                                                              Supreme Court

                                                              No. 2013-108-Appeal.
                                                              (PC 11-6410)


         Quest Diagnostics, LLC             :

                   v.                       :

Pinnacle Consortium of Higher Education, a :
 Vermont Reciprocal Risk Retention Group
                  et al.




           NOTICE: This opinion is subject to formal revision before
           publication in the Rhode Island Reporter. Readers are requested to
           notify the Opinion Analyst, Supreme Court of Rhode Island, 250
           Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
           3258 of any typographical or other formal errors in order that
           corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2013-108-Appeal.
                                                                  (PC 11-6410)
                                                                  (Concurrence begins on page 11)


            Quest Diagnostics, LLC               :

                       v.                        :

  Pinnacle Consortium of Higher Education, a :
   Vermont Reciprocal Risk Retention Group
                    et al.


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Chief Justice Suttell, for the Court. The plaintiff, Quest Diagnostics, LLC (Quest),

appeals from the Superior Court’s grant of summary judgment in favor of the defendants,

Pinnacle Consortium of Higher Education, a Vermont Reciprocal Risk Retention Group

(Pinnacle), and Genesis Insurance Company (Genesis) in this insurance coverage dispute.

       The plaintiff asserts that the hearing justice erred in denying its motion for summary

judgment and in granting defendants’ motions for summary judgment.           Specifically, plaintiff

argues that: (1) it is covered as an insured under the Pinnacle general liability policy; (2) it is

covered under the professional liability coverage section of the Pinnacle policy; (3) it is covered

under the pertinent Genesis excess coverage policy; and (4) both Pinnacle and Genesis breached

their duties to defend and waived their rights to deny coverage because they did not respond to

plaintiff’s demand for defense in a reasonably timely manner. For the reasons set forth in this

opinion, we affirm the judgment of the Superior Court.



                                               -1-
                                                 I

                                  Facts and Procedural History

       Brown University and Quest entered into a Professional Services Agreement (PSA), in

which Brown retained Quest as an independent contractor, responsible for performing “certain

clinical laboratory testing for students and employees” at the Brown University health center.

The PSA set forth policies for the performance of certain tests, and required both parties to

procure four types of insurance coverage: workers’ compensation insurance, general liability

insurance, “All Risk” property insurance, and professional liability insurance. Notably, the

agreement obligated both to name the other party as an additional insured under their general

liability policies; there was no requirement that they do so for any of the other types of insurance.

Brown secured insurance through Pinnacle and excess insurance through Genesis.

       On May 10, 2006, Pauline Hall, a graduate student at Brown University, sought treatment

at the university’s health services clinic. At the time, Ms. Hall was experiencing a sore throat,

nausea, and ear pain. She was seen by Rita Shiff, a physician’s assistant who was employed by

Brown. Ms. Shiff ordered a rapid strep test, to be performed by Quest. The test was not

performed promptly, and results were not returned to the health center. 1 When Ms. Hall returned

to the health center on May 12, 2006, she was diagnosed with toxic shock syndrome—an illness

that resulted in a prolonged hospital stay and permanent injuries.




1
  Precisely how the test went astray is a matter of some dispute. Brown argues that Quest
violated the policies set forth in the Professional Services Agreement (PSA) by failing to send
the test sample to the nearest facility and, as a result, the test was not performed. Quest argues
that the error was caused by a Brown employee who was covering the Quest desk during lunch.
                                                -2-
       On June 26, 2006, Brown notified Pinnacle and Quest of the incident and the potential

claim arising from it. 2 On March 24, 2008, Ms. Hall filed suit in Superior Court against Ms.

Shiff, Brown, and Quest, alleging, inter alia, that Quest failed to exercise the “degree and skill

expected of [a] reasonably competent provider of laboratory services” in failing to process the

test and in failing to provide the results of the testing in a timely manner. On December 10,

2010, Brown and Ms. Shiff filed a cross-claim against Quest, alleging that Quest negligently

failed to “properly process the Rapid Strep test, * * * and to communicate the results” of the test

to the health center. In addition to the negligence claim, Brown asserted claims for breach of

contract, indemnification, and contribution.

