U.S. Fidelity & Guar. Co. v. Kaftarian, 86-172.
| Decision Date | 22 January 1987 |
| Docket Number | No. 86-172.,86-172. |
| Citation | 520 A.2d 297 |
| Parties | UNITED STATES FIDELITY AND GUARANTEE COMPANY, Appellant, v. Hayk L. KAFTARIAN, M.D., et al., Appellees. |
| Court | D.C. Court of Appeals |
Walter J. Murphy, Jr., with whom Hubert W. Farrell, Wheaton, Md., was on brief, for appellant.
Andrew Vernick, Upper Marlboro, Md., with whom Brian C. Shevlin, Arlington, Va., was on brief, for appellees.
Before NEWMAN and STEADMAN, Associate Judges, and GALLAGHER, Senior Judge.
This appeal stems from a declaratory judgment action filed in the trial court by appellee, Hayk L. Kaftarian, M.D., against appellee, the Hartford Insurance Group (Hartford) and appellant United States Fidelity and Guarantee Company (USF & G). Dr. Kaftarian had been sued in a medical malpractice action stemming from his care and treatment of Ronald Gleaton following his birth at Providence Hospital. The malpractice case settled before trial and a dispute arose between Hartford and USF & G as to which was responsible for liability insurance protection in connection with the malpractice claim. Dr. Kaftarian then filed a declaratory judgment action against both insurance companies to determine which was liable for payment pursuant to the settlement agreement.1 After a non-jury trial on December 18, 1985, it was concluded (a) that Dr. Kaftarian was acting within the scope of coverage of both policies, and (b) that the USF & G policy provided primary coverage over the Hartford policy. This appeal followed the December 23, 1985 court order,2 which adopted the findings of facts and conclusions of law submitted jointly by plaintiff Kaftarian and defendant Hartford.3 Perceiving error in the trial court's failure to provide adequate findings, we reverse and remand for further proceedings.
Appellee Kaftarian was, at all relevant times, the Chief of Pediatrics and Chairman of the Department at Providence Hospital, under contract dated October 23, 1978, which provides in pertinent part:
1. Responsibilities of Chief of Clinical Service, Department of Pediatrics:
F. He will be responsible for quality care of patients in the Pediatrics Section, including the newborn nurseries. He will perform routine examination of the unattached medical Pediatric patients as well as newborn patients. His involvement with the private patients will be strictly on a private consultation basis.
G. He will furnish continuous service and coverage to Community (Unattached) everyday for twenty four hours per day, by obtaining licensed physicians to function as house officers under his supervision and direction at all times when he is not personally available. . . .
* * * * * *
I. He will be responsible for his professional liability insurance covering consultation and private care in accordance with the rules of the hospital and the medical staff.
2. Responsibilities of the Hospital:
D. The Hospital will permit the Chief of Clinical Service to engage in professional consultations on the Hospital premises and retain any income received by him therefrom apart from the above mentioned salary, provided such services do not interfere with his duties to the Hospital and provided that such consultations do not exceed 20% of his work hours. Any services performed for private patients shall be considered a professional consultation.
Dr. Kaftarian was insured by USF & G as an employee of Providence Hospital while acting within the scope of his duties to the hospital. The policy provides in pertinent parts:
Additional Insured Endorsement:
It is agreed that such insurance as is afforded by this policy shall also apply to:
C. All employees of the named insured, including the house staff of residents, fellows, interns, and other salaried physicians, employed registered nurses, physicians when performing services solely for the insured hospital on a volunteer basis but not otherwise and volunteer workers performing services in the insured hospital and elsewhere at the direction of the named insured; while acting within the scope of their duties as such. . . .
It is further agreed that such insurance as is afforded by this endorsement also applies to interns, employed registered nurses, resident physicians and surgeons, fellows, and employed members of the house staff while administering first aid or emergency treatment to persons not in care or control of the name insured, but excluding private practice of such additional insurance. . . .
All insurance afforded by the endorsement shall be primary insurance over all other valid and collectible insurance. . . .
Dr. Kaftarian also carried on a private pediatric practice in the hospital. Consequently, he had another policy for this purpose. He was insured against medical liability in his private practice by a policy issued by a different insurance company, viz., Hartford Insurance Group. On July 23, 1979, Doris Fuller gave birth to Ronald Gleaton at Providence Hospital. The newborn was admitted to the intensive care nursery and within the first twentyone hours of life was attended by physicians who staffed the nursery, as well as the nursing staff. On July 24, 1979, Dr. Kaftarian first examined the Gleaton baby during his daily rounds. Dr. Kaftarian next saw the newborn when he was advised, that same day, that the baby was suffering from acute respiratory distress. Dr. Kaftarian determined the infant had bacterial meningitis and should be transferred to Children's Hospital. At 9:10 p.m. on July 24, 1979, the mother gave her consent to the transfer. Dr. Kaftarian then signed an order transferring the newborn to Children's Hospital.
A lawsuit was filed alleging that Dr. Kaftarian's failure to diagnose the infant's disease earlier was medical malpractice. That action resulted in settlement. Subsequently, a dispute arose between Hartford and USF & G as to which was responsible for payment of the settlement. Each insurer pointed to the other as being liable. Dr. Kaftarian sought an action for declaratory judgment to determine which policy provides primary coverage for his liability.
USF & G denied all coverage and asserts Dr. Kaftarian was acting outside the scope of his employment with Providence Hospital when he attended Ronald Gleaton. Hartford maintains that the doctor was, at all...
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