Westchester General Hospital, Inc. v. Evanston Insurance Company ( 2022 )

USCA11 Case: 20-14814 Date Filed: 09/16/2022 Page: 1 of 21
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14814
____________________
WESTCHESTER GENERAL HOSPITAL, INC.,
Plaintiff-Appellee,
versus
EVANSTON INSURANCE COMPANY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-22831-KMW
____________________
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2 Opinion of the Court 20-14814
Before JORDAN, JILL PRYOR, and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
This diversity case requires us to interpret a quirky insur-
ance policy. The Defendant, Evanston Insurance Company (“Ev-
anston”), appeals the district court’s grant of summary judgment in
favor of Plaintiff Westchester General Hospital, Inc. (“Westches-
ter”), challenging the district court’s holding that Evanston must
defend Westchester in its ongoing litigation against Jane and John
Doe (the “Does”). After the Does sued Westchester for negligence
based on a violent incident that occurred at Westchester’s facility,
Westchester sought coverage from Evanston, its insurer, under
Westchester’s “Specified Medical Professions Insurance Policy”
(“the Policy”). Evanston refused to provide complete coverage.
So, Westchester sued Evanston, seeking a declaratory judgment
that Evanston must defend it in its ongoing litigation against the
Does. After the case was removed to federal court, a district court
judge in the Southern District of Florida granted partial summary
judgment in favor of Westchester, and Evanston appealed.
The district court’s grant of summary judgment in favor of
Westchester was proper because none of the relevant exclusions
invoked by Evanston bars coverage for the Does’ claims against
Westchester. Accordingly, we affirm.
I.
The story of this seemingly mundane insurance dispute be-
gins with a violent act. On December 31, 2018, Jane Doe was a
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20-14814 Opinion of the Court 3
patient at Westchester’s mental health facility in Miami-Dade
County. While asleep and medicated, Doe was allegedly sexually
assaulted and raped by Fernando Felix Ramos-Garcia (“Ramos-
Garcia”), who was employed by Westchester at the time of the in-
cident. The Does sued Westchester and Ramos-Garcia in Miami-
Dade County circuit court, claiming that Westchester was negli-
gent for failing to adequately investigate, train, and supervise its
staff.
Westchester’s insurance policy, issued by Evanston, pro-
vides insurance coverage for Westchester’s defense against a third
party’s legal claims. The Policy has two parts: (1) the Professional
Liability Insurance Policy (“PL Coverage Part”), which is not rele-
vant to this case, and (2) the General Liability Insurance Policy
(“GL Coverage Part”), which is. The GL Coverage Part is a wide-
ranging policy that provides Westchester with the following cov-
erage for bodily injury and property damage liability:
[Evanston] shall pay on behalf of the Insured all sums
in excess of the Deductible amount stated in the Dec-
larations, which the Insured shall become legally ob-
ligated to pay as Damages as a result of a Claim first
made against the Insured during the Policy Period or
during the Extended Reporting Period, if exercised,
and reported to the Company . . . for Bodily Injury or
Property Damage caused by an Occurrence[.]
DE 31-1 at 27.
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4 Opinion of the Court 20-14814
The Policy also contains an Umbrella Policy, which provides
excess indemnity coverage if either the PL Coverage Part or the GL
Coverage Part applies.
The GL Coverage Part has several exclusions to coverage.
Two of them are relevant for our purposes: the Professional Ser-
vices Exclusion and the Bodily Injury Exclusion. The Professional
Services Exclusion excludes any claim:
[b]ased upon, arising out of, or in any way involving
an act, error or omission in the performance of ser-
vices of a professional nature rendered or that should
have been rendered by the Insured or by any person
or organization for whose acts, errors or omissions
the Insured is legally responsible[.]
DE 31-1 at 33.
