Northfield Insurance v. Derma Clinic Inc.

440 F.3d 86
CourtCourt of Appeals for the Second Circuit
DecidedMarch 6, 2006
DocketDocket Nos. 04-2056-CV(L), 04-2057-CV (CON)
StatusPublished
Cited by1 cases

This text of 440 F.3d 86 (Northfield Insurance v. Derma Clinic Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northfield Insurance v. Derma Clinic Inc., 440 F.3d 86 (2d Cir. 2006).

Opinion

WINTER, Circuit Judge.

Defendants Derma Clinic, Inc. (“Der-ma”), Patricia O’Regan Brown, and plaintiffs Holly Allen, Jane Doe, and Mary Roe appeal from Judge Burns’s grant of summary judgment in favor of Northfield Insurance Company (“Northfield”) and Northern Insurance Company of New York (“NIC”). Judge Burns’s decision denied coverage to Derma and Brown under a professional liability policy (“PL Policy”) issued by Northfield and a portfolio policy (“NIC Policy”) issued by NIC, which included commercial general liability coverage (“CGL part”).1

Appellants raise undecided but disposi-tive questions of Connecticut law. These issues require the interpretation of Connecticut insurance and contract law, and we certify, pursuant to Conn. Gen Stat. § 51-199b (2005) and 2d Cir. R. § 0.27, several questions to the Supreme Court of Connecticut.

BACKGROUND

a) The Underlying Lawsuits

Derma Clinic is a business offering massage therapy to the public. At all pertinent times, Brown was president of Derma, and Joseph Burden was an employee of Derma and Brown. Between August 2001 and September 2002, three women — Allen, Doe, and Roe — filed lawsuits against Der-ma, Brown, and Burden. Each complaint alleged a physical and sexual assault that occurred during the course of a massage performed by Burden.

The first count of the Allen complaint alleged assault and battery against Burden only. The Second Count alleged that Burden. intentionally inflicted emotional distress against Allen. Count Three alleged that Derma negligently breached its obligations to Allen by failing to advise Allen that Derma had received complaints concerning Burden’s improper behavior; failing to investigate promptly these complaints; failing to suspend Burden pending an investigation of the complaints; failing to terminate Burden; continuing to allow Burden to-perform massages after it knew or should have known Burden was sexually abusing patrons; and failing to report Burden to the appropriate licensing organization. The Fourth Count made the same allegations as the Third Count but characterized Derma’s acts and omissions as “willful, wanton, reckless, intentional and/or deliberate disregard for the safety and the well being” of Allen. Count Five asserted a claim for negligent infliction of emotional distress by Derma. Id.

Count One of the Doe suit alleged physical and sexual assault by Burden only. The second count alleged that Derma and Brown negligently caused the physical and sexual assault because they knew or should have known of Burden’s propensity to assault clients but did nothing to protect Doe; failed to warn Doe; failed to adequately supervise Burden; and failed to monitor Burden. Count Three alleged violations of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. §§ 42-110a to p, based on Derma and Brown’s failure to warn ór protect Doe from Burden despite Derma and Brown’s awareness of Burden’s propensity to assault clients.

Count One of the Roe complaint alleged physical and sexual assault. It charged [89]*89that Derma and Brown failed to investigate Roe’s claim and continued to employ Burden after receiving a report that Burden had sexually assaulted a previous patron. Count One also claimed that Brown sought to publicly discredit Roe by making statements to the press of her disbelief of the allegations against Burden. Count Two alleged negligence against Derma and Brown because they knew or should have known about Burden’s propensity to have sexual contact with and/or assault clients and failed to protect Roe; failed to provide adequate safeguards to clients receiving massages; failed to adequately train, supervise, and monitor Burden; and retained Burden despite his propensity to have sexual contact with and/or assault his clients. Count Three alleged intentional infliction of emotional distress by Derma, Brown, and Burden, whereas Count Four alleged negligent infliction of emotional distress by the same defendants. Count Five alleged an invasion of privacy, and Count Six alleged violations of CUTPA based on Der-ma and Brown’s failure to warn or protect Roe from Burden despite Derma and Brown’s awareness of Burden’s propensity to have sexual contact with and/or assault clients.

b) The Insurance Policies

Derma and Brown rely on two insurance policies to cover their defense against the claims by Allen, Doe, and Roe and, if necessary, to provide indemnification. The first policy, a professional liability policy (“PL Policy”), was issued by Northfield and designates Derma as the named insured. Derma’s “ ‘executive officers’ and directors” are also insureds, “but only with respect to their duties as [Derma’s] officers and directors.” The PL Policy provides coverage for “those sums that the insured becomes legally obligated to pay as damages because of a negligent act, error or omission in the rendering of or failure to render professional services of the type described in the Declarations.” The Declarations page describes Derma’s business as “massage therapist.” The PL Policy further states that Northfield has “the right and duty to defend the insured against any ‘suit’ seeking those ‘damages.’ ” The PL Policy excludes coverage for “[a]ny damages arising out of any dishonest, fraudulent, criminal or malicious act or omission of any insured or ‘employee.’ ”

Derma and Brown also rely upon the commercial general liability (CGL) Part of the policy underwritten by NIC. Derma is the named insured on the CGL Part, and Brown, in her capacity as president of Derma, is also an insured. The CGL Part obligates NIC to “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” and to “defend any ‘suit’ seeking those damages.” “Bodily injury” is defined under the CGL Part as “bodily injury, sickness or disease sustained by a person. This includes mental anguish, mental injury, shock, fright or death resulting from bodily injury, sickness or disease.” The CGL Part excludes coverage for bodily injury expected or intended by the insured, and “ ‘[b]odily injury’ ... arising out of the rendering or failure to render any professional service, including but not limited to ... (b) ... massage.”

c) Proceedings in the District Court

Northfield and NIC initiated declaratory judgment actions in the District of Connecticut seeking a determination that their insurance policies do not obligate them to defend or indemnify Derma or Brown in connection with the Allen, Doe, and Roe suits. The district court granted both Northfield’s and NIC’s motions for summary judgment.

[90]*90With regard to the Northfield policy, the district court refused to “torture the meaning of ‘professional services’ to include sexually assaulting a client in the guise of massaging her.” Reasoning that “the natural meaning of the term ‘professional services’ includes massaging clients only,” the court found that the PL Policy, which insures damages only against negligence in the rendering or omission of professional services, did not cover the acts alleged in the Allen, Doe, and Roe complaints.

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Related

Northfield Insurance Co. v. Derma Clinic Inc.
440 F.3d 86 (Second Circuit, 2006)

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Bluebook (online)
440 F.3d 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northfield-insurance-v-derma-clinic-inc-ca2-2006.