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Woo v. Fireman's Fund Insurance Comp6/13/2005
es, having the pictures developed, and telling Alberts that she had a trophy to take home. Even broadly construed, these allegations cannot be read to describe an 'accident,' defined by the policy as 'a fortuitous circumstance, event or happening that takes place and is neither expected nor intended from the standpoint of the insured.' Clerk's Papers at 85. And given the facts and circumstances here, Dr. Woo's later claim that when he reviewed the pictures he decided they were not funny and did not intend to have his staff give them to Alberts, does not change the unambiguous allegations of solely intentional conduct by Dr. Woo in the complaint.
The general liability portion of the policy also provides coverage for 'personal injury caused by an offense arising out of your business.' Fireman's Fund contends that it had no duty to defend under this portion of the policy because the facts and circumstances of the complaint clearly allege that the injuries were not caused by an offense arising out of Dr. Woo's business, but by a practical joke that had no business purpose. Dr. Woo argues that because the incidents at issue involve 'employee relations,' the offense here arose from the business of running a dental practice.
The parties both discuss Jackson v. Frisard, 685 So.2d 622, 629 (La. App. 1996), in which the court considered coverage under a homeowner's policy containing a business pursuits exclusion that did not apply 'to activities which are ordinarily incident to non-business pursuits' such that it provided coverage for injuries resulting from accidents that did not arise out of business pursuits. During a training session of state troopers, an incident of 'horseplay' led to an injury. Because the court construed 'the policy language in question to provide coverage for acts which by their nature are not associated with the insured's business pursuits, but which are only casually related to the business activities,' the question was not 'whether the insured was engaged in a business pursuit at the time of the accident, but rather whether the particular activity engaged in at the time of the accident was nevertheless one ordinarily incident to non-business pursuits.' Id. at 631. Because the testimony was undisputed that the training session did not involve the kind of 'striking on the back' that led to the injury, the court found that the action of striking on the back was not an activity associated with the business of the training session but only casually related to the business and ordinarily incident to non-business pursuits, and held that the policy did not exclude coverage for the incident. Id.
Here, the general liability portion of the policy provides coverage for personal injury arising from the business. Although Jackson v. Frisard involved a policy excluding injuries arising from the business, as Fireman's Fund points out, its analysis is useful. This policy may be interpreted to call for an inquiry into whether the particular activities engaged in at the time of the injury were ordinarily incident to business pursuits. But upon such inquiry, we conclude that the activities involved here ordering boar tusks, placing them in a patient's mouth, taking pictures, and telling the patient that the tusks and pictures were 'a trophy to take home' are not incident to providing the professional dental services of administering anesthesia, removing teeth, and fitting temporary false teeth. Thus, any 'personal injury' alleged in the Alberts' complaint did not arise from Dr. Woo's business. Accordingly, Fireman's Fund did not have a duty to defend him under that section of the policy.
CONCLUSION
Because the facts alleged in Alberts' unambiguous complaint,
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