COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77445 BERNICE DAVIDSON WILLIAMS : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ESQUE CRAWFORD, M.D., et al. : : Defendants : : and : : PHYSICIANS INSURANCE COMPANY : OF OHIO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 2000 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 290,813 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: W. CRAIG BASHEIN Attorney at Law Bashein & Bashein Co., L.P.A. 1200 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For defendant-appellant: SCOTT E. WILLIAMS Attorney at Law Hammond & Sewards 22 East Gay Street, Suite 700 Columbus, Ohio 43215 KENNETH A. ROCCO, J.: -2- Appellant Physicians Insurance Company of Ohio ( PICO ) appeals from a common pleas court judgment finding PICO liable to plaintiff-appellee Bernice Davidson Williams. The trial court held that an insurance policy PICO issued to co-defendant Dr. Esque Crawford, M.D. covered a judgment previously awarded to Williams against Dr. Crawford. PICO urges that: I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT APPELLANT'S CERTIFICATE OF INSURANCE PROVIDED COVERAGE FOR THE DAMAGES AWARDED THE APPELLEE. II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING THAT EXCLUSION 10 IN APPEL- LANT'S CERTIFICATE OF INSURANCE WAS IN- TENDED TO EXCLUDE ONLY INTENTIONAL CON- DUCT BY AN INSURED AND AMBIGUOUS, [sic] AND THEREBY HOLDING THAT COVERAGE WAS PROVIDED TO DR. CRAWFORD FOR THE CLAIMS MADE BY THE APPELLEE IN HER LAWSUIT. We agree with the trial court that the certificate of insurance provided coverage for the damages awarded to Williams and did not exclude coverage; therefore, we affirm. FACTUAL AND PROCEDURAL HISTORY The history of this case now spans more than a decade. The parties agree on the facts pertinent to this appeal. Dr. Crawford was Williams' treating physician during her pregnancy in 1989. Dr. Crawford was unavailable when Williams went into labor, so Dr. Louis Hammond actually delivered the baby. The baby died two days later, on September 9, 1989, from untreated gestational diabetes. -3- Dr. Crawford provided Williams' medical charts to her attorney. Three documents were omitted from the copies given to counsel: two lab requisitions and an ultrasound request. On September 5, 1990, Williams' attorney filed suit against Dr. Hammond and the hospital where the baby was delivered. During discovery in that suit, Williams' attorney learned about the documents that had been omitted from the medical records Dr. Crawford supplied. Williams voluntarily dismissed that case without prejudice on April 20, 1992. Williams filed a new complaint against Dr. Hammond and Dr. Crawford on December 18, 1992, claiming that their medical negligence caused the baby's death. On February 17, 1994, the court granted summary judgment for Dr. Crawford because the complaint had not been filed within the statute of limitations. The case proceeded to trial against Dr. Hammond, resulting in a judgment in his favor. Williams then filed this action against Dr. Crawford.1 The first count claimed that Dr. Crawford materially altered her medical chart while her action was pending against Dr. Hammond, due to the fact that he reasonably believed that an action would be filed against him. Count two alleged Crawford negligently altered the chart; count three claimed he intentionally and/or 1This court was unable to locate the original complaint against Dr. Crawford in the record; however, copies are attached to many other documents, and the parties' description of the claims coincide. The judgment on that complaint was agreed, so the pre- cise terms of the complaint are not critical. -4- negligently altered the chart in order to tortiously interfere with her suit. t for compensatory and punitive damages, prejudgment interest, and attorney's fees. However, the court then granted Dr. Crawford's motion for a new trial or remittitur and entered an agreed judgment of $280,000 in compensatory damages on Williams' negligence claim. This judgment, as well as the award of prejudg- ment interest, was affirmed in a decision on appeal journalized on November 9, 1998. The award of attorney's fees was reversed. Williams filed the supplemental complaint at issue here on January 11, 1999, pursuant to R.C. 3929.06.2 She alleged that DAfter a jury trial, the court entered judgment againsCrawfordr. Crawford the time her cause of action against Dr. Crawford arose and that 2At the time this action was filed, this statute provided that [upon the recovery of a final judgment *** for loss or damage on account of loss or damage to tangible or intangible property of any person ***, if the defendant in such action was insured against loss or damage at the time when such rights of action arose, the judgment creditor *** is entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment. If the judgment is not satisfied within thirty days after it is rendered, the judgment creditor *** to reach and apply the insurance money to the satisfaction of the judgment, may file a supplemental petition in the action in which said judgment was rendered, in which the insurer is made new party defendant in said action ***. This statute was repealed, and a new R.C. 3929.06 was enacted effective September 24, 1999. -5- this insurance policy covered the damages awarded to her. PICO answered, denying that the judgment was covered by the policy.3 The court overruled each party's motion for summary judgment, and the case proceeded to a bench trial. On December 6, 1999, the court entered judgment for Williams in the amount of $385,418.94 and ordered PICO to pay costs. The policy that PICO issued to Dr. Crawford provided coverage as follows: This is an Occurrence Policy. Your coverage is limited to liability for only those damages arising out of MEDICAL INCIDENTS which occur during the COVERAGE PERIOD as shown on the Certificate of Insurance. We will pay on your behalf all sums *** which you become legally obligated to pay as DAMAGES because of a MEDICAL INCIDENT arising out of your individual practice as a physician or surgeon during the COVERAGE PERIOD **** This policy also covers your activities during the COVERAGE PERIOD as supervisor of the activities of another person who renders PROFESSIONAL MEDICAL SERVICES to a patient if you are legally responsible for the acts or omissions of the other person. **** The capitalized terms are defined in subsection (D)(1) of the policy as follows: MEDICAL INCIDENT means any act or omission in the furnishing of PROFESSIONAL MEDICAL SERVICES by you, any of your employees, or any other person acing under your personal direc- tion, control, or supervision. 