       On May 4, 2011, Ms. Hall settled her claims with Brown and its insurers, Pinnacle and

Genesis.    Quest did not participate in the settlement, and the Brown cross-claim was not

resolved. On July 15, 2011, Quest sent a letter to Brown’s counsel, demanding, for the first time,

“a complete defense and indemnification from Pinnacle,” and requesting that Brown’s counsel

forward the letter to Pinnacle and provide the relevant contact information to Quest. When

Quest did not receive a reply, it sent a follow-up letter on July 27, 2011. Genesis, the excess

insurer, never received a copy of these letters.

       On November 7, 2011, Quest filed the instant action, seeking a declaratory judgment that

it was entitled to a defense from Pinnacle and indemnification under the Pinnacle and Genesis

policies. On May 11, 2012, Quest filed a motion for summary judgment; Pinnacle and Genesis

each opposed the motion and filed their own motions for summary judgment.




2
  This letter, giving Pinnacle written notice of a potential claim, triggered the 2005/2006 policy
year as the operant policy year for this dispute. Accordingly, there is no need to consider any
later policies.
                                                   -3-
       A hearing was held on February 5, 2013; on March 14, 2013, the hearing justice issued a

written decision denying Quest’s motion for summary judgment and granting summary judgment

to Pinnacle and Genesis, declaring that Quest was not entitled to defense and indemnification

from either insurer. Judgment was entered on March 19, 2013, and Quest timely appealed.

Further facts will be provided as necessary to discuss the issues raised on appeal.

                                                 II

                                       Standard of Review

       “In reviewing the parties’ cross-motions for summary judgment, we examine the matter

de novo.” Peloquin v. Haven Health Center of Greenville, LLC, 61 A.3d 419, 424 (R.I. 2013)

(quoting Derderian v. Essex Insurance Co., 44 A.3d 122, 126 (R.I. 2012)). “In reviewing the

Superior Court’s judgment on the parties’ motions for summary judgment, we * * * apply the

same standards as those used by the trial court.” Id. (quoting Delta Airlines, Inc. v. Neary, 785

A.2d 1123, 1126 (R.I. 2001)). “Thus, ‘[s]ummary judgment is appropriate when, viewing the

facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party,

the [C]ourt determines that there are no issues of material fact in dispute, and the moving party is

entitled to judgment as a matter of law.’” Id. at 424-25 (quoting Derderian, 44 A.3d at 126-27).

                                                III

                                            Discussion

       On appeal, Quest argues that it is covered as an insured under the Pinnacle policy, under

both its general liability and professional liability sections. Quest also asserts that it is covered

under a 2010/2011 excess policy issued by Genesis. Finally, Quest argues that both defendants

waived their rights to deny coverage by not responding to its demand for defense in a reasonably

timely manner. All parties agree that Quest had contracted with Brown to provide clinical



                                                -4-
laboratory testing, and that the PSA that memorialized their agreement also required both parties

to obtain general liability insurance, upon which each would name the other as an additional

insured. Further, both Quest and Brown were required to obtain professional liability coverage,

but there was no obligation to name the other party as an additional insured.     Brown obtained

both general liability and professional liability insurance from Pinnacle. 3   At issue is whether

Quest is covered by a policy relative to the allegations contained in the underlying action and in

Brown’s cross-complaint.

       Brown University is the named insured on the Pinnacle policy; the policy includes the

following language in Endorsement 4:

               “It is agreed that the ‘Who is an Insured’ provision of All
               Coverage Parts are amended to include:

               “***

               “(d) At the option of the Named Insured shown on the declarations
               page of this policy, any person, corporation, company,
               organization, estate or other entity but only to the extent the
               Named Insured has agreed to do so.”

