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THOMAS M. D'AURIA v. ZURICH INSURANCE COMPANY (04/07/86)

filed: April 7, 1986.

THOMAS M. D'AURIA, APPELLANT,
v.
ZURICH INSURANCE COMPANY, HARTFORD INSURANCE COMPANY, ARGONAUT INSURANCE COMPANY, PENNSYLVANIA MEDICAL SOCIETY INSURANCE COMPANY, APPELLEES



Appeal from Judgment Entered August 30, 1984 Court of Common Pleas, Civil Division, Fayette County, No. 925 of 1982 GD

COUNSEL

Wendelynne J. Newton, Pittsburgh, for appellant.

James A. Beinkemper, Sr., Pittsburgh, for Hartford, appellee.

Kenneth J. Nolan, Pittsburgh, for Argonaut, appellee.

Mark Neff, Washington, for Pa. Med., appellee.

Cavanaugh, Johnson and Watkins, JJ.

Author: Cavanaugh

[ 352 Pa. Super. Page 233]

Dr. Thomas M. D'Auria appeals from the order of August 30, 1984 entered in the Court of Common Pleas of Fayette County denying his motion for summary judgment and entering judgment in favor of appellees.*fn1 The sole question in this appeal is whether three insurance companies had a duty to defend the appellant in a malpractice suit filed against him. We hold they did not.

In 1981, Dr. D'Auria, who practiced pediatric medicine in Uniontown, Pennsylvania, was sued for malpractice by a former patient, Mr. Gregory Egnot. Egnot was a patient of Dr. D'Auria's from the time of his birth in 1957 until 1963. In Egnot's complaint against Dr. D'Auria, he alleged that D'Auria was negligent and careless both during and after the time he was D'Auria's patient and avers that this negligence was a cause of the renal failure he suffered in 1979.

Each of the three insurance companies involved in this dispute did not insure appellant until long after he treated Egnot. Hartford insured him from 7/22/73 to 7/22/76. Argonaut insured him from 7/22/76 to 1/1/78. PMSLIC insured him from 1/1/78 to 6/30/82. All three provided "occurrence" type policies. "An 'occurrence' policy protects the policyholder from liability for any act done while the policy is in effect, whereas a 'claims made' policy protects the holder only against claims made during the life of the policy." St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531 n. 3, 98 S.Ct. 2923 n. 3, 57 L.Ed.2d 932 (1978). According to appellant, all three policies stated:

"[T]he company shall have the right and duty to defend any suit against the insured seeking such damages, even if any of the allegations of the suit are groundless, false or fraudulent . . . ."

The duty to defend is separate from and greater than the duty to indemnify. Pacific Indem. Co. ...


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