UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-2100

PATRICIA BALL,

Plaintiff - Appellant,

versus

NCRIC, INCORPORATED, a/k/a National Capital

Reciprocal Insurance Company,

Defendant - Appellee.

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. Alexander Williams, Jr, District Judge.

(CA-00-832-AW)

Argued: October 29, 2004 Decided: January 27, 2005

Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Gregory Charles Mitchell, Washington, D.C., for Appellant.

Lee Thomas Ellis, Jr., BAKER & HOSTETLER, L.L.P., Washington, D.C.,

for Appellee. ON BRIEF: Stephen C. Leckar, BUTERA & ANDREWS,

Washington, D.C., for Appellant. Amy M. Henson, BAKER & HOSTETLER,

L.L.P., Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

Patricia Ball brought this action against NCRIC, Incorporated,

seeking satisfaction of a judgment she obtained against a doctor

insured by NCRIC. The district court granted summary judgment in

favor of NCRIC, and Ball appeals. We affirm.

I.

From April to November 1987, Dr. George Daniel provided inhome treatment to Ball for migraine headaches and depression.

During these visits, Daniel injected Ball with various drugs to

which Ball became addicted. The drugs put Ball into a state of

stupor, during which time Daniel sexually assaulted her. Daniel

was arrested in November 1987 on unrelated federal charges of

selling prescriptions to undercover agents. Daniel agreed to plead

guilty to the charges in February 1988. Daniel, however, did not

appear for the plea proceeding, and he remained a fugitive until

1991.

Daniel was insured under a “claims made” medical malpractice

insurance policy issued by NCRIC that was in effect from March 19,

1987, until January 1, 1988. Ball brought a malpractice action

against Daniel, notifying NCRIC of her claim against Daniel in

December 1987. Her action was largely stalled during the time that

Daniel remained a fugitive.
3

In April 1992, Ball filed a notice of claim against Daniel

with the Maryland Health Claims Arbitration Office, in accordance

with Maryland law governing medical malpractice claims. Ball

served Daniel (then in federal prison) with notice of her claim and

also provided NCRIC with a copy of the arbitration claim. NCRIC

took the position that Ball’s claims against Daniel did not fall

within the scope of the policy issued by NCRIC. In February 1996,

the Health Claims Arbitration panel rendered a decision in favor of

Ball on her claims against Daniel and awarded $310,000 in damages.

Final judgment in that amount was entered in Maryland state court

on September 1996.

In February 2000, Ball filed an action in Maryland state court

seeking to recover the amount of the judgment through the insurance

policy issued by NCRIC. See Washington Metro. Area Transit Auth.

v. Queen, 597 A.2d 423, 425-26 (Md. 1991) (“[A] tort claimant may

not maintain a direct action against the defendant tortfeasor’s

liability insurer until there has been a determination of the

insured’s liability in the tort action. Once there is a verdict or

judgment in the tort action, a direct action may be maintained

against the liability insurer.”). NCRIC removed the case to

federal court on the basis of diversity of citizenship.

After cross-motions for summary judgment, the district court

ruled in favor of NCRIC, concluding that Daniel’s failure to

cooperate with NCRIC’s investigation of Ball’s claim relieved NCRIC
4

of any obligation under its policy. Ball appealed, and this court

reversed and remanded. We concluded that NCRIC failed to prove

that it was prejudiced by Daniel’s lack of cooperation and that

section 19-110 of the Maryland Insurance Code therefore prevented

NCRIC from denying coverage because of Daniel’s lack of

cooperation. We also rejected NCRIC’s alternative argument that

coverage could be denied on the basis of Daniel’s failure to notify

NCRIC of Ball’s claim, as required by the policy. We concluded

that because Ball’s attorney notified NCRIC of the claim, NCRIC was

not prejudiced by Daniel’s failure to give notice, and section 19-

110 therefore prevented NCRIC from denying coverage on that basis.

See Ball v. NCRIC, Inc., No. 01-1716, 2002 WL 1473355, at *2-3 (4th

Cir. July 10, 2002) (unpublished).

After the case was remanded to the district court, the parties

again filed cross-motions for summary judgment. The district court

granted summary judgment in favor of NCRIC on several alternate

grounds. The district court concluded that the notice of the claim

provided by Ball’s attorney to NCRIC did not comply with the

requirements of the policy and was therefore insufficient. The

district court also concluded that Daniel’s actions did not involve

the provision of “professional medical services” as covered by the

policy. Finally, the district court concluded that Daniel knew or

should have known about Ball’s potential claim against him when the
5

policy was issued, and that Ball’s claim therefore fell within a

policy exclusion.