Thus, because the PSA is the basis of the agreement to extend coverage to Quest as an additional

insured, we must construe the PSA and the Pinnacle policy together, in order to determine the

extent to which Quest may be entitled to coverage. See Rotelli v. Catanzaro, 686 A.2d 91, 94

(R.I. 1996) (“[I]nstruments referred to in a written contract may be regarded as incorporated by

reference and thus may be considered in the construction of the contract.”).

       Turning first to the PSA, the relevant portion reads:

               “2.6 [Quest] and [Brown] shall purchase and maintain at their sole
               expense and with an insurance company or through self-insurance



3
  It is not clear from the record whether Quest obtained the necessary insurance or from whom
the insurance may have been obtained.
                                               -5-
               the following insurance coverage and limits: (i) Worker’s
               Compensation (covering [Quest’s] employees) to statutory limits;
               (ii) Comprehensive General Liability Insurance for injuries to
               persons and property occurring at the SITE or as a result of this
               Agreement in the amount of at leas[t] ONE MILLION DOLLARS
               ($1,000,000.00) per occurrence and TWO MILLION DOLLARS
               ($2,000,000.00) aggregate. In addition, the Certificate(s) of
               Insurance shall name [Brown] or [Quest] as an ‘Additional
               Insured’; (iii) ‘All Risk’ Property Insurance, insuring against
               damage to or loss of any property, to its full insurable value, of
               [Quest] and [Brown], its officers, servants, employees, agents,
               licensees, or any person or entity claiming by, through or under
               [Quest] and [Brown] located on the premises, and, if available such
               insurance shall contain a waiver of any right of subrogation which
               such insurance carrier might have against [Brown] or [Quest], its
               servants, or invitees, and (iv) Professional Liability Insurance,
               insuring against medical malpractice and other liability which may
               arise as a result of [Quest’s] or [Brown health center’s] profession
               and/or business in an amount of not less than ONE MILLION
               DOLLARS ($1,000,000).            Such policies shall contain a
               provision(s) to the effect that they may not be cancelled or
               coverage materially altered without at least thirty (30) days’
               advance written notice to [Brown].”

The PSA is clear and unambiguous in requiring Quest and Brown to name one another as

additional insureds only under their respective general liability insurance coverage.

       Brown obtained general liability coverage and professional liability coverage from

Pinnacle. This coverage was packaged together under one policy number. Pinnacle asserts that

Quest is covered only under the general liability provisions, which are inapplicable to the claims

asserted in the underlying action and cross-claim. Quest concedes that there are two coverages,

but argues that there is only one policy with one policy number; thus Quest asserts that it is an

additional insured under all of the coverage parts.

       Although it appears (and Pinnacle concedes) that Quest is a named insured under the

general liability coverage, there are two dozen numbered endorsements that modify coverage;




                                                -6-
two of these endorsements are pertinent to this dispute.            After referencing the section of

Coverage A that covers bodily injury, Endorsement No. 7 modifies that provision, stating:

                “COMMERCIAL GENERAL LIABILITY COVERAGE FORM
                 “INCIDENTAL MALPRACTICE COVERAGE/HOSPITAL
                       PROFESSIONAL LIABILITY EXCLUSION

               “***

               “However, this policy does not apply to bodily injury arising out of
               the following activities or services conducted at or performed in a
               hospital setting or a Student/Employee Healthcare Facility:

                       “1. The rendering of or failure to render:

                       “(a) Medical, surgical, dental, x-ray, or nursing service or
                       treatment, or the furnishing of food or beverages in
                       connection therewith; or

                       “(b) any service or treatment conducive to health or of a
                       professional nature; or

                       “(c) any cosmetic or tonsorial service or treatment.”

Brown’s cross-claim, based on the allegations in Ms. Hall’s complaint, unambiguously alleges a

cause of action that arose from Quest’s negligence in failing to perform a test—certainly a

service conducive to health—in a manner consistent with that of a “reasonably competent

provider of laboratory services,” which is the standard of care in any professional liability action.