3PICO also counterclaimed and cross-claimed for a declaratory judgment that its policy did not provide coverage for the damages awarded to Williams and demanded damages from Williams. PICO later dismissed the counterclaim and cross-claim without prejudice. -6- PROFESSIONAL MEDICAL SERVICES means any services rendered in your individual practice as a physician or surgeon and includes the dispensing of drugs or medicine and your service as a member of a formal accreditation or professional society. DAMAGES means all DAMAGES which are payable because of INJURY (including damages for death) to which this insurance applies, ***. It does not include punitive or exemplary damages. INJURY means physical or mental injury, sickness, or disease sustained by any person which occurs during the COVERAGE PERIOD, including death resulting therefrom. Finally, section (B) of the policy contained the following exclusion from coverage: We will not indemnify you, under this policy, for any of the following: * * * 10. Any liability arising out of the fact that you are found to have altered or attempted to alter a claimant's medical records after you have become aware of a threatened or potential claim or suit; *** Although the judgment entry did not state the basis for the court's decision, the trial court did make the following findings on the record at the conclusion of the trial: Now the defense, I believe, primarily is relying on Paragraph (10) of the exclusions under the heading (B). **** Now the Court finds this *** is somewhat ambiguous, and if ambiguous, would go against the insurance carrier, of course, who wrote this particular policy. I believe the intent, at least the Court's interpretation of this particular paragraph, is that any physician or employee of the physician that would intentionally alter a medical record after they, the physi- -7- cian, had received a threatened or potential claim of a lawsuit, that this clearly wouldn't be covered. Apparently, the defense believes it doesn't have to be intentional. All it could be a careless or negligent thing, but under a similar circumstance the Court would have a tough time buying that argument. * * * *** [T]he testimony there appears to be consistent with the jury's subsequent finding of negligence, and not an intentional act that I believe would have been excluded under Paragraph (10). * * * Now under condition (D), the Court be- lieves that this could be found to be a medi- cal professional medical service which, according to the definition used in the pol- icy, states as follows: Medical incident means an act or omission in the furnishing of pro- fessional medical services by you, any of your employees, or any other person acting under your personal direction, control or supervi- sion. This apparently was done by an employee of the doctor, but it does appear to the Court to fall into the professional medical ser- vices. The exchange in providing medical records that is commonly done by physicians and usually done by an employee. LAW AND ANALYSIS PICO's first assignment of error charges that the court erred by holding that the certificate of insurance covered the damages awarded to Williams against Dr. Crawford. We disagree. Words and phrases used in an insurance policy must be given their natural and commonly accepted meaning, where they in fact possess such meaning, to the end that a reasonable interpretation of the insurance contract, consistent with the apparent object and plain intent of the parties may be determined. -8- Gomolka v. State Auto. Mut. Ins. Co. (1982), 70 Ohio St.2d 166, 167-68 (cited with approval in Weiker v. Motorists Mut. Ins. Co. (1998), 82 Ohio St.3d 182, 185). The first paragraph of the coverage section of the policy limits PICO's liability to damages arising out of MEDICAL INCIDENTS. Notably, the term damages is not capitalized here, so coverage is not limited to the liabilities included in the defined term DAMAGES. However, the damages must arise from a MEDICAL INCIDENT to be covered. MEDICAL INCIDENTS include any act or omission in the fur- nishing of PROFESSIONAL MEDICAL SERVICES by the physician-insured or an employee or other person under the physician's direction, control or supervision. The issue in this case, then, is whether supplying medical records to a patient's attorney is a PROFES- SIONAL MEDICAL SERVICE. The policy defines PROFESSIONAL MEDICAL SERVICES as any services rendered in your individual practice as a physician or surgeon, including the dispensing of drugs or medicine and service as a member of a formal accreditation or professional society. This provision clearly limits PICO's liability to claims arising from an insured's professional activities. A `professional' act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill. Harad v. Aetna Cas. & Surety Co. (3d Cir. 1988), 839 F.2d 979, 984. Professional acts and services are distinguished from commercial activity, which describes the -9- business part of a practice that supplies professional services. Commercial activities would include such tasks as securing office space, hiring staff, paying bills, and collecting on accounts receivable. Visiting Nurse Assn. v. St. Paul Fire and Marine Ins. (3d Cir. 1995), 65 F.3d 1097, 1101. A medical provider supplying medical records exercises judgment in determining what portions of the record will be necessary or useful to the recipient, depending on the purposes for which the records have been requested. Thus, providing copies of medical records involves the exercise of professional judgment and is a professional medical service within the plain and ordinary meaning of that term. The PICO policy covers an insured's lia- bility for damages arising out of this professional service. We further find that coverage is not excluded by subsection (B)(10) of the policy. That subsection only excludes liability arising out of the fact that you are found to have altered or attempted to alter a claimant's medical records after you have become aware of a threatened or potential claim or suit. (Emphasis added). The plain and ordinary meaning of the term alter is to change, make different, or transform. The records are not changed or transformed by the omission of a document from a set which purports to be a complete copy; the copy is merely incomplete, a circumstance not addressed by the exclusion. For these reasons, we find the PICO policy covers Dr. Crawford's liability for Williams' damages and does not exclude coverage. Therefore, we affirm the trial court's judgment. -10- It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, A.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .