Chung v. Physicians Reciprocal Insurers

Appellate Division of the Supreme Court of New York

Chung v. Physicians Reciprocal Insurers

221 A.D.2d 907, 635 N.Y.S.2d 386

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1995

DocketAppeal No. 1

StatusPublished

Cited by5 cases

This text of 221 A.D.2d 907 (Chung v. Physicians Reciprocal Insurers) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chung v. Physicians Reciprocal Insurers, 221 A.D.2d 907, 635 N.Y.S.2d 386 (N.Y. Ct. App. 1995).

Pincite

Opinion

—Judgment reversed on the law without costs, cross motion denied, motion granted and judgment granted in accordance with the following Memorandum: Supreme Court erred in granting summary judgment in favor of defendant, declaring that defendant has no duty to defend plaintiff, Kwan H. Chung, M.D., in the underlying action. The duty to defend is broader than the duty to indemnify and, "[i]f the complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend” (Technicon Elees. Corp. v American Home Assur. Co., 74 NY2d 66, 73, rearg denied 74 NY2d 893). Where an insurer seeks to rely upon an exclusion clause to deny coverage, the insurer must demonstrate "that the 'allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation’ ” (Technicon Elees. Corp. v American Home Assur. Co., supra, at 73-74, quoting International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325).

The conduct alleged in the underlying complaint can reasonably be construed as falling within the coverage purchased by Dr. Chung, i.e., any claim arising from rendering or failing to render professional services. The allegations of the complaint do not cast the pleading solely within the policy exclusion of "Sexual Acts” and are not " 'subject to no other interpretation’ ” (Technicon Elees. Corp. v American Home Assur. Co., supra, at 74). The complaint can reasonably be read as alleging that Dr. Chung was negligent in his professional treatment of plaintiff, which caused her to suffer humiliation, mental anguish and self-loathing. We, therefore, grant judgment declaring that defendant is obligated to provide a defense for Dr. Chung in the underlying action.

All concur except Green, J. P., and Lawton, J., who dissent and vote to affirm for reasons stated in decision at Supreme [908]*908Court, Galloway, J. (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J.—Declaratory Judgment.) Present—Green, J. P., Lawton, Fallon, Doerr and Boehm, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Judgment reversed on the law without costs, cross motion denied, motion granted and judgment granted in accordance with the following Memorandum: Supreme Court erred in granting summary judgment in favor of defendant, declaring that defendant has no duty to defend plaintiff, Kwan H. Chung, M.D., in the underlying action. The duty to defend is broader than the duty to indemnify and, "[i]f the complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend” (Technicon Elees. Corp. v American Home Assur. Co., 74 NY2d 66, 73, rearg denied 74 NY2d 893). Where an insurer seeks to rely upon an exclusion clause to deny coverage, the insurer must demonstrate "that the 'allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation’ ” (Technicon Elees. Corp. v American Home Assur. Co., supra, at 73-74, quoting International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325).

The conduct alleged in the underlying complaint can reasonably be construed as falling within the coverage purchased by Dr. Chung, i.e., any claim arising from rendering or failing to render professional services. The allegations of the complaint do not cast the pleading solely within the policy exclusion of "Sexual Acts” and are not " 'subject to no other interpretation’ ” (Technicon Elees. Corp. v American Home Assur. Co., supra, at 74). The complaint can reasonably be read as alleging that Dr. Chung was negligent in his professional treatment of plaintiff, which caused her to suffer humiliation, mental anguish and self-loathing. We, therefore, grant judgment declaring that defendant is obligated to provide a defense for Dr. Chung in the underlying action.

All concur except Green, J. P., and Lawton, J., who dissent and vote to affirm for reasons stated in decision at Supreme [908]*908Court, Galloway, J. (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J.—Declaratory Judgment.) Present—Green, J. P., Lawton, Fallon, Doerr and Boehm, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

221 A.D.2d 907, 635 N.Y.S.2d 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chung-v-physicians-reciprocal-insurers-nyappdiv-1995.

Opinion

Related

Cite This Page — Counsel Stack