Chicago Team Secures Significant Appellate Victory in High-Exposure Coverage Dispute, Obtains Reversal of Lower Court Decision and Favorable Judgment in Declaratory Action

Chicago, Ill. (June 2, 2023) - Chicago Partner Josh M. Kantrow and Associate Jason W. Jochum recently secured a significant victory in a coverage dispute arising out of a doctor’s alleged assault of a patient. In a 46-page published opinion, the Illinois Appellate Court, Fourth District, not only reversed the trial court’s finding that the insurer owed a duty to defend the underlying personal injury claim brought by the patient pursuant to a professional liability policy, but also remanded with instructions that judgment was to be entered in favor of the insurer on its declaratory judgment action. The insurer’s declaratory action sought a finding that no defense or indemnity coverage was available under the policy.

The case arose out of a doctor’s alleged unwanted touching of a female patient during treatment. The patient claimed the doctor injected her with a substance that rendered her immobile, allowing the doctor to assault her. The patient later sued the doctor and facility alleging several intentional tort claims. She also claimed that the doctor’s injection without gaining her consent was negligent, and attached a 622 physician’s affidavit in support.

After the doctor pled guilty to assault and reckless conduct in a corresponding criminal case, the insurer filed a declaratory judgment action seeking a declaration that it owed no duty to defend the doctor pursuant to a professional liability policy, based on both the insuring agreement, as well as the policy’s exclusions for criminal acts, intentional acts, sexual conduct, and false imprisonment. Despite the doctor’s guilty plea for conduct that he admitted “arose out of the same transaction or occurrence that gave rise to” the underlying civil lawsuit, the trial court found the insurer owed a duty to defend the civil lawsuit, as the plaintiff had alleged “negligence,” which was potentially within coverage of the policy. After the trial court’s ruling, the plaintiff submitted a policy-limits demand upon the insurer.

In reversing, the appellate court found that the plaintiff’s negligence claim of lack of informed consent with regard to the injection was indistinguishable from the intentional torts alleged in the complaint, as the plaintiff’s recovery was clearly based on her intentional tort claims, not her negligence claim. The court further noted that a complete lack of informed consent, as alleged by the plaintiff in her complaint, amounted to a medical battery, not negligence. As no negligence claim was alleged, the court found there was no duty to defend pursuant to the policy’s insuring agreement. The court found that the 622 affidavit attached to the complaint by the plaintiff was not a “pleading” and, in any event, did not satisfy the requirements of Ill. Sup. Ct. R. 191.

The court further found that the doctor’s guilty plea in the corresponding criminal case, which the doctor admitted arose out of the same conduct alleged in the civil lawsuit, precluded defense and indemnity coverage pursuant to the policy’s intentional acts and criminal acts exclusions. The opinion was published as Professional Solutions Insurance Company v. Karuparthy, 2023 IL App (4th) 220409.

Mr. Kantrow is co-chair of Lewis Brisbois’ Biometric Information Privacy Act (BIPA) Practice and co-host of the firm’s BIPA Radar podcast series. Clients frequently retain him to handle complex business litigation matters, including class action litigation, throughout the United States. In addition to having deep experience defending technology litigation matters, he successfully litigates complex insurance coverage cases and defends a wide range of professional services providers in various errors and omissions claims.

Mr. Jochum is a member of Lewis Brisbois’ Insurance Coverage and Bad Faith Litigation Practices. He focuses his practice on advising and litigating bad faith, breach of contract, and professional liability matters. In addition, Mr. Jochum defends individuals, businesses, and government entities in a number of areas including personal injury and property damage claims, products liability, medical malpractice, construction, and transportation.

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