St. Paul Fire & Marine Insurance v. Shernow

610 A.2d 1281, 222 Conn. 823, 1992 Conn. LEXIS 223
CourtSupreme Court of Connecticut
DecidedJuly 14, 1992
Docket14422
StatusPublished
Cited by40 cases

This text of 610 A.2d 1281 (St. Paul Fire & Marine Insurance v. Shernow) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
St. Paul Fire & Marine Insurance v. Shernow, 610 A.2d 1281, 222 Conn. 823, 1992 Conn. LEXIS 223 (Colo. 1992).

Opinions

Covello, J.

The principal issue in this appeal from a declaratory judgment is whether professional liability (malpractice) insurance covers injuries sustained by a patient when a dentist, in the course of treatment, sexually assaulted her, having overcome her ability to resist through misuse of anesthesia. We conclude that the trial court correctly determined that professional liability insurance covered the injuries sustained in this incident and, therefore, affirm the judgment.

The parties agree that the plaintiff, St. Paul Fire and Marine Insurance Company (St. Paul), issued an insur[825]*825anee policy to the named defendant, Robert Shernow, a dentist, that provided both professional liability protection1 and office liability protection.2

On May 12, 1986, the intervening defendant here, Mary Lou Sciola, commenced an action in Superior Court against Shernow for damages and injuries that she had sustained as the result of a sexual assault that allegedly had occurred in the course of dental treatment furnished by Shernow.3 Sciola’s action was [826]*826brought in two counts, one for unconsented sexual contact and the other for dental malpractice. On Novem[827]*827ber 30,1988, a jury returned a verdict in Sciola’s favor in the amount of $300,000 on the dental malpractice claim. In response to a special interrogatory, the jury specifically found that Shernow “breach[ed] the standard of care in providing professional treatment to [Sciola]

In the interim, on December 4, 1987, St. Paul had commenced the present action seeking a determination that its policy did not cover Shernow for the acts alleged by Sciola and that, therefore, it was not liable to indemnify Shernow for any part of the damages that Sciola might be awarded against Shernow. The trial court determined that the professional liability portion of the policy did provide coverage and that the office liability portion of the policy did not. St. Paul appealed to the Appellate Court and Sciola cross appealed. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal, St. Paul first claims that the evidence disclosed an intentional, sexual attack on Sciola by Shernow; that Shernow rendered Sciola helpless by the administration of excessive amounts of nitrous oxide; and that during the attack, Sciola saw Shernow deliberately turn up the gas twice as she intermittently regained consciousness. St. Paul contends that although the “weapon” or means used to accomplish the sexual assault involved Shernow’s negligent use of nitrous oxide, a sedative ordinarily used in the course of his dental practice, this fact should not serve as the basis for characterizing an intentional assault as a professional service that was performed negligently. St. Paul argues that coverage under the professional liability policy should depend upon the nature of the act and the intent of the actor and not the means used to accomplish the act.

[828]*828In support of this proposition, St. Paul relies upon Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho App. 1984). In Hirst, a physician admitted to drugging and then performing sexual acts on a patient during the course of his examination and treatment of that patient for a sports injury. The physician’s professional liability policy was worded exactly the same as the one here. Significantly, the use of the drugs was not related to any treatment for the patient’s injuries. Also, there was no showing that the drugs injured the patient. The Hirst court concluded that the physician’s actions were not covered by the policy. “The scope of “professional services” does not include all forms of a doctor’s conduct simply because he is a doctor. As noted by the Supreme Court of Nebraska: ‘The insurer’s liability is thus limited to the performing or rendering of “professional” acts or services. Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind. The term “professional” in the context used in the policy provision means something more than mere proficiency in the performance of a task and implies intellectual skill as contrasted with that used in an occupation for production or sale of commodities. A “professional” act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual. [Citations omitted.] In determining whether a particular act is of a professional nature or a “professional service” we must look not to the title or character of the party performing the act, but to the act itself. [Citations omitted.]’ Marx v. Hartford Accident and Indemnity Co., 157 N.W.2d 870, 871-72 (Neb. 1968).” Hirst v. St. Paul Fire & Marine Ins. Co., supra, 796. [829]*829For similar reasoning, see also Smith v. St. Paul Fire & Marine Ins. Co., 353 N.W.2d 130 (Minn. 1984) (professional liability coverage found unavailable when a physician sexually assaulted teen-age male patients during treatment for various medical problems), and Standard Fire Ins. Co. v. Blakeslee, 54 Wash. App. 1, 771 P.2d 1172, review denied, 113 Wash. 2d 1017, 781 P.2d 1320 (1989). We conclude that this rationale is inapplicable to the different factual circumstances present in this case.

