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Markel’s unit must defend the hospital in cases involving alleged rape



A unit of Markel Corp. must defend a Miami hospital in litigation stemming from a patient’s alleged rape, a federal appeals court ruled Friday, affirming a lower court.

In December 2018, Jane Doe, a patient at Westchester General Hospital Inc.’s mental health facility, was allegedly assaulted and raped by a hospital employee while she was asleep and on medication, according to the ruling by the 11th US Circuit Court of Appeals. Atlanta in Westchester General Hospital Inc. v. Evanston Insurance Co .

After Jane and John Doe sued Westchester, now known as Keralty Hospital Miami, for negligence, the hospital sought coverage from the Markel unit Evanston under its “specified medical insurance policy.”

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The insurer denied coverage and the hospital sued, seeking a declaratory judgment requiring Evanston to defend it in the litigation. The U.S. District Court in Miami ruled in favor of the hospital and was affirmed by a three-judge court panel.

Evanston had argued that an exception under the general liability insurance portion of its coverage for “services of a professional nature” applied.

The insurer argued that the scope of the exclusion was “extremely broad,” but the appellate ruling noted that the assailant “was not treating Jane Doe at the time of the assault as a medical doctor or a nurse; neither party has identified any medical services he performed at that time.”

Citing a previous ruling, the panel said that although he had been a doctor, “the act causing the injury was the assault”, not the provision of treatment.

The panel also held that a bodily injury exception did not apply, finding it ambiguous.

Attorneys in the case did not respond to requests for comment.


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