Filed November 14, 2000.
Appeal from the District Court, Hennepin County, File No. 9817760.
Bethany K. Culp, (for respondent St. Paul Fire Marine)
Marc G. Kurzman, (for respondent Fors)
Darrell Carter, (for appellants)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
Appellants/intervenors, C.J. and her husband, D.J., challenge summary judgment granted to respondent St. Paul Fire Marine Insurance Company (St. Paul Fire) in this declaratory judgment action to determine whether St. Paul Fire had a duty to defend and provide insurance coverage for its insured, chiropractor Gregory Fors. Fors, who was insured under a professional liability policy issued by St. Paul Fire solely to provide professional services as a chiropractor, engaged in sexual relations with former clients and employees, including C.J. Because the sexual misconduct alleged in the declaratory judgment action was not a risk covered under the policy, we affirm the district court's determination that St. Paul Fire had no duty to defend Fors.
St. Paul Fire's professional liability policy covered damage claims "based on events that arise out of the profession named in the Coverage Summary." The policy further provided coverage for claims that result from:
Professional services that you provided or should have provided.
Professional services that were or should have been provided by anyone for whose acts you're legally responsible.
Your service on a formal review board or any similar board or committee.
The coverage summary listed Fors' profession as "CHIROPRACTOR." The policy application also listed as possible choices "Psychologist" or "Other," the last of which required a brief description of related duties. Fors did not select either of these choices as his profession.
Fors argues that his conduct should be covered as a professional service because his chiropractic practice included a "holistic" approach to treatment that could have included treatment of any sexual problems C.J. may have had. This claim fails for several reasons.
First, Fors was insured only as a "chiropractor" under the professional liability policy, a term not specifically defined by the policy. "If the terms of an insurance policy are not specifically defined, they must be given their plain, ordinary, or popular meaning." Smith v. St. Paul Fire Marine Ins. Co., 353 N.W.2d 130, 132 (Minn. 1984) (citation omitted). "Chiropractic" is ordinarily defined as:
A system of therapy in which disease is considered the result of abnormal function of the nervous system. Treatment usually involves manipulation of the spinal column and other body structures.
The American Heritage Dictionary of the English Language, 335 (3d ed. 1992). In its chapter on the licensing of public health occupations, Minnesota statutes define "chiropractic" as
the science of adjusting any abnormal articulations of the human body, especially those of the spinal column, for the purpose of giving freedom of action to impinged nerves that may cause pain or deranged function.
Minn. Stat. § 148.01, subd. 1 (1998). Procedures chiropractors use in therapy "may not be used as independent therapies or separately from chiropractic adjustment." Minn. Stat. § 148.01, subd. 3 (1998). Because chiropractic treatment, by definition, does not include emotional or sexual therapy, it is not covered by St. Paul Fire's professional liability policy.
While Fors claims that his advertising materials state that his practice includes acupuncture and neurolinguistic programming, the district court found this information was neither revealed to St. Paul Fire nor claimed by Fors as his profession in his insurance application. The district court therefore properly concluded that St. Paul Fire was not bound to provide coverage for these additional services, based on these advertising materials.
Second, even assuming that sexual contact could be included as a chiropractic treatment, there are no facts showing that the sexual contact in this case was for chiropractic treatment. C.J. sought treatment for scoliosis, and the legitimate professional services Fors could offer her were for treatment of that condition. Thus, any sexual contact Fors had with C.J. was for personal, not professional, reasons. See Smith, 353 N.W.2d at 132 (professional services policy did not cover doctor's sexual exploitation of patients where sexual contact was unconnected to patients' medical conditions or treatment); see also Odegard v. Finne, 500 N.W.2d 140, 143 (Minn.App. 1993) (in medical malpractice action, doctor who treated patient for colitis not liable for having sexual contact with patient, where sexual contact did not occur under guise of treatment).
Fors next argues that he was treating C.J. as a psychotherapist and was therefore entitled to induce transference, a "process whereby the patient displaces on to the therapist feelings, attitudes and attributes which properly belong to a significant attachment figure of the past." St. Paul Fire Marine Ins. Co. v. Love, 459 N.W.2d 698, 700 (Minn. 1990) (quoting S. Waldron-Skinner, A Dictionary of Psychotherapy 364 (1986)). Professional liability insurance policies generally include coverage for a medical professional's mishandling of transference that results in sexual contact. See id. at 702.
In this case, the record includes no evidence, other than Fors' bald averment, that the sexual contact had anything to do with C.J.'s chiropractic problem or treatment. Nor was Fors licensed or trained as a psychotherapist. Thus, C.J.'s claim did not result from Fors' provision of professional services; specifically, her claim was not based on any mishandling of the transference phenomenon. Id. at 701-02 (where psychotherapist mishandled patient's transference during marital and sexual counseling, professional liability insurer required to provide coverage); St. Paul Fire Marine Ins. Co. v. Mori, 486 N.W.2d 803, 809 (Minn.App. 1992) (affirming grant of summary judgment to professional liability insurer where evidence did not show that doctor who had sexual contact with patients was attempting to induce transference as method of treatment), review denied (Minn. Aug. 4, 1992); cf. Washington Ins. Guaranty Ass'n v. Hicks, 744 P.2d 625, 627 (Wash. Ct. App. 1987) (chiropractor not covered under malpractice insurance policy for sexual contact that allegedly occurred in mishandling transference because chiropractors "do not offer a course of treatment predicated upon handling the transference phenomenon").