The critical phrase “services of a professional nature” is not
defined anywhere else in the Policy, though the similar term “Pro-
fessional Services” is defined as encompassing ten broad categories,
which are listed in the Hospital Amendatory Endorsement Aggre-
gate Policy Limit (“Hospital Endorsement”). These are the cate-
gories:
1. Medical, surgical, dental, x-ray, nursing, mental
health services or treatments;
2. The furnishing of food, beverages, drugs or
medical, dental or surgical supplies or appliances
in connection with the services stated in subpara-
graph I.1. hereinabove;
3. The handling or performing of post-mortem
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20-14814 Opinion of the Court 5
examination or organ donation or harvesting on
dead human bodies;
4. Health or therapeutic services, treatments, ad-
vice or instructions;
5. Medical or mental health counseling services,
social services or other such treatments;
6. Furnishing or dispensing of pharmacotherapeu-
tic agents, including chemical and biological prod-
ucts or medical, dental or surgical appliances or
equipment;
7. Services in connection with a Clinical Trial;
8. Supervising, teaching or proctoring services
rendered by a natural person at the Named In-
sured’s request;
9. Services rendered by an Insured as a member of
a formal accreditation or similar professional
board or committee of the Named Insured; or
10. The execution or failure to execute a decision
or directive of a formal accreditation or similar
professional board or committee of the Named In-
sured.
DE 31-1 at 83.
While the Professional Services Exclusion bars coverage for
claims arising out of acts involving the performance of “services of
a professional nature,” the Bodily Injury Exclusion bars coverage
for claims that are:
[b]ased upon or arising out of Bodily Injury sustained
by any patient, person or resident of a facility
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6 Opinion of the Court 20-14814
receiving services of a professional nature or any such
Claim brought by or on behalf of the spouse, child,
parent, grandparent, brother, sister or partner of such
patient, person or resident of a facility.
DE 31-1 at 36.
After the Does filed their complaint against Westchester,
Westchester promptly notified Evanston of the existence and na-
ture of the Does’ lawsuit. At the time of the alleged sexual assault,
the Policy and the Umbrella Policy were in effect. Evanston issued
a reservation of rights letter to Westchester on April 2, 2019, ex-
plaining that it would provide a defense to Westchester under the
PL Coverage Part, but refusing to defend Westchester under any
other parts of the Policy or to indemnify Westchester for any po-
tential judgment entered against it.
Westchester sued Evanston in the Eleventh Judicial Circuit
in and for Miami-Dade County on May 29, 2019, seeking a declar-
atory judgment that Evanston owed a duty to defend Westchester
in the Does’ lawsuit under the GL Coverage Part of the policy. Ev-
anston removed the action to federal court in the Southern District
of Florida on July 10, 2019. Thereafter, the parties moved for sum-
mary judgment, disputing whether the Professional Services Exclu-
sion and the Bodily Injury Exclusion of the GL Coverage Part
barred coverage. In an Omnibus Report & Recommendation
(“R&R”), the magistrate judge determined that Westchester was
covered under the GL Coverage Part and the Umbrella Policy,
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20-14814 Opinion of the Court 7
rejecting Evanston’s argument that the Professional Services Exclu-
sion and the Bodily Injury Exclusion barred coverage.
The district court adopted the R&R in full. The parties then
jointly moved for partial final judgment under Federal Rule of Civil
Procedure 54(b), and the district court granted the motion. Final
judgment was entered in favor of Westchester as to the GL Cover-
age Part and Umbrella Policy and in favor of Evanston as to the PL
Coverage Part. Evanston appealed, challenging only whether the
district court erred in concluding that Evanston owed Westchester
a duty to defend under the GL Coverage Part and the Umbrella
Policy. See Lloyd Noland Found., Inc. v. Tenet Health Care Corp.,
483 F.3d 773, 777 (11th Cir. 2007) (noting that “appellate jurisdic-
tion lies when the district court properly certifies as ‘final,’ under
Rule 54(b), a judgment on fewer than all claims”).
II.
A.
We review a district court’s rulings on motions for summary
judgment de novo. Chavez v. Mercantil Commercebank, N.A.,
701 F.3d 896, 899 (11th Cir. 2012). In doing so, we apply “the same
legal standards as the district court and view[] all facts and reason-
able inferences in the light most favorable to the nonmoving
party.” Strickland v. Water Works & Sewer Bd. of Birmingham,
239 F.3d 1199, 1203 (11th Cir. 2001). Moreover, the interpretation
of an insurance contract is a strict question of law and also is subject
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8 Opinion of the Court 20-14814
to de novo review. Elan Pharm. Rsch. Corp. v. Emps. Ins. of
Wausau, 144 F.3d 1372, 1375 (11th Cir. 1998).
