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Click here for the full text of this decision FACTS:Kenneth Ray Lofton was a quadriplegic who could speak without difficulty but who had to use a mouth stick to perform certain tasks. Lofton needed assistance for his daily living activities, so when he leased an apartment in November 2000, he took advantage of a contract between Texas Department of Human Services (TDHS) and Disability Services of the Southwest Inc. (DSSW) to get that assistance. Only a few days after arriving at the apartment, Lofton developed a severe urinary tract infection. Because his bedroom did not have a communication device, he could not ask for medical assistance. Due to his handicap, he could not reach the telephone outside his room. Even if he could have gotten to it, he could not have used it without his mouth stick. Consequently, he could not contact anyone, and he died from the infection within a day or two. Lofton’s family sued DSSW, alleging the company failed to provide adequate medical care, which caused Lofton’s infection and death. Alternatively, they argued that, regardless of the infection, DSSW failed to provide necessary communication devices, which rendered Lofton unable to get help, and thus his infection became fatal. At the time of Lofton’s death, DSSW was insured by Allstate Insurance Co. The policy covered claims of bodily injury caused by an occurrence that takes place within the coverage territory, but it had an exclusion for bodily injury arising out of the rendering or failure to render medical service, treatment, advice or instruction or any health or therapeutic services, treatment, advice or instruction. Allstate filed a motion for a declaratory judgment that it had no duty to defend DSSW. A magistrate judge granted Allstate’s motion for summary judgment. HOLDING:Affirmed. The court finds that the dispositive inquiry in this case is whether access to a telephone or emergency response device is excluded in coverage as a medical service under the policy. The court notes that communication with patients is vital to providing health or nursing services. The court further notes that if Lofton had not been a quadriplegic, he would not have required specialized communication devices. Providing this kind of service to someone like Lofton is typical, if not integral, to the provision of a 24-hour shared attendant program as DSSW contracted with TDHS to be. Lofton’s family’s claim that his death was caused by the failure to provide communication devices is inseparable from their claim that DSSW failed to provide adequate medical care. Thus, the medical services exclusion applies, and Allstate has no duty to defend DSSW. OPINION:Garza, J.; Higginbotham, Davis and Garza, JJ.

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