Northern Insurance Co. v. Superior Court

Opinion

KANE, J.

Petitioner, defendant in an action for declaratory relief, seeks a writ of mandate to compel respondent court to set aside its order denying petitioner’s motion for summary judgment and to enter judgment in its favor. Petitioner contends there are no triable issues of fact and it is entitled to judgment as a matter of law. We agree.

The record shows that on July 8, 1977, real parties in interest commenced an action in declaratory relief against petitioner (action No. 725-362) alleging that by reason of its written, comprehensive, general liability insurance policy issued and delivered to real party Shively,

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petitioner was obligated to defend and indemnify real parties against an action for damages instituted against them on May 9, 1977, by Wazina and Mahmoud Jaber (action No. 722748), but that petitioner, although notified of the claim, had refused to defend.

An examination of the Jaber complaint reveals the following: Wazina Jaber was a patient at the medical offices of defendant Shively and was to have an examination at said offices for her pregnancy condition on March 21, 1977, but “That at said time and place, the defendants Sheila Lehrman and Does I and II, and each of them, so negligently performed their aforesaid functions at said offices so as to cause plaintiff Wazina Jaber to be confused with another female patient, and to confuse the medical charts of said patients, thereby causing plaintiff Wazina Jaber to undergo a medical procedure (e.g., an abortion) which she was not to receive and which was unnecessary and injurious to her and destructive of the fetus of plaintiff, Wazina Jaber.” Mahmoud Jaber alleged he sustained injury as a result of emotional distress caused by observing the acts performed upon his wife.

On September 12, 1978, petitioner moved for summary judgment in the declaratory relief action, contending that the undisputed facts showéd that the injury to Mrs. Jaber occurred as the result of the rendering, or failure to render, a professional service, and that the comprehensive general liability insurance policy contained a professional liability exclusion endorsement which precluded coverage for the acts alleged in the Jaber complaint.