Summary
In Michota, the Ohio Supreme Court included in the definition of the term "professional services" the maintenance, in a safe condition, of a metal hydraulic chair because the maintenance of the hydraulic chair was part of the chiropodist's "professional service."
Summary of this case from Bernthal v. AetnaOpinion
Nos. 32648 and 32649
Decided February 13, 1952.
Insurance — Professional liability policy — Construed favorably to insured — "Injury resulting from professional services" — Patient injured in attempting to use chiropodist's treatment chair.
1. Policies of insurance which are in language selected by the insurer and which are doubtful or ambiguous in their meaning will be construed most favorably to the insured.
2. A "professional liability policy" of insurance, wherein the insurer agrees to defend each claim and suit "as respects an injury arising out of the practice of the insured's profession" and to pay damages which the insured may become obligated to pay "because of injury resulting from professional services rendered or which would have been rendered," affords coverage and protection where the insured, a chiropodist, is sued for damages upon the claim that, while plaintiff was a patient of the insured, the latter was neglient in failing to maintain his treatment chair in a safe condition, whereby the plaintiff sustained injury in attempting to utilize such chair pursuant to the insured's instructions.
APPEALS from the Court of Appeals for Lucas county.
The instant cause is one wherein an insurer asks for a declaratory judgment absolving it from any obligation under a liability insurance policy issued by it.
Those facts pertinent to the controversy are as follows:
Amelia Hirssig commenced an action in the Court of Common Pleas of Lucas County against Stanley V. Michota, a chiropoist of Toledo, to recover damages for personal injuries allegedly caused by his negligence. Mrs. Hirssig claimed in her petition that on November 9, 1949, she was a patient of Michota and went to his office on that date to receive treatment for a foot ailment from which she suffered and for which she had previously been treated by the doctor; that, at the direction of the doctor, she entered one of the treatment rooms in his office off the reception room and, further following the doctor's instructions, attempted to seat herself in a metal hydraulic chair designed for the occupancy of patients; and that, after she placed her left foot on such chair and attempted to raise herself into the chair as she had done on previous occasions, such chair suddenly rotated to the left, causing her to lose her balance and fall to the floor, whereby she was injured. It was charged the doctor was negligent in failing to "lock" the chair before directing Mrs. Hirssig to get into the same, in failing to give warning that the chair was unlocked and would rotate if stepped upon, and in failing to maintain the chair in a safe condition for her use as a patient.
Michota held a policy of liability insurance in the American Policyholders Insurance Company, effective for one year from April 24, 1949. Following receipt of the summons in the action brought against him by Mrs. Hirssig, the doctor transmitted such summons together with a copy of the petition to the attorneys of the insurer in Toledo, with the statement that the injuries described by Mrs. Hirssig were within the coverage of the policy and with a demand that the insurer defend the action and, to the extent provided by the policy, pay any judgment which might be rendered against Michota.
Thereafter, the insurer brought the present action in the Court of Common Pleas of Lucas County, naming Michota and Mrs. Hirssig as defendants. The prayer of the petition is that the court enter a declaratory judgment under Section 12102, General Code, setting forth the respective rights, duties and liabilities of the parties with respect to the policy of insurance involved, and declaring that the plaintiff-insurer has no obligation to defend the action brought against its insured, whether the same be meritorious or not, and is under no liability to pay any judgment which might be rendered in such action.
The policy issued to Michota is entitled "Professional Liability Policy" and the provisions thereof relied on by all parties are as follows:
"I. To defend each claim and suit, even though wholly without merit, brought against the insured or his estate to enforce the liability imposed by law for the payment of damages as respects an injury arising out of the practice of the insured's profession as specified herein, and to pay the expenses incurred in the defense of such claim or suit in addition to the applicable limit of liability of this policy;
"II. To pay on behalf of the insured or his estate all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of injury resulting from professional services rendered or which should have been rendered."