See Restatement (Second) Torts § 299A at 73 (1965) (“[O]ne who undertakes to render services

in the practice of a profession or trade is required to exercise the skill and knowledge normally

possessed by members of that profession or trade in good standing * * * .”).         Endorsement 7,

therefore, specifically excludes coverage for Quest with regard to professional liability under the

general liability coverage of the Pinnacle policy.

       Quest argues that Ms. Hall’s injury did not arise from, or at least not entirely from,

services performed at the health center because the failure to perform a rapid strep test occurred

                                                -7-
offsite, at one of Quest’s other testing facilities. However, the action that allegedly led directly

to Ms. Hall’s injury—the placing of her test sample in the wrong bag, thus sending it to the

wrong facility—occurred at the health center. The allegations that Quest failed to test promptly,

and to notify Brown as required by the PSA, all flow from that first error. Accordingly, the

actions alleged in the initial complaint and in Brown’s cross-complaint fall squarely within

Endorsement 7, excluding professional liability coverage from the general liability coverage.

       Quest further argues that the conduct at issue was not professional, but merely

administrative. This argument is unavailing. Brown contracted with Quest for the professional

service of providing clinical laboratory testing. The contract is entitled “Professional Services

Agreement,” thus clearly indicating that Quest was to perform services “of a professional

nature.” Just as doctors spend time charting, and lawyers scheduling, professional services

necessarily include a number of administrative tasks. The PSA specifically includes some of

these tasks, requiring Quest to provide courier service, report STAT test results within one to

three hours of receipt of the test, and fax results when completed. Accordingly, all aspects of

testing, including routing the sample to the appropriate laboratory, are a professional service and

are excluded from the general liability coverage in the Pinnacle policy. 4

       Quest next argues that it is an additional insured under the professional liability coverage

offered by Pinnacle. Endorsement 17 provides coverage for professional liability on a claims-

made basis and contains the following exclusion:




4
  In Ho Rath v. Rhode Island Hospital, 89 A.3d 806 (R.I. 2014), a case involving the statute of
limitations for medical malpractice actions, we opined that laboratories such as Quest are not
included within this state’s statutory definition of medical malpractice. See G.L. 1956 § 5-37-
1(8). In the instant case, however, the specific language agreed to in the contractual PSA
provides an arguably broader basis than the narrower language in the medical malpractice
statute.
                                                -8-
                “1. This coverage does not apply to:

                       “A. Any claim for bodily injury, sickness, disease or death
                           of any person; but this exclusion shall not apply if such
                           bodily injury, sickness, disease or death is a result of
                           any act, error or omission committed in a
                           student/employee health care facility subsequent to
                           7/1/80 as a result of the following:

                       “1. The rendering of or failure to render:
                       “(a) medical, surgical, dental, x-ray, or nursing service or
                       treatment or furnishing of food or beverages in connection
                       therewith; or
                       “(b) any service or treatment conducive to health or of a
                       professional nature; or
                       “(c) any cosmetic or tonsorial service or treatment.”

Thus, Endorsement 17 covers the activities that are specifically excluded from the general

liability coverage in Endorsement 7. Quest contends that because it is an additional insured

under Pinnacle’s policy, it is therefore an additional insured under all coverage parts of the

policy.

          To adopt Quest’s reading of the policy would be to ignore the plain meaning of

Endorsement 4, which defines an additional insured as “any person, corporation, company,

organization, estate or other entity but only to the extent the Named Insured has agreed to do so.”

(Emphasis added.) The source of Brown’s assent to coverage of Quest as an additional insured is

found in the PSA, in which Brown agrees to name Quest as an additional insured on its general

liability coverage. There is no requirement, nor is there any agreement to be found, that Brown

provide professional liability coverage to Quest. As we previously have stated, “We do not

engage in mental gymnastics * * * to read ambiguity into a policy where none is present.”

