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Medical Malpractice Joint Underwriting Ass'n of Rhode Island v. Charlesgate Nursing Center, L.P.

Supreme Court of Rhode Island

June 5, 2015

Medical Malpractice Joint Underwriting Association of Rhode Island
Charlesgate Nursing Center, L.P., et al

Providence County Superior Court. (PC 12-5088). Associate Justice Luis M. Matos.

For Plaintiff: David P. Whitman, Esq.

For Defendants: Erica M. O'Connell, Esq., Mitchell R. Edwards, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


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Paul A. Suttell, Chief Justice.

This insurance-coverage dispute presents a novel legal question regarding an insurer's duty to defend that arises from a set of tragic circumstances involving the alleged sexual assault of a nursing home resident. The plaintiff, Medical Malpractice Joint Underwriting Association of Rhode Island (JUA), sought a declaratory judgment from the Superior Court to establish that it owed no duty to defend its insured, Charlesgate Nursing Center, L.P. (Charlesgate), two of Charlesgate's general partners, and two of its employees (collectively Charlesgate defendants),[1] against

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the allegations set forth in a separate civil action[2] filed by the administrator of the estate of a former resident of Charlesgate (complaint or estate's complaint). The JUA now appeals from the judgment denying its motion for summary judgment and granting the Charlesgate defendants' cross-motion for summary judgment on their counterclaim for declaratory judgment. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


Facts and Procedural History

This appeal proceeds from an alleged sexual assault that purportedly occurred at the Charlesgate Nursing Center in June 2009. From December 2008 to December 2009, the JUA insured Charlesgate under a policy (JUA policy or policy), which provided coverage for both: (1) hospital professional liability (HPL) and (2) commercial general liability (CGL). In June 2009, a fifty-six-year-old woman, suffering from Huntington's disease and residing at and in the care of Charlesgate, claimed that she was the victim of a sexual assault perpetrated by Josiah Ajibade Olowoporoku,[3] an employee and certified nursing assistant (CNA) at Charlesgate. The resident passed away on October 17, 2011. On February 28, 2012, her son, in his capacity as administrator of her estate, filed suit in the Superior Court against Charlesgate, along with its partners, Davenport Associates, LTD., Paul S. Davenport, and its employees, Lynda Gaboriault, Sandra James, and Olowoporoku.

To resolve this appeal, this Court must determine whether the allegations contained in the estate's complaint bring the injury complained of within the coverage of the insurance policy. Accordingly, we confine our recitation of the facts to only those alleged in the estate's complaint, mindful that at this stage of the proceedings no facts have been adjudicated by a judge or jury. The complaint details a terrible sequence of events occurring at Charlesgate, beginning on June 16, 2009, when Olowoporoku sexually and physically assaulted the resident in her room. At the time of the assault, defendant Sandra James, a CNA, was at the nurse's station where she heard the resident's cries for help, but she did not respond. Instead, James reported the resident's screams to defendant Gaboriault, her colleague and a registered nurse at Charlesgate, but Gaboriault also failed to respond. At some point that day, the resident informed Sharon Scott, a medical technician at Charlesgate, that she had been raped by Olowoporoku, and Scott reported the incident to Gaboriault on June 16 and again on June 17. Also on June 17, the resident reported the assault to James. According to the complaint, Charlesgate continued to employ Olowoporoku even after the resident had informed several Charlesgate employees of his alleged misconduct.

In an affidavit, the administrator of the resident's estate stated that his grandmother received a call from Charlesgate on June 18, 2009, notifying her of the alleged sexual assault of his mother. Thereafter, he went to Charlesgate on June 18 at which time he " insisted" that Charlesgate " immediately report the incident to the police department." The same day a rape kit was administered to the resident at Women and Infants Hospital. The estate alleges that, after the assault

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but prior to the administration of the rape kit, the resident was given at least three bed baths and one shower at Charlesgate. The estate asserts in its complaint that the " results of the rape kit administered on June 18, 2009 revealed bruising, a laceration, excoriation, and trauma or penetration to the vaginal area."

In addition to these factual allegations, the estate's complaint contained six counts, including: negligence against Charlesgate (count 1), Davenport Associates (count 2), Davenport (count 3), Gaboriault (count 5), and James (count 6); and assault and battery against Olowoporoku (count 4). With regard to the negligence counts, the complaint set forth specific allegations against the Charlesgate defendants, including the failure: to properly supervise, train, or screen its employees; to provide proper security measures; to report that a resident had been abused or mistreated within twenty-four hours in accordance with G.L. 1956 § 23-17.8-2; [4] and to discipline its employees following the alleged sexual assault. As a direct and proximate result of this alleged negligence, the estate claims that the resident suffered " severe personal injuries, shock and injury to her nervous system, extreme pain and suffering, mental anguish, loss of capacity for the enjoyment of life, humiliation, embarrassment, severe emotional distress, and was otherwise injured and damaged."

After receiving notice of the estate's complaint, the JUA issued a reservation of rights letter and initiated an investigation to determine whether it had a duty to defend the Charlesgate defendants under the policy. After conducting its review, the JUA concluded that: " no defense coverage is afforded to Charlesgate or the other insureds referenced above as to the [estate's complaint] and, thus, at this juncture, no indemnity coverage under either HPL or the CGL insurance coverage afforded by the JUA." In reaching this conclusion, the JUA reasoned that (1) the alleged sexual assault did not constitute a " medical incident" within the ambit of HPL coverage, and (2) the alleged sexual assault " cannot be construed as an accident under any definition" and therefore is not an " occurrence" within the meaning of the CGL insurance coverage.

Subsequently, the JUA filed the instant declaratory-judgment action in Superior Court seeking a declaration that it has no duty to defend the Charlesgate defendants against the allegations set forth in the estate's complaint.[5] The Charlesgate defendants responded by filing a two-count counterclaim. In the first count, they requested a declaratory judgment establishing that the JUA has a duty to defend each of the Charlesgate defendants in the action by the estate. In the second count, they ...

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