Let’s start with the basics. Since our jurisdiction is grounded
in diversity, we apply Florida’s substantive law. See Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938); Royalty Network, Inc. v. Harris,
756 F.3d 1351, 1357 (11th Cir. 2014). In Florida, insurance contracts
“are construed according to their plain meaning.” Garcia v. Fed.
Ins. Co., 473 F.3d 1131, 1135 (11th Cir. 2006) (quotation marks
omitted) (quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co.,
913 So. 2d 528, 532 (Fla. 2005)). When interpreting these contracts,
Florida’s courts read all the policy provisions in tandem to find the
most reasonable and probable interpretation. Gilmore v. St. Paul
Fire & Marine Ins., 708 So. 2d 679, 680 (1st Fla. DCA 1998). Be-
cause “insurance coverage must be [interpreted] broadly and its ex-
clusions narrowly[,]” Hudson v. Prudential Prop. & Cas. Ins. Co.,
450 So. 2d 565, 568 (2nd Fla. DCA 1984), ambiguities are construed
against the insurer and in favor of coverage -- so long as the provi-
sion at issue is ambiguous. Taurus Holdings, 913 So. 2d at 532.
An insurer’s duty to defend an insured in a legal action under
Florida law “arises when the complaint alleges facts that fairly and
potentially bring the suit within policy coverage.” Jones v. Fla. Ins.
Guar. Ass’n, 908 So. 2d 435, 442–43 (Fla. 2005). Even if the allega-
tions in the complaint are meritless, the duty to defend nonetheless
arises; all doubts about whether the duty to defend applies are re-
solved in favor of the insured. Id. at 443. However, an insurer does
not need to defend an insured if a policy exclusion applies. Keen v.
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20-14814 Opinion of the Court 9
Fla. Sheriffs’ Self-Ins. Fund, 962 So. 2d 1021, 1024 (4th Fla. DCA
2007). Finally, the insured has the initial burden to establish that a
policy coverage applies, but then “the burden shifts to the insurer
to prove that the loss arose from a cause which is excepted.” Hud-
son, 450 So. 2d at 568.
Both parties agree on two things: (1) the GL Coverage Part
applies here if neither the Professional Services Exclusion nor the
Bodily Injury Exclusion applies; and (2) the Umbrella Policy applies
if the GL Coverage Part applies. The case boils down to whether
either of the exclusions in the GL Coverage Part applies.
B.
As a starting point, Evanston argues that the Professional
Services Exclusion to the GL Coverage Part bars coverage of the
Does’ claims against Westchester for two reasons. First, Evanston
says that the scope of the Professional Services Exclusion is ex-
tremely broad, and it forecloses any claim that is even tenuously
related to a professional service because it prevents coverage for
any claim that is “[b]ased upon, arising out of, or in any way involv-
ing an act, error or omission in the performance of services of a
professional nature.” Second, Evanston argues that “services of a
professional nature,” a term that is not defined in the Policy, is dif-
ferent from “Professional Services,” which the Hospital Endorse-
ment defines as incorporating ten broad categories. Because “Pro-
fessional Services” is written with a capitalized “P” and “S,” and
“Professional Services” is not literally the same phrase as “services
of a professional nature,” Evanston reasons that the two phrases
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10 Opinion of the Court 20-14814
must carry different meanings. So, since Jane Doe was sexually as-
saulted where she was being treated, Evanston claims that the
Does’ allegations at least tenuously relate to the provision of “ser-
vices of a professional nature.”
