Geddes v. Tri-State Insurance

COUGHLIN, J.

Defendant, the insurer under a liability indemnity policy issued to plaintiff, a psychiatrist, appeals from a judgment declaring its obligation under that policy to defend an action for slander against plaintiff.

The policy in question was denominated “Psychiatrist’s Professional Liability.” Defendant, by this policy, agreed to indemnify plaintiff on account of loss from “such damages as may be awarded against the Assured in respect of professional services rendered by him in his practice of psychiatry . . . resulting from any claims or suits . . . based solely upon malpractice . . . assault, slander, libel,” and other causes of action; and also agreed “to defend in the name and

[183]

on behalf of the Assured, . . . any suit against the Assured. ’ ’

On May 18, 1964, a psychiatrist named Prastka called plaintiff, also a psychiatrist, on the telephone, stating he had a patient he wished to place in a hospital where psychiatric treatment was available, and inquired about a hospital known as Capistrano By The Sea which was operated by another psychiatrist named Day. In the course of this conversation plaintiff made statements about the hospital and Day which the latter claimed were slanderous and brought suit for slander against plaintiff. Defendant refused to defend this suit and plaintiff brought the instant action to determine its obligation in the premises.

Defendant claimed the conversation resulting in the slander suit was not a professional service rendered by plaintiff in his practice of psychiatry and for this reason was not covered by the policy. The court found to the contrary and entered judgment accordingly.

In the main the arguments on appeal are directed to contentions respecting interpretation of the contract of insurance; whether an ambiguity exists; and, granted an ambiguity, whether the determination of the trier of fact on conflicting evidence controls. These arguments are misdirected. The issue before the trial court was whether the alleged slanderous statements were made in the course of rendering professional services as a psychiatrist or, stated otherwise, whether plaintiff, in reply to the inquiry of Dr. Prastka, was rendering a professional service in his practice of psychiatry. The issue on appeal is whether, under the circumstances of the case, determination of the coverage of the policy involves a question of law or of fact. In response to this issue defendant contends, in substance, the question is one of law which must be determined by this court; and plaintiff contends the question is one of fact, the determination of which by the trial court controls if its conclusion is supported by substantial evidence. We agree with plaintiff.