The impression from the defendant's employees is that they took the incident lightly, against the backdrop of a complex period of increasing COVID-19 morbidity and the beginning of the evacuation of confirmed patients to COVID-19 hotels operated by the Home Front Command.
Although it cannot be ruled out that appropriate instruction would have prevented the incident, I am not convinced that the issuance of the order was necessary and I am convinced that the judgment will be studied by the defendant and lessons will be learned to prevent the recurrence of a similar incident.
- In view of the aforesaid, what is stated in the judgment is sufficient in order for lessons to be learned, and this is not the case for granting the requested order.
The Question of Insurance Coverage
- It should be clarified at this time that the defendant's claims that were rejected in relation to the plaintiff's claim are relevant to the relationship between her and the Ayalon Company with respect to the applicability of the policy in respect of the incident. In other words, although the driver and his manager focused their hopes on the plaintiff, whom they tried to persuade to change clothes and thus failed, the question of insurance coverage must be examined in light of this failure.
- The defendant argued in its summaries that the reasons for the rejection of Ayalon of March 18, 2022 did not include the reason for discrimination, and therefore it is prevented from raising this claim.
The defendant further argued that even if it is determined that she committed what is attributed to her in the statement of claim, there is no exception in the insurance policy that requires that the act be carried out "with the intention of causing damage", since the defendant's employees did not intend to sexually harass the plaintiff, but at most failed to accede to another's demand or made a mistake in believing that this was the defendant's demand.
Therefore, the defendant sought to determine that the manager's decision on its behalf that the defendant would continue the trip while the plaintiff would return home and wait for another transportation was not covered by the exclusion in clause 4(b) of the policy, since it was made in good faith and not with intention or malice.
- Ayalon claimed that in the letter of demand, it was made clear to the defendant that she would receive legal protection in this proceeding, provided that the insurance coverage would be for negligence, to the extent that the court so determines. In the event of a judicial determination that the defendant was negligent, she will only have to pay a deductible. In the event that liability is established on other grounds, the defendant will have to bear the full liability that will be awarded against it, as well as defense expenses, since in such a case there is no insurance coverage. The defendant, for its own reasons, chose to conduct its defense not through the Ayalon Company.
- According to the Ayalon Company, the driver did indeed refuse to put the plaintiff in the ambulance, but from the moment the matter was transferred to the manager's handling, which left the decision intact, the act moved to the administrative/managerial level and decisions of this kind are not covered by the policy, whether it is a matter of ignorance of the law or a mistake in judgment.
- The defendant in the reply argued that the claim is also on the ground of negligence, and in any event, the claim of prohibited discrimination or sexual harassment does not deal with deliberate actions on the part of the defendant's employees, but rather with actions that are the result of them. Ayalon Company, which offered conditional legal representation, would have provided legal representation that is bound by its interests - to determine that there is no insurance coverage and therefore the defendant should not be expected to agree to this offer. The evidence that Ayalon claims in its summaries is the lack of insurance coverage even in the case of negligence.
- In the Exclusions Chapter, Section 4(b) states that the policy will not apply in the event of "any activity, behavior or sexual harassment, whether under the guise of treatment or not."
- Tamir Herzno, a representative of the Ayalon Company, stated in relation to the policy that an act of sexual harassment is not covered by the policy (p. 132, lines 31-35).
According to him, a managerial decision is not covered by the policy, but confirmed that there is no definition of a managerial decision in the policy. The witness explained that according to him, the decision to prevent the plaintiff from boarding the ambulance was an administrative decision that stemmed from the plaintiff's dress and not due to any medical need, and therefore the policy did not apply (p. 135, line 14). The policy is intended to cover medical malpractice. According to him, to the extent that he determines that this is a medical decision, i.e., that the defendant chose to drive the defendant because of the distance from his place of residence and in order not for a corona patient to walk around in the street and return the plaintiff to her home, which is nearby, then there is coverage in the policy (p. 138, line 15).
- In the dispute between the parties, I was persuaded that the defendant's position should be accepted and that Ayalon should be held liable for the charges imposed on the defendant. First, the decision was made by the driver and not by the manager himself. Second, the director was contacted against the background of the plaintiff's demand, in order to try to persuade him to change the decision and allow her to get into the ambulance.
Even according to Ayalon Company, the driver's decisions are covered by the insurance policy.