Atlantic Mutual Insurance v. Gula

926 A.2d 449, 2007 Pa. Super. 139, 2007 Pa. Super. LEXIS 1183
CourtSuperior Court of Pennsylvania
DecidedMay 17, 2007
StatusPublished
Cited by3 cases

This text of 926 A.2d 449 (Atlantic Mutual Insurance v. Gula) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlantic Mutual Insurance v. Gula, 926 A.2d 449, 2007 Pa. Super. 139, 2007 Pa. Super. LEXIS 1183 (Pa. Ct. App. 2007).

Opinion

OPINION BY

KLEIN, J.:

¶ 1 This matter came to the trial court as a result of dueling motions for summary judgment in a declaratory judgment action concerning insurance coverage. Plaintiff Kathleen Gula suffered a work injury, and alleged the injury was compounded because the workers’ compensation ease manager assigned by the employer’s carrier, Novaeon, delayed authorization of surgery. Novaeon went into bankruptcy and dissolved, but Atlantic Mutual Insurance Company had issued a general liability policy for Novaeon that survived the bankruptcy. The trial court ruled in favor of Gula and against Atlantic Mutual on both summary judgment motions. We believe that both rulings were in error, and reverse and remand for entry of judgment in favor of Atlantic Mutual, signifying it had no duty to defend or indemnify Novaeon.

¶ 2 The pertinent language of the policy is the following:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result.

Policy, ¶ 1, p. 208.

¶ 3 The policy also says that the insurance “... applies to ‘bodily injury’ ... only if: (1) the ‘bodily injury’ ... is caused by an ‘occurrence’ that takes place in the ‘coverage territory.’ ” Id. at ¶ 1(b)(1). An “occurrence” is defined as “an accident including continuous or repeated exposure to substantially the same general harmful conditions.” Id. at ¶ 10, p. 216. Moreover, there is an exclusion for “ ‘bodily injury’ ... arising out of the rendering or failure to render professional services.” Id. at ¶ 2(j), p. 210.

¶4 We believe there are two reasons that there is no coverage.

1. Under the recent Pennsylvania Supreme Court case of Kvaemer Metals Div. of Kvaerner U.S., Inc. v. Commercial Union, 589 Pa. 317, 908 A.2d 888 (2006), failure to authorize medical care is not an “occurrence” which would be covered by the policy. That is all that is pled in the complaint.

2. Novaeon, as a workers’ compensation risk manager, employs physicians and uses skill to determine what medical care is appropriate for treatment for a work accident. That is its profession. One does not have to be a doctor or lawyer to render professional services. The exclusion for failing to render proper professional services is specifically excluded from the policy. General liability coverage would include someone slipping and falling in No-vaeon’s offices but not the job that they get paid for doing.

Occurrence

¶ 5 As noted above, the insurance policy provides coverage for a bodily injury caused by an occurrence. An insurer’s obligation to defend is fixed solely by the allegations in the underlying complaint. See Erie Ins. Exchange v. Muff, 851 A.2d 919 (Pa.Super.2004). Here, the complaint reveals that Gula suffered an injury while in the course and scope of her employment as an X-ray technician at Taylor Hospital. The injury was a left peroneal nerve entrapment that included left great toe numbness and foot drop. Plaintiffs Com[451]*451plaint, 1/30/01, ¶¶ 3-5. Her family physician related her problems to her work related accident. Id. at ¶ 6. Gula sought care from Park Care Health Organization. Id. at ¶¶ 6-7. She also received care from an orthopaedist, whose affiliation is not noted in the complaint. Id. at ¶¶ 8-9. On March 28, 1999, she was referred to No-vaeon (the insured under the policy at issue) to obtain certification to obtain an EMG diagnostic procedure, which certification was obtained on March 30. Id. at ¶¶ 10-11. The EMG diagnostic test was performed on April 1, 1999. Id. at ¶ 11.

¶ 6 At some point, presumably after April 1, Gula treated with a neurologist, Dr. Brian Grossinger, who diagnosed the left peroneal nerve entrapment and who recommended (allegedly erroneously) against surgery. Id. at ¶ 12. On April 8, Gula returned to work on full duty status, wearing a leg brace. Id. at ¶ 13. At some later point in time, Gula sought treatment from another neurologist, Dr. Vidyar Chi-tale, who ultimately performed the pero-neal nerve release on May 24,1999. Id. at ¶ 14. There is no indication in the complaint who referred Gula to Dr. Grossinger or Dr. Grossinger’s affiliation with No-vaeon. Similarly, there is no indication of Dr. Chitale’s affiliation.

¶ 7 In Count I of her complaint, Gula avers that Novaeon is the health care management administrator or vendor to or for Gula’s employer and through which she must obtain approval to seek medical care and treatment. Id. at ¶ 25. She then alleges that Novaeon failed to establish and implement reasonable processes and procedures for Gula to get adequate, timely and proper health care for her injury. Id. at ¶ 26.

¶ 8 The above listed information is the basis by which we must determine whether Gula suffered an injury by an occurrence. The policy defines an occurrence as an accident. Our Supreme Court has recently provided guidance for the interpretation of an accident/occurrence in Kvaemer, supra.

The National Union CGL1 policies do not provide a definition for “accident.” Words of Common usage in an insurance policy are construed according to their natural, plain, and ordinary sense. We may consult the dictionary definition of a word to determine its ordinary usage. Webster’s II New College Dictionary 6 (2001) defines “accident” as “[a]n unexpected and undesirable event,” or “something that occurs unexpectedly or unintentionally.” The key term in the ordinary definition of “accident” is “unexpected.” This implies a degree of fortuity that is not present in a claim for faulty workmanship.

Id. at 897-98.

¶ 9 It also stated:

While the majority of Courts have held that coverage under a CGL policy is not triggered by poor workmanship which causes injury to the work product itself, a minority of jurisdictions have held that faulty or negligent workmanship constitutes an accident so long as the insured did not intend for the damage to occur. We believe that this is an overly broad interpretation of accident, as the situation is rare indeed in which a contractor intends that the work product suffer injury. Because we believe that CGL policies are not the proper means to protect against such risks, we concur with the majority of Courts and decline to apply coverage in such cases.

Id. at 899, n. 9.

¶ 10 Finally:

[452]*452We hold that the definition of “accident” required to establish an “occurrence” under the policies cannot be satisfied by claims based upon faulty workmanship. Such claims simply do not present the degree of fortuity contemplated by the ordinary definition of “accident” or its common judicial construction in this context.

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Cite This Page — Counsel Stack

Bluebook (online)
926 A.2d 449, 2007 Pa. Super. 139, 2007 Pa. Super. LEXIS 1183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-mutual-insurance-v-gula-pasuperct-2007.