concurring in part and concurring in result in part.
I concur in the majority's opinion with respect to Issue One.
I concur in result with respect to Issue Two. It is clear under controlling case law that in a claim of negligence against a defendant, an injured party may not join as a named party the insurer of the defendant. This proposition, however, does not mean that in an appropriate circumstance an insurer is precluded from joining the injured party as a named party in a declaratory judgment action against the insured. Such joinder, however, should not ordinarily take place in advance of a claim by the injured party against the allegedly negligent defendant. Cromer v. Sefton (1984) 1st Dist.Ind.App., 471 N.E.2d 700, cited by the majority, supports the latter proposition. Cromer does not provide authority for the blanket statement that: "Thus it seems settled that Covenant has a right to bring suit against Collins, Thakkar, and his other victims...." At 1194. (Emphasis supplied.) To the contrary, the Cromer court noted that the coverage question was solely between the insurance company and the insured and is "no business of Cromer (the allegedly injured party)". 471 N.E.2d at 704. If we were to permit joinder of any and all possible claimants in every declaratory judgment suit brought by the insurer against the insured, such would violate the proscription in Cromer against "literally forc[ing] the plaintiff to become embroiled in a matter in which she does not yet have an interest." 471 N.E.2d at 704. In Hawkins v. Auto-Owners (Mutual) Insurance Company (1991) 2d Dist.Ind.App., 579 N.E.2d 118, the insurance carrier sought declaratory judgment against both the insured and the personal injury plaintiff. However in Hawkins, the personal injury plaintiff had already filed her negligence suit against the insured. We held that the trial court was within its discretion to permit the insurer to maintain the declaratory judgment suit but indicated, because of a seeming conflict of interest by counsel, that the determination of a lack of coverage could not stand as against Hawkins, the plaintiff in the negligence suit. We did not decide that joinder of Hawkins in the declaratory judgment action would have been proper absent Hawking's then pending litigation against the tortfeasor.
Fowler v. Farm Bureau Mutual Insurance Co. of Indiana (1965) 137 Ind.App. 375, 209 N.E.2d 262, does lend factual support to the majority's view because in Fowler the insurance carrier did obtain a declaratory judgment that there was no coverage, as against not only the insured, but as against several injured persons as well. But again, it appears that the injured persons had already made claim against the insured. In any event, the matter of joinder of personal injury plaintiffs or prospective plaintiffs was not discussed in Fowler.
Subject to the above caveat, I agree that it was within the discretion of the trial court to permit the joinder of Collins in this procedural setting.
As to Issue Three, the majority retreats from the position taken by the Collins majority in the prior case. It seems that the majority here holds that although the earlier claims of intentional tort forced those claims outside the purview of the Medical Malpractice Act, those same claims are now within the coverage of the Act because of the facts upon which those claims are *1199based. The logic of the distinction escapes me.
In this regard, I note that the majority does not bifurcate the two consolidated complaints. The majority does not, as I would have anticipated, hold that the intentional tort claims remain outside the coverage for medical malpractice, while at least one or more of the new claims fall within that coverage. Accordingly, the new majority position places me in a dilemma with respect to voting for reversal or affir-mance. Nevertheless, I proceed to a consideration of the result obtained in this appeal.
I do not in any manner agree that, as held by the majority here, "mishandling [of] the transference phenomenon" is the only basis for a professional malpractice claim involving sexual contact. See St. Paul Fire & Marine Insurance Co. v. Shernow (1992) 222 Conn. 823, 610 A.2d 1281 (professional liability insurance covered sexual aggression by dentist against patient after negligent application and overdose of anesthesia which contributed to the patient's injury).
However, I do agree that the first two allegations of the new complaint are solely related to the sexual relationship and are unrelated to the physician-patient relationship. Accordingly, I agree that those counts of the new complaint are outside the coverage of the professional liability policy and that as to those two counts summary judgment in favor of Covenant was proper. In addition I fully concur in the concluding portion of the majority opinion which holds that the third and fourth allegations of the new opinion (see opinion at -) are within the coverage of the policy.
By way of summation, I concur in the reversal of the summary judgment in favor of Covenant with respect to all counts of the original complaint because I remain of the view that the claim originally lodged was within the purview of the Medical Malpractice Act and therefore within the coverage of this professional Hability policy. I also agree that the third and forth allegations of the new complaint are subject to a determination upon the merits. Further, I agree that Covenant need not respond as an insurer by reason of any recovery obtained by Collins as a result of the first two allegations of her most recent complaint.