128 Wash. App. 95 | Wash. Ct. App. | 2005
FACTS
¶2 This insurance dispute arises from a lawsuit filed by surgical assistant Tina Alberts against her former employer, oral surgeon Dr. Robert Woo. According to her complaint, during the five years of her employment, Dr. Woo learned of her interest in pot-bellied pigs and her pet pig, Walter. He began to make offensive comments to her about pigs and then showed her pictures of his boar hunting trip and a skinned pig hanging on a hook and made comments like, “There is how Walter will look.” During the last six months of her employment, Alberts began to complain about Dr. Woo’s treatment of staff and to demand overtime pay.
¶4 Alberts’ complaint listed the following causes of action: assault, outrage, battery, invasion of privacy, false light, public disclosure of private facts, nonpayment of overtime wages, retaliation, medical negligence, lack of informed consent, and negligent infliction of emotional distress. Her husband claimed outrage, loss of consortium, and negligent infliction of emotional distress, and her mother claimed outrage and negligent infliction of emotional distress.
¶5 At the time of the incident, Dr. Woo held insurance policies issued by Fireman’s Fund
A person practices dentistry, within the meaning of this chapter, who (1) represents himself as being able to diagnose, treat, remove stains and concretions from teeth, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of the human teeth, alveolar process, gums, or jaw, or (2) offers or undertakes by any means or methods to diagnose, treat, remove stains or concretions from teeth, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of the same, or take impressions of the teeth or jaw, or (3) owns, maintains or operates an office for the practice of dentistry, or (4) engages in any of the practices included in the curricula of recognized and approved dental schools or colleges, or (5) professes to the public by any method to furnish, supply, construct, reproduce, or repair any prosthetic denture, bridge, appliance, or other structure to be worn in the human mouth.
The practice of dentistry includes the performance of any dental or oral and maxillofacial surgery. “Oral and maxillofacial surgery” means the specialty of dentistry that includes the diagnosis and surgical and adjunctive treatment of diseases, injuries, and defects of the hard and soft tissues of the oral and maxillofacial region.
RCW 18.32.020.
f6 The employment practices liability portion of the policy provided coverage for “damages as a result of sexual harassment, discrimination, or wrongful discharge that arise out of a wrongful employment practice.” Clerk’s Papers at 154. The policy defined “wrongful discharge” as “the unfair or unjust termination of an employment relationship which: breaches an implied agreement to continue employment; or inflicts emotional distress upon the employee, defames the employee, invades the employee’s privacy, or is
¶7 The general liability portion of the policy provided coverage for claims of “bodily injury . . . caused by an occurrence” during the policy period and in the coverage territory, and “personal injury caused by an offense arising out of your business . . . .” Clerk’s Papers at 74.
f 8 The policy included the following definitions:
1. Accident means a fortuitous circumstance, event or happening that takes place and is neither expected nor intended from the standpoint of the insured.
4. Bodily injury means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
12. Occurrence means ... an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
13. Offense means a fortuitous, inadvertent or mistaken business activity giving rise to advertising injury or personal injury neither expected nor intended from the standpoint of the insured.
17. Personal injury means injury, other than bodily injury, arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The actual wrongful eviction from, actual wrongful entry into, or actual invasion of the right of private occupancy of a room, dwelling or premises that a person legally occupies;
d. Oral or written publication of material that slanders or libels a person or organization; or
*101 e. Oral or written publication of material that violates a person’s right of privacy.
27. Your business means the trade, profession or occupation in which you are engaged and which is shown on the declarations page.
Clerk’s Papers at 85, 87-89.
