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1941 Ins. L.J. 1 (1941)

handle is hein.journals/inslj3 and id is 1 raw text is: THE INSURANCE LAW JOURNAL ESTABLISHED 1872 Advance Digest of Full-Text Decisions currently reported In the CCH INSURANCE LAW REPORTING SERVICE Fire and Casualty 0 Negligence 0 Life, Health and Accident 0 Automobile No. 105 January 2, 1941 PHYSICIAN'S LIABILITY POLICY A policy was issued by an insurance company to a physi- cian, wherein it was agreed that said company would indem- nify the physician against loss from claims for damages on account of any malpractice, error or mistake committed by the assured. A patient brought an action against the assured for damages alleging that the assured had expressly agreed, for a stated consideration, to remove certain markings from the patient's face, but that he had failed so to do. The patient claimed that, by reason of the physician's violation of the agreement, he was disfigured to his damage. In the course of the trial, plaintiff amended his action to add a count based on malpractice, but a cause of action on that count was held Please Route to: to be barred by the statute of limitations. The insurance company notified the assured that it was not liable if the action was based upon any contract or specific ......................... agreement with the patient; but when the physician denied that there was any such agreement, it agreed to defend the action without waiving its rights. Judgment was in favor of ....................... plaintiff, but was reversed because of an error in the court's charge. On the second trial, the insurance company refused ....................... to defend and the physician settled the suit. ....................... Action Against Insurer The assured then brought this action to recover the amount ...................... expended in, settlement of the suit, including the expenses of trial, from the insurance company, but liability was denied on ....................... the ground that the judgment was based on a breach of a contract to cure. In Saban v. Aetna Life Insurance Com- pany, reported at J 300,447, the New York Supreme Court, ....................... Appellate Division, First Department, held that the basis of non-liability was not that the coverage was voidable by a ....................... breach of a condition of the policy, but that no insurance policy was ever issued covering a cause of action based upon a breach of contract to cure. The coverage extended only to malpractice, error or mistake. The court holds that such a coverage is clearly distinguishable from coverage for breach ....................... of contract. and return to: Dissenting Opinion In a dissenting opinion, one of the judges points out that the action based upon an alleged breach of contract was in ...................... fact predicated upon a mistake or error made by the physician in treating his patient and that, therefore, the claim is one against which the insurance company had agreed to indemnify the physician. Printed in U. S. A. Published weekly by Commerce Clearing House, Inc., 214 N. Michigan Ave., Chicago, Illinois. Subscription Rates: one year, $10; with full text reports and bound volumes, $25 per year for each selective unit, except Automobile which is $35 per year; single copy of weekly number, 25 cents. Entered as second class matter January 25, 1939, at the post office at Chicago, Illinois, under the Act of March 3, 1879. Copyight 1941 by Commerce Clearing House, Inc. All -ights reserved.

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