Estate of Tinervin v. Nationwide Mutual Insurance Co.

23 So. 3d 1232, 2009 Fla. App. LEXIS 17692, 2009 WL 4060905
CourtDistrict Court of Appeal of Florida
DecidedNovember 25, 2009
Docket4D08-2151
StatusPublished
Cited by14 cases

This text of 23 So. 3d 1232 (Estate of Tinervin v. Nationwide Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Tinervin v. Nationwide Mutual Insurance Co., 23 So. 3d 1232, 2009 Fla. App. LEXIS 17692, 2009 WL 4060905 (Fla. Ct. App. 2009).

Opinion

MAY, J.

The plaintiff appeals an adverse declaratory judgment in favor of an insurer. Specifically, 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. The trial court also found the insurer had a duty to defend. From the latter finding, the insurer filed a cross-appeal. We affirm.

The doctor is a pediatrician. He employed his wife in the office. 1 Her duties included the filing of lab reports in the patient’s chart and providing them to the doctor for review.

The decedent was the doctor’s patient. The doctor diagnosed him as obese and having high blood pressure. An outside lab performed tests on the decedent, revealing abnormal values. In February, 2005, the lab mailed the abnormal test results to the doctor, who testified that his office usually receives reports within one or two days after blood is drawn. Yet, the first time he remembered seeing the lab results was three months later in May, 2005. The decedent died on June 2, 2005. The doctor opined that if he had seen the lab report earlier, he would have taken different actions in his treatment of the decedent.

The plaintiff brought a wrongful death action against the doctor, his only employee, and his 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. 2 The in *1235 surer refused to defend or indemnify the doctor and his employee based on the exclusion for injuries arising from professional services. That exclusion provided:

This insurance does not apply to:

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j. Professional Services
“Bodily injury,” “property damage,” “personal injury” or “advertising injury” due to rendering or failure to render any professional service. This includes but is not limited to:
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(4) Medical, surgical, dental, x-ray or nursing services treatment, advice or instruction;
(5) Any health or therapeutic service treatment, advice or instruction....

The insurer claimed that misfiling the lab results fell within the professional services 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 insurer refused to defend the wrongful death action. The doctor and his employee entered into a $5,000,000 consent judgment with the plaintiff. 3 As part of the settlement, they assigned their coverage claims to the plaintiff. The plaintiff then brought an action against the insurer alleging that the insurer breached its duties to defend and indemnify the employee and the P.A.

The trial court denied the parties’ cross-motions for summary judgment, and conducted a non-jury trial. The trial focused on whether the employee provided professional services within the meaning of the policy’s exclusion. The plaintiff argued that the employee merely provided clerical services. The insurer maintained that the allegations against the employee involved the rendering of professional services.

The employee testified that she performed various clerical jobs for the doctor, which included opening the office, checking the mail, making appointments, setting up charts, and answering the phone. She did not examine patients, give medical advice, or interpret lab reports. However, she was a nurse by training and had been employed by the Philippine government as a military nurse; she was not licensed in the State of Florida. She took vital signs and wrote them in the patient’s chart. She received lab reports and clipped them to the outside cover of the patient’s chart. She never provided nursing treatment, advice, or instruction to the decedent. She testified that when she received abnormal test results, she put them with the patient’s chart on her husband’s desk. She prioritized the results so that the most serious results were on the top.

*1236 The doctor testified that he sometimes employed medical assistants, but none of them had any particular skill or training. He hired his wife to assist with his clerical and billing needs; not as a medical assistant. She never made clinical, medical, or professional decisions.

The defendant’s expert testified that “professionals” require specialized skill, and no specialized training is required to give lab reports to a doctor. In response, the insurer argued that the employee acted as a medical assistant because she operated medical equipment and performed functions that were the tasks of a professional medical assistant under section 458.3485, Florida Statutes (2007).' 4

The insurer further argued that the employee’s duties formed an “intricate part” of the medical services provided by the doctor, as she was his only employee in 2005. When she took a patient’s vital signs, the doctor relied on the information, which was critical to his diagnosis. Without her help, he would have to do everything himself.

In a letter to the attorneys following the trial, the trial court tentatively concluded there was a duty to defend, but that the coverage issue “boil[ed] down to whether one looks at the matter as a package of medical treatment or whether each employee’s acts are separated out.” The court thought the employee performed both clerical and professional acts. Specifically, her responsibility to provide the doctor with the lab results involved a clerical act and an aspect of medical treatment.

The trial court ultimately concluded the insurer had a duty to defend the wrongful death claims based on the allegation that the employee was a non-professional employee. However, the trial court found the insurer had no duty to indemnify because the professional services exclusion applied. The court found the alleged negligence was either the failure of the doctor to review the results or the failure of the employee to furnish the report to him. Either failure culminated in the doctor’s professional judgment that resulted in the decedent’s death. The trial court was not “inclined to ‘unbundle’ the acts which are part of providing medical services and put one act under a legal microscope.”

The standard of review of an order interpreting an insurance policy is de novo. Discover Prop. & Cas. Ins. Co. v. Beach Cars of W. Palm, Inc., 929 So.2d 729, 732 (Fla. 4th DCA 2006).

Our interpretation of insurance policy provisions is guided by a few well-recognized rules. An insurance policy’s coverage is defined by the plain language of the policy. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1086 (Fla.2005).

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Cite This Page — Counsel Stack

Bluebook (online)
23 So. 3d 1232, 2009 Fla. App. LEXIS 17692, 2009 WL 4060905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-tinervin-v-nationwide-mutual-insurance-co-fladistctapp-2009.