II.

A.

NCRIC’s policy requires that the insurer be given written

notice of any claims made against the insured, and the policy

specifies that the notice contain “particulars sufficient to

identify the insured and also reasonably obtainable information

with respect to the time, place and circumstances thereof, and the

names and addresses of the injured and of available witnesses.”

Ball’s attorney notified NCRIC of her claim against Daniel by

letter dated December 15, 1987. Because the letter did not satisfy

all of the policy requirements, the district court concluded that

NCRIC could deny coverage on that basis.

On appeal, NCRIC recognizes that our decision in the prior

appeal precludes any argument that the insufficient notice caused

it to suffer “actual prejudice” within the meaning of section 19-

110. NCRIC, however, contends that the sufficiency-of-the-notice

question is simply a question of contract law that is unaffected by

section 19-110. That is, NCRIC contends that if the notice

provided by Ball’s attorney did not meet the requirements set forth

in the policy, then it is entitled as a contractual matter to
6

disclaim coverage, whether or not it suffered prejudice under

section 19-110. We disagree.

Section 19-110 states:

An insurer may disclaim coverage on a liability insurance

policy on the ground that the insured or a person

claiming the benefits of the policy through the insured

has breached the policy by failing to cooperate with the

insurer or by not giving the insurer required notice only

if the insurer establishes by a preponderance of the

evidence that the lack of cooperation or notice has

resulted in actual prejudice to the insurer.

Md. Code Ann. Ins. § 19-110 (emphasis added). The statute thus

applies to a claim that an insured breached the policy by failing

to provide the “required notice,” which is precisely the claim

NCRIC is making when it argues that Ball’s notice did not satisfy

the requirements of the policy.

NCRIC’s claim regarding the sufficiency of the notice thus

falls within the scope of section 19-110 and is precluded by our

conclusion in the prior appeal that NCRIC failed to establish

actual prejudice. The district court erred by granting summary

judgment to NCRIC on that basis.

B.

The policy at issue insured Daniel against claims “caused by

a medical incident which occurs . . . in the practice of the

insured’s profession as a physician or surgeon.” J.A. 71. The

policy defines “medical incident” as “any act or omission in the

furnishing of professional medical services to any person.” J.A.

75. “Professional medical services” is not defined by the policy.
7

The district court noted that “the scope of professional

services does not include all forms of Dr. Daniel’s conduct simply

because he is a doctor.” J.A. 660 (emphasis omitted). The court

concluded that Daniel’s actions with regard to Ball “were solely

for the satisfaction of his own prurient interests,” and that his

actions “in no way involved the application of any specialized

learning or skills.” J.A. 660 (internal quotation marks and

alteration omitted). The court concluded that Ball’s claims

against Daniel did not spring from Daniel’s furnishing of medical

services to Ball and that NCRIC therefore had no duty to cover the

judgment entered against Daniel.

There are no Maryland cases interpreting the precise language

used in NCRIC’s policy. When making their arguments, however, the

parties rely on cases involving Maryland’s Health Care Malpractice

Claims Arbitration Act. In general, the Act requires that claims

“against a health care provider for medical injury” must be

submitted to arbitration conducted through the Health Claims

Arbitration Office before an action can be commenced in circuit

court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02(a)(1). The

Health Claims Arbitration Office has authority only over cases that

fall within the scope of the Act. See, e.g., Watts v. King, 794

A.2d 723, 733 (Md. Ct. Spec. App. 2002) (“It is true that, although

CJ § 3-2A-02(a) requires that all claims shall be submitted to the

HCAO for arbitration, intentional torts may be excluded from the
8

Act’s jurisdiction.” (internal quotation marks and alteration

omitted)).

The Act defines “medical injury” as “injury arising or

resulting from the rendering or failure to render health care.”

Md. Code Ann., Cts. & Jud. Proc. § 3-2A-01(f). The Maryland courts

have set forth standards for determining which claims meet this

definition and thus fall within the scope of the Act:

[T]he Act covers only those claims for damages arising

from the rendering or failure to render health care where

there has been a breach by the defendant, in his

professional capacity, of his duty to exercise his

professional expertise or skill. Those claims for

damages arising from a professional’s failure to exercise

due care in non-professional situations such as premises

liability, slander, assault, etc., were not intended to

be covered under the Act and should proceed in the usual

tort claim manner.

Cannon v. McKen, 459 A.2d 196, 201 (Md. 1983) (emphasis added).

