Intermed Insurance Co. v. Hill
2012 Mo. App. LEXIS 301
| Mo. Ct. App. | 2012Background
- Appellant sued PA, Clinic, and Management Company for sexual assault and negligent hiring/supervision; Intermed insured Clinic for professional liability.
- Intermed policy covers professional services and is subject to exclusions, including liability arising from sexual conduct; PA was supervised by Dr. Hill.
- Clinic had prior complaints about PA's inappropriate exams and lack of chaperones; office manager raised concerns that were not addressed.
- PA sexually assaulted Appellant during examinations in December 2004; in early 2005 he was charged with deviate sexual assault and pled guilty to some counts.
- Underlying tort verdict against Clinic awarded Appellant $1,242,500; Cincinnati Insurance paid defense for Clinic under its general liability policy.
- Trial court granted summary judgment for Intermed, holding PA act excluded and Clinic’s negligent supervision not a separate proximate cause; appellate court reverses on concurrent proximate cause grounds and remands
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligent supervision by Clinic is a concurrent proximate cause | Boyce contends supervision was independent of PA’s sexual assault | Intermed argues the sexual assault excision precludes coverage and that supervision is not a separate cause | Yes; Clinic’s negligent supervision was a separate, concurrent proximate cause and creates potential coverage |
Key Cases Cited
- Bowan ex rel. Bowan v. General Sec. Indem. Co. of Arizona, 174 S.W.3d 1 (Mo.App. E.D. 2005) (concurrent proximate cause when insured and excluded risks are independent)
- Braxton v. United States Fire Ins. Co., 651 S.W.2d 616 (Mo.App. E.D. 1983) (concept of concurrent proximate causes in insurance coverage)
- Gateway Hotel Holdings, Inc. v. Lexington Ins. Co., 275 S.W.3d 268 (Mo.App. E.D. 2008) (but-for causation insufficient; need independent/distinct causes for concurrent rule)
- Centermark Prop., Inc. v. Home Indem. Co., 897 S.W.2d 98 (Mo.App. E.D. 1995) (security/operations failure can create independent negligent acts apart from ownership/use exclusions)
- Reed v. Kelly, 37 S.W.3d 274 (Mo.App. E.D. 2000) (Restatement-based negligent supervision framework for master-servant relationships)
- Duvall v. Lawrence, 86 S.W.3d 74 (Mo.App. E.D. 2002) (battery requires intentional contact; distinction between supervision and assault)