The Duty to Defend a Practical Joke
In a decision filed on July 26, 2007, the Washington State Supreme Court, in Woo v. Fireman’s Fund Ins. Co., confirmed the expansive nature of Washington law on the duty to defend. Woo involved a practical joke that an oral surgeon, Dr. Woo, played on one of his employees, Tina Alberts. Ms. Alberts’ family raised potbellied pigs, and Dr. Woo often poked fun at this in what he called an attempt to create a friendly atmosphere in the office. Ms. Alberts needed to have two of her teeth replaced with implants, and Dr. Woo consented to perform the procedure. While Ms. Alberts was unconscious under general anesthesia, Dr. Woo inserted fake boar tusks and allowed photos to be taken before removing the tusks and completing the procedure with the proper implants. Ms. Alberts was humiliated when the photos were later shown to her at her birthday party. After the party, she left the office.
Alberts eventually sued Dr. Woo for outrage, battery, nonpayment of overtime wages, and negligent infliction of emotional distress. Woo tendered the claim to his insurance carrier, Fireman’s Fund, who provided professional liability, employment practices liability, and general liability insurance. Fireman’s Fund refused to defend, among other reasons, on the basis that the acts alleged in the underlying complaint did not arise out of the provision of dental services.
Construing the duty to defend broadly, the Washington Supreme Court held that Fireman’s Fund owed a duty to defend Dr. Woo under its professional liability coverage because inserting fake boar tusks in a patient’s mouth during a dental procedure “conceivably fell within” both the state dental statute’s and policy’s broad definition of the practice of dentistry.
