The opinion of the court was delivered by: GREEN
In this action, Continental Casualty Company ("Continental") sues The Hartford Fire Insurance Company ("Hartford") claiming that Hartford is obligated to reimburse Continental for a portion of the amount of money which Continental spent to settle the underlying negligence action of Woods v. Yater Medical Group, Civil Action No. 92CA015701 (D.C. Super.Ct.) (the "Woods Action"). The parties filed motions for summary judgment and after oral argument, the Court denied the motions and agreed to reconsider the motions upon the parties' submission of a joint statement concerning the facts of this case. The parties jointly submitted a Statement of Facts and upon further consideration the Court concludes that the case may be resolved summarily. The Court holds that because the record does not contain any 1980 medical incidents which proximately caused injury to Tracina Woods, Hartford is not obligated to reimburse Continental for any sum of money which Continental spent to settle the Woods Action. The Court, therefore, shall grant Hartford's Motion for Summary Judgment and deny Continental's Motion for Summary Judgment.
This case involves two insurance policies issued by Continental and Hartford. Continental issued a policy (the "Continental Primary Policy") to the Yater Medical Group ("Yater") for the period January 1, 1981 to January 1, 1982. (Continental and Hartford's Joint Statement ("Joint Statement") P 1.) Dr. Howard N. Smith ("Dr. Smith") is a named insured under the Continental Primary Policy. (Id.) The policy provides limits of coverage of $ 1 million per claim and $ 1 million aggregate for Yater and its insured physicians, such as Dr. Smith. ( Id.)
Section I of the Continental Primary Policy's Coverage Agreement provides, in relevant part, that Continental
will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of . . . injury arising out of the rendering of or failure to render, during the policy period, professional services . . . .
Pursuant to a separate excess policy, Continental afforded $ 10 million excess coverage jointly to Yater and Dr. Smith, for the same policy period, over the limits of the Continental Primary Policy. (Joint Statement P 4.) The excess policy provides that Continental will indemnify Dr. Smith for the amount of loss which is in excess of $ 1 million. (Joint Statement P 5.) The excess policy, however, contains an "Other Insurance" provision which denies coverage if Dr. Smith has other insurance to cover a loss. (Joint Statement P 6.)
Hartford issued a policy to Yater as well. (Joint Statement P 7.) The Hartford policy covers the period of May 1, 1980 to January 1, 1981. (Id.) The limit of liability under the Hartford Policy is $ 2 million per medical incident and $ 2 million aggregate. (Id.) Dr. Smith and Yater are named insureds under the Hartford Policy. ( Id.)
Section I of the Hartford policy's Coverage Agreement provides, in relevant part, that Hartford will pay on behalf of the insured
(Joint Statement P 8.) Section V of the Hartford policy defines the term "medical incident," in relevant part, as "any act or omission in the furnishing of professional medical or dental services to any person . . . ." (Joint Statement P 9.)
Ms. Montinella Woods first visited Dr. Smith for her pregnancy on September 8, 1980. (Joint Statement P 12.) The cover sheet of the prenatal record of this first visit indicated that Dr. Smith recorded Ms. Woods' last menstrual period ("LMP") as May 2, 1980 and, in reliance on this date, he calculated a due date of February 7, 1981. (Id.) Ms. Woods claims that her menstrual periods were "always irregular." (Joint Statement P 14.)
Dr. Smith performed a physical examination of Ms. Woods at the first visit and found the size of the uterus to be consistent with a 12 week fetus. (Joint Statement P 15.) He ordered a sonogram and claims that he did so because he was uncertain about the date of conception. (Joint Statement P 16.)
Dr. Kircherer, a radiologist, performed the sonogram on September 10, 1980; he estimated the fetal age to be approximately six weeks and reported that fetal parts were identifiable. (Joint Statement P 17.) He recommended that a follow-up sonogram be performed approximately one month later for further evaluation. (Id.)
Dr. Smith testified that his working assumption "in the early part of pregnancy" was that Ms. Woods' due date was February 7, 1981 but that it was not the working date throughout the course of the pregnancy. (Joint Statement P 12.)
Based on the discrepancy between the LMP and the sonogram, Dr. Smith believed, at or about the time of Ms. Woods' first visit, that Ms. Woods was "small for dates." (Joint Statement P 22.) Once he realized that there was an inconsistency between the LMP and the initial sonogram he became concerned and he continued to have concerns all throughout the pregnancy. (Joint Statement P 23.) One of Dr. Smith's specific concerns stemming from the initial sonogram was Intra Uterine Growth Retardation ("IUGR"). (Joint Statement P 24.)
In 1980, Ms. Woods visited Dr. Smith at the Yater Clinic on four occasions for routine prenatal care. (Joint Statement P 13.) On October 10, 1980 (the second visit), Dr. Smith performed a physical examination of Ms. Woods. (Joint Statement P 25.) Based on this examination, Dr. Smith concluded that the size of the uterus was consistent with a fetal age of 12 weeks, which was the same conclusion Dr. Smith reached based on his examination four weeks earlier on September 8, 1980. (Id.)
Ms. Woods' first visit to Dr. Smith in the following year occurred on January 9, 1981. (Joint Statement P 27.) Dr. Smith noted that the fetus was "small for dates" and that Ms. Woods may have been "one month off on date." (Id.) Dr. Smith testified that on that date he "was considering [IUGR] as a diagnosis." (Id.)
Between January 9, 1981 and February 11, 1981, Dr. Smith examined Ms. Woods on six different occasions. (Joint Statement P 30.) On January 13, 1981, the second sonogram of Ms. Woods' pregnancy was performed. (Joint Statement P 31.) Dr. Kircherer interpreted this sonogram as revealing a fetal age of 25.5 weeks. (Id.) A third sonogram ...