¶9 Following Fireman’s Fund’s decision not to defend him, Dr. Woo settled with Alberts and then filed suit against his insurers seeking declaratory relief and damages, alleging a bad faith breach of the duty to defend and violations of the Consumer Protection Act. The trial court granted partial summary judgment to Dr. Woo, holding that Fireman’s Fund breached its duty to defend under the coverage for professional liability, employment practices liability, and “business” or general liability. After a trial on Dr. Woo’s claims of bad faith and violations of the Consumer Protection Act, a jury returned a verdict in favor of Dr. Woo, and the trial court entered judgment against Fireman’s Fund including damages under the jury verdict, costs of the Alberts’ settlement and Dr. Woo’s defense, damages under the Consumer Protection Act, prejudgment interest, and attorney fees and costs.
ANALYSIS
¶10 Fireman’s Fund contends that the trial court erred in granting summary judgment to Woo regarding the duty to defend. This court reviews a summary judgment order de novo, performing the same inquiry as the trial court. Kruse v. Hemp, 121 Wn.2d 715, 853 P.2d 1373 (1993). The court must consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kruse, 121 Wn.2d at 722; CR 56(c).
¶12 Here, the complaint is not ambiguous or inadequate. Alberts accused Dr. Woo of devising a scheme to humiliate and denigrate her by obtaining a second pair of flippers shaped like boar tusks, putting them in her mouth, taking pictures of her with the tusks in her mouth while she was anesthetized, and later referring to the tusks and pictures as a “trophy to take home.” Although the complaint lists several alternative causes of action, including medical negligence and negligent infliction of emotional distress, the facts and circumstances supporting her claims are limited to this series of events.
¶13 To determine whether the duty to defend exists, this court examines the policy’s insuring provisions to see if the
¶14 Regarding the dental professional liability coverage, Dr. Woo argued, and the trial court apparently agreed, that the placement of boar tusks in Alberts’ mouth constituted either dental services or the failure to render dental services, such that the policy could conceivably cover his actions, triggering the duty to defend. But the actions at issue could not conceivably be considered a means or method “to diagnose, treat, remove stains and concretions from teeth, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition. . . .” RCW 18.32.020. No reasonable person could believe that a dentist would diagnose or treat a dental problem by placing boar tusks in the mouth while the patient was under anesthesia in order to take pictures with which to ridicule the patient. While Dr. Woo was clearly rendering dental services when he administered anesthesia, removed Al-berts’ teeth, and put in the proper flippers, we conclude as a matter of law that when he placed the boar tusks in her mouth and took pictures, he was not rendering professional services.
¶15 To analyze questions of professional liability insurance coverage in cases involving sexual misconduct during dental or medical procedures, “courts look to the act itself, rather than the title of the party performing the act or the place where the act occurred.” Standard Fire Ins. Co. v. Blakeslee, 54 Wn. App. 1, 9, 771 P.2d 1172 (1989) (citing Wash. Ins. Guar. Ass’n v. Hicks, 49 Wn. App. 623, 627, 744 P.2d 625 (1987) (chiropractor’s malpractice policy did not cover sexual incident with patient during treatment session)). In Blakeslee, the trial court properly held that the insured had no duty to defend or indemnify the insured dentist and his corporation in a suit alleging that the dentist lifted his patient’s shirt and fondled her breast while she was anesthetized so that he could fill cavities in
¶[16 Because the professional services that Blakeslee actually rendered could not “be said to be a proximate cause of the injuries alleged” by the patient, and because fondling his patient’s breast could not “be said to have arisen out of the rendering or failure to render the professional services at issue,” his acts were not covered under the professional liability portion of the policy. Id. at 11.
¶17 Dr. Woo attempts to distinguish Blakeslee by pointing out that “one can fondle a breast without having anything to do with dentistry, but one cannot take molds, fabricate and insert flippers into another person’s mouth without practicing dentistry.” Resp’t’s Br. at 36. But, like Blakeslee, Dr. Woo took advantage of his patient’s anesthetized state to take actions for his own purposes rather than for her treatment. As in Blakeslee, Alberts’ complaint does not allege that she was injured by the professional services that Dr. Woo actually rendered — that is, the administration of the anesthesia, the removal of the baby teeth, or the placement of the proper flippers. Neither does she contend that she was injured because he failed to perform some professional service that she was expecting. Instead, she alleges injuries arising from his actions in taking advantage of her anesthetized state to place boar tusks in her mouth solely for the purpose of taking humiliating pictures. Given the fact that no conceivably legitimate course of dental treatment includes boar tusks, and the fact that the complaint does not allege any damages proximately caused by actual dental services rendered or a failure to render dental services, the holding in Blakeslee supports the conclusion that Fireman’s Fund had no duty to defend Dr. Woo under the professional liability portion of the policy.
