In Connecticut Insurance Guaranty Assoc. v. Fontaine, No. 17457, 2006 WL 1737380 (Conn. July 4, 2006), the Connecticut Supreme Court decided that a professional liability policy was ambiguous and that it could be construed against the Guaranty Association. The Association would stand in the place of the insurer and assume its responsibilities.

 

Carol Fontaine and her husband, Thomas, brought action against Thomas' physician, Michael Jimenez. The Fontaines alleged that Jimenez's medical malpractice caused bodily injury to Thomas, which resulted in Carol's loss of consortium. Jimenez was insured by PHICO Insurance Company.

 

PHICO became insolvent, and the Association was responsible for payment of all covered claims. The Association sought declaratory judgment that it owed no duty to defend or indemnify for the loss of consortium claim.

 

The Association claimed that the policy covered claims for bodily injury and that Carol had not suffered any bodily injury. The Fontaines, however, asserted that the policy covers “damages because of bodily injury,” and that the loss of consortium was damage because of bodily injury. Alternatively, they also claimed that the policy language was ambiguous and should be construed in favor of the insured.

 

The court turned to the American Heritage Dictionary for a definition of “because of”: “on account of; by reason of.” The Fontaines read the policy to mean that injuries that are derivative and would not exist except for the bodily injury are covered, while the Association read the policy to cover only direct bodily injury to the affected person. The court found the policy language to be ambiguous, to be construed in favor of the insured.