Oral surgeon's practical joke is covered under professional-liability policy

By Gregory P. Turner

An oral surgeon’s practical joke that caused emotional distress constitutes covered “professional liability” under his errors-and-omissions insurance policy and can render the insurer liable for bad faith if it refuses to defend, the Washington Supreme Court has held.

In Woo v. Fireman’s Fund Ins. Co., no. 77684-9 (July 26, 2007), Tina Alberts worked as a surgical assistant for oral surgeon Robert Woo. Alberts was a potbellied-pig aficionado, had a pet pig named Walter, and talked about them at work. Woo made several offensive comments about Alberts’s pigs, supposedly as part of a “friendly working environment.”

Woo agreed to perform a dental procedure for Alberts to replace two of her front teeth with implants. The procedure requires installation of temporary bridges called “flippers” as spacers. When ordering flippers for Alberts, Woo ordered a second set of flippers shaped like boar tusks. While Alberts was under general anesthesia, Woo inserted the boar-tusk flippers in her mouth, propped her eyelids open, and took photos of her. He then completed the planned procedure using the normal flippers.

Woo and other co-workers later presented the photographs to Alberts as a gag birthday present. She was stunned, and after working the rest of that day, left and never returned. Alberts later sued Woo, alleging the tort of outrage, battery, invasion of privacy, medical negligence, unpaid wages, retaliation, and other claims.

Woo tendered defense of the action to his liability insurer, Fireman’s Fund, which covered Woo for professional liability, employment-practices liability, and general liability. Five months after Woo’s tender, Fireman’s declined to defend or indemnify Woo for the Alberts v. Woo lawsuit. Fireman’s asserted that the alleged acts did not arise out of the provision of dental services so as to trigger professional-liability coverage. Fireman’s denied employment-practices liability coverage because the claims did not constitute sexual harassment, discrimination, or wrongful discharge. Fireman’s denied general-liability coverage because the practical joke was intentional and was not a “business activity.”