Tuesday, December 3, 2013

McGee v. United States Fidelity & Guaranty Co. case brief

McGee v. United States Fidelity & Guaranty Co. case brief summary
53 F.2d 953 (1931)

Plaintiff insured sought review of a judgment of the District Court of the United States for the District of New Hampshire in favor of defendant insurance company in the insured's action to recover the amount of a settlement and costs incurred in a medical malpractice suit against him.

The insured, a physician, purchased a policy from the company that insured him against liability for malpractice, error or mistake. The insured was sued by a patient in state court for negligently performing an operation to remove scar tissue from the patient's hand and for breach of a special contract to produce a "perfect hand." The trial court granted the company's motion for a directed verdict on the negligence count and the company disclaimed any liability on the assumpsit count. The only question submitted to the jury was whether the insured made a special contract and whether he had failed in its performance. The jury found that such a contract was made and awarded the patient $ 3,000.


  • The judgment was reversed on appeal and prior to a retrial, the insured notified the company that he would settle the case for $ 1,400 and expected to be reimbursed for payment of that amount plus expenses. 
  • The company refused to pay and the insured brought this suit. 
  • The court held that the policy did not cover the insured's liability under a special contract and that the assumption of the insured's defense did not estop the company from denying liability under the special contract.

The court affirmed the judgment in favor of the company.

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