Deputy may sue county for injuries suffered while pursuing suspect

By Michelle A. Corsi

The “professional-rescue” doctrine does not bar the personal-injury claim of a sheriff’s deputy against the county after another officer injured him while they were pursuing a suspect, the Washington Supreme Court recently held.

In Beaupre v. Pierce County, no. 79976-8 (Sep. 13, 2007), Pierce County sheriff’s deputy Curtis Beaupre and several other officers were pursuing a criminal suspect who was driving the wrong way on the Interstate 5 freeway. They used several measures to stop the suspect’s vehicle. Thinking that the suspect was stopping, Beaupre exited his vehicle, but the suspect kept driving. Beaupre ran alongside the suspect’s vehicle, drew his gun, and ordered the suspect to stop. Another patrol car then struck Beaupre, causing him to fly several feet and land in front of the suspect’s vehicle, which then ran over Beaupre and severely injured him.

Beaupre sued the Pierce County for damages that exceeded those he had received through worker’s compensation. The County moved for summary judgment, arguing that under the professional-rescue doctrine, being hit by another patrol car was inherent in this rescue operation, so that Beaupre could not recover for his injuries. The professional-rescue doctrine bars professional rescuers from recovering for injuries because they assume certain hazards that are unique to and generally associated with the particular rescue activity.

The trial court denied the County’s summary judgment motion. The County sought discretionary review before the Court of Appeals, and the case was transferred to the Washington Supreme Court.

The Supreme Court reviewed the history of the rescue doctrine, which allows a volunteer rescuer to recover for injuries from one who negligently has placed himself in a position of imminent peril. The professional-rescue doctrine, however, bars such recovery for hazards that a voluntary rescuer does not assume. Unlike a volunteer rescuer, a professional rescuer may recover only if the hazard is hidden, unknown, and extra hazardous, or otherwise not foreseeable.

The Beaupre Court noted that this case involved a professional rescuer’s injuries that resulted not from a person who was being rescued but from the intervening negligence of a fellow officer. The Washington Court of Appeals had held in several cases that the professional-rescue doctrine does not bar a claim when an independent or intervening act causes the rescuer’s injury. The Supreme Court, however, had never decided this issue previously.

But the County argued that the doctrine still applied to bar Beaupre’s claim because, as courts in California had decided, fellow officers are not intervening parties. California courts apply the doctrine to further the purpose of employer immunity and allow officers to respond to issues of public safety without the worry of injury to fellow officers.
The Beaupre Court noted that California and Washington law differ. Washington statutes specifically permit officers to sue their employers in addition to receiving worker’s compensation, whereas California law does not. Accordingly, the Court held that the professional-rescue doctrine does not bar a rescuer’s claim arising from acts of intervening parties who were not responsible for bringing the rescuer to the scene.

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.”

Woo settled Alberts for $250,000. He then sued Fireman’s for coverage and bad faith. Woo and Fireman’s cross-moved for summary judgment. The trial court held that Fireman’s had breached its duty to defend. At the ensuing trial, the jury found that Fireman’s committed bad faith and awarded Woo $750,000 in damages.

Fireman’s appealed, arguing that the trial court erred in finding any duty to defend. The Court of Appeals agreed, reversed that ruling, and directed that the judgment on the jury’s verdict be vacated and the action dismissed.

The Supreme Court accepted Woo’s petition for review. The Court concluded that the professional-services provision of Fireman’s policy did cover Woo for the Alberts action. Inserting boar-tusk flippers was “intertwined with Woo’s dental practice because it involved interaction with an employee.” The Court rejected Fireman’s argument that this practical joke interrupted the dental-surgery procedure because it was “integrated into and inseparable from the overall procedure.”

The Woo Court also held that Fireman’s had a duty to defend under its general-liability coverage, as the facts that Alberts alleged could trigger coverage for unintended bodily injury and personal injury.

Justice James Johnson dissented. Justice Johnson asserted that no reasonable person would define Woo’s actions as a dental procedure. He said that the $750,000 “reward” of “Woo’s unethical and intentional behavior will likely be perceived as an abuse of the tort system” and that after he is awarded attorney fees, Woo “will receive a million dollars more than the amount that his traumatized ex-employee was compensated for this cruel ‘joke.’”

Justice Charles Johnson also dissented, saying simply that the Court should have adopted the Court of Appeals’ decision.

Voters will decide fate of insurance bad-faith statute

By Jeffrey P. Downer

Enforcement of Washington’s new statute governing bad-faith claims against insurers is stayed until the November 2007 election, when the voters will decide whether to approve it.

