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Show MONDAY, APRIL 12, 1971 THE DAILY RECORD FOUR PAGE In The Supreme Court Of The State Of Utah Supreme Court Calendar No. 12263 Thomas R. Broadbent, Plaintiff and Appellant, FILED April 7, 1971 v. United States Fidelity and Guaranty Company, Defendant and Respondent. L. M. Cummings, Clerk ELLETT, Justice: The plaintiff appeals from an adverse summary judgment. As a physician and surgeon he had a policy of insurance with the defendant wherein defendant promised to pay up to $50, 000 on each liability claim for which plaintiff might be liable arising out of malpractice, error or mistake in rendering or failing to render professional services. The policy was issued on or about May 4, 1954, and was effective for two years thereafter. It contained the following material provisions: Upon the Insured becoming aware of any alleged injury covered hereby, written notice shall be given by or on behalf of the Insured to the Company or any of its authorized agents as soon as practicable together with the fullest information obtain(2) able. If claim is made or suit is brought against the Insured, the Insured shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative. action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied (4) No with all the terms of this policy, .... The critical question in this case is whether plaintiff gave timely notice to the defendant of injury to one of his patients. aphid 1HEMAY, APRIL 13, 1971 No, 121bl s.iy onr'il.s, i ivi I.ttrici oovi'i.j- - i r vii Is il'tifis 1 I L. Mr. S't-wai- M, t llanson Johr.aor, and Clark, P.-re- r.d.irli u-- Ml l..y ar.1 Sinrlon Macoy A. McMunay Third A, Ak l14n!s, Key J. dfrt Mr. .ird ATTORNEYS , ir-'- i .I'-- n DISTRICT PARTIES NO. siv-sio- Joseph I. 'ifori'e H. McCarthy Judge Respondents. A. No, 1271 ili 1 Third C ompany, Pl .lrtiff ird ApptHiOt, v , lit 1 Compjr.y, Di fi riant Aank And 1 ruat arm than calculated. Stanley S. i ndrnin Albert I. Colton .ihian Sawiya and Respondent. 1' . ( f. Thornlcy Judge YS&lT- -' Defendants and Appellant. 8. Third No. 12246 Connie Wilcox, Don Wilcox, and Ad Wilc.-Litem as Guardian Connie Jamea S. for Phillip WiIcoa, a minor, Plaintiffs and Appellants, Sawaya Kipp and t hrietian J. Dennis F rederick x . Plaintiff, Woxsley, m Snow Q. b. Coray and Angus K. Wilson, L Reed Defendants. Christensen ik Martincav J RLohard Andersen star to Terry G 993 Lee Herbert ry 996 eta C Jerry Ctaig A 249 2$5 Weinheiaer eta C Rowley eta Dsfa etu Rowley eta 276 Theron 278 Va V Arlo S Morrill North eta 245 Prao Dwell ettuc eta to Richard J to Terranoe L Northnp 263 28j Ryberg to Hugo V Vhlte eta T Miller eta Meidleln eta Biorn 221 A Zola 8 Older to Anton La Mont dark to Donald 2377 Barker Mialaai to Jer- An action against the plaintiff herein was commenced July 28, 1967, and the defendant herein undertook the defense but with a reservation of all rights to deny coverage. The plaintiff effected a settlement with the patient and then began this action to compel the defendant to honor the insurance policy. There is no claim of defense made by reason of the statute of limitawe are here concerned with the simple question of whether the plainand tion, tiff gave timely notice to the defendant of the alleged malpractice. There are many cases involving the giving of notice to an insurer, but most of them relate to notice after the occurrence of a specific event, such as the death of an insured, an injury to one's persons, a loss by fire or theft, or a collision between cars. Warranty Deeds 991 dis- It must be understood that the practice of medicine is not an exact science. It is an art, and a doctor is not a guarantor of results in any case. The plaintiff in this matter made a settlement with his patient and thus ostensibly admitted liability for malpractice. However, that admission was made only after an action was begun against him. lack L, Roger y. Cutler Judge Defendant, Respondent and bird-Part- of negligence, and so he continued to nine or ten years without having any complaints from her that the treatment given was a result of malpractice. June 9, 1967, the plaintiff received a notice from the patient's attorney that a claim for malpractice was being made against him. The next day he notified the defendant of that claim. Lee W. Hobbs Sal; Lake City Corporation, a municipal corporation. or which would be considered a result On Pi, Swan v. C. Richard Bather and Alta M, Fogl e , Exe c.of Estate of Dan R. on The patient ultimately lost a part of her jawbone and suffered other figuration to her facial features. lames P. owliy Robert D. Maack Second roipo ration, Plaintifi and Respondent, Third-Part- y He knew the patient had a possibility of treatment, but neither he nor any of his consultants knew of anything he had done improperlv treat the patient for an additional Judge No. 12229 North Dade Hank, a Utah banking V In early 1957 the plaintiff learned that the patient had received a prior radium treatment, and he feared that the cumulative effect of the two treatments might be the cause ol ihe tre ble. He immediately sought and obtained information about the prior treatment and determined that the amount of radiation received at the prior date was too small to be a factor in causing the reaction in the patient. He consulted with other doctors and specialists but never did learn the cause of the failure of his original treatment. He gave the proper amouW of Radon Seeds if the size of the tumor was correctly estimated; however, he gave too much if the quantity of liquid in the tumor was greater over-radiati- I orf4.- -i The basic facts of the case are not in dispute and are taken mainly from the plaintiff's record of the treatment given to and the progress made by the patient. This record shows that on or about May 10, 1954, the plaintiff commenced treatment of a patient which consisted of implanting a radioactive substance known as Radon Seeds in a tumor in the cheek of the patient in an attempt to reduce the tumor. The effect of the Radon Seeds would be spent in about 30 days after they were imbedded. However, something went wrong, and the anticipated reactions to the radiation treatment did not materialize. Instead of a reduction, there was swelling, tenderness, redness and increased salivation. The plaintiff treated the patient for more than 12 years, all the time trying to find out why the treatment originally given was not successful. Rodkiey I eta 9t Lalr Xrogh eta Ion Hales eta eta etu toOLm 8 toLarry etu to Roth to Z A Dstre R Roaa The instant case is different in that the policy here the insured to give notice to the Insurer when he becomes "aware of anyrequires alleged injury covered" by the policy. The word "allege" is defined in the unabridged edition of the New Twentieth Century Dictionary as follows: "To declare; to affirm; to assert; to pronounce with positiveness; The word was chosen by the insurer, and the ordinary meaning thereof is the one which courts should adopt in interpreting the contract. ... There is one case which seems in point with the instant matter. It is Sohra v. United States Fidelity k Guaranty Company, 352 F. 2d 65 (1965) and involvea malpractice action. There the doctor performed a hernia operation |