We are not persuaded by Evanston’s argument. We do,
however, agree with Evanston that the “in any way involving” lan-
guage is extremely broad in scope, and it indicates that the provi-
sion applies to any claim even remotely involving “services of a
professional nature.” See HR Acquisition I Corp. v. Twin City Fire
Ins. Co., 547 F.3d 1309, 1316 (11th Cir. 2008) (emphasis omitted)
(concluding that “in any way related to” is “very broad” and is a
“low standard” to meet); Mergenet Sols., Inc. v. Carolina Cas. Ins.
Co., 56 So. 3d 63, 64 (4th Fla. DCA 2011) (similar). We also agree
with Evanston that the district court inaccurately viewed “services
of a professional nature” and “Professional Services” as identical
terms. Although similar, the terms are not literally the same. In
fact, if we construed “services of a professional nature,” which is
not defined in the Policy, to exactly mean “Professional Services,”
we would not be “giv[ing] every provision its full meaning and op-
erative effect.” See Auto-Owners Ins. Co. v. Anderson, 756 So. 2d
29, 34 (Fla. 2000); see also Hunter v. Mocksville, 897 F.3d 538, 552
(4th Cir. 2018) (emphases in original) (“[W]e must reject any con-
struction of the contract that defines different terms in the same
manner, unless the contract [says so.]”).
But that is where Evanston’s convincing arguments end.
For one thing, even if Evanston need only show a tenuous
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20-14814 Opinion of the Court 11
relationship between the claims leveled against Westchester and
“services of a professional nature,” some relationship between the
two must exist for the Policy provision not to be rendered illusory.
See Purrelli v. State Farm Fire & Cas. Co., 698 So. 2d 618, 620 (2nd
Fla. DCA 1997) (“When limitations or exclusions completely con-
tradict the insuring provisions, insurance coverage becomes illu-
sory.”).
Evanston’s argument that “services of a professional nature”
and “Professional Services” carry different meanings doesn’t help it
either. Since a policy’s terms “should be taken and understood in
their ordinary sense,” see Siegle v. Progressive Consumers Ins. Co.,
819 So. 2d 732, 736 (Fla. 2002) (quotation marks and citation omit-
ted), we must interpret “services of a professional nature” accord-
ing to its “plain and ordinary meaning,” see Gov’t Emps. Ins. Co.
v. Macedo, 228 So. 3d 1111, 1113 (Fla. 2017) (quotation marks and
citation omitted). To determine the provision’s ordinary meaning,
we begin with the dictionary definitions of the words “profes-
sional,” “services,” and “nature.” A “professional” is “[s]omeone
who belongs to a learned profession or whose occupation requires
a high level of training and proficiency.” Professional, BLACK’S LAW
DICTIONARY (11th ed. 2019). “Service” has many meanings, but in
this case, based upon context, it means “the performance of some
useful act or series of acts for the benefit of another, usu[ally] for a
fee.” Service, BLACK’S LAW DICTIONARY (11th ed. 2019). “In this
sense, service denotes an intangible commodity in the form of hu-
man effort, such as labor, skill, or advice.” Id. (emphasis in
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12 Opinion of the Court 20-14814
original). Finally, “nature” is “[a] fundamental quality that distin-
guishes one thing from another; the essence of something.” Na-
ture, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, we interpret
“services of a professional nature” to mean the performance of acts
-- which fundamentally require a high level of training and profi-
ciency -- for the benefit of another. This interpretation follows the
common-sense, ordinary meaning of “services of a professional na-
ture,” while also creating a meaning that is still broader than the
ten categories of “Professional Services” specified in the Hospital
Endorsement above, which are primarily definitionally limited to
the provision of medical services.
This interpretation is consistent with Florida case law inter-
preting the meaning of the phrase “professional services” and re-
lated terminology. Florida’s courts have consistently interpreted
the term “professional services” to mean those types of services
that require specialized training. See, e.g., Aerothrust Corp. v. Gra-
nada Ins. Co., 904 So. 2d 470, 472 (3d Fla. DCA 2005) (explaining
that “the services which are meant to be excluded as professional
are those which require specialized training”).
