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Woo v. Fireman's Fund Insurance Comp6/13/2005
While his patient, also an employee, was under anesthesia for a dental procedure, a dentist played a practical joke by putting false teeth shaped like boar tusks into her mouth and taking pictures. After his insurer declined to defend him, the dentist settled his employee's lawsuit and sued his insurance company for coverage, for expenses incurred in his defense, for damages for bad faith and violations of the Consumer Protection Act, and for attorney fees and costs. Following the trial court's summary judgment order concluding that the insurer breached its duty to defend, a jury returned a verdict for the dentist. The insurer appeals. Because the complaint unambiguously alleged damages resulting only from intentional acts not required by or consisting of a legitimate part of the properly rendered dental procedure, the insurance company had no duty to defend the claim, and the verdict must be vacated and the case dismissed.
FACTS
This insurance dispute arises from a lawsuit filed by surgical assistant Tina Alberts against her former employer, oral surgeon Dr. Robert Woo. According to her complaint, during the five years of her employment, Dr. Woo learned of her interest in pot-bellied pigs and her pet pig, Walter. He began to make offensive comments to her about pigs and then showed her pictures of his boar hunting trip and a skinned pig hanging on a hook and made comments like, '{T}here is how Walter will look.' During the last six months of her employment, Alberts began to complain about Dr. Woo's treatment of staff and to demand overtime pay.
When Alberts chipped a baby tooth that had never been replaced by a permanent tooth, Dr. Woo agreed to remove the chipped tooth and another tooth for her. According to usual procedure, a co-worker took an impression of Alberts' teeth and temporary false teeth known as 'flippers' were created for Alberts to wear until the teeth were replaced by permanent implants. But Dr. Woo ordered additional flippers designed in the shape of boar tusks. While Alberts was under general anesthesia, Alberts' oxygen mask was removed, the boar tusks were placed into her mouth and photographs were taken showing Alberts' eyes and mouth pried open and the tusks protruding from her mouth. The boar tusks were then removed and the procedure was completed. Other staff members later gave Alberts the boar tusks and the pictures. After their presentation, Alberts assisted Dr. Woo in a procedure, during which he mentioned the boar tusks and said that she had a trophy to take home. Alberts left the office that day and never returned.
Alberts' complaint listed the following causes of action: assault, outrage, battery, invasion of privacy, false light, public disclosure of private facts, non-payment of overtime wages, retaliation, medical negligence, lack of informed consent, and negligent infliction of emotional distress. Her husband claimed outrage, loss of consortium, and negligent infliction of emotional distress, and her mother claimed outrage, and negligent infliction of emotional distress.
At the time of the incident, Dr. Woo held insurance policies issued by Fireman's Fund for dental professional liability, employment practices liability, and general liability. The dental professional liability portion of the policy provided coverage for damages 'that result from rendering or failing to render dental services.' The policy defined 'dental services' as 'all services which are performed in the practice of the dentistry profession as defined in the business and professional codes of the state where you are licensed.' Clerk's Papers at 162. Washington law provides:
A person practices dentistry, within the meaning of thi
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