A physician’s liability policy that insured against damages "because of bodily injury" covered a claim for loss of consortium by a patient’s wife due to an injury to the patient allegedly caused by the doctor’s faulty care, the Connecticut Supreme Court ruled. The case is Connecticut Insurance Guaranty Assoc. v. Fontaine, 278 Conn. 779, 900 A.2d 18 (July 4, 2006).
The Guaranty Association, which as you probably know is a state-created fund that steps into the liabilities of insolvent insurance companies, brought a declaratory action seeking a judgment of no coverage. The court probably took more pages to analyze this than it needed, finding that the policy contained no clause restricting the damages to the person who suffered bodily injury. The court could have said the policy language plainly covered the damages claimed by the patient’s wife, but instead it found the language ambiguous, or susceptible to more than one reasonable interpretation. Under that circumstance, the policy must be construed against the insurer and in favor of coverage, producing the same result.
The Guaranty Association also argued that the rule of deciding against the drafter did not apply to it because it didn’t draft the policy, but merely inherited its liabilities. This is a pretty weak argument. How many insurance policies are out there in which the original underwriting company has since merged or been purchased? Considering the Insurance Services Office or other trade organizations actually draft much insurance policy language, how far could this argument go? The court didn’t buy it either. The court affirmed the trial court’s judgment for Mrs. Fontaine, the patient’s wife, on her cross-motion for summary judgment.