Florida’s Third District Court of Appeal, in an insurance
case, Lindheimer v. St. Paul Fire & Marine Insurance Company,
has explained the meaning of the term “professional services” and
similar phrases within the context of an insurance policy, whether
the term is found in an exclusion or in the main conditions for cov-
erage:
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[T]he fact that an act occurred in a professional’s of-
fice does not automatically transmute the act into a
professional service. The location of an act’s occur-
rence is not determinative of liability. There must be
some causal connection between an act and the na-
ture of the doctor-patient relationship[.]
643 So. 2d 636, 638 (3rd Fla. DCA 1994) (emphasis added). 1
In Lindheimer, the court considered whether a dentist’s in-
surance policy for claims that result from “[p]rofessional services
that [the dentist] provided or should have provided” applied to a
claim involving sexual assault. Id. at 638. Specifically, the dentist’s
patient alleged that the dentist sexually assaulted her after giving
her anesthesia for her periodontal treatment. Id. at 637. Even
though the dentist used drugs to facilitate the sexual assault, the
Third District reasoned that the administration of drugs did “not
bring the sexual assault within the course of the medical treatment
provided because the act causing the injury was the assault, not the
use of the drugs.” Id. at 639. Because the insurance policy provided
coverage for claims that “‘arise out of the profession,’ or ‘result
from professional services,’” the court denied coverage after find-
ing no causal connection between the sexual assault and the provi-
sion of professional services. Id. at 638–39.
1 Since the Florida Supreme Court has not ruled on this issue, decisions drawn
from Florida’s intermediate appellate courts control, absent some reason to
believe that the Florida Supreme Court would rule otherwise. See Blanchard
v. State Farm Mut. Auto. Ins. Co., 903 F.2d 1398, 1399 (11th Cir. 1990).
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14 Opinion of the Court 20-14814
Applying Lindheimer to the facts in this case, we readily con-
clude that for an “act” to “in any way involv[e] . . . services of a
professional nature,” the act must have some causal connection to
the professional service. Doe’s claims against Westchester stem
from Westchester’s purported negligence in hiring, training, super-
vising, and following policies and procedures to protect its patients,
but underlying those claims is Jane Doe’s alleged sexual assault. As
a result, the “act” implicating the Professional Services Exclusion
could be the alleged sexual assault or Westchester’s purported neg-
ligence. Either way, Westchester wins.
If we define the “act” as the alleged sexual assault, the rea-
soning in Lindheimer forecloses any argument that the sexual as-
sault here involves the provision of services of a professional na-
ture. Ramos-Garcia was not treating Jane Doe at the time of the
assault as a medical physician or a nurse; neither party has identi-
fied any medical services that he was performing at that time. But
even if Ramos-Garcia had been Doe’s treating physician, “the act
causing the injury was the assault, not the [provision of treat-
ment].” See Lindheimer, 643 So. 2d at 639; cf. State Farm Fla. Ins.
Co. v. Campbell, 998 So. 2d 1151, 1154–55 (5th Fla. DCA 2008) (em-
phasis added) (applying a professional services exclusion when a
patient fell while being positioned for an x-ray, because “[t]o be ex-
cluded, the act or service must be a medical act, not one that re-
quires no professional skill,” and positioning the plaintiff was a
medical act “integral or causally related to the treatment provided
to the patient”).
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20-14814 Opinion of the Court 15
Alternatively, we could construe the “act” in question as
Westchester’s purported negligence in hiring, training, and super-
vising its employees, and its failure to adhere to its internal policies
and procedures. Indeed, the Does’ underlying state court suit
against Westchester asserts the claim that Westchester negligently
failed to reasonably train, control, or supervise its staff. However,
those activities do not fundamentally involve “services of a profes-
sional nature.” They are administrative and human resource–re-
lated functions of the hospital, performed not in its role as a pro-
vider of medical treatment, but in its role as an employer and a
business. As an illustration, restaurants, grocery stores, and gyms
-- entities that do not necessarily provide services requiring high
levels of professional training and proficiency -- can still be held li-
able for failing to properly train or supervise employees that have
committed intentional torts against their patrons. Westchester’s
alleged failure to properly hire, train, or supervise employees is not
inherently related to its provision of professional services.
