Illinois law applies, but this question is one of first impression under Illinois law. In Keepes v. Doctors Convalescent Center, Inc., 89 Ill.App.2d 36, 231 N.E.2d 274 (1967), however, an Illinois court construed similar language. The policy in Keepes excluded coverage for injuries due to "(t)he rendering or failure to render medical, surgical, dental, x-ray or nursing service . . . (and) any service or treatment conducive to health or of a professional nature."
That decision on the part of the nurses was the failure to render a nursing service and falls squarely within the provision of the exclusion of the insurance policy in this case. Likewise in Keepes v. Doctors Convalescent Center, Inc., 1967, 89 Ill. App.2d 36, 231 N.E.2d 274, the exclusionary endorsement was identical with one in the case at bar. The court looked to the act complained of. The insured cared for retarded children and employed doctors and nurses for that purpose.
In other cases holding that an exclusionary clause was inapplicable, there have been findings that no professional services were involved. For example, in Keepes v. DoctorsConvalescent Center, Inc., 231 N.E.2d 274 (Ill. App. Ct. 1967), the plaintiff was an eighteen-month-old mentally retarded child who was being kept by the Doctors Convalescent Center. The child was being bathed by a "nurses aide" who left him unattended for a few minutes.
Such claims can encompass more than a breach of the insurance contract, and indeed, the provision is applied in fact to a broad range of claims against the insurer. See W.E. O'Neil Construction Co. v. National Union Fire Insurance Co., 721 F. Supp. 984 (N.D. Ill. 1989) (refusal to contribute to settlement); Keepes v. Doctors Convalescent Center, Inc., 89 Ill. App.2d 36 (1967) (refusal to pay insured's creditors); Phillips v. Inter-Insurance Exchange of the Chicago Motor Club, 91 Ill. App.3d 198 (1980) (auto liability insurer's refusal to stack med pay coverage). Consequently, I believe the preemptive scope of section 155 is more appropriately distinguishable on the basis of the statutory remedies it provides, rather than on whether the conduct is independently based in tort or contract. Thus, I adhere to that increasing trend of majority opinions which hold that section 155 preempts attorney fees and punitive damages, but not compensatory damages.
157 N.W.2d at 871-72. See also Mason v. Liberty MutualIns. Co., 370 F.2d 925 (5th Cir. 1967); Gulf Ins. Co. v. GoldCross Ambulance Service Co., 327 F. Supp. 149 (W.D. Okla. 1971); Keepes v. Doctors Convalescent Center, Inc., 89 Ill. App.2d 36, 231 N.E.2d 274 (1967); D'Antoni v. SaraMayo Hospital, 144 So.2d 643 (La.App. 1962); Swassing v.Baum, 195 Neb. 651, 240 N.W.2d 24 (1976). In Hirst v. St. Paul Fire Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Ct.App. 1984), with facts and issues strikingly similar to those in the present action, the court held an insurance policy which provided liability coverage for damages resulting from the furnishing or withholding of professional services did not afford coverage for a physician's sexual assault upon a patient.
No special skills or training would have been required to make the decision of a need to notify the court of the prisoner's condition. See Keepes v. Doctors Convalescent Center, Inc., 89 Ill. App.2d 36, 281 N.E.2d 274 (1967); 12 G. Couch, Cyclopedia of Insurance Law 44:526 (2d ed. 1964 and Supp. 1976). The second issue is whether the alleged negligence constitutes an "occurrence" as defined in the city's policy.
As the Mississippi Supreme Court pointed out in Burton, "[i]n other cases holding that an exclusionary clause was inapplicable, there have been findings that no professional services were involved." Id. (citing Keepes v. Doctors Convalescent Center, Inc., 231 N.E.2d 274 (Ill.App. 1967)). In the case sub judice, that cannot be said.
That, indeed, has been the conclusion in many cases from other jurisdictions that have construed professional services exclusions in insurance policies otherwise providing coverage for damages from negligent acts. See, e.g., Keepes v. Doctors Convalescent Center, Inc., 89 Ill. App.2d 36, 40 (1967) (maid negligently leaving young child unattended on floor did not constitute the failure to render professional services); Grant v. Touro Infirmary, 254 La. 204, 217-219 (1969) (miscounting sponges after a surgery not a professional service); D'Antoni v. Sara Mayo Hosp., 144 So.2d 643, 646-647 (La. Ct. App. 1962) (negligent failure to raise hospital bed rails not a professional service); Duke Univ. v. St. Paul Fire Marine Ins. Co., 96 N.C. App. 635, 641 (1990) (negligent failure to lock casters on a dialysis chair not within the term "professional services"). Perhaps most instructive in this regard is Guaranty Natl. Ins. Co. v. North River Ins. Co., 909 F.2d 133 (5th Cir. 1990).
We believe that those cases are either distinguishable or not persuasive. See, e.g., Guaranty National Insurance Co. v. North River Insurance Company, supra (failure to secure window in psychiatric patient's room); Hirst v. St. Paul Fire Marine Insurance Company, 106 Idaho 792, 683 P.2d 440 (Ct.App. 1984) (sexually abusing a patient); Keepes v. Doctors Convalescent Center, Inc., 89 Ill. App.2d 36, 231 N.E.2d 274 (5th Dist. 1967) (maid's leaving child unattended on floor); Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969) (miscounting sponges after surgery); American Casualty Company v. Hartford Insurance Company, 479 So.2d 577 (La.Ct.App. — 1st Cir. 1985) (instructing patient to remove clothing and to climb onto examination table); D'Antoni v. Sara Mayo Hospital, 144 So.2d 643 (La.Ct.App. — 4th Cir. 1962) (failure to raise side rail on patient's bed); Marx v. Hartford Accident and Indemnity Company, supra (causing explosion during routine sterilization of equipment). See also Duke University v. St. Paul Fire and Marine Insurance Company, 96 N.C. App. 635, 386 S.E.2d 762 review den'd, 326 N.C. 595, 393 S.E.2d 876 (1990) (failure to lock casters on dialysis chair).
Other courts have held that the claims were not excluded because the particular acts or omissions involved did not require special skills. See Gulf Ins. Co. v. Gold Cross Ambulance Serv. Co., supra (ambulance service held not to be a professional service); Keepes v. Doctors Convalescent Center, Inc., 89 Ill. App.2d 36, 231 N.E.2d 274 (1967) (child who was receiving care in a home for retarded children suffered burns from a radiator); D'Antoni v. Sara Mayo Hosp., 144 So.2d 643 (La.Ct.App. 1962) (fall from bed caused by lack of siderails); American Casualty Co. v. Hartford Ins. Co., 479 So.2d 577 (La.Ct.App. 1985) (patient fell from an examination table). See also Demandre v. Liberty Mutual Insurance Company, 264 F.2d 70 (5th Cir. 1959) (whether coverage was excluded for a claim based upon the failure to provide sideboards on a bed was a question of fact).