Practical joke not covered by insurance
June 16, 2005 by Ross Runkel at LawMemo
True story. A dentist's employee needed an extraction. The dentist put her under anesthesia and had some fun with a practical joke. He put false teeth shaped like boar tusks into her mouth and took pictures, then finished the legitimate dental work.
That was the last day of work for the employee, who then sued the dentist for assault, outrage, and so on. The dentist asked his insurance company to defend him, and the company refused. After the dentist settled with the employee, he sued the insurance company alleging bad faith breach of the duty to defend. A jury returned a verdict for the dentist, but the Washington Court of Appeals reversed. Woo v. Fireman's Fund (Washington Ct App 06/13/2005).
The dentist had three insurance policies, none of which covered the situation.
- Dental professional liability. The court said no reasonable person would believe a dentist would treat dental problems with false boar teeth, so when he did that he was not performing dental services. He was taking "actions for his own purposes rather than for her treatment."
- Employment practices liability. To be covered by this policy, the employee must have been claiming "wrongful discharge" arising out of a "wrongful employment practice." The court pointed out that the employee's complaint against the dentist "would not conceivably constitute the tort of wrongful discharge."
- General liability. This policy provided coverage for personal injury arising from the business. However, the dentist's actions were not part of his business, and what happened could not be called an "accident."
My view: Check the insurance policy before inserting the boar tusks.
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