Where a plaintiff alleges that he or she was injured by

a health care provider during the rendering of medical

treatment or services, the Act is implicated, regardless

of whether the claim sounds in negligence or intentional

tort. When confronted with such a claim, the trial court

must determine if the plaintiff’s factual allegations

remove the claim from the Act’s coverage. If the

complaint sets forth facts showing that the claimed

injury was not inflicted during the rendering of medical

services, or that the injury resulted from conduct

completely lacking in medical validity in relation to the

medical care rendered, the Act is inapplicable . . . .

Goicochea v. Langworthy, 694 A.2d 474, 479 (Md. 1997) (emphasis

added).

The language in NCRIC’s policy obviously is not identical to

the language of the Maryland statute or the standard used by
9

Maryland courts to apply that statutory language. Nonetheless, we

agree with the parties that there is sufficient similarity such

that the cases discussing the scope of the Act provide guidance on

the issue before us. The question, then, is whether Daniel’s

conduct was so completely lacking in medical validity that it

cannot be considered the “furnishing of professional medical

services” as covered by the policy.

If the only conduct at issue in this case were Daniel’s sexual

assaults, then we might agree with NCRIC and the district court

that Daniel’s actions did not arise from the furnishing of medical

services. Professional malpractice insurance does not protect

against all negligence of a person who happens to be a

professional; it is intended to protect against negligence that

occurs during the course of the professional’s exercise of his

special skills and training. Although Maryland does not appear to

have directly addressed this question, many courts have concluded

that, except in cases involving psychiatrists or other therapists,

sexual misconduct by a doctor is not covered by a professional

malpractice insurance policy. See, e.g., Niedzielski v. St. Paul

Fire & Marine Ins. Co., 589 A.2d 130 (N.H. 1991); St. Paul Fire &

Marine Ins. Co. v. Mori, 486 N.W.2d 803 (Minn. Ct. App. 1992).

Sexual assault is typically viewed as being so far beyond the

bounds of professional medical treatment and so disconnected from

an exercise of the doctor’s professional skills and training that
10

courts have concluded a sexual assault by a doctor does not amount

to medical malpractice.

In this case, however, Ball’s complaint is not based only on

Daniel’s sexual misconduct. Daniel advertised himself as providing

in-house medical treatment, and Ball sought him out for treatment

of migraines and depression. Daniel came to her house and

purported to treat those problems by injecting Ball with various

drugs, including Demerol, Vistaril, Valium, and Fiorinal. Ball’s

claim against Daniel is based, in large part, on her contention

that Daniel failed to properly administer these drugs by giving

them to her in amounts that caused her to become addicted. At

least some of the drugs given to Ball by Daniel are commonly used

to treat the problems from which Ball suffered. See, e.g., Baker

v. Apfel, 159 F.3d 1140, 1143 (8th Cir. 1998) (noting that “[t]he

only effective pain medication for the migraines is an injection of

Demerol”); Beckley v. Apfel, 152 F.3d 1056, 1058 (8th Cir. 1998)

(noting that claimant took Fiorinal to treat migraine headaches).

Under these circumstances, we cannot say that Daniel’s actions in

administering the drugs were completely lacking in medical

validity. Ball’s claim with regard to Daniel’s misuse of the drugs

therefore falls within the scope of the risk covered by NCRIC’s

policy.

NCRIC, however, contends that Daniel did not give Ball these

drugs for the purpose of treating her migraines and depression, but
1NCRIC also suggests that the injection of drugs requires no

specialized learning or skills, so that Daniel’s administering of

the drugs to Ball cannot be viewed as the provision of professional

medical services. NCRIC claims that to conclude otherwise “would

be to equate a street heroin addict with a doctor of more worthy

morals.” Brief of Respondent at 23. This argument is without

merit. While it may be true that shots can be given by those who

are not doctors, that does not mean that a doctor is not using his

professional skills when giving a shot.

11

instead gave her the drugs to carry out his scheme to addict her

and render her incapable of rejecting his sexual advances. NCRIC

bases this argument on Ball’s deposition testimony, during which

she stated that she believed that Daniel was trying to get her

addicted to drugs. Ball also stated in her deposition that she

agreed with her attorney who argued before the Health Claims

Arbitration Panel that Daniel purposefully and maliciously gave her

drugs to get her addicted. Based on these statements, NCRIC

contends that the “undisputed facts” are that Daniel never

undertook to treat Ball’s ailments. See Brief of Respondent at 20

n.7. Thus, NCRIC argues that Daniel’s administering of the drugs

was completely lacking in medical validity and does not fall within

the scope of the policy coverage.1 We disagree.

Ball’s subjective beliefs about what Daniel’s intentions may

have been simply are not determinative of the coverage question.

