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McGee v. United States Fidelity & Guaranty Co.

United States Court of Appeals for the First Circuit
53 F.2d 953 (1931)


George Hawkins engaged McGee (plaintiff), a physician, to perform surgery on his hand. During the consultation between Hawkins and McGee, McGee ensured that he had the skill necessary to perform the procedure, that Hawkins would not have to stay in the hospital longer than six days, and that Hawkins would have only a small scar. In fact, McGee promised that Hawkins would have a “perfect hand” that was “one-hundred percent good.” After the procedure, McGee’s hand became useless and he spent three months in the hospital. Hawkins brought suit against McGee for $10,000 in damages. United States Fidelity & Guaranty Company (USF&G) (defendant), McGee’s insurance carrier, defended the suit. The first trial resulted in a hung jury. At the close of Hawkins’ evidence at the second trial, McGee filed a motion for a directed verdict which was granted by the trial court on one count, but denied on a second count. Pending the court’s order on the motion, USF&G informed McGee that it would not cover or reimburse any monetary damages awarded to Hawkins based on a finding of the jury that McGee had guaranteed the result of the surgical procedure. USF&G noted that its insurance policy covering McGee did not cover cases where the physician makes a contract to guarantee the result of treatment provided. At the end of the trial, the jury rendered a verdict for Hawkins and awarded damages in the amount of $3,000. McGee moved to set aside the verdict on the grounds that the damages awarded were excessive. The trial court agreed and set aside the verdict. Hawkins appealed and the New Hampshire Supreme Court reversed. Just prior to a third trial, McGee settled the Hawkins suit for $1,400. Thereafter, McGee filed suit in U.S. District Court against USF&G seeking reimbursement of $1,400 in damages as well as attorneys’ fees and costs. The district court held in favor of USF&G and McGee appealed.

Rule of Law


Holding and Reasoning (Anderson, J.)

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