OPINION OF THE COURT
The issue here is whether the defendant insurers have a duty to defend Massena Memorial Hospital and related litigants in an underlying federal lawsuit. We conclude that one insurer has a duty to defend, and we, therefore, modify the order of the Appellate Division.
Olof Franzon is a duly licensed physician and the sole shareholder in his practice, Women’s Medical & Surgical Health Care, P.C. Franzon and Women’s Medical brought the underlying federal action for damages against Massena Memorial Hospital, its Board of Managers, its Medical Executive Committee and a number of physicians and hospital executives, alleging a conspiracy to deprive Franzon of his civil rights as guaranteed by the First and Fourteenth Amendments to the United States Constitution and 42 USC § 1983, and alleging that he is entitled to attorneys’ fees pursuant to 42 USC § 1988. More specifically, Franzon alleged that he publically advocated that the hospital provide nurse-midwifery services and further alleged that the hospital had not previously provided such services for anticompetitive reasons. Franzon alleged that in response, the hospital engaged in a concerted campaign of harassment designed to punish him for exercising his right to free *443 speech. The campaign consisted of defendants’ (1) “overt and malicious acts” designed to “excommunicate him from, and ruin him in, the Massena medical community,” (2) disparagement in internal reviews and to his patients and (3) refusing to renew his hospital privileges. Franzon alleged that this harassment caused him to suffer various injuries, including “extreme emotional distress.” Franzon also alleged defamation, tortious interference with business relations and tortious inference with contract pursuant to the common law of New York State.
In the present action, the Town of Massena, the owner of Massena Memorial Hospital, and the hospital (collectively, the hospital) seek a declaration that three of their insurers— Healthcare Underwriters Mutual Insurance Company (HUM), Federal Insurance Company (Federal) and Physicians’ Reciprocal Insurers (PRI) — owe them a defense in the federal action. Supreme Court held that “each insurer owes their insureds a defense in the underlying lawsuit” because each policy did not exclude coverage of all of the underlying claims as a matter of law. The Appellate Division modified by reversing the denial of summary judgment. It concluded that the alleged acts were either intentional, and therefore excluded as a matter of public policy, or specifically excluded under the applicable policies’ provisions (
“[T]he duty to defend is broader than the duty to indemnify”
(Fitzpatrick v American Honda Motor Co.,
HUM contracted with the hospital for coverage under three policies — the Personal Injury Liability (PIL) policy, the Hospital Professional Liability (HPL) policy, and the Comprehensive General Liability (CGL) policy. The plain language of the PIL policy obligates HUM to provide a defense to plaintiff. Specifically, the PIL policy covers all personal injury damages arising out of various offenses including “the publication or utterance of a libel or slander” or of other defamatory or disparaging material. The complaint contains allegations that the hospital “intentionally and maliciously made false statements to Franzon’s patients, potential patients, and the community at large in an effort to damage his reputation as a doctor.” The complaint additionally alleges that the statements are untrue. *
HUM relies on its exclusion for defamatory statements made within a business enterprise with knowledge of their falsity. Defamation is defined as a false statement that exposes a person to public contempt, ridicule, aversion or disgrace
(see Foster v Churchill,
The District Court in the underlying action held that Franzon was a limited public figure who must prove actual malice, namely that the statements were false and were made with knowledge of the falsity or recklessness as to their falsity
(see Franzon v Massena Mem. Hosp.,
HUM also argues, and the Appellate Division agreed, that it had no duty to indemnify because the allegations of malice were equivalent to allegations of intentional wrongdoing. This Court has stated that “an insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision”
(Allstate Ins. Co. v Zuk,
Federal Insurance Company has no duty to defend the hospital. Its Executive Liability and Indemnification Insurance Policy provides coverage for “all Loss” that the insured is “legally obligated to pay” for any “Wrongful Act.” A wrongful act is “any error, misstatement, misleading statement, act, omission, neglect, or breach of duty committed * * * by any Insured Person, individually or otherwise, in his Insured Capacity, or any matter claimed against him solely by reason of his serving in such Insured Capacity.” “Insured Capacity” means as a director or officer. The policy limits this coverage by excluding, among other things, any loss “arising out of’ or otherwise related to “bodily injury * * * libel, slander, defamation of character” or similar torts. The policy also excludes any loss resulting from performance of “professional services,” including services on “a formal medical accreditation or similar medical professional board or committee of an Insured.” This broad exclusionary language negates coverage for all but the tortious interference claim in the Franzon complaint.
The hospital has not, however, met its burden of showing that the tortious conduct is covered. Franzon’s tortious interference claims against the hospital are centered around three physicians’ failure to refer patients to him. This conduct could only occur in the doctors’ respective roles as members of an insurance network. Franzon’s complaint, however, does not allege whether the doctors’ conduct in question occurred while they were acting in their “insured capacity” as officers or directors or otherwise. Federal argues that the conduct surrounding the tortious interference claim occurred outside the doctors’ insured capacity, or in the alternative, in the excluded performance of “professional services” category. Once the insurance company asserted the exclusion, the hospital defendants had the burden of showing that the conduct alleged was covered and they have failed to make that requisite showing. Federal therefore has no duty to defend under the policy.
Physicians’ Reciprocal Insurers is also under no duty to defend the individual doctors. Under the PRI policy, the insurer was obligated to pay “all sums which you become legally obligated to pay for a claim,” excluding punitive damages, and to defend every “claim” arising from the insured’s performance of *447 “professional services.” “Professional services” includes “services as a member of a formal accreditation board or any committee of a hospital where” the insured is “engaged in accreditation review and standards review.” The policy’s exclusions are extensive including “any willful, fraudulent or malicious civil act”; any claim resulting from “defamation, libel, slander” and similar torts; and any claim for interference with contract or with prospective business advantage. The policy stated that the exclusions applied even after the amendment of the definition of professional services to include accreditation review and standards review. These exclusions eliminate any duty PRI could have to defend the hospital against Franzon’s claims.
Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating so much of Supreme Court’s order as declared a duty to defend by HUM and, as so modified, affirmed.
Judges Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur; Chief Judge Kaye taking no part.
Order modified, etc.
Notes
The complaint also specifies that Dr. Jhaveri told another patient that Franzon “was going to be booted out of Massena”; that it was “bull” that a patient had an ultrasound in Franzon’s office as the patient “should not have any ultrasounds done in Franzon’s office”; and that Dr. Maresca told a resident during a repeat mammogram that “if you were Dr. Franzon’s patient, I wouldn’t even be talking to you.”