"A court has an obligation to give plain language its ordinary meaning and to refrain from rewriting the contractual agreement of the parties."
How later courts described this case
- "A court has an obligation to give plain language its ordinary meaning and to refrain from rewriting the contractual agreement of the parties."
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
dissenting. The sole issue in this action is whether the appellant is covered in his individual capacity under the insurance policy carried by his professional corporation. Because the majority erroneously excludes the appellant doctor from coverage under the corporate policy, I dissent.
The corporate insurance policy states that the insurance company “agrees to defend and pay damages, in the name and on behalf of the insured, * * * in any claim for damages, at any time filed, based on professional services rendered or which should have been rendered, by the insured or any other person for whose acts or omissions the insured is legally responsible, in the practice of the insured’s profession during the term of this policy; * * (Capitalization deleted.)
The plain language of an insurance contract must be given its ordinary meaning absent any ambiguity in the policy provisions.
The language of this contract clearly contemplates coverage of actions undertaken by employees, such as Dr. Marrocco, within the scope of their employment. There is no question that Marrocco was employed by the professional corporation, or that he was acting within the scope of his employment at the time of the malpractice. Therefore, the plain language of the insurance contract requires the Medical Protective Company to defend and indemnify Marrocco up to the $200,000 limit of the corporate policy.
A conflict similar to the present action arose in Zavota v. Ocean Accident & Guarantee Corp. (C.A. 1, 1969), 408 F. 2d 940 . In interpreting an insurance contract similar to the one at issue, the Zavota court reached a result consistent with my analysis above, stating:
“We think * * * [the insurance company] has an erroneous understanding of the definition-of-insured clause. Any employee of a corporation whose negligent act imposes ordinary tort liability on his employer is himself personally liable to the third party, if the third party chooses to sue. Normally employees are not sued — the corporation is richer, as well as a better target. However, a corporate employee might be a useful defendant, and consequently may be in need of insurance. The purpose of a clause like the present, in our opinion, is to protect the employee against suits wherever his conduct is such, in relation to the corporation, that the corporation would be liable. Since, by hypothesis, the insurer covered such an accident anyway, there is no great cost to it to broaden the definition of its insured; indeed, the contrary result would be in the nature of a windfall to it.” Id. at 942-943 .
I cannot support the windfall the majority sees fit to grant Medical Protective Company by allowing it to escape the obligation imposed by the clear language of the corporate policy. Therefore, I respectfully dissent.