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Saturday, June 18, 2005

Cases: Policy excludes intentional joke

Washington_flag A dentist whose nasty practical joke on a patient misfired had no right to be defended or covered by his insurance carrier, according to a recent decision by the Washington Court of Appeals.

Dental assistant Tina Edwards was fond of pigs and had a pet pig named Walter.  Her boss, dental surgeon Dr. Robert Woo, liked to hunt boars and also liked to harass Edwards about her fondness for the porcine class.  When she needed to have a tooth removed, he agreed to do it.  He put her under anaesthesia.  While she was out he had large boar tusks made up which he inserted in her mouth.  He and an assistant propped her eyes open and took pictures of her with the tusks in her mouth.  When she learned what happened, she left in outrage and sued for, among other things, assault, battery, invasion of privacy, and infliction of emotional distress.  The insurer refused to defend him, and he settled.  He then sued the insurer.

It's true that when there's any doubt whether the damages sought will be covered, the insurer has a duty to defend, said the court in an opinion by Judge Faye Kennedy.  Here, though, all of Edwards's claims arise out of her claim that he deliberately engaged in a plan to humiliate her.  Woo argued that the policy was ambiguous, but the court didn't agree:

[T]he 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{.}' . . . 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 [teeth], 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.

Woo v. Firemans Fund Insurance (Wash. Ct. App. June 13, 2005).  [Thanks to Andrew Oh-Willeke of the College for Financial Planning for the tip.]

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