Pinheiro v. Medical Malpractice Joint Underwriting Ass'n

O’Connor, J.

(dissenting, with whom Lynch, J., joins). For the convenience of the reader, I repeat the policy provision in question: “The limit of liability stated in the declarations as applicable to ‘each claim’ is the limit of the company’s liability for loss resulting from any one claim or suit or all claims or suits because of injury to or death of any one person.” The JUA says that that provision unambiguously declares that all claims asserted by a patient and by others who might have claims, namely, members of the patient’s family, on account of an injury to the patient constitute a single claim for limitation of liability purposes; that common understanding of the policy language dictates that result; that a “doctor would hardly think that the limits of coverage she purchased would depend on whether the patient she was treating was married or whether he had one, two, three or six children”; and that the provision is meaningless unless it is construed to mean that all claims by one or more persons *298because of a patient’s injury be treated as one claim for limitation of liability purposes. I agree with the JUA.

The court reasons that the “JUA’s interpretation of [the limitation of liability] language is reasonable; but it is not the only reasonable interpretation.” Ante at 293. There being two reasonable interpretations, says the court, the one least favorable to JUA is the right one. I do not agree that the relevant language reasonably can be construed in any way other than the way in which the JUA construes it. Therefore, I conclude that the rule that ambiguities in policy language must be resolved against the insurer does not apply. There is no ambiguity. The policy says what the JUA says it says.

Sound analysis must begin with the proposition that the JUA had a purpose in inserting the language of liability limitation. No one could reasonably conclude that ineffective, meaningless language was intended. It is apparent that the JUA intended to deal with situations in which one act of malpractice might give rise to more than one claim for damages. The JUA confronted the question whether, in such a situation, its liability as to each claim generated by an injury to a patient would be limited to the amount stated in the policy as the JUA’s maximum exposure, or, instead, the stated amount of maximum exposure would apply to the sum of all the claims, considered collectively, generated by the patient’s injury.

As a practical matter, the question that the provision was obviously designed to answer could arise only when a patient with a spouse or children, or both, is injured by a physician’s malpractice, with the result that the patient has a personal injury claim and family members have separate claims for loss of consortium. The function of the provision is to make clear that those several claims are to be treated as one for the purpose of construing the JUA’s liability cap.

The court fails to suggest any other scenario in which, in the absence of such a provision, a realistic question might arise with respect to the JUA’s maximum exposure. Certainly, neither the patient nor a family member can have more than one claim or cause of action for the injury or loss *299he or she asserts. “[D]amages resulting from a single tort. . . are, when suffered by one person, the subject of only one suit as against the wrongdoer.” Dearden v. Hey, 304 Mass. 659, 663 (1939). Parrell v. Keenan, 389 Mass. 809, 816 n.10 (1983). Cousineau v. Laramee, 388 Mass. 859, 860-861 (1983).

Although causes of action may be grounded on distinct theories of recovery, they cannot be split. For example, we held in Forman v. Wolfson, 327 Mass. 341, 343, cert, denied, 342 U.S. 888 (1951), that, following a judgment for the defendant in a tort action alleging negligent malpractice, a subsequent action against the same defendant to recover for the same injury based on breach of contract will not lie. See also Willett v. Webster, 337 Mass. 98, 102 (1958), quoting Mackintosh v. Chambers, 285 Mass. 594, 596 (1934), as follows: “The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, or agreement, and seeks redress for the same wrong.” The court errs, then, when it states that the provision in question may reasonably be interpreted as “serving] to preclude an individual plaintiff from alleging several theories of recovery and maintaining that each theory constituted a separate ‘claim’ under the policy language.” Ante at 293-294. The language, if interpreted as the court interprets it, says nothing that would not be true if the language were omitted. Interpreted in that way, it is meaningless.

Construed as the JUA would construe it, the limitation of liability provision supplies the answer to an important question that would be open in its absence, and does so by language that is consistent with common usage. The court’s construction, however, is strained, and results in the provision being bereft of meaning. Thus, the provision reasonably can be construed in only one way. It is not ambiguous. No tie-breaking rule of construction is called for. The JUA’s proffered construction is correct.

The two cases that are before the court are here as a result of a Superior Court judge’s report of the coverage question *300discussed in the court’s and my separate opinions. I would direct the entry of a judgment declaring that the limit of liability in the JUA policy applies to all damages arising out of an incident of malpractice which injures a patient, regardless of the number of claims for damages, or the number of theories in support thereof, including damages for loss of consortium, that are brought, and that the JUA does not owe the plaintiffs in either case any further amounts.