.

Dr. Garfield had an insurance policy with garnishee-defendant. The policy promised to indemnify and defend Dr. Garfield in matters arising from claims against him in connection with his provision of medical services. The policy additionally capped garnishee-defendant's responsibility for Dr. Garfield's damages at $200,000, and excluded from coverage intentional misconduct and exemplary damages.

Garnishee-defendant initially took responsibility for the defense of this action, while reserving its right to withdraw in the event that a court determined that the claims at issue fell outside the policy's definition of professional services. Then, in response to the trial court's order stating that this was not a medical malpractice case, garnishee-defendant announced that the claims did not implicate the insurance policy and declined to defend the suit further.

Plaintiff and defendants then stipulated the entry of judgment in favor of plaintiff, against Dr. Garfield only, in the amount of $200,000, with interest and costs, to be satisfied solely through the proceeds of the insurance policy with garnishee-defendant. The trial court entered the consent judgment on August 24, 1998.

Plaintiff followed with a motion for garnishment. Garnishee-defendant resisted on the ground that garnishee-defendant had no obligations under the insurance policy, arguing that "professional negligence" was synonymous with "malpractice," and that plaintiff's emphatic characterization of the underlying action as something other than one alleging malpractice thus absolved garnishee-defendant of obligations pursuant to professional negligence. Alternatively, garnishee-defendant argued that, to the extent that coverage existed, damages- and thus garnishee-defendant's responsibility for them-should be apportioned according to whether they stemmed from covered or noncovered claims.

The trial court ruled that the insurance contract provided broader coverage than merely for medical malpractice and, therefore, garnishee-defendant erred in deciding to withdraw from its defense of Dr. Garfield. The court additionally held that the amount of the settlement was supportable by any of plaintiff's three theories of recovery, thus obligating garnishee-defendant for the full amount of the judgment without need to allocate garnishee-defendant's obligations according to covered and noncovered claims.

Garnishee-defendant argues that the trial court erred in finding the insurance policy applicable to the claims against Dr. Garfield by its general terms and, alternatively, that if the policy did cover the matter generally, the court nonetheless failed to give effect to specific exclusions within it. This Court reviews contract language for ambiguity, and construes clear contract language, de novo. Farm Bureau Mut. Ins. Co. of Michigan v. Nikkel, 460 Mich. 558, 563, 596 N.W.2d 915 (1999) (ambiguity); Pakideh v. Franklin Commercial Mortgage Group, Inc., 213 Mich. App. 636, 640, 540 N.W.2d 777 (1995) (clear contract language).

Ambiguities in insurance contracts must be strictly construed against the drafter. State Farm Mut. Automobile Ins. Co. v. Enterprise Leasing Co., 452 Mich. 25, 38, 549 N.W.2d 345 (1996). "[U]nder the rule of reasonable expectation, the court grants coverage under the policy if `the policyholder, upon reading the contract language is led to a reasonable expectation of coverage.'" Fire Ins. Exchange v. Diehl, 450 Mich. 678, 687, 545 N.W.2d 602 (1996), quoting Powers v. DAIIE, 427 Mich. 602, 632, 398 N.W.2d 411 (1986).

In this case, the insurance policy at issue announces that garnishee-defendant's obligations under the contract extend to covering "damages because of a professional incident to which this policy applies, which results from your rendering of, or your failure to render, professional services in the practice of your profession...." (Emphasis in original.) "Professional services" is defined within the contract:

Professional services means the delivery of medical services by the individual Named Insured to a patient as permitted by license as a Medical Doctor or Doctor of Osteopathy. Professional services also includes the activities of the individual Named Insured: (i) as a supervisor of the activities of another person who renders medical services to a patient while acting under the direction and control of the individual Named Insured, if the individual Named Insured is legally responsible for the acts and omissions of the other person.... [Emphasis in original.]

"Professional incident" is defined as "an act or omission ... in the furnishing of professional services by the individual Named Insured ... to a patient, that may result in your liability for damages." (Emphasis in original.)

The question thus becomes whether there can be "professional negligence" arising out of "professional services" or involving a "professional incident" that does not involve "malpractice." For the reasons expressed below, we hold that such concepts are synonymous and, therefore, because it was previously determined that plaintiff's claims did not sound in malpractice, the professional liability policy at issue does not provide coverage for those claims.

We begin by looking at the definition of "malpractice":

Professional misconduct or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers, and accountants. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them. It is any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct. [Black's Law Dictionary (5th ed.), p. 864.]

Also of interest to the determination of this case is the Supreme Court's observation in Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 45-46, 594 N.W.2d 455 (1999):

In Bronson v. Sisters of Mercy Health Corp., 175 Mich.App. 647, 438 N.W.2d 276 (1989), the plaintiff's complaint included allegations that the defendant hospital had failed to supervise and adequately maintain its staff. The plaintiff argued that the trial court erred in granting summary disposition for failure to file the claim within the two-year period of limitation applicable to medical...

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4 cases
  • Nippa v. Botsford Gen. Hosp.
    • United States
    • Court of Appeal of Michigan — District of US
    • September 10, 2002
    ...Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 43-47, 594 N.W.2d 455 (1999); see also Stover v. Garfield, 247 Mich.App. 456, 467-469, 637 N.W.2d 221 (2001) (O'Connell J., dissenting). Further, we believe that if the Legislature had intended to strictly limit the definition of the ......
  • Nippa v. Botsford General Hosp.
    • United States
    • Court of Appeal of Michigan — District of US
    • July 3, 2003
    ...Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 43-47, 594 N.W.2d 455 (1999); see also Stover v. Garfield, 247 Mich.App. 456, 467-469, 637 N.W.2d 221 (2001) (O'Connell, J., dissenting).16 Dissenting, I placed particular emphasis on Justice Markman's statement in Robertson v. Daimle......
  • Shipp v. Fin. Freedom, of One W. Bank, N.A.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • April 29, 2016
    ...Khadher v. PNC Nat'l Ass'n, No. 12-14765, 2013 U.S. Dist. LEXIS 168667, at *15 (E.D. Mich. Nov. 27, 2013) (citing Stover v. Garfield, 247 Mich. App. 456, 463-64 (2001)). Here, Shipp does not allege a "professional relationship" between the parties, but rather alleges only a mortgagee/mortga......
  • Khadher v. PNC, Nat'l Assoc., Case No. 12-14765
    • United States
    • U.S. District Court — Eastern District of Michigan
    • November 27, 2013
    ...standard of care arises out of the exercise of professional judgment or a professional relationship. Stover v. Garfield, 247 Mich. App. 456, 463-64 (Mich. Ct. App. 2001). PNC indicates that it has conducted extensive research on the matter and has not found anydecisions that recognize that ......

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