Unpublished Disposition, 914 F.2d 262 (9th Cir. 1990)

MEMORANDUM^* 

Pursuant to 28 U.S.C. § 636(c) (3), St. Paul Fire and Marine Insurance Company ("St. Paul") appeals the magistrate's declaration that under a general liability insurance policy St. Paul owes its insureds, Living Love Church, Inc., and related corporations ("Living Love"), a duty to defend against a wrongful death suit. We affirm.

DISCUSSION

St. Paul contends that the magistrate erred in distinguishing between first aid and professional services. St. Paul argues that "first aid" is medical treatment and, therefore, a professional service such that liability that arises from providing or withholding first aid falls within the professional services exclusion. We reject this contention; in this case, the distinction between first aid and professional services is valid.

In Multnomah County v. Oregon Auto. Ins. Co., 256 Or. 24, 470 P.2d 147 (1970), the Supreme Court of Oregon concluded that an allegation regarding the failure of a prison medical technician to identify a prisoner's need for insulin fell within an insurance policy's professional services exclusion. Id. at ----, 470 P.2d at 150. The allegations in the present case, however, are not so particular, and may be read as including the failure of Living Love to abide by an affirmative general duty of care akin to that owed by innkeepers to their guests, for example. Cf. Fuhrer v. Gearhart-By-The-Sea, Inc., 306 Or. 434, ----, 760 P.2d 874, 879 (1988).

In keeping with this distinction between professional obligations and an affirmative general duty of care, we hold that Living Love's alleged failure to provide "first aid" is not equivalent to withholding a "professional service," as St. Paul uses that term to exclude coverage for certain types of liability. Three reasons support this holding. First, ideally first aid is common rather than specialized knowledge; such knowledge is applied in a relatively mechanical fashion involving little mental or intellectual skill. See Webster's Third New International Dictionary 857 (1976) (defining first aid as "emergency and sometimes makeshift treatment given to someone ... requiring immediate attention where regular medical or surgical care is not available"); cf. Multnomah County, 256 Or. at ----, 470 P.2d at 150 (describing characteristics of professional services). Second, no authority appears suggesting that first aid necessarily constitutes professional medical treatment.¹  Finally, St. Paul's policy itself implies that first aid need not be professional medical treatment.²  For these reasons, the magistrate did not err in distinguishing between first aid and professional services.

St. Paul also appears to argue that, even if first aid is distinct from professional service, the complaint in the underlying tort action alleges only that the decedent's death was caused by professional services provided or withheld by Living Love. This argument also fails. As we read the excerpts of the underlying complaint provided in the briefs, decedent's representative alleges the cause of death in terms that are broad enough to encompass means beyond the providing or withholding of professional services by Living Love. See Blohm v. Glens Falls Ins. Co., 231 Or. 410, ----, 373 P.2d 412, 415 (1962) ("if the complaint is ambiguous or unclear and may reasonably be interpreted to include an incident within the coverage of the policy, there is a duty to defend"). Furthermore, even if professional services provided by Living Love contributed to decedent's illness and death, this would not necessarily absolve Living Love of whatever affirmative general duty of care it owed apart from its professional obligations.

CONCLUSION

Because the underlying tort action involves an allegation of failure to render first aid to the deceased, liability resulting from the suit--if any--might not fall within the scope of the professional services exclusion that would otherwise negate coverage provided St. Paul's general liability policy. Accordingly, St. Paul owes Living Love a duty to defend the underlying wrongful death action. See Burnett v. Western Pac. Ins. Co., 255 Or. 547, ----, 469 P.2d 602, 605 (1970) (test for determining whether insurer owes a duty to defend). The magistrate's judgment is therefore

AFFIRMED.