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Woo v. Fireman's Fund Insurance Comp6/13/2005
she contend that she was injured because he failed to perform some professional service that she was expecting. Instead, she alleges injuries arising from his actions in taking advantage of her anesthetized state to place boar tusks in her mouth solely for the purpose of taking humiliating pictures. Given the fact that no conceivably legitimate course of dental treatment includes boar tusks, and the fact that the complaint does not allege any damages proximately caused by actual dental services rendered or a failure to render dental services, the holding in Blakeslee supports the conclusion that Fireman's Fund had no duty to defend Dr. Woo under the professional liability portion of the policy.
Dr. Woo also contends that the professional liability portion of the policy is 'at least ambiguous' because Fireman's Fund denied coverage under that portion of the policy because the allegation of the complaint did not arise out of the provision of 'dental services' and then denied general liability on the ground that Alberts' claimed injury 'arises from . . . rendering a professional dental service.' But nothing in the general liability section of the policy renders the professional liability portion of the policy ambiguous. Neither the language of the professional liability portion of the policy nor the complaint is ambiguous here, and given the unambiguous allegations of the complaint, the trial court erred in holding that Fireman's Fund had a duty to defend under the professional liability portion of the policy.
Fireman's Fund also contends that the trial court erred in its holding that it had a duty to defend under the employment practices portion of the policy. Based on the clear language of the policy, the parties agree that the only portion of the policy potentially at issue here is damages for a 'wrongful discharge' arising out of a 'wrongful employment practice.' Clerk's Papers at 154. Dr. Woo contended below and argues on appeal that Alberts' complaint includes a claim for constructive discharge conceivably covered by this portion of the policy. Although Alberts' complaint alleges that Alberts left the office and never returned, the claimed cause of the injuries was the practical joke. It does not allege any facts which would conceivably constitute the tort of wrongful discharge recognized in our statutes or case law. There is no wrongful termination tort based on boorish behavior by one's employer, unless such behavior violates an employment contract, discrimination statutes, the constitution, or public policy. Dr. Woo focuses his argument on the language of his insurance policy, but Albert was not a party to that contract. The first step in analyzing whether a duty to defend existed is to determine whether a cognizable cause of action has been pled. None was, so Fireman's Fund had no duty to defend under the employment liability portion of the policy.
As to the general liability coverage, Fireman's Fund contends that the trial court erred in holding that it had a duty to defend because any bodily injury alleged in Alberts' complaint was not the result of an 'occurrence,' defined by the policy as an accident, in that the complaint alleged only intentional conduct. Dr. Woo argues that because the complaint does not allege that he intended to give Alberts the photos, and an investigation would have revealed that he did not intend to give them to her, the presentation of the photos could conceivably be considered an accident, triggering the duty to defend. But the complaint unambiguously alleges only intentional conduct by Dr. Woo leading to Alberts' injuries: 'devis{ing} a scheme to humiliate and denigrate Ms. Alberts,' ordering boar tusks, placing them in Alberts' mouth, taking pictur
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