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Markel unit must defend hospital in case involving alleged rape

Posted On: Sep. 19, 2022 1:04 PM CST


A Markel Corp. unit must defend a Miami hospital in litigation stemming from a patient’s alleged rape, a federal appeals court ruled Friday, in affirming a lower court.

In December 2018, Jane Doe, a patient at Westchester General Hospital Inc.’s mental health facility, was allegedly assaulted and raped by a hospital employee while she was asleep and medicated, according to the ruling by the 11th U.S. Circuit Court of Appeals in Atlanta in Westchester General Hospital Inc. v. Evanston Insurance Co.

After Jane and John Doe sued Westchester, which is now known as Keralty Hospital Miami, for negligence, the hospital sought coverage from Markel unit Evanston under its “specified medical professions insurance policy.” 

The insurer denied coverage, and the hospital filed suit, seeking a declaratory judgment that Evanston must defend it in the litigation. The U.S. District Court in Miami ruled in the hospital’s favor and was affirmed by a three-judge appeals court panel.

Evanston had contended an exclusion under the general liability insurance part of its coverage for “services of a professional nature” applied.

The insurer argued the scope of the exclusion was “extremely broad,” but the appellate ruling noted the assailant “was not treating Jane Doe at the time of the assault as a medical physician or a nurse; neither party has identified any medical services that he was performing at that time.”

Citing an earlier ruling, the panel said that even if he had been a physician, “the act causing the injury was the assault,” not the provision of treatment.

The panel also held that a bodily injury exclusion did not apply, ruling that it was ambiguous. 

Ms. Doe’s attorney, Gary Alan Friedman, of the Law Offices of Friedman & Friedman in Coral Gables, Florida, said the insurer had “multiple opportunities” to acknowledge coverage over the past two or three years but failed to do so.

Evanston’s and the hospital's attorneys did not respond to requests for comment.