Peloquin, 61 A.3d at 432 (quoting Sjogren v. Metropolitan Property and Casualty Insurance Co.,

703 A.2d 608, 610 (R.I. 1997)). Having carefully examined the policy and the PSA from which




                                               -9-
it stems, we cannot conclude that Brown gratuitously obtained professional liability insurance for

its independent contractor in addition to the coverage it obtained for itself.

       The language of the PSA and the Pinnacle policy is clear and unambiguous—although

Quest is an additional insured under the general liability coverage, it is not an insured under the

professional liability coverage. Because the claims against Quest allege professional negligence,

they fall within the purview of professional liability insurance and the PSA. Accordingly,

Pinnacle has no duty to defend nor to indemnify Quest in this action.

       Quest also argues that it qualifies for excess coverage from Genesis under its 2010/2011

policy. We need not address whether coverage under this latter policy is even relevant given the

date of Ms. Hall’s claim, because Genesis’s Commercial Excess Policy coverage is predicated on

the existence of coverage flowing from the underlying Pinnacle policy. The Genesis policy

defines an insured in a similar manner to the Pinnacle policy, extending insured status to entities

“only to the extent the ‘Named Insured’ [Brown] has agreed to do so in writing prior to an

occurrence.”    Because there was no agreement to name Quest as an additional insured for

purposes of professional liability coverage, for the reasons stated above, Quest is not an insured

for professional liability under the Genesis policy.

       Finally, Quest argues that Pinnacle and Genesis waived their rights to deny coverage by

not responding to Quest’s demand for coverage in a timely manner. Because the claim against

Quest for general liability was not covered, and Quest was not an insured under the professional

liability section, neither Pinnacle nor Genesis had a duty to defend it. Absent such duty, estoppel

cannot be employed to expand coverage to Quest. “The relevant cases are clear * * * that the

doctrine of estoppel cannot be used to enlarge coverage beyond that which is set out in the




                                                - 10 -
policy.” General Accident Insurance Co. of America v. American National Fireproofing, Inc.,

716 A.2d 751, 755 (R.I. 1998).

                                                 IV

                                            Conclusion

        For the reasons stated herein, we affirm the judgment of the Superior Court. The record

of this case shall be returned to the Superior Court.



        Justice Robinson, concurring. After long hesitation, I have now concluded that I am

able to concur with the result reached by the majority in this exceedingly difficult case, although

the route that I have traveled to reach that conclusion is somewhat different from that traveled by

the majority. 5

        I begin by stating that it is patent (in my opinion) that the insurance policy at issue (a

document which bears just one policy number for what is arguably two policies) is internally

inconsistent and, therefore, ambiguous. It has been this Court’s holding that “an agreement is

ambiguous only when it is reasonably and clearly susceptible to more than one interpretation.”

W.P. Associates v. Forcier, Inc., 637 A.2d 353, 356 (R.I. 1994); see Isbrandtsen v. North Branch

Corp., 556 A.2d 81, 84 (Vt. 1988) (“Ambiguity will be found where a writing in and of itself

supports a different interpretation from that which appears when it is read in light of the

surrounding circumstances, and both interpretations are reasonable.”); see also Lynch v. Spirit

Rent-A-Car, Inc., 965 A.2d 417, 425 (R.I. 2009); see generally Steven W. Feldman & James A.

DeLanis, Resolving Contractual Ambiguity in Tennessee: A Systematic Approach, 68 Tenn. L.

Rev. 73, 88 (2000).      It is my considered opinion that, when looking at the language of

5
       Nothing that I say in this concurrence should be understood as suggesting that the
analysis contained in the majority opinion is less than scholarly.
                                               - 11 -
Endorsement 4, Endorsement 7, and Endorsement 17 of the insurance contract at issue in this

case, one could reasonably come to the conclusion that the insurance contract was intended to be

one policy, with Quest being an additional insured for all terms in the policy (including

Endorsement 17) because Quest falls within the language of Endorsement 4. However, one

could also make a reasonable determination, based on the same language, that Endorsement 17

was intended to be a separate policy under which Quest was not an additional insured. Thus, the

insurance contract is ambiguous. See Lynch, 965 A.2d at 425.

