United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge.
an insurance coverage dispute arising out of a
psychiatrist's alleged sexual misconduct with a patient.
Before the Court are Cross Motions for Summary Judgment [ECF
Nos. 18-19, 22]. For the reasons stated herein, the Court
grants Defendant Giolas' Motion and denies
Professional Solutions Insurance Company (“PSIC”)
brought a declaratory action seeking a declaration that it
does not have a duty to defend Defendant Dale Giolas, M.D.
(“Giolas”) in an Illinois state court lawsuit.
For the purposes of the coverage dispute and the cross
motions before the Court, the facts are undisputed. Both
parties filed Rule 56.1(a)(3) statements, but neither filed a
Local Rule 56.1(b) response. See, N.D. Ill. L.R.
56.1(a)(3)(C) (“All material facts set forth in the
statement required of the moving party will be deemed to be
admitted unless controverted by the [L.R. 56.1(b)] statement
of the opposing party.”). As such, the Court considers
the facts contained in both parties' statements admitted.
The Court does not deem any legal conclusions admitted. The
facts of the underlying state court action are as follows.
a licensed psychiatrist, treated Staci Ferguson
(“Ferguson”) as a patient from 2011 until early
2016. (See, PSIC's 56.1(a)(3) Statement, ECF No.
20 (“PSIC's Fact Statement”) ¶ 4.) On
August 25, 2016, Ferguson brought a lawsuit in Illinois state
court alleging that Giolas repeatedly engaged in improper
sexual activity with her while he was treating her.
(See, Giolas' 56.1(a)(3) Statement, ECF No. 21
(“Giolas' Fact Statement”) ¶¶ 1-2;
PSIC's Fact Statement ¶¶ 3-4.) Ferguson alleged
that Giolas' improper sexual activity violated the Sexual
Exploitation in Psychotherapy, Professional Health Services,
and Professional Mental Health Services Act, 740 ILCS 140/1
et seq., the Gender Violence Act, 740 ILCS 82/1
et seq., and constituted common law battery.
(See, Complaint, Ex. A to “Complaint for
Declaratory Judgment, ” ECF No. 1 (the
“Underlying Complaint”); see also,
Giolas' Fact Statement ¶ 1.) Both parties
acknowledge that Giolas denies engaging in any sexual
activity with Ferguson. (See, Giolas' Fact
Statement ¶ 3; PSIC's Fact Statement ¶ 5.)
After receiving notice of the Underlying Complaint, Giolas
tendered it to PSIC, his professional liability insurer. The
underlying state court case remains pending. (See,
Giolas' Fact Statement ¶ 4.)
insurance policy at issue, entitled Physician and Surgeon
Medical Professional Liability Insurance Policy (the
“Policy”), was issued by PSIC to Giolas and was
in effect when Ferguson filed the Underlying Complaint.
(See, Policy, Ex. B to Complaint, ECF No. 1 (the
“Policy”); PSIC's Fact Statement ¶ 12;
Giolas' Fact Statement ¶ 5.) The policy states, in
II. Coverage Agreement
the limit of liability shown on the
In return for payment of premium and subject to all the terms
of this Policy and the exclusions stated in
Section VIII. Exclusions, We will pay on
behalf of an Insured all sums in excess of
the Deductible to which this insurance
applies and for which an Insured becomes
legally obligated to pay as Damages because
of an Injury caused by an
Incident in the performance of
Professional Services by
You or someone for whom You
are legally responsible as provided in this
Policy. The Injury must
occur on or after the Retroactive Date shown
on the Declarations and before this
Policy or coverage for an
Insured terminates. Any
Claim associated with an
Injury caused by an
Incident must be first reported to
Us in writing during the Policy
Period or the Automatic Extended Reporting
Period. The Injury must also be
caused by an Insured under this
Policy. (See, Policy § II.)
term “Injury” is defined as:
[B]odily injury, sickness, disease or death sustained by any
one person. (Id. § I.14.)
term “incident” is defined as:
[A]ny negligent omission, act or error in the providing of
Professional Services. All such omissions,
errors or acts causally related to the rendering of or
failure to render Professional Services to
one person shall be considered one Incident.
Causally related acts, errors or omissions that have a common
cause or form a causal chain of events shall be considered
one Incident. An Incident
shall be deemed to have occurred at the time of the earliest
act, error or omission comprising that
Incident. (Id. § I.13.)
term “Professional Services” is defined as:
[T]he diagnosis of, treatment or medical care for or medical
consultation regarding a patient's medical ...