Separate answers were filed by Michota and Mrs. Hirssig. In the doctor's answer he avers that on November 9, 1949, he directed "Amelia Hirssig to enter into said treatment room, and further directed her to remove her stockings and her shoes and to sit down in the special treatment chair in the private room, and while in said room the said Amelia Hirssig received certain personal injuries for which she had presented a claim against this answering defendant."
Plaintiff-insurer filed a motion asking for judgment in its favor on the pleadings and later Michota filed a motion asking for judgment on the pleadings in his favor.
Upon consideration, the trial court found that no issues of fact were raised by the pleadings and that only a question of law was presented for determination, and granted and overruled, respectively, the motions. The court then entered a declaratory judgment to the effect that the insurer is under no obligation to defend the action of Mrs. Hirssig against Michota, nor is it liable for the payment of any judgment for damages which might be rendered in such suit.
Separate appeals on questions of law were prosecuted by Michota and Mrs. Hirssig to the Court of Appeals. That court reversed the judgment below and adjudged that under the provisions of the insurer's policy in issue the insurer is required to defend the tort action against Michota and to pay any final judgment against him to the extent of the policy coverage.
This court allowed the insurer's motion to certify the record and the cause is here for decision on its merits.
Messrs. Marshall, Melhorn, Bloch Belt and Mr. W. C. Jacobs, for appellant.
Messrs. Rowe, Williams Shawaker, for appellee Stanley V. Michota.
Messrs. Logan, Schroeder Swartzbaugh, for appellee Amelia Hirssig.
The insurer contends that, under the quoted language of the policy, its liability either "to defend" or "to pay" is strictly limited to those injuries which might arise out of the actual rendition of professional services by the insured, and that the allegations of the petition in the case of Hirssig v. Michota, which must be accepted as true for the purposes of the present litigation, do not disclose an incident within the protection of the policy.
Opposing such position, the defendants make the claim that the quoted language of the policy is in broad and comprehensive terms and that, in conformity with the well established and universally recognized rule, any doubt or ambiguity with respect to the meaning of the phraseology employed in the policy must be resolved in favor of the insured and against the insurer, which prepared and issued the policy and collected a premium therefor, and that the injury described by Mrs. Hirssig in her petition brings the case within the policy provisions.
This court is of the opinion that the Court of Appeals was correct in its conclusion and judgments. The policy is entitled "Professional Liability Policy" and nowhere in the quoted language relied on is the liability of the insurer restricted to "malpractice." Nor by the wording of the policy is liability thereunder confined to a failure on the part of the insured to exercise that standard of professional skill in the treatment of patients prescribed by law.
Prior to November 9, 1949, Mrs. Hirssig had been a patient of Michota. When on that date she entered the doctor's office and in a treatment room thereof began to follow his precise instructions in preparing herself for his professional ministrations, the relationship of patient and doctor was clearly established. Her claimed injuries, according to the allegations of her petition, were due to the negligence of the doctor in failing to maintain apparatus employed by him in his practice of chiropody in a safe condition for her use as a patient.
The injury described was one "arising out of the practice of the insured's profession" and also constituted "an injury resulting from professional services rendered or which should have been rendered." Maintaining the treatment chair in a proper and safe condition for the accommodation of patients was a service or duty directly connected with the practice by Michota of his profession as a chiropodist, chiropody being a limited branch of medicine or surgery. See Section 1274-1, General Code.
In accordance with the judgments of the Court of Appeals, the insurer, under the policy and with any doubt or ambiguity in the meaning or scope of the language used resolved in insured's favor, is obliged to defend the action of Mrs. Hirssig against Michota, and, in the event of a verdict and final judgment against him upon evidence supporting substantially the averments of Mrs. Hirssig's petition, the insurer is liable to pay on the doctor's behalf, in satisfaction of the judgment, such sum as may be within the limits of the policy.
The judgments of the Court of Appeals are, therefore, affirmed.
Judgments affirmed.
WEYGANDT, C.J., STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.