What matters is the actual nature of the claim, not the label that

the plaintiff attaches to the claim. See Jewell v. Malamet, 587

A.2d 474, 479 (Md. 1991) (“[T]he determination of jurisdiction in

cases involving an intentional tort of a professional nature lies
12

not in the label given to the tort, but on the factual context in

which the tort was allegedly committed.” (internal quotation marks

and alterations omitted)); see also Goicochea, 694 A.2d at 479

(rejecting plaintiff’s attempt to turn medical malpractice case

into an intentional tort case by alleging that the doctor acted

maliciously).

As previously discussed, Ball’s claim falls within the scope

of the policy because it springs from Daniel’s furnishing of

professional medical services, services that were not completely

lacking in medical validity. Ball’s personal beliefs about why

Daniel acted as he did does not change this conclusion.

C.

Finally, we turn to the district court’s conclusion that NCRIC

was not obligated to provide coverage for Ball’s claim because

Daniel knew or should have known about her claim when the policy

was issued.

The policy issued by NCRIC states that coverage “is limited to

liability for only those claims which arise from incidents

occurring subsequent to the retroactive date stated in the

declarations and schedule page and which are first made against the

insured while the policy is in force.” J.A. 69. The retroactive

date of the NCRIC policy was March 19, 1987. Daniel began treating

Ball in April 1987, and we decided in the previous appeal that Ball
13

provided timely notice to NCRIC of her claim. Thus, Ball’s claim

seems to fall within the coverage period of the policy.

The policy, however, also contains an exclusion (“Exclusion

(f)”), which excludes coverage for liability “for any potential

claim against the insured of which the insured is aware, or

reasonably should have been aware, as of the date this policy is

issued, regardless of whether or not such claim has yet been made

or reported to any insurer.” J.A. 72 (emphasis added). Although

the policy’s retroactive date is March 19, 1987, the policy was

formally issued on May 21, 1987. The district court concluded that

by the time the policy was issued in May 1987, Daniel reasonably

should have known of Ball’s potential claim against him. The

district court therefore concluded that Exclusion (f) operated to

remove Ball’s claim from coverage under the policy.

On appeal, Ball contends that the policy is ambiguous because

it states that it covers claims arising after the retroactive date,

but then excludes claims about which Daniel should have been aware

on the issuance date, without defining issuance date. And because

the policy is ambiguous, Ball argues, we should construe it in her

favor. See, e.g., Mamsi Life & Health Ins. Co. v. Callaway, 825

A.2d 995, 1005-06 (Md. 2003) (“Although Maryland law does not

construe insurance policies as a matter of course against the

insurer, when a term in an insurance policy is found to be

ambiguous, the court will construe that term against the drafter of
14

the contract which is usually the insurer.” (citation omitted)).

We disagree with Ball’s argument.

Although the policy states that it covers claims for incidents

occurring after the retroactive date, the policy also makes clear

that the grant of coverage is subject to the other terms of the

policy, which of course includes the policy exclusions. And

contrary to Ball’s suggestion, the policy cannot be considered

ambiguous simply because it includes provisions that operate to

preclude coverage that would otherwise be granted. That is exactly

what exclusions are intended to do.

Nor can we conclude that Exclusion (f) is ambiguous because

the policy does not define date of issuance. The declarations page

of the policy expressly identifies May 21, 1987 as the policy’s

issue date. See J.A. 642. While no provision in the policy

explains the time frame under which the policy would be issued,

that omission does not make the exclusion ambiguous.

A contract term is determined to be ambiguous if a

reasonably prudent person would understand the term as

susceptible to more than one possible meaning. The

determination of whether language is susceptible to more

than one meaning includes consideration of the character

of the contract, its purpose, and the facts and

circumstances of the parties at the time of execution.

Id. at 1005 (citation and internal quotation marks omitted).

“Unless there is an indication that the parties intended to use

words in the policy in a technical sense, the terms of the contract

are accorded their customary, ordinary, and accepted meanings.”
15

Walk v. Hartford Cas. Ins. Co., 852 A.2d 98, 106 (Md. 2004). When

the policy is read as a whole, it is clear that the policy was

issued for purposes of Exclusion (f) when it was compiled and

delivered to Daniel, a date identified in the policy as May 21,

1987. That the date of issuance is different from the retroactive

date simply does not make the exclusion ambiguous.

The question, then, is whether Exclusion (f) operates to

remove Ball’s claim from the coverage provided by NCRIC’s policy.

We are constrained to answer that question in the affirmative.