Shernow had treated Sciola for approximately ten years and had consistently advised her that nitrous oxide was the appropriate means of sedation for her because of her soft teeth. On the day in question, the encounter between Shernow and Sciola began as a dental procedure for the filling of a molar. Prior to beginning treatment, Shernow administered nitrous oxide. Thus, unlike Hirst, the drug in issue had a direct relationship to a treatment in progress.

Evidence that Shernow negligently administered the nitrous oxide included, inter alia, the administration of a dangerously high concentration of the gas for more than twice the customary length of time, the failure to check the accuracy of the mechanism that metered out the gas for three years, and the failure to ask Sciola about medications that she might be using before administering the nitrous oxide. Thus, unlike Hirst, the jury here heard evidence of specific acts of professional negligence, some of which had occurred prior to the sexual encounter.

Finally, unlike Hirst, in which there was no evidence that the drug injured the victim, there was evidence here that the administration of the nitrous oxide permanently injured Sciola. A pulmonary specialist concluded that during her exposure to excessive amounts of nitrous oxide, Sciola aspirated stomach acid into her [830]*830lungs, which left her with a permanent asthma condition and a permanent loss of 35 to 40 percent of her lung capacity.

St.

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

Related

Integris Ins. Co. v. Tohan
Connecticut Appellate Court, 2026
Allstate Ins. Co. v. Tenn
Supreme Court of Connecticut, 2022
Nationwide Mutual Ins. Co. v. Pasiak
Supreme Court of Connecticut, 2017
Pacific Employers Insurance v. Travelers Casualty & Surety Co.
136 F. Supp. 3d 211 (D. Connecticut, 2015)
State Farm Insurance v. Bruns
942 A.2d 1275 (Supreme Court of New Hampshire, 2008)
Northfield Insurance Co. v. Derma Clinic Inc.
440 F.3d 86 (Second Circuit, 2006)
Northfield Insurance v. Derma Clinic Inc.
440 F.3d 86 (Second Circuit, 2006)
Sanzi v. Shetty
864 A.2d 614 (Supreme Court of Rhode Island, 2005)
United Services Automobile Ass'n v. Kaschel
851 A.2d 1257 (Connecticut Appellate Court, 2004)
United Services Automobile v. Kaschel, No. Cv 02-0190241 S (Mar. 25, 2003)
2003 Conn. Super. Ct. 3716 (Connecticut Superior Court, 2003)
Underwriters, L.O.L. v. Lauretti's P.T., No. Cv02 07 86 75 (Feb. 26, 2003)
2003 Conn. Super. Ct. 2530 (Connecticut Superior Court, 2003)
R.W. v. Schrein
652 N.W.2d 574 (Nebraska Supreme Court, 2002)
Hoffman v. Mancini, No. Cv-00-0092080 S (Jul. 2, 2002)
2002 Conn. Super. Ct. 8232 (Connecticut Superior Court, 2002)
Atlantic Mutual Insurance v. Pope, No. Cv99-0497354s (Jun. 28, 2001)
2001 Conn. Super. Ct. 8812-b (Connecticut Superior Court, 2001)
Martinmaas v. Engelmann
2000 SD 85 (South Dakota Supreme Court, 2000)
Hanover Ins. Co. v. Halfmann, No. Cv 98 041 28 88 S (Oct. 27, 1999)
1999 Conn. Super. Ct. 14171 (Connecticut Superior Court, 1999)
Physicians Insurance v. Pistone
726 A.2d 339 (Supreme Court of Pennsylvania, 1999)
Amex Assurance Co. v. Horobin, No. Cv 970258572 (Jun. 15, 1998)
1998 Conn. Super. Ct. 7158 (Connecticut Superior Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
610 A.2d 1281, 222 Conn. 823, 1992 Conn. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-paul-fire-marine-insurance-v-shernow-conn-1992.