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Court Rules That Insurance Coverage Required for Dentist

Perhaps it pays for a professional to have a sense of humor, even if his insurance company doesn't.  That's the "[m]oral" of a recent lawsuit by a dentist Dr. Robert Woo against his insurer, Fireman's Fund for failing to defend him in a lawsuit brought by his employee, Tina Alberts as reported by AP in Tusk, tusk: Prankster dentist wins case against insurer.

The facts of the case, while the "tooth," are funny and somewhat unbelievable.  In the course of a dental procedure to replace two of Alberts' teeth with implants and while she was under anesthesia,  Woo installed two fake boar tusks in Alberts mouth, propped her eyes open and took photos. 

Before Alberts awoke, he completed the procedure and implanted the replacement teeth.  Woo didn't show the photos to Alberts because they were ugly, but staffers presented them at a birthday party.  Alberts subsequently quit her job, feeling too humiliated to return.  Alberts sued Woo for battery and invasion of privacy and also claimed that the boar tusk joke comprised part of an ongoing campaign of ridicule by Wo against Alberts because her family raises pot bellied pigs.  Woo's insurer refused to defend, finding that Woo's action was an intentional practical joke and not an activity undertaken in the ordinary course of business.  Woo settled with Alberts for $250,000 and then went after his insurer for failing to defend, winning $1 million at trial, but losing on appeal.

But in this decision issued yesterday, the Washington State Supreme Court reinstated the award.  Drilling down into the decision, the court found that Firemans had a duty to defend under Woo's professional liability policy because the act of implanting the boar's teeth, then removing them to implant the replacements was inextricably part of the professional service rendered.  The court also found that Woo's general liability coverage extended to the claims because the injury to Alberts arose from Woo's business practices.  On the other hand, the court determined that Fireman's did not have a duty to defend under Woo's employment insurance policy which only covered wrongful discharge.  The court determined that Alberts' claims for emotional distress and invasion of privacy were not in the nature of wrongful discharge, and that her injury was caused by the joke itself, not by a termination decision.   

The bottom line: where the root cause of a claim arises out of an insured's business practices or professional activity, the insurer has a duty to defend. 

Posted by Carolyn Elefant on July 27, 2007 at 05:25 PM | Permalink | Comments (1)


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