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Woo v. Fireman's Fund Insurance Comp6/13/2005
al distress, the facts and circumstances supporting her claims are limited to this series of events.
To determine whether the duty to defend exists, this court examines the policy's insuring provisions to see if the complaint's allegations are conceivably covered. Hayden v. Mutual of Enumclaw Ins. Co., 141 Wn.2d 55, 64, 1 P.3d 1167 (2000). Policies are interpreted as they would be by the average purchaser. Id.
Regarding the dental professional liability coverage, Dr. Woo argued, and the trial court apparently agreed, that the placement of boar tusks in Alberts' mouth constituted either dental services or the failure to render dental services, such that the policy could conceivably cover his actions, triggering the duty to defend. But the actions at issue could not conceivably be considered a means or method 'to diagnose, treat, remove stains and concretions from teeth, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition{.}' RCW 18.32.020. No reasonable person could believe that a dentist would diagnose or treat a dental problem by placing boar tusks in the mouth while the patient was under anesthesia in order to take pictures with which to ridicule the patient. While Dr. Woo was clearly rendering dental services when he administered anesthesia, removed Alberts' teeth and put in the proper flippers, we conclude as a matter of law that when he placed the boar tusks in her mouth and took pictures, he was not rendering professional services.
To analyze questions of professional liability insurance coverage in cases involving sexual misconduct during dental or medical procedures, 'courts look to the act itself, rather than the title of the party performing the act or the place where the act occurred.' Standard Fire Ins. Co. v. Blakeslee, 54 Wn. App. 1, 9, 771 P.2d 1172 (1989) (citing Washington Ins. Guar. Ass'n v. Hicks, 49 Wn. App. 623, 627, 744 P.2d 625 (1987) (chiropractor's malpractice policy did not cover sexual incident with patient during treatment session)). In Blakeslee, the trial court properly held that the insured had no duty to defend or indemnify the insured dentist and his corporation in a suit alleging that the dentist lifted his patient's shirt and fondled her breast while she was anesthetized so that he could fill cavities in her teeth. 54 Wn. App. at 2-3. The court stated, "We know of no legitimate course of treatment that involves sexual contact between a practitioner of the healing arts and his or her patient, and we can conceive of none. Clearly, dentistry does not involve sexual contact between dentist and patient." Id. at 9.
Because the professional services that Blakeslee actually rendered could not 'be said to be a proximate cause of the injuries alleged' by the patient, and because fondling his patient's breast could not 'be said to have arisen out of the rendering or failure to render the professional services at issue,' his acts were not covered under the professional liability portion of the policy. Id. at 11.
Dr. Woo attempts to distinguish Blakeslee by pointing out that '{o}ne can fondle a breast without having anything to do with dentistry, but one cannot take molds, fabricate and insert flippers into another person's mouth without practicing dentistry.' Respondent's Brief at 36. But, like Blakeslee, Dr. Woo took advantage of his patient's anesthetized state to take actions for his own purposes rather than for her treatment. As in Blakeslee, Alberts' complaint does not allege that she was injured by the professional services that Dr. Woo actually rendered that is, the administration of the anesthesia, the removal of the baby teeth, or the placement of the proper flippers. Neither does
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