The case of Woo v. Fireman's Fund Ins. Co. , 2007 WL 2128357 (Wash.), arose from a practical joke that oral surgeon Dr. Robert C. Woo played on his employee, Tina Alberts, while he was performing a dental procedure on her. Dr. Woo had temporarily implanted fake boar tusks in Alberts' mouth while she was under anesthesia for a different procedure, and although he took them out and completed the planned procedure successfully before she awoke, he first shot photos of the prank. These eventually made it around the office. The back story of the gag, the court wrote, was that Alberts' family raises potbellied pigs and that she frequently talked about them at the office where she worked for five years.
Alberts brought suit against Woo as a result of the practical joke, and Woo asked his insurer, Fireman's Fund Insurance Company to defend him, claiming coverage under the professional liability, employment practices liability, and general liability provisions of his insurance policy. Fireman's refused Woo's request to defend.
Woo then brought suit against Fireman's, claiming breach of duty to defend, bad faith, and violation of the Consumer Protection Act (CPA). The trial court granted Woo's motion for partial summary judgment, holding that Fireman's had a duty to defend under all three provisions. After a trial on the bad faith and CPA claims, a jury found by special verdict that Fireman's failed to act in good faith and violated the CPA. The court of appeals reversed, holding that Fireman's had no duty to defend.
When the case got to the Supreme Court of Washington, that court first noted that the rule for determining whether an insurer has a duty to defend only requires the complaint to allege facts that could impose liability on the insurer. According to the court, because the state statute defined the practice of dentistry so broadly, the fact that Woo's acts occurred during the operation of a dental practice conceivably brought his actions within the professional liability provision of his insurance policy . Thus, the insertion of boar tusk flippers in Alberts' mouth conceivably fell within the policy's broad definition of the practice of dentistry.
Next, the court said that Alberts' complaint claiming that Woo played the practical joke on her as his dental patient and that she quit as a result did not allege wrongful discharge under the employment practices liability policy, which defined “wrongful discharge” to include unfair or unjust termination inflicting emotional distress upon the employee. Woo allegedly taunted Alberts about her potbellied pigs, and Alberts allegedly collapsed in tears after Woo told her she could have the boar tusks as a trophy. Therefore, the court reasoned, her alleged emotional distress resulted from the taunting and the practical joke and not from a wrongful discharge.
In addition, the court determined that Alberts' alleged bodily injury from the joke played on her by Woo and from the taunting about the potbellied pigs could have been caused by an accident within the meaning of Woo's general liability policy. The policy defined “accident” as a fortuitous circumstance, event, or happening neither expected nor intended from the standpoint of the insured, and it was possible that Woo did not intend the conduct to result in the injuries, and the taunts and the practical joke could have been part of continuous or repeated efforts to cultivate a friendly working environment in the office. Thus, Fireman's owed Woo a duty to defend.
Furthermore, the policy covered personal injury caused by fortuitous, inadvertent, or mistaken business activity giving rise to personal injury neither expected nor intended from the standpoint of the insured. The complaint did not clearly allege that Woo expected or intended that his taunts or the practical joke would cause personal injury, and the offense arose from his business.
Based on the foregoing reasons, the Supreme Court reversed the court of appeals' decision in part, and reinstated the trial court's judgment based on the jury's verdict, holding that Fireman's had a duty to defend under the professional liability and general liability provisions but not under the employment practices liability provision.