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MONTGOMERY v. PROFESSIONAL MUT. INS. CO.

Nos. 78-2054, 78-2055.

611 F.2d 818 (1980)

John L. MONTGOMERY, D.O., Plaintiff-Appellant, v. PROFESSIONAL MUTUAL INSURANCE COMPANY, Defendant-Appellee, and The First National Bank in Albuquerque as guardian of the estate of Paul Anthony Sanchez, an incompetent minor, and Reina Sanchez, his mother, Intervenors-Cross-Appellants.

United States Court of Appeals, Tenth Circuit.

Decided January 4, 1980.

Attorney(s) appearing for the Case

David H. Pearlman, Albuquerque, N. M., on brief for appellant.

James P. Houghton, of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., on brief for appellee.

William H. Carpenter and Harold B. Albert, Albuquerque, N. M., on brief for cross-appellants.

Before SETH, Chief Judge, and McWILLIAMS and LOGAN, Circuit Judges.

SETH, Chief Judge.

The insured under a malpractice policy brought this action against the insurance company, asserting that the company had not defended an action against him. The trial court granted defendant's motion for summary judgment on the ground that the insured had failed to give timely notice of the claim against him, and in any event the policy did not cover the acts of the insured under the circumstances.

The undisputed facts show that in April...

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