Evanston claims, however, that Lindheimer is distinguisha-
ble because that case did not involve a general liability policy or a
policy exclusion, nor did it define the term “[p]rofessional ser-
vices.” Putting aside the fact that the Policy here does not define
“services of a professional nature” either, Evanston offers no rea-
son why the lack of a general liability policy or a bodily injury ex-
clusion in Lindheimer somehow distinguishes that case from this
one. Indeed, the fact that we are interpreting an exclusion here
militates in favor of a narrower interpretation of the Professional
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16 Opinion of the Court 20-14814
Services Exclusion. See Flores v. Allstate Ins. Co., 819 So. 2d 740,
744 (Fla. 2002) (“Policy provisions that tend to limit or avoid liabil-
ity are interpreted liberally in favor of the insured and strictly
against the drafter who prepared the policy[.]”); see also Estate of
Tinervin v. Nationwide Mut. Ins. Co., 23 So. 3d 1232, 1236 (4th Fla.
DCA 2009) (“Exclusionary clauses are strictly construed.”).
Evanston also relies on a district court order that this Court
affirmed in an unpublished opinion, but its reliance is misplaced.
See Maryland Cas. Co. v. Fla. Atlantic Orthopedics, P.L., 771
F. Supp. 2d 1328 (S.D. Fla. 2011), aff’d, 469 F. App’x 722 (11th Cir.
2012). For starters, that case has no precedential value. Moreover,
the district court in that case applied the professional services ex-
clusion in a general liability policy to claims of negligence because
the claims arose out of a clinic’s failure to put in place appropriate
procedures for emergency medical situations. Maryland Casualty
Company, 771 F. Supp. 2d at 1333–34. Because the claims of neg-
ligence in the clinic’s hiring of its medical staff related to the clinic’s
failure to properly train its medical staff members to handle emer-
gency medical situations, there was a clear causal connection be-
tween the plaintiff’s claims of negligence in supervising its medical
staff and the provision of medical services. See id. In contrast, we
can discern no causal connection between Westchester’s rendition
of professional services for its patients, and either Ramos-Garcia’s
alleged sexual assault or Westchester’s allegedly negligent practices
in hiring, training, and supervising its non-medical staff.
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20-14814 Opinion of the Court 17
At bottom, Westchester’s provision of professional services
in no way relates to Doe’s alleged sexual assault or Westchester’s
oversight of its employee’s alleged criminal conduct. The Profes-
sional Services Exclusion to the GL Coverage Part of the Policy
does not apply here.
C.
Next up is the Bodily Injury Exclusion. To our eyes, no Flor-
ida court has interpreted policy language identical to -- or even sim-
ilar to -- the language in the Bodily Injury Exclusion. Its interpre-
tation poses an issue of first impression.
Under Evanston’s desired reading, “receiving services of a
professional nature” is a relative clause 2 that modifies “patient, per-
son or resident of a facility.” That would render the text as follows:
[B]ased upon or arising out of Bodily Injury sustained
by any patient, person or resident of a facility [who is]
receiving services of a professional nature or any such
Claim brought by or on behalf of the spouse, child,
parent, grandparent, brother, sister or partner of such
patient, person or resident of a facility.
2 A relative clause is “an adjective clause introduced by a relative pronoun ex-
pressed or suppressed, relative adjective, or relative adverb and having either
a purely descriptive force (as in John, who often tells fibs) or a limiting one (as
in boys who tell fibs).” Relative Clause, MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/relative%20clause (last vis-
ited Aug. 18, 2022) (emphasis in original).
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18 Opinion of the Court 20-14814
Evanston says that its addition of the phrase “who is” purportedly
helps explain which types of patients, persons, or residents are ex-
cluded from coverage under the GL Coverage Part: namely, those
patients whose general purpose for being in the hospital is “receiv-
ing services of a professional nature.” Under this reading, “receiv-
ing services of a professional nature” modifies only “patient, person
or resident of a facility,” without clarifying how the claimant suf-
fered her Bodily Injury.
Westchester’s view of the exclusion, however, would read
this way:
[B]ased upon or arising out of Bodily Injury sustained
by any patient, person or resident of a facility [while]
receiving services of a professional nature or any such
Claim brought by or on behalf of the spouse, child,
parent, grandparent, brother, sister or partner of such
patient, person or resident of a facility.
