On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Before Judges Shebell, Skillman and Wallace.
The opinion of the court was delivered by SKILLMAN, J.A.D.
This appeal involves a dispute between two insurance companies regarding responsibility for the payment of a medical malpractice judgment entered against Dr. Phillip Cohen, the Chairman of the Department of Orthopedic Surgery in St. Joseph's Hospital (St. Joseph's), located in Paterson.
Plaintiff Medical Inter Insurance Exchange of New Jersey (MIIX) provided medical malpractice coverage to Dr. Cohen. However, this policy contained an exclusion for any liability incurred by Dr. Cohen while acting as an executive officer of a hospital. Defendant Health Care Insurance Exchange (HCIE) provided liability coverage to St. Joseph's, which included coverage, as additional insureds, to members of the St. Joseph's Medical Staff "while performing administrative duties." HCIE acknowledges that Dr. Cohen qualified as an additional insured under this coverage.
The underlying medical malpractice action was filed by Lisa Bresemann, who claimed that she suffered permanent injury to her left knee as a result of medical malpractice committed by her orthopedic surgeon, Dr. Richard D. Jacobs. Her complaint named as defendants not only Dr. Jacobs but also Orthopedic Associates, a professional medical association of which both Dr. Jacobs and Dr. Cohen were members. Ms. Bresemann amended her complaint to include negligence claims against the members of the St. Joseph's nursing staff involved in her surgery and Stryker Corporation (Stryker), the manufacturer of a mini-camera used in the surgery. The complaint against Dr. Jacobs and the nursing staff was based on their use of an overheated saline solution, which allegedly resulted in Ms. Bresemann sustaining internal and exterior burns to her knee.
Ms. Bresemann subsequently filed a fourth amended complaint which added claims against Dr. Cohen. Although Dr. Cohen was not a member of the surgical team, Mr. Bresemann's fourth amended complaint alleged that he had committed malpractice in his capacity as Chief of Orthopedic Surgery at St. Joseph's, as a member of Orthopedic Associates, and as Dr. Jacobs' partner, by failing to provide proper supervision to nursing staff personnel and/or by failing to provide proper directives or guidelines regarding the use of the heated saline solution.
Upon receiving service of process in April 1986, Dr. Cohen forwarded the complaint to MIIX, which provided him with a defense through the end of trial. Neither Dr. Cohen nor MIIX sent the fourth amended complaint to HCIE or communicated in any other way with HCIE regarding the Bresemann claim prior to submission of the case to the jury.
However, when the Bresemann jury asked the court for a clarification of Dr. Cohen's testimony as to whether he had authorized use of the heated saline solution for surgical procedures other than those he performed personally, the attorney retained by MIIX to defend Dr. Cohen sent a letter to HCIE, dated March 17, 1987, which asserted that HCIE would be responsible for any judgment entered against Dr. Cohen. Prior to HCIE responding to this letter, the jury returned a verdict in favor of Ms. Bresemann, apportioning liability as follows:
[one of the nurses on the ...