On December 6, 2016, the United States Court of Appeals for the Fourth Circuit held that the professional liability portion of the hospital’s insurance policy covered a staffing agency nurse for medical malpractice at the hospital, despite the general liability portion of the policy excluding the nurse. The case is Interstate Fire & Casualty Co. v. Dimensions Assurance, Ltd., No. 15-1801.
The Fourth Circuit in Interstate reasoned that the policy language under its professional liability portion was different and did not contain the exclusion in its general liability portion; that the undefined term “employee” was ambiguous, and included the staffing agency nurse under the right-to-control test; and that the staffing agreement with the hospital did not govern interpretation of the insurance policy. Interstate was decided under Maryland law, yet its reasoning stands to be persuasive authority in Virginia.