The word “while” that Westchester introduces to the Bodily Injury
Exclusion’s text clarifies that the claimant’s Bodily Injury must oc-
cur at the same time that the patient is “receiving services of a pro-
fessional nature.” This construction would mean that the Bodily
Injury Exclusion does not apply to the Does’ claims because Jane
Doe was not receiving medical services when, while asleep, she al-
legedly suffered her “Bodily Injury.” Because of the definitional
differences between the language at issue in this case and the oper-
ative language in Lindheimer, the word “while” inserted here does
not create a causal connection requirement between “Bodily
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20-14814 Opinion of the Court 19
Injury” and “services of a professional nature.” When used as a
conjunction, “while” means “during the time that” or “as long as.”
While, MERRIAM-WEBSTER, http://www.merriam-web-
ster.com/dictionary/while (last visited Aug. 18, 2022). This means
that the Bodily Injury Exclusion applies whenever a “patient, per-
son or resident of a facility” suffers a “Bodily Injury” during the
time that she is “receiving services of a professional nature.”
Westchester offers the better interpretation. First and fore-
most, the fact that this portion of the Bodily Injury Exclusion is
“reasonably or fairly susceptible to different constructions” renders
it ambiguous. See Friedman v. Va. Metal Prods. Corp., 56 So. 2d
515, 517 (Fla. 1952). Florida law requires ambiguities and exclu-
sions to be construed against the insurer -- particularly when there
are ambiguities within an exclusion. See Anderson, 756 So. 2d at
34 (citation omitted) (“[A]mbiguous insurance policy exclusions
are construed against the drafter and in favor of the insured. In
fact, exclusionary clauses are construed even more strictly against
the insurer than coverage clauses.”). Considering that this case
concerns an ambiguous exclusion to an insurance policy, this com-
bination alone militates against Evanston’s proffered interpreta-
tion. See Campbell, 998 So. 2d at 1153 (“[P]rovisions limiting or
avoiding liability are interpreted liberally in favor of the insured
and strictly against the insurer.”).
Second, the fact that the Bodily Injury Exclusion uses a pre-
sent participle (“receiving services of a professional nature”), as op-
posed to a traditional relative clause that uses “who” or “that” to
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20 Opinion of the Court 20-14814
describe a noun (e.g., “[who] receiv[es] professional services”), fur-
ther shows that introducing the word “while” in between “facility”
and “receiving” would better accomplish the intent of the parties.
A present participle is used to signal present and continuing action.
See Present Participle, MERRIAM-WEBSTER, http://www.merriam-
webster.com/dictionary/present%20participle (last visited Aug.
18, 2022) (defining “present participle” as “a participle that typically
expresses present action in relation to the time expressed by the
finite verb in its clause and that in English is formed with the suffix
-ing and is used in the formation of the progressive tenses”); see
also Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d 331, 336 (7th
Cir. 2019) (explaining that a present participle, such as the word
“having,” means “presently and continuously,” and “does not in-
clude something in the past that has ended or something yet to
come”). Similarly, the Bodily Injury Exclusion would apply to only
those patients who sustain a “Bodily Injury” contemporaneously
with their receipt of “services of a professional nature.” Because
Jane Doe was not “presently and continuously” receiving medical
treatment when she was assaulted, the plain text and grammatical
rules -- especially when construed against Evanston, the drafter of
this exclusion -- yield the conclusion that the Bodily Injury Exclu-
sion does not bar coverage.
In sum, neither the Bodily Injury Exclusion nor the Profes-
sional Services Exclusion bars coverage for Westchester’s lawsuit
against the Does. Evanston owes Westchester a duty to defend the
hospital in its litigation against the Does under the GL Coverage
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20-14814 Opinion of the Court 21
Part. And because we conclude that Evanston owes Westchester
a duty to defend under the GL Coverage Part, we hold that the
Umbrella Policy also applies.
The district court correctly entered summary judgment for
Westchester.
AFFIRMED.