United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY DISTRICT JUDGE.
Security Insurance Company (OSIC) seeks a declaratory
judgment that it has no duty to defend or indemnify Premier
Pain Specialists, LLC (PPS) or Dr. Omar Said in a negligence
action brought by Mary Ann Elam, who alleges she was injured
after a procedure at a PPS facility. Both sides have moved
for judgment on the pleadings.
motion for judgment on the pleadings, the Court must
"tak[e] all facts pleaded in the complaint as true and
construe all inferences in the [nonmoving party's]
favor" while "review[ing] the complaint and all
exhibits attached to the complaint." Forrest v.
Universal Sav. Bank, FA, 507 F.3d 540, 542 (7th Cir.
an insurance company organized under the laws of New
Hampshire with its principal place of business in
Massachusetts. PPS operates as Premier Pain & Spine LLC;
all of its members are Illinois citizens. Omar Said is an
Illinois citizen and physician who works at a PPS location.
(From here on, the Court refers to the defendants generally
as PPS, unless otherwise indicated.) Mary Ann Elam, also an
Illinois citizen, sued PPS in the Circuit Court of Cook
County for negligence to recover for injuries she sustained
after falling at the PPS facility at which Said worked.
holds a business owner's insurance policy from OSIC. The
insurance policy provides that "[w]e will pay those sums
that the insured becomes legally obligated to pay as damages
because of "bodily injury"." D.E. 21,
Pl.'s Ex. 4 at 34 (Business Owners Coverage Policy). (For
exhibits of the insurance policy, the Court refers to the ECF
pagination, as the page numbers of the exhibits are not
internally consistent.) "Bodily injury" is defined
as "[b]odily injury, sickness, disease, or incidental
medical malpractice injury sustained by a person[.]:"
D.E. 21, Pl.'s Ex. 5 at 40 (Business Owners Liability
Extension Endorsement). The policy defines "incidental
medical malpractice injury" as "bodily injury
arising out of the rendering of or failure to render, during
the policy period, the following services: (a) medical,
surgical, dental, x-ray, or nursing service or treatment . .
. or (b) the furnishing or dispensing of drugs or medical,
dental or surgical supplies or appliances." Id.
at 38. The policy states, however, that incidental medical
malpractice coverage does not apply to "any insured
engaged in the business or occupation of providing any of the
services described under a. and b. above[.]"
relevant to the parties' claims is the professional
services exclusion, which excludes from coverage any injury
"caused by the rendering or failure to render any
professional service." Id., Pl.'s Ex. 4 at
41. The definition of professional services includes
"[m]edical, surgical, dental, X-ray or nursing services
treatment, advice or instruction" and "[a]ny health
or therapeutic service treatment, advice or
argues that OSIC has a duty to defend and indemnify it in a
negligence suit. The Court draws facts about the suit from
the complaint filed in that suit and a video of the incident,
both of which OSIC attached to its complaint as exhibits.
Elam, the plaintiff in the underlying lawsuit, alleges that,
on January 20, 2015, she underwent a procedure to mitigate
neck pain through epidural injections, for which she also
received anesthesia. The video begins by depicting Elam
walking alongside an attendant through the PPS recovery room.
A second staff member is seated at a desk; she is not
attending to Elam. The first attendant turns his back to
Elam, who reaches up to her neck and then stumbles to the
left. She falls through a curtain, which obscures a chair.
Elam collides with the chair as she falls. Id.,
Pl.'s Ex. 2 (Security Camera Video Clip). Elam claims to
have broken her femur and several ribs in the fall.
lawsuit against PPS, Elam asserted two counts of medical
negligence and one count of general negligence, the latter of
which PPS argues falls within its OSIC policy. Elam alleges
PPS was generally negligent when it:
A. Failed to properly assess and evaluate [Elam] before
placing her in the recovery room;
B. Failed to properly monitor [Elam] while in the recovery
C. Failed to properly restrain and secure [Elam] while in the
recovery room to ensure that she did not fall;
D. Failed to assign proper and adequate personnel to monitor
and assist [Elam] while in the recovery room;
E. Failed to ensure that [Elam] was properly attended to at
all times while at [Premier Pain's] facility in ...