Opinion
11-P-1134
03-16-2012
CHRISTINE MCNULTY v. ASSURANCE COMPANY OF AMERICA. [FN1]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Christine McNulty appeals from the allowance of Assurance Company of America's (insurer's) motion for summary judgment by a judge of the Superior Court in this coverage dispute.
Background. The facts are not in dispute. McNulty instituted an action against her physician, Milton D. Childress (Childress), and New England Neurology, P.C. (the clinic), alleging sexual molestation and assault in various forms by Childress on two occasions when she was receiving treatment from him (the underlying action). The parties entered into an agreement for judgment in the amount of $150,000, which included a proviso limiting McNulty's enforcement of the judgment to insurance proceeds anticipated from a claim that Childress and the clinic asserted under their liability policy.
It is uncontested that at all relevant times Childress was president, treasurer, secretary, sole director and sole shareholder of the clinic.
The insurer, however, denied coverage. Two policy provisions are here pertinent to McNulty's action to reach and apply proceeds she claims are owing:
Childress' medical malpractice policy contains an explicit exclusion from coverage of any 'DAMAGES . . . CLAIMS . . . [w]hich . . . arise out of or contain any allegations of . . . . sexual intimacy, abuse, molestation . . .,' and is not at issue here. See note 1, supra.
(1) The liability policy provides coverage for 'bodily injury' caused by 'an occurrence.' An 'occurrence' is defined as 'an accident, including continuous or repeated exposure to the same general harmful conditions.' The policy excludes coverage for 'bodily injury . . . expected or intended from the standpoint of the insured.'
(2) Additionally, the policy excludes coverage for '[b]odily injury . . . arising out of the rendering or failure to render any professional service, including but not limited to . . . medical . . . services. . . .'
Discussion. Where all materials before the trial judge are also before the appellate court, this court will review the grant of summary judgment de novo. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997). 'The burden on the moving party is to 'show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Madsen v Erwin, 395 Mass. 715, 719 (1985), quoting from Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). In this case, we review the evidence in a light most favorable to McNulty, the nonmovant. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
Intentional act exclusion. At issue in the determination of coverage for bodily injury is the meaning of 'accident.' As in previous cases, the insurer and insured dispute whether an 'accident' requires an unintended act, or can occur in the case of an intentional act with unintended consequences. Our cases have resolved the issue. '[T]he resulting injury which ensues from the volitional act of an insured is still an 'accident' within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur.' Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984). Otherwise stated, the court should examine whether the insured intended the injury, not whether the insured intended the act. Hanover Ins. Co. v. Talhouni, 413 Mass. 781, 784 (1992).
The motion judge properly focused his analysis upon the specific subsidiary allegations of the plaintiff's verified complaint, and we recognize that the plaintiff's allegations, fairly read, place significant emphasis on a theory of intentional touching and conscious sexual harassment. The gravamen of the verified allegations is that Childress repeatedly and intentionally touched the plaintiff with improper sexual motivation. The judge was correct in concluding that these pleadings permit the inference that he intended both the touching and the resulting infliction of emotional distress upon her.
However, the plaintiff also introduced evidence that Childress did not intend to injure her, and included, as her 'Fourth Cause of Action,' a claim of 'negligence and negligent infliction of emotional distress.' Specifically, she asserts that 'Dr. Childress knew or should have known that the plaintiff's emotional distress was the likely result of his conduct.' This language, while minimal, preserves the claim of negligence expressed in her fourth cause of action.
Moreover, Childress denied improper touching. He acknowledged that he had touched the plaintiff as a patient in the course of a neurological examination. In deposition testimony, he insisted, 'I did not touch her inappropriately,' and therefore with any improper intent. The determination of 'accident,' and consequently coverage under the defendant's insurance policy, will turn on the finding of the doctor's state of mind during the examination of the patient: whether he intended to touch her for sexual gratification and whether he intended to inflict the offensiveness or resulting distress. The question of his mentality presents a genuine issue of material fact precluding summary judgment. '[W]here motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate.' Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). 'When intent is at the core of a controversy, summary judgment seldom lies.' Madden v. Estin, 28 Mass. App. Ct. 392, 395 (1990). In sum, the question whether Childress acted with specifically improper intent, with negligence, or with entirely proper intention requires a trial.
The finder of fact at trial would not be precluded from inferring that a licensed physician with an established practice was entirely aware of every physical contact he made with this patient, and also intended the effect of the contact. On this record, however, Childress' infliction of harm cannot be deemed deliberate as a matter of law.
By contrast, we are aware of only three scenarios where an insured is deemed to have intended to cause injury as a matter of law. These are pushing another person down a flight of stairs, Terrio v. McDonough, 16 Mass. App. Ct. 163, 169 (1983), deliberately setting a building ablaze, Newton v. Krasnigor, 404 Mass. 682 (1989), and sexually assaulting a minor, Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 399-400 (1990).
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In sum, viewing the facts 'in the light most favorable to the nonmovant, drawing all permissible inferences and resolving any disputes or conflicts in [her] favor,' DiPietro v. Sipex Corp., 69 Mass. App. Ct. 29, 30 (2007), summary judgment was inappropriate.
Professional services exclusion. The defendant argues alternatively in favor of the judgment on the grounds that the policy's professional services exclusion acts as a bar to recovery. We disagree.
As stated supra, the relevant exclusion applies when an injury can be considered 'arising out of the rendering or failure to render any professional service, including but not limited to . . . medical . . . services. . . .' This case is controlled in all material respects by Roe v. Federal Ins. Co., 412 Mass. 43 (1992), in which the Supreme Judicial Court interpreted an insurance policy clause using the identical language, 'arising out of the rendering or failure to render . . . professional services.' Id. at 47. In Roe, which dealt with a dentist's malpractice policy, the court rejected the argument that the 'arising out of' language should be broadly construed to include sexual assault of a patient during a dental exam. In ruling that sexual assault did not 'arise out of' dental care, the court reasoned that 'there must be a causal relationship between the alleged harm and the complained-of professional act or service, that is, it must be a medical or dental act or service that causes the harm, not an act or service that requires no professional skill. . . . It is self-evident that his professional services . . . did not call for sexual contact between him and his patient.' Id. at 49-50.
Cases construing insurance policies that interpret the phrase 'arising out of' expansively do not avail the defendant. See, e.g., Bagley v. Monticello Ins. Co., 430 Mass. 454, 457 (1999); Rischitelli v. Safety Ins. Co., 423 Mass. 703, 704 (1996); New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass. App. Ct. 722, 726 (1996). To the extent that the defendant interprets these cases to deem mere presence at the clinic for the purpose of receiving treatment as satisfying the 'arising out of' requirement, we reject the argument. In relying on circumstantial rather than causal factors, this approach removes any limiting principle from the concept of causation. 'Common sense, of course, will always provide a useful guide in differentiating covered from uncovered cases.' Roe, supra at 49.
Here, the record is devoid of any evidence that there was a medical act that caused the injury. Instead, Childress' alleged sexual touching of the patient was something that required 'no professional skill.' Roe, supra at 49. Consequently, we hold that the policy's exclusion for professional services does not apply.
So much of the judgment dismissing the complaint as to Assurance Company of America is reversed.
So ordered.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),