The Estate of Steven Tinervin v. Nationwide Mutual Ins. Co.
(Florida Court of Appeals, Fourth District, November 25, 2009)
Plaintiff appealed an adverse declaratory judgment in favor of the insurer, wherein the trial court found that the professional services exclusion of a business owner’s policy excluded coverage for services performed by the doctor’s wife in filing, and making the doctor aware of lab reports, knowledge of which, would have changed his treatment strategies.
Specifically, the plaintiff brought a wrongful death action against the doctor, his only employee (his wife), and the doctor’s professional association. The plaintiff alleged medical malpractice against the doctor and general negligence against the employee. The doctor and his employee requested coverage under the insurer’s business owner’s policy. The insurer refused to defend or indemnify the doctor and his employee based on the exclusion for injuries arising from professional services. The insurer claimed that misfiling the lab results fell within the professional serves exclusion because it was an “intricate part” of the medical services the doctor rendered. The plaintiff claimed however, that the employee’s negligence was not excluded because her services were clerical, as she had no professional responsibility to read or interpret the lab reports.
The court of appeals disagreed with plaintiff that the policy language was susceptible to more than one interpretation. Rather, the court held that the policy language of the exclusion was unambiguous, as the professional services exclusion excluded coverage for injury due to rendering any professional services, which were defined to include, “but not limited to, medical surgical dental, x-ray or nursing services. The court further stated that employees are not insured for injuries arising out of his or her providing of failing to provide professional health care services. Secondly, the court found that the employee's acts were causally connected to the professional services rendered by the doctor. The court further noted that the policy clearly excluded medical services and the employees duties were an intricate part of the medical services provided. Plaintiff on the other hand argued that because the employee’s acts of opening the mail and attaching a lab report required no professional skill her acts are not excluded from coverage. The court, however, agreed with the trial court’s finding that the employee was a medical assistant under 458.3485 Florida Statute (2007), thus she fell within the policies professional services exclusion. As such the trial court’s decision was affirmed.
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By Paul Steck and Sharon Angelino
https://www.goldbergsegalla.com/attorneys/Steck.html
https://www.goldbergsegalla.com/attorneys/Angelino.html
This case is published with consent of Lexis.