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Vol. 9 - Issue 7
October 30, 2020


Long Wait In A Doctor’s Waiting Room Leads To Interesting Coverage Decision






As I mentioned in the last issue, Randy Spencer has been in a slump.  His last few columns just haven’t been very good.  That’s being kind.  I put him on probation.  Unless things improved, I told him, I’d have to look for a replacement.

Philip Metcalf was a cardiologist in San Antonio.  While he was known for being one of the best in the country, he was also obnoxiously boastful.  Adding to his patients’ dislike -- Metcalf was always extraordinarily late for appointments.  An appointment with Metcalf often required a three-hour wait.  His overbooking was extraordinary and he then spent twenty minutes with every patient sharing stories of his most recent trip to this or that private island – where he told about reeling in an eleven foot marlin. While in the waiting room, Metcalf’s patients were treated to a sign showing the latest tally of the number of lives that he had saved.  It resembled a billboard outside of McDonalds, announcing how many burgers the fast food giant had served. But Metcalf’s patients put up with it all because he really was one of the best of the best cardiologists.

James Roberts was a 65-year-old mergers and acquisitions lawyer in San Antonio.  He needed a cardiologist.  He knew all about Dr. Metcalf’s reputation as a superb physician.  But he also knew about Metcalf’s other reputation.  Nonetheless, Roberts made an appointment to see Metcalf on October 9, 2019 and 1:30 P.M.  He knew what was in store, but told himself that he would bring a book and that the wait would be worth it. 

Roberts arrived at Metcalf’s office at 1:20 P.M. on the day of his appointment and was greeted by the receptionist.  He filled out the new patient forms and was told to have a seat and that Dr. Metcalf would be with him shortly.    

The wait to see Dr. Metcalf was dramatically longer than Roberts expected.  He was finally called back to an examination room at 6 P.M.  Roberts’s blood was boiling.  Metcalf walked in, introduced himself and informed Roberts that he would need to re-schedule.  The stone crabs that Metcalf had had shipped in, from legendary Joe’s in Miami Beach, had arrived earlier than expected.  Metcalf needed to get home to eat them while they were at their peak of freshness.  With that, Metcalf turned and left, without even saying good-bye.  The entire encounter was less than 60 seconds.

Roberts shared this story the next day with a colleague and the two agreed that Metcalf needed to be taught a lesson.  They drafted a complaint against him, in small claims court, for breach of contract, alleging that Metcalf and Roberts had an oral contract for medical services.  The complaint alleged that Metcalf breached the contract by making Roberts wait four-plus hours and then cancelling the appointment.  The complaint stated that Roberts’s hourly rate, as a prominent M&A lawyer, was $1,100.  Roberts sought damages of $4,400 for the time that he lost being taken away from his office.  Roberts contemplated adding a misrepresentation count against the receptionist, for stating that Metcalf would be with him “shortly,” when she knew that that would not the case.  But he decided that working for Metcalf was punishment enough.

Metcalf, incensed by the suit – “how dare he,” he told colleagues-- sent it to his insurer, Crockett Property & Casualty Insurance Co.  He had a professional liability policy and commercial general liability policy with the company.    

Crockett P&C disclaimed coverage under Metcalf’s professional liability policy – “how dare they,” he told colleagues -- on the basis that the suit alleged a fee dispute, which the insurer stated was not a “professional medical service,” as required to trigger coverage.  Metcalf did not challenge this.

The company also disclaimed coverage under Metcalf’s commercial general liability policy on the basis that the suit did not allege an “occurrence,” nor seek damages because of “bodily injury,” “property damage” or “personal and advertising injury.”

Metcalf was forced to hire counsel to defend Roberts’s suit.  He filed a declaratory judgment action against Crockett Property & Casualty, vowing to take the case all the way to the United States Supreme Court.  Metcalf alleged that coverage was owed, under the commercial general liability policy, on the basis that the suit alleged an “occurrence” and sought damages because of “property damage.”

The court in Metcalf v. Crockett Property & Casualty Insurance Co., No. 19-1398 (Tex. Dist. Ct., Bexar Cty., Oct. 2, 2020) agreed with Metcalf, at least for purposes of a duty to defend.

First, the court concluded that the suit’s allegation, that Roberts was seeking damages for “the time that he lost being taken away from his office,” may have been alleging the loss of use of his office -- and the office was tangible property that had not been physically injured.  Thus, the suit was alleging “property damage,” as that term is defined in the policy.  The court in fact seemed skeptical of this premise for affording coverage, but noted that it was constrained in its consideration by the allegations in the complaint. What the complaint said controlled.  Thus, the court concluded that, at least for a duty to defend, the suit alleged “property damage.”
The court also held, again, based on a duty to defend standard, that the “property damage” may have been caused by an “occurrence.”  While the court stated that cancellation of an appointment is ordinarily intentional, and not an “occurrence” -- defined as an accident -- that may not have been the case here.  Rather, if the cancellation was based on the earlier than expected arrival of Metcalf’s order from Joe’s Stone Crabs, that was something that Metcalf had no control over.  Therefore, as the court saw it, the cancellation of the appointment may have been caused by an accident.

That’s my time. I’m Randy Spencer. Contact Randy Spencer at

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