National Union v. NWYS

983 P.2d 1144
CourtCourt of Appeals of Washington
DecidedSeptember 7, 1999
Docket42584-6-I
StatusPublished

This text of 983 P.2d 1144 (National Union v. NWYS) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Union v. NWYS, 983 P.2d 1144 (Wash. Ct. App. 1999).

Opinion

983 P.2d 1144 (1999)
97 Wash.App. 226

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, a Pennsylvania corporation, Respondent,
v.
NORTHWEST YOUTH SERVICES, a nonprofit Washington corporation, Defendant,
Paul C. Ritchie, an individual; and Connie Lavalley, an individual, Appellants.

No. 42584-6-I.

Court of Appeals of Washington, Division 1.

August 2, 1999.
Publication Ordered September 7, 1999.

*1145 Douglas R. Shepherd, Patricia S. Woodall, Shepard, Abbott, and Woodall, Everson, WA, for Appellants.

Steven J. Chance, Simonarson Visser Zender & Thurston, Bellingham, WA, for Defendant.

Robert J. Roche, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Seattle, WA, for Respondent.

*1146 COLEMAN, J.

Connie LaValley sued her therapist, Paul Ritchie, and Northwest Youth Services (NWYS), Ritchie's employer, alleging that Ritchie had entered into an improper sexual relationship with her.[1] National Union Fire Insurance Company, NWYS's insurer, then commenced this declaratory judgment action, contending that it had no duty to defend or indemnify Ritchie and NWYS on LaValley's claims. National Union argued that its insurance policies provided coverage for NWYS employees only when they were acting within the scope of their employment and that the trial court in the liability action had determined that Ritchie's actions were outside the scope of his employment when it dismissed LaValley's claims against NWYS that were based on vicarious liability. Thus, National Union argued, its policies did not cover Ritchie's conduct, and LaValley was collaterally estopped from relitigating this issue. The trial court agreed. The court also concluded that the question of National Union's duty to indemnify NWYS on claims that had been dismissed was moot.

LaValley and Ritchie appealed. We find that the trial court correctly interpreted the provisions limiting coverage under NWYS's insurance contracts and properly applied the doctrine of collateral estoppel to determine that Ritchie was not covered by the agreements. We also find that the issue of National Union's coverage of claims that have been dismissed is moot. We affirm.

FACTS

National Union provided general liability coverage to NWYS when Ritchie was an NWYS employee. NWYS is designated as the named insured in its policies. The policies provide that employees other than executive officers are also insureds "but only for acts within the scope of their employment."[2] In moving for summary judgment against Ritchie, National Union argued that the dismissal of LaValley's vicarious liability claims depended upon a determination that Ritchie's conduct was outside the scope of his employment. National Union argued that its insurance policies only covered NWYS employees when they were acting within the scope of their employment and that LaValley was collaterally estopped from relitigating this issue. The trial court agreed, ruling that National Union was not obligated to defend or indemnify Ritchie on LaValley's claims.

LaValley moved for partial summary judgment against National Union, seeking coverage of her claims against NWYS. The trial court granted partial summary judgment to LaValley, finding that National Union had a duty to provide coverage on claims that had not been dismissed.[3] The court ruled, however, that the issue of National Union's obligation to indemnify NWYS on claims that had been dismissed in the liability action was moot.[4]

In a separate appeal, LaValley challenged the dismissal of her claims against NWYS. A panel of this court recently affirmed that ruling in LaValley v. Ritchie, No. 42251-1-I, 1999 WL 359098 (May 24, 1999).

DISCUSSION

We review a grant of summary judgment de novo. Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996).

Coverage of Claims Against Ritchie

The appellants argue that Ritchie's coverage under the insurance contracts was *1147 not limited to acts within the scope of his employment at NWYS, and thus the trial court erred in giving preclusive effect to the vicarious liability decision. The appellants contend that an exclusion to the contracts' professional liability endorsements amends the definition of an insured under the policies and provides for coverage of Ritchie's conduct. We review the interpretation of an insurance contract de novo. Mutual of Enumclaw Ins. Co. v. Jerome, 122 Wash.2d 157, 160, 856 P.2d 1095 (1993).

The terms of an insurance contract must be given their usual, ordinary meaning unless the entirety of the agreement demonstrates a contrary intent. Safeco Ins. Co. v. McManemy, 72 Wash.2d 211, 212, 432 P.2d 537 (1967); see also Mutual of Enumclaw, 122 Wash.2d at 160, 856 P.2d 1095 ("Policies are `given a fair, reasonable, and sensible construction[.]") (quoting Sears v. Grange Ins. Ass'n, 111 Wash.2d 636, 638, 762 P.2d 1141 (1988)). If a contractual provision is ambiguous, it must be construed against the insurer even though the insurer may have intended another meaning. See Safeco Ins. Co., 72 Wash.2d at 213, 432 P.2d 537.

NWYS's policies specifically exclude coverage of claims arising out of the provision of or failure to provide health care services. But under the liability endorsements, employees are covered for professional malpractice. The endorsements provide coverage on behalf of the Insured [for] all sums which the Insured shall become legally obligated to pay as damages because of:

a) any negligent act, error, or omission arising out of the performance of professional services for others in the practice of the Insured's business described in the declarations.

b) any liability that may arise based solely on the negligent acts, errors, or omissions of any employee of the Named Insured in the performance of professional services to others, for which the Named Insured may be held liable.

The endorsements also provide that "[a]ll other terms, conditions and exclusions remain the same." Nevertheless, the appellants argue that coverage of employees under the endorsements is not limited to acts within the scope of their employment. The endorsements provide:

The following additional exclusions apply:

. . . .

(g) to licentious, immoral or sexual behavior intended to lead to or culminating in any sexual act. However, notwithstanding the foregoing, the Insured shall be protected under the terms of this policy as to any claim upon which suit may be brought against him, by reason of any alleged licentious, immoral or sexual behavior by an Insured unless the judgment or final adjudication thereof adverse to the Insured shall establish that acts of active and deliberate, licentious, immoral or sexual behavior committed by the Insured with actual licentious or immoral purpose and intents were material to the cause of actions so adjudicated[.]

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983 P.2d 1144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-union-v-nwys-washctapp-1999.