Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 134th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-18-04268
Chief Justice Burns, Justice O'Neill  , and Justice
D. BURNS, III CHIEF JUSTICE
appeal involves insurer AIX Specialty Insurance Company's
("AIX") duty to defend the insured Dr. Raj Shiwach,
MD ("Shiwach"). AIX appeals the summary judgment in
Shiwach's favor, contending in six issues the trial court
erred by granting Shiwach's partial motion for summary
judgment and denying its motion for summary judgment. We
AND PROCEDURAL BACKGROUND
purchased a professional liability policy from AIX. When
Leslie Broderick, a patient under Shiwach's psychiatric
care at Hickory Trail Hospital, LP ("HT"), sued
Shiwach, he notified AIX of Broderick's lawsuit and
demanded AIX defend and indemnify him. AIX refused,
contending neither Broderick's Original Petition nor her
later First Amended Petition (the "Broderick
Petition") asserted any covered allegation because the
policy's sexual, criminal, and willful acts exclusions
applied. Shiwach paid for his own defense and prevailed in
the district court and on appeal. Despite a renewed request
by Shiwach to reimburse his defense costs, AIX again refused.
sued AIX, asserting claims for breach of contract, violations
of chapters 541 and 542 of the Insurance Code, and recovery
of his attorneys' fees. AIX's answer included a
general denial, various affirmative defenses, but no
moved for partial summary judgment, omitting only his chapter
541 claims. Together with the Broderick Petition and the
policy, Shiwach's evidence included the summary judgment
order and the related appellate opinion from the Broderick
lawsuit, in which both courts determined Broderick's
claims against Shiwach were time-barred "healthcare
liability claims." AIX objected to both exhibits as a
violation of the eight-corners rule and filed a combined
no-evidence and traditional motion for summary judgment
addressing each of Shiwach's claims.
the summary judgment hearing but before the trial court
ruled, Shiwach filed a notice of nonsuit as to his chapter
541 claims. The trial court granted Shiwach's nonsuit,
overruled AIX's objections to Shiwach's evidence,
granted Shiwach's motion for summary judgment, and denied
all other relief. AIX appeals the order overruling its
objections, the order granting Shiwach's nonsuit, the
summary judgment in Shiwach's favor, and the denial of
its motion for summary judgment.
of Review and Burden of Proof
review a trial court's grant of summary judgment de novo.
Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen,
525 S.W.3d 671, 680 (Tex. 2017). To prevail on a traditional
motion for summary judgment, a movant must prove the absence
of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon
v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).
To prevail on a no-evidence summary judgment, the non-movant
must produce evidence that raises a genuine issue of material
fact on each challenged element of its claim. Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
In both instances, we credit evidence favorable to the
nonmovant if reasonable jurors could, and disregard contrary
evidence unless reasonable jurors could not. Id.;
Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
insured has the initial burden to establish a claim
potentially covered by the policy. Dallas Nat'l Ins.
Co. v. Calitex Corp., 458 S.W.3d 210, 222 (Tex.
App.-Dallas 2015, no pet.). If the insured does so, the
burden shifts to the insurer, which can then defeat the duty
to defend by demonstrating the application of any relevant
exclusion. Tex. Ins. Code § 554.002; Calitex
Corp., 458 S.W.3d at 222.
first issue, AIX contends the trial court erred in not
granting its summary judgment motion because injuries that
arose out of an alleged gang rape were not "medical
incidents" that triggered its duty to defend. To
determine whether the Broderick Petition triggered AIX's
defense obligation, we must first decide whether it alleged a
covered "medical incident" as the cause of
eight-corners rule governs our analysis. Ewing Const.
Co., Inc. v. Amerisure Ins. Co., 420 S.W.3d 30, 33 (Tex.
2014). Pursuant to the eight-corners rule, we look to the
four corners of the petition for allegations potentially
within the scope of coverage in the four corners of the
insurance policy. Id. We consider the factual
allegations in the petition without regard to their truth or
falsity, and we resolve all doubts regarding the duty to
defend in the insured's favor. Id. If the
underlying petition contains even one covered claim, the
insurer must defend the entire suit. Evanston Ins. Co. v.
Legacy of Life, Inc., 370 S.W.3d 377, 380 (Tex. 2012).
the policy required AIX to defend and indemnify Shiwach
against a claim for damages with respect to an injury only if
"(1) the injury is caused by a 'medical
incident'; . . . (3) the injury arises out of the
individual insured's profession as a physician; and (4)
[a] claim for damages, with respect to the injury, is first
made against any insured." The policy defined a
"medical incident" as "any act or omission
arising out of the providing of or failure to provide
professional medical services . . . by the insured or any
person acting under the personal direction, control or
supervision of the insured."
we examine the allegations against Shiwach. We first note
that the Broderick Petition's introductory paragraph
listed all defendants: Shiwach, HT, Universal Health
Services, Inc., UHS of Delaware, Inc.,  a "manager
of HT called John Doe," "Chica an employee of HT
last name unknown," and a "European woman also
employed by HT." The same paragraph defined each listed
defendant collectively as "Defendants."
Broderick Petition also identified each defendant in separate
numbered paragraphs and provided capacity information about
each. Regarding Shiwach, the petition specified:
3. The Defendants are all sued in their capacity as employees
and managers of Hickory Trail LP and or the Universal Health
"UHS" Defendants. Dr. Shiwach is sued in his
individual capacity as well as his capacity as a medical
professional and employee and or manager of Hickory Trail LP
"HT" and the UHS Defendants.
Under a heading for "Causes of Action," the
petition alleged only facts:
11. Plaintiff was gang raped by the above individual
Defendants while a patient at Defendant HT. The above
named persons all participated in some manner in the rape
which occurred in or about May 2014.
12. The Defendants HT and the UHS Defendants ratified the
rape because managers of the Defendants were involved in the
rape, and such rapes have been occurring at UHS
facilities with regular frequency across the country since at
least 2004. The Defendants HT and UHS have failed to take
action to correct the problems with rape, suicide, and over
drugging of patients at their facilities as well as keeping
patients who should never have been admitted to their
facilities. Serious regulatory
violations were noted at least 13 of the 26 UHS facilities in
Texas. The Defendants UHS were cited for serious problems in
8.4% of their cases while the national average is 3% per
13. The UHS Defendants own, control, and manage Defendant HT.
The UHS Defendants and the Defendant HT were responsible for
negligent hiring of the individual defendants,
understaffing, failing to provide adequate security, failing
to perform background checks and negligent retention of
the individual defendants along with inadequate security
measures and staffing.
14.Each and every one of these actions and or
inactions were a proximate and or producing cause of the