The record establishes that by the time the policy was issued

on May 21, 1987, Daniel had visited Ball multiple times,

administering drugs each time, and had sexually assaulted her at

least once. Daniel had by that time told Ball that she was

addicted to the narcotics he had been giving her, and (again,

before the date of the policy issuance), Ball had checked herself

into a hospital seeking treatment for the addiction. Given these

facts, a reasonable person would have known before the policy was

issued that Ball had a claim against Daniel. While Ball had not

sued Daniel or even made a complaint against him by the time the

policy was issued, Exclusion (f) by its terms applies to potential

claims of which the insured “reasonably should have been aware,”

whether or not the claim has actually been made. Accordingly, we

agree with the district court that, by virtue of Exclusion (f),
16

Ball’s claim against Daniel is excluded from the policy issued by

NCRIC.

Ball, however, contends that because Daniel continued to treat

her after the policy was issued, Exclusion (f) does not preclude

coverage for her claim. In support of this argument, Ball relies

on Mutual Fire, Marine & Inland Insurance Co. v. Vollmer, 508 A.2d

130 (Md. 1986).

In Vollmer, a malpractice insurance policy issued to a doctor

provided coverage for malpractice committed after the policy’s

retroactive date and excluded coverage for malpractice occurring

before the retroactive date. The plaintiff’s complaint alleged a

related series of acts of malpractice, some of which occurred

before the retroactive date and some of which occurred after the

retroactive date. The Vollmer court concluded that the policy was

ambiguous because “[t]he policy is silent on its application where

malpractice is alleged to have been committed both before and after

the retroactive date.” Id. at 134. The court therefore

“resolve[d] the ambiguity against the drafter of the policy and in

favor of coverage.” Id.

The specific language of NCRIC’s policy, however, makes Ball’s

“continuing treatment” analysis inapplicable and her reliance on

Vollmer unavailing. The policy provides coverage for claims

“caused by a medical incident.” J.A. 71. As to “medical

incident,” the policy states that “[a]ny such act or omission
2At oral argument, counsel for NCRIC suggested that Exclusion

(f) operates to bar coverage only as to Daniel’s actions occurring

before the policy was issued, and that coverage is barred for

actions occurring after the policy was issued because Daniel’s

conduct did not involve the provision of professional services. In

its appellate brief, however, NCRIC made it clear that each of the

district court’s bases for ruling in favor of NCRIC were

independently sufficient to support the district court’s decision.

Thus, the statement at oral argument suggesting that Exclusion (f)

17

together with all related acts or omissions in the furnishing of

such services to any one person shall be considered one medical

incident.” J.A. 75. Under this provision, Daniel’s actions that

occurred before the policy issuance date were clearly related to

the actions that occurred after the issuance date. Thus, there was

only one medical incident, one that Daniel reasonably should have

known about before the policy issued. Unlike the policy at issue

in Vollmer, the NCRIC policy is not ambiguous. By treating related

actions as a single medical incident and excluding coverage for

medical incidents about which Daniel should have known by the

issuance date, the policy simply forecloses Ball’s continuingtreatment argument.

We therefore agree with the district court that Exclusion (f)

applies so as to take outside the scope of the policy’s coverage

the claims asserted against Daniel by Ball. Although we have

concluded that the district court erred in its analysis of the

other issues in this case, our conclusion with regard to Exclusion

(f), standing alone, is sufficient to support the district court’s

judgment.2 Accordingly, for the foregoing reasons, the district
alone would not completely preclude recovery under the policy was

likely an inadvertent misstatement. In any event, because the

relevant provisions of the NCRIC policy are unambiguous, the

meaning of the policy is a question of law to be resolved by this

court. See, e.g., Vizzini v. Insurance Co. of North Am., 273 A.2d

137, 140 (Md. 1971) (“[T]he interpretation of an unambiguous

insurance contract is a question of law for the court. . . .”).

The statement by NCRIC’s attorney, inadvertent or not, is therefore

not binding on this court. See New Amsterdam Cas. Co. v. Waller,

323 F.2d 20, 24-25 (4th Cir. 1963) (“The doctrine of judicial

admissions has never been applied to counsel's statement of his

conception of the legal theory of the case. When counsel speaks of

legal principles, as he conceives them and which he thinks

applicable, he makes no judicial admission and sets up no estoppel

which would prevent the court from applying to the facts disclosed

by the proof, the proper legal principles as the Court understands

them. . . . [A] party’s misconception of the legal theory of his

case does not work a forfeiture of his legal rights.”).

18

court’s decision granting summary judgment in favor of NCRIC is

hereby affirmed.

AFFIRMED