The Washington Legislature passed, and Washington’s governor signed into law, the “Insurance Fair Conduct Act” earlier this year. But as a result of a petition drive, the Act will appear on the November ballot as Referendum 67. The voters may approve or disapprove the Act. Until then, the Act will not go into effect.

The Act would liberalize the standards for proving insurer bad faith. It creates a statutory cause of action for compensatory damages and makes an insurer liable for attorney fees incurred by a “first party claimant who is unreasonably denied a claim for coverage or payment of benefits by an insured[.]” The Act impliedly allows an insured recover reasonable attorney fees if the insurer handles the claim negligently or too slowly, even if the policy does not cover the claim in the first place.

Equally significantly, the Act also would permit an award of punitive damages, in the discretion of the trial court. Those damages would be three times the insured’s actual compensatory damages. Whereas Washington’s existing Consumer Protection Act would limit these treble damages to $10,000, the new Act would place no such cap on treble damages, so that a bad-faith verdict could become exorbitantly expensive for an insurer.

Both the insurance industry and the plaintiff’s bar in Washington have launched big-budget advertising campaigns for and against Referendum 67.

Around The Firm

Philip B. Grennan and Michael A. Guadagno won summary judgment of dismissal in Hayes v. Preview Properties, a real-estate malpractice case. The plaintiffs sold a former gasoline station to a third party. Preview Properties acted as dual agent in the transaction. Both buyers and sellers claimed ignorance of possible contamination of the property. After the sale closed, the parties discovered groundwater contamination that violated the Model Toxic Control Act. The plaintiffs sued 15 defendants, including the real estate professionals, based on their alleged failure to investigate and discover the potential presence of contamination on the property. The plaintiffs brought claims for negligence, negligent misrepresentation, breach of fiduciary duties, breach of the statute of frauds, violation of the Consumer Protection Act, professional malpractice, and violation of RCW 18.86 et seq. Phil and Mike moved for summary judgment of dismissal of plaintiffs’ claims, arguing that Washington law imposes no duty on real estate professionals to conduct an independent investigation or to verify the accuracy of representations by the parties to a real estate transaction. The court agreed with Phil and Mike and dismissed all claims against their clients.

August G. Cifelli and William R. Kiendl won the appeal of Hodges v. Summer Fun Rentals. Plaintiff sued in U.S. District Court after a personal-watercraft accident resulted in an amputation injury. Gus and Bill won an order granting summary judgment and dismissing all claims against their clients in June 2004. Plaintiff and a defendant who was adverse to Gus and Bill’s client both appealed. In October 2006, the Ninth Circuit of the U.S. Court of Appeals issued a memorandum decision affirming the District Court’s summary judgment order. The appellants then sought rehearing en banc before 15 judges of the Ninth Circuit. In 2007, the Ninth Circuit denied rehearing en banc, bringing to an end almost four years of litigation.

Michelle A. Corsi won dismissal of a Washington State Bar Association grievance filed against her lawyer client. The complainant, Gerard, previously had sued his attorney, Shattuck, for legal malpractice. After the trial court dismissed that case on summary judgment, and the Court of Appeals affirmed the dismissal, Gerard then pursued his grievance against Shattuck through the Bar Association, which had stayed the grievance proceeding while the lawsuit was pending. The Bar Association found no evidence that Shattuck had violated any Rules of Professional Conduct during his representation of Gerard and noted that the court did not find any impropriety in the malpractice action. As a result, the Bar Association dismissed the grievance. … Michelle Corsi also won summary judgment on the remaining claim against her client in Cook v. Apple Park Apartments, a personal-injury case brought by a tenant against her landlord for mold exposure. Michelle previously had won partial summary judgment of dismissal of plaintiff’s claims under the Residential Landlord-Tenant Act. Michelle then moved for dismissal of plaintiff’s claim under the lease. The court agreed and dismissed the action.

Jeffrey P. Downer and Carrie Bixel recently won summary judgment in Jackowski v. Borchelt, a real-estate malpractice case. Plaintiffs bought a house on a waterfront hillside near Shelton. A year after their purchase, the land slid, and the house suffered major damage. Plaintiffs alleged negligence against Jeff and Carrie’s client, the real estate agent who represented them, for failing to refer them to a geotechnical expert prior to the sale. The court agreed with the defense that under the economic-loss rule, the law precluded any award against Jeff and Carrie’s client on a negligence theory. … Jeff Downer also recently won summary judgment in two other actions against real estate professionals, Bridgen v. York and Crumley v. Reid Real Estate.