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1
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OPINION
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EXTRACTED KEY WORDS
EMPLOYMENT DOCTORS DEFEND DEFENSE INDEMNIFY COMPLAINT INSURER STATUTE NY2D INSURANCE YORK ALLEGES OBLIGATIONS COURT PROCEEDING MATTER ATTORNEY FRONTIER APPELLANT-RESPONDENT MALPRACTICE SCOPE PRIVATE LIMITATIONS DUTY UNDERLYING ACTION FACTS COSTS CLAIMANT FRONTIER PHYSICIANS |
FRONTIER INSURANCE COMPANY, AS SUBROGEE OF THOMAS SCALEA,
APPELLANT-RESPONDENT, v. STATE OF NEW YORK, RESPONDENT-APPELLANT. (AND
ANOTHER RELATED CLAIM.)
87 N.Y.2d 864, 662 N.E.2d 251, 638 N.Y.S.2d 933
December 21, 1995
3 No. 258(1995 NY Int. 288)
Decided December 21, 1995
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
William S. Brandt, for Appellant-respondent.
Peter H. Schiff, for Respondent-appellant.
Academic Health Professionals Insurance Association, amicus curiae.
MEMORANDUM:
The order of the Appellate Division should be affirmed, without costs,
and the certified question answered in the negative.
Claimant Frontier Insurance Company is an insurer of two physicians
employed by the State as assistant professors at medical schools of
the State University of New York. In unrelated cases, each doctor was
served with a complaint alleging medical malpractice in the
performance of surgical procedures.
Pursuant to Public Officers Law § 17(2)(a), the doctors requested the
State to defend them. The State denied the requests, claiming that the
alleged malpractice did not occur within the scope of the doctors'
public employment. It referred the doctors to policies issued by
claimant Frontier, which obligated claimant to defend and indemnify
the doctors for incidents of malpractice committed in the course of
private practice or when the State denied Public Officers Law § 17
coverage. Frontier defended the doctors against the malpractice
actions, negotiated settlements of each, and indemnified the doctors
for the amount of those settlements. It then commenced these actions
in the Court of Claims, as subrogee of the doctors, alleging that the
State wrongfully refused to honor its obligations under Public
Officers Law § 17 and demanding judgment against the State for the
amounts expended in defending and indemnifying them. The two
proceedings were consolidated in the Court of Claims.
As the matter comes to us, the principal issue for determination is
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