       I recognize that there is precedent which would support the principle that, if the insurance

contract is ambiguous, it must be construed against the insurance company (i.e., the contra

proferentem canon of construction). See, e.g., Koziol v. Peerless Insurance Co., 41 A.3d 647,

651 (R.I. 2012) (“An ambiguity in an insurance policy is strictly construed against the insurer.”);

Elliott Leases Cars, Inc. v. Quigley, 118 R.I. 321, 328, 373 A.2d 810, 813 (1977) (noting that

this Court has “in the past characterized [insurance contracts] as contracts of adhesion” and

stating that “[i]t is well-established that ambiguities [in an insurance contract] will be construed

so as to bear most heavily against the insurer”).        However, that is simply one canon of

construction and not the one which, in my opinion, is most properly applicable in the instant

case. See Payless Shoesource, Inc. v. Travelers Companies, Inc., 585 F.3d 1366, 1372 (10th Cir.

2009). “[A]s every judge knows, the canons of construction are many and their interaction

complex. The canons are not mandatory rules.”           Xilinx, Inc. v. Commissioner of Internal

Revenue, 598 F.3d 1191, 1196 (9th Cir. 2010) (internal quotation marks omitted); see also

Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (“For one thing, canons are not

mandatory rules. They are guides that need not be conclusive.”) (internal quotation marks




                                               - 12 -
omitted). Indeed, with respect to the contra proferentem canon itself, the United States Court of

Appeals for the Tenth Circuit has aptly stated:

                “The sensibility of the contra proferentem canon of
                construction * * * rests in large measure on an assumption of
                unequal bargaining strength between the seller and
                purchaser, * * * supposing as it does the prototypical case of a
                large insurance company essentially dictating its terms in an
                adhesion contract to individuals with relatively little bargaining
                power. It is less clear whether and to what degree the doctrine has
                an appropriate role to play when the contracting parties are as
                sophisticated and able as [the companies involved in the case] both
                assuredly are.” Payless Shoesource, Inc., 585 F.3d at 1372
                (internal quotation marks omitted); see also Wood River Pipeline
                Co. v. Willbros Energy Services Co., 738 P.2d 866, 872 (Kan.
                1987) (“The principle that doubtful language in a contract is
                construed against the drafter is of little consequence * * * [when
                the] clauses were bargained for by two large and sophisticated
                companies of equal bargaining power, each acting through
                experienced persons.”).

        In the instant case, where all of the involved parties are large, sophisticated entities which

have ample experience with insurance contracts, it simply is not just 6 to strictly construe the

Pinnacle policy against Pinnacle; there is no evidence that the Pinnacle policy is a contract of

adhesion, nor that it would result in any of the inequities which the canon of contra proferentem

was intended to prevent. While the contra proferentem canon can be an important tool in dealing

with ambiguous contractual language, we should not, in this rather unusual case, have resort to

that principle because the fog of ambiguity that otherwise envelops the Pinnacle policy can be

dispelled by referring to extrinsic evidence—namely, the PSA entered into by Quest and Brown.

See W.P. Associates, 637 A.2d at 356 (“If a document is susceptible to more than one

interpretation, extrinsic evidence is admissible to aid in its interpretation.”).

6
       See Harry G. Prince, Contract Interpretation in California: Plain Meaning, Parol Evidence
and Use of the “Just Result” Principle, 31 Loy. L.A. L. Rev. 557, 650-51 (1998) (“In situations
where the contract does not provide an answer, the concerns of justice should certainly be
relevant to contract interpretation and construction.”).
                                                 - 13 -
       Initially, I note that I in no way reject the long line of cases indicating that the subjective

intent of one of the contracting parties is not ordinarily germane to plumbing the meaning of

contractual language. See Koziol, 41 A.3d at 651. In this instance, however, we are faced with

