South-Western Legal Studies in Business

Insurer Responsible for Practical Joke Taken Badly
Description Washington state high court held that an insurer acted in bad faith for failing to defend a client dentist who was sued by an employee who did not like a practical joke the dentist played on her. The tort she claimed to have suffered can be considered an accident for purposes of the policy.
Topic Insurance
Key Words General Liability; Duty to Defend; Tort; Practical Joke; Dental Practice
C A S E   S U M M A R Y
Facts Woo, an oral surgeon, was performing a dental procedure on his employee, Tina Alberts, whose hobby was raising potbellied pigs. While Alberts was under anesthesia, Woo put some fake pig tusks in her mouth and took a picture. He then completed the dental procedure. Woo did not give Alberts the picture, but the office staff did at her birthday party. She quit work and sued Woo for mental distress and many other torts. Woo’s general liability carrier refused to defend the suit on the grounds that the incident did not arise out of the provision of dental services. Woo defended the suit and paid Alberts $250,000 to settle the matter. Woo then sued his insurer for breach of duty to defend. The jury awarded Woo $750,000, the $250,000 he paid Alberts, plus attorney fees. The court of appeals reversed and ordered the suit dismissed. Woo appealed.
Decision

Reversed. The practical joke was done during a dental procedure. The performance of procedures is covered by the general liability policy, which covers accidents, among other things. This falls under that provision since the policy defines accident as a circumstance, event, or happening neither expected nor intended from the standpoint of the insured. It also covers injury caused by inadvertent or mistaken business activity giving rise to personal injury. Woo did not intend the joke to result in tort injuries, so it is an accident covered by the policy. The refusal to defend can be considered bad faith and therefore justifies the jury verdict.

Citation Woo v. Fireman’s Fund Insurance Co., 164 P.3d 454 (Sup. Ct., Wash., 2007)

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