Professional Documents
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Alpha Therapeutic Corporation, Hunter Blood Center, Defendant/third Party v. St. Paul Fire and Marine Insurance Company, Third Party, 890 F.2d 368, 3rd Cir. (1989)
Alpha Therapeutic Corporation, Hunter Blood Center, Defendant/third Party v. St. Paul Fire and Marine Insurance Company, Third Party, 890 F.2d 368, 3rd Cir. (1989)
2d 368
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Dec. 11, 1989.
David C. Beers, Orlando, Fla., James A. Baxter, Clearwater, Fla.,
Armando R. Payas, Orlando, Fla., for defendant/third party plaintiffappellant.
Janine Nesbit Roper, Alpha Therapeutic Corp., Los Angeles, Cal., for
third party defendant/appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before JOHNSON and HATCHETT, Circuit Judges, and HILL, Senior
Circuit Judge.
PER CURIAM:
We affirm the judgment of the district court on the basis of the memorandum
opinion of Senior U.S. District Judge Walter E. Hoffman, attached hereto as an
appendix.
AFFIRMED.
APPENDIX
3United States District Court, Middle District of Florida,
4Orlando Division.
5Alpha Therapeutic Corporation, Plaintiff,
6v.
7Hunter Blood Center, Inc., Defendant/Third-Party Plaintiff,
8v.
9St. Paul Fire and Marine Insurance Company, Third-Party Defendant.
Case No. 85-855-CIV-ORL-19.
10
MEMORANDUM OPINION
11
12
13
Alpha sued Hunter and Hunter's professional liability carrier, Great AmericanSouth Inc. (Great American), for breach of contract. Hunter made a demand to
its general liability carrier, St. Paul Fire and Marine Insurance Co. (St. Paul),
that St. Paul defend Hunter against Alpha's allegations and indemnify Hunter
for liabilities arising out of the allegations. St. Paul refused, and Hunter filed a
third party complaint for declaratory relief seeking to establish St. Paul's duties
under its insurance contract with Hunter. Hunter's third party complaint is
before this court.
14
15
Professional
services. We won't cover injury or damage caused by the providing or
failure to provide any professional service. This includes liabilities assumed under a
contract or agreement to pay for injury or damage caused by an architect, engineer or
surveyor in performing or failing to perform professional services.
16
St. Paul contends that the language of its policy unambiguously excludes
coverage for the error of Hunter's medical technician because the error was
committed while providing professional services.5
17
18
The law is well settled that ambiguities in insurance policies are to be construed
in favor of the insured. Hess v. Liberty Mut. Ins. Co., 458 So.2d 71, 72
(Fla.App. 3 Dist.1984). However, if no ambiguities exist, a policy "must be
accorded its natural meaning." Saha v. Aetna Casualty & Surety Co., 427 So.2d
316, 317 (Fla. 5th DCA 1983). When determining whether a policy is
ambiguous, we must bear in mind that insurance contracts are complex
instruments. Consequently, "the fact that analysis is required for one fully to
comprehend them does not mean the contracts are ambiguous." State Farm Fire
and Cas. Co. v. Oliveras, 441 So.2d 175, 178 (Fla.App. 4 Dist.1983). An
analysis of St. Paul's general liability policy makes clear that liability arising
from the medical technician's error is excluded from coverage.
19
Paul introduced into evidence Hunter's premium recap sheet, which showed no
entry in the line called "medical professional liability." Mr. Hannegan testified
that the absence of an entry means that St. Paul provided no coverage for
medical professional liability. During 1984, however, St. Paul picked up
Hunter's medical professional liability charging Hunter $6,800.00 on a pro
rated basis. Thus, the evidence shows that Hunter paid no premiums for
medical profession liability during 1983. Consequently, the insurance contract
in effect at the time of the medical technician's error did not provide for
medical professional liability coverage.
20
Hunter argues, however, that the technician's error was covered by St. Paul's
policy without the additional medical professional liability insurance. In its trial
brief, Hunter maintains that, "arguably, a medical technician is not a profession.
Therefore, any act or omission of a medical technician may be construed not to
be the rendering of a professional service." While Hunter concedes in its brief
that "for some activities, the medical technician may be a professional," Hunter
concludes that "if [an] act or omission is not performed by a professional as that
term is generally understood and recognized, then the exclusion should not
apply." This court cannot agree. Even if a medical technician is not a
professional, there are certain professional duties that, when delegated to the
medical technician, bring the technician within the definition of "professional"
for insurance purposes. Multnomah County v. Oregon Automobile Ins. Co.,
256 Or. 24, 470 P.2d 147, 150 (1970); see Northern Insurance Co. of N.Y. v.
Superior Court, Etc. 91 Cal.App.3d 541, 154 Cal.Rptr. 198, 200 (1st
D.C.A.1979).
21
21
Hunter Blood Center uses the Auszyme II test for determining the presence of
HBsAg in plasma
On November 11, 1983, Hunter Blood Center tested plasma units T-25190, T25191, T-25193 and T-25194 in testing wells 97, 98, 99 and 100 respectively.
Each unit tested positive to HBsAg on the first test. On the second test, required
under the Auszyme II system, the medical technician mistakenly tested the
plasma units in testing wells 92, 93, 94 and 95. These wells contained different
blood than wells 97, 98, 99 and 100. As a result of the error, units T-25190, T25191, T-25193 and T-25194 were never tested a second time. The plasma
units in wells 92, 93 94 and 95 tested nonreactive to HBsAg. As a result, the
presence of HBsAg was not detected in plasma unit T-25193. This unit
ultimately contaminated a large portion of Alpha Therapeutic's products
To support its contention that the general liability policy does not cover the
medical technician's error, St. Paul maintains that the professional liability