(in the Pinnacle policy) an imperfect execution of what the PSA clearly reflects should have been

produced; rather than looking at the subjective intent of each party, in my view, the Court should

consider extrinsic evidence in an effort to glean the mutual intent of the parties. See Lexington

Insurance Co. v. General Accident Insurance Co. of America, 338 F.3d 42, 47 (1st Cir. 2003)

(“If * * * a policy provision is ambiguous, the court may take extrinsic evidence as to

intent * * * .”); Harrigan v. Mason & Winograd, Inc., 121 R.I. 209, 213, 397 A.2d 514, 516

(1979) (“[There is a] general rule which permits a court to consider extrinsic evidence where

relevant to prove a meaning to which the language of the instrument is reasonably susceptible,

whether or not it appears to the court to be plain and unambiguous on its face.”); see also Steven

W. Feldman & James A. DeLanis, 68 Tenn. L. Rev. at 73 (“When courts interpret contracts, their

purpose is to effectuate the parties’ mutual intent.”).

       When I refer to considering extrinsic evidence in this case, I specifically have in mind the

PSA between Quest and Brown. Even though the Pinnacle policy does not explicitly reference

the PSA, it does, in Endorsement 4, provide that a “[n]amed [i]nsured” would include any

“corporation, company, organization, estate or other entity but only to the extent [Brown] has

agreed to do so.” See Haffenreffer v. Haffenreffer, 994 A.2d 1226, 1232 (R.I. 2010) (stating that

“[o]ur case law is clear that instruments referred to in a written contract may be regarded as

incorporated by reference and thus may be considered in the construction of the contract”)

(internal quotation marks omitted). When one lays the PSA beside the Pinnacle policy, it is clear

that the PSA enlightens one as to how the Pinnacle policy should have been worded. A thorough



                                                - 14 -
assessment of the PSA makes clear that, regardless of the ambiguous language in the Pinnacle

policy, the mutual intent of Brown and Quest at the time they signed that PSA was for Brown to

name Quest as an additional insured on its commercial general liability insurance policy, not its

professional liability insurance policy. See Hill v. M. S. Alper & Son, Inc., 106 R.I. 38, 47, 256

A.2d 10, 15 (1969) (“[W]e will * * * consider the situation of the parties and the accompanying

circumstances at the time the contract was entered into, not for the purpose of modifying or

enlarging or curtailing its terms, but to aid in the interpretative process and to assist in

determining its meaning.”). Although the Pinnacle policy is ambiguous, the terms of the PSA

indicate that the mutual intent of the parties was to exclude Quest from the insurance coverage

provided in Endorsement 17. See Grun v. Pneumo Abex Corp., 163 F.3d 411, 420 (7th Cir.

1998) (stating that, even where contract language is ambiguous, the court will look beyond it

“where literal application of a text would * * * thwart the obvious intentions of its drafters”)

(internal quotation marks omitted); White v. Roughton, 689 F.2d 118, 120 (7th Cir. 1982)

(“[T]he overriding purpose in construing a contract is to give effect to the mutual intent of the

parties at the time the contract was made; and while the language of the contract is normally the

best evidence of that intent, a court can properly disregard even unambiguous language when it

is convinced that the parties meant something different from what they said.”). Therefore, in my

judgment, Quest is not entitled to a defense and/or indemnification from Pinnacle (or Genesis).

Accordingly, I concur with the majority’s conclusion, but not the route that they follow to reach

that conclusion.




                                              - 15 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Quest Diagnostics, LLC v. Pinnacle Consortium of Higher
                      Education, a Vermont Reciprocal Risk Retention Group et al.

CASE NO:              No. 2013-108-Appeal.
                      (PC 11-6410)

COURT:                Supreme Court

DATE OPINION FILED: June 27, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Presiding Justice Alice B. Gibney

ATTORNEYS ON APPEAL:

                      For Plaintiff: Mark P. Dolan, Esq.

                      For Defendants: Todd D. White, Esq.
                                      Lewiss K. Loss, Pro Hac Vice
