Integris Ins. Co. v. Tohan

Syllabus

The defendant physician, a reproductive endocrinologist, appealed from the trial court's summary judgment for the plaintiff insurance company in its action seeking a declaratory judgment as to its duty to defend and indemnify the defendant in a separate civil negligence action. In the civil negligence action, the plaintiffs, K and R, alleged, inter alia, that the defendant was negligent in the provision of professional services, having discovered through genetic testing that the defendant used his own sperm when he performed in vitro fertilization (IVF) procedures for their parents, without having informed the parents of his conduct. The defendant claimed, inter alia, that the court improperly concluded that all of the allegations in the civil negligence action fell within exclusions to coverage in the insurance policy issued to him by the plaintiff. Held: The trial court properly concluded that the civil negligence action contained an allegation that potentially fell within the coverage provided by the insur- ance policy issued by the plaintiff, as the first count of the civil negligence action contained allegations that concern professional services provided by the defendant, as that term was used in the policy. The trial court improperly determined that the intentional conduct exclu- sion to coverage in the insurance policy clearly and unambiguously applied to every allegation in the civil negligence action, as the first count in that action was beyond the scope of the intentional conduct exclusion because the count specifically alleged, inter alia, that the defendant inadvertently and \negligently\ used his sperm that contained a genetic disease when providing IVF services to K's parents, causing the injuries K sustained. The trial court improperly determined that the sexual conduct exclusion to coverage in the insurance policy applied clearly and unambiguously to every claim set forth in the civil negligence action, as the plaintiff failed to demonstrate that t