¶19 Fireman’s Fund also contends that the trial court erred in its holding that it had a duty to defend under the employment practices portion of the policy. Based on the clear language of the policy, the parties agree that the only portion of the policy potentially at issue here is damages for a “wrongful discharge” arising out of a “wrongful employment practice.” Clerk’s Papers at 154. Dr. Woo contended below and argues on appeal that Alberts’ complaint includes a claim for constructive discharge conceivably covered by this portion of the policy. Although Alberts’ complaint alleges that Alberts left the office and never returned, the claimed cause of the injuries was the practical joke. It does not allege any facts which would conceivably constitute the tort of wrongful discharge recognized in our statutes or case law. There is no wrongful termination tort based on boorish behavior by one’s employer, unless such behavior violates an employment contract, discrimination statutes, the constitution, or public policy. Dr. Woo focuses his argument on the language of his insurance policy, but Alberts was not a party to that contract. The first step in analyzing whether a duty to defend existed is to determine whether a cognizable cause of action has been pleaded. None was, so Fireman’s Fund had no duty to defend under the employment liability portion of the policy.
¶21 The general liability portion of the policy also provides coverage for “personal injury caused by an offense arising out of your business.” Fireman’s Fund contends that it had no duty to defend under this portion of the policy because the facts and circumstances of the complaint clearly allege that the injuries were not caused by an offense arising out of Dr. Woo’s business but by a practical joke that had no business purpose. Dr. Woo argues that because the incidents at issue involve “employee relations,” the offense here arose from the business of running a dental practice.
¶23 Here, the general liability portion of the policy provides coverage for personal injury arising from the business. Although Jackson v. Frisará involved a policy excluding injuries arising from the business, as Fireman’s Fund points out, its analysis is useful. This policy may he interpreted to call for an inquiry into whether the particular activities engaged in at the time of the injury were ordinarily incident to business pursuits. But upon such inquiry, we conclude that the activities involved here— ordering boar tusks, placing them in a patient’s mouth, taking pictures, and telling the patient that the tusks and pictures were “a trophy to take home” — are not incident to providing the professional dental services of administering
CONCLUSION
¶24 Because the facts alleged in Alberts’ unambiguous complaint, if proved, would not impose liability upon Fireman’s Fund within the policy coverage for professional liability, employment practices liability, or general liability, Fireman’s Fund had no duty to defend Dr. Woo. The trial court’s summary judgment order regarding duty to defend is reversed, the judgment vacated, and the case dismissed. See, e.g., E-Z Loader Boat Trailers, 106 Wn.2d at 905, 911 (where insurer had no duty to defend, trial court properly granted summary judgment dismissal of employer’s claims for costs of defense, for coverage, and for damages for bad faith).
¶25 Reversed and dismissed.
Grosse and Baker, JJ., concur.
Reconsideration denied August 9, 2005.
Review granted at 156 Wn.2d 1035 (2006).
Woo sued Fireman’s Fund Insurance Company, National Surety Corporation, Depositors Insurance Company, and The Pacific Underwriters Corporation. Fireman’s Fund agreed for the purposes of the suit to be responsible for the acts and omissions of National, its corporate affiliate. Depositors, Woo’s homeowner’s and personal excess liability insurer, defended him on a reservation of rights, obtained a partial summary judgment order and then assigned its rights to Woo. Pacific Underwriters, Woo’s insurance broker, was voluntarily dismissed from the suit.