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Woo v. Fireman's Fund Insurance Comp6/13/2005
ht of privacy.
27. Your business means the trade, profession or occupation in which you are engaged and which is shown on the declarations page.
Clerk's Papers at 85, 87-89.
Following Fireman's Fund's decision not to defend him, Dr. Woo settled with Alberts and then filed suit against his insurers seeking declaratory relief and damages, alleging a bad faith breach of the duty to defend and violations of the Consumer Protection Act. The trial court granted partial summary judgment to Dr. Woo, holding that Fireman's Fund breached its duty to defend under the coverage for professional liability, employment practices liability, and 'business' or general liability. After a trial on Dr. Woo's claims of bad faith and violations of the Consumer Protection Act, a jury returned a verdict in favor of Dr. Woo, and the trial court entered judgment against Fireman's Fund including damages under the jury verdict, costs of the Alberts' settlement and Dr. Woo's defense, damages under the Consumer Protection Act, prejudgment interest and attorney fees and costs.
ANALYSIS
Fireman's Fund contends that the trial court erred in granting summary judgment to Woo regarding the duty to defend. This court reviews a summary judgment order de novo, performing the same inquiry as the trial court. Kruse v. Hemp, 121 Wn.2d 715, 853 P.2d 1373 (1993). The court must consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kruse, 121 Wn.2d at 722; CR 56(c).
An insurer's duty to defend an action brought against a policyholder arises when a complaint is filed alleging facts and circumstances arguably covered by the policy. Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 561, 951 P.2d 1124 (1998) (citations omitted). Although the duty to defend is broad, an insurer has no duty to defend claims based on factual allegations that are clearly not covered by the policy. Id. (citing State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 486, 687 P.2d 1139 (1984)). '{T}he duty to defend hinges not on the insured's potential liability to the claimant, but rather on whether the complaint contains any factual allegations rendering the insurer liable to the insured under the policy.' Emerson, 102 Wn.2d at 486. 'An insurance company is required to look beyond the allegations of the complaint if (a) the allegations are in conflict with facts known to or readily ascertainable by the insurer or (b) the allegations of the complaint are ambiguous or inadequate.' E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 908, 726 P.2d 439 (1986). If the allegations in the complaint are ambiguous or inadequate, the insurer must investigate the potential for liability. Id. But the insurer may not rely on facts extrinsic to the complaint in order to deny its duty to defend where the complaint can be interpreted as triggering the duty to defend. Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 761, 58 P.3d 276 (2002).
Here, the complaint is not ambiguous or inadequate. Alberts accused Dr. Woo of devising a scheme to humiliate and denigrate her by obtaining a second pair of flippers shaped like boar tusks, putting them in her mouth, taking pictures of her with the tusks in her mouth while she was anesthetized, and later referring to the tusks and pictures as a 'trophy to take home.' Although the complaint lists several alternative causes of action, including medical negligence and negligent infliction of emotion
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