ProSelect Insurance Co. v. Levy, 2011 VT 109 (mem.)

ProSelect Insurance Company filed this declaratory relief action to determine its duty to indemnify its insured in a lawsuit alleging medical malpractice and sexual assault. On summary judgment, the trial court construed a policy exclusion to bar coverage and entered judgment in favor of ProSelect. Plaintiff in the underlying suit appeals from the judgment, asserting that the malpractice claims are covered under the concurrent causation doctrine. We affirm.

The trial court relied on a policy exclusion for “any damages, incidents, claims or suits . . . [w]hich, in whole or in part, arise out of or contain any allegations of any of … [s]exual intimacy, . . . exploitation, assault or undue familiarity.” (emphasis added.)

Plaintiff relies on the “concurrent causation” doctrine and contends her malpractice claims are “wholly independent” of the sexual assault allegation. Under this doctrine, “coverage may not be denied merely because a separate excluded risk was an additional cause of the accident provided that the conduct on which coverage is premised is “somehow independent of the conduct excluded from the policy.” State Farm Mutual Automobile Insurance Co. v. Roberts, 166 Vt. 452, 459, 463 697 A.2d 667, 671, 673-74. (1997). Plaintiff alleged that the insured negligently failed to properly diagnose her psychological disorder, prescribed harmful medications, encouraged her to pursue “unhealthy lifestyle choices,” failed to refer her to a community-based mental health program, and engaged in treatment “at variance with accepted professional protocols.” In a separate count, plaintiff alleged that, “[i]n the course of . . . treatment,” the insured doctor had committed sexual assault and battery.

The short answer to plaintiff’s reliance on the concurrent causation doctrine is that it is misplaced. Thee unambiguous policy language plainly excludes coverage where, as here, the claimant’s suit contains an allegation of sexual misconduct.

In any event, we are not dealing here with independent and unrelated claims of non-sexual misconduct otherwise covered under the policy. This is a case where all of the claims essentially derive from the noncovered allegation of sexual misconduct. The evidence shows the insured doctor was intent on isolating plaintiff from other health care providers in order to preserve their improper sexual relationship, and that all alleged deviations from accepted medical norms were all designed to accomplish this end. Thus, the malpractice and assault claims cannot be viewed as separate or independent causes.