Woo v Firemans Fund Ins :: 161 Wn2d 43
Category: Consumer Protection
This is an unusual case for us to take up in review. However, we do so because the media reports, bloggers, groupies and the case itself reveal how much distortion there exists in the way our society views facts, the law and contracts in our feelings oriented and sensitivity directed culture.
Here is what happened: The employee worked for the dentist for approximately five years. Her family raised potbellied pigs; she often talked about them and the dentist often made offensive comments to her about them. The dentist claims his comments were intended to promote a friendly work environment.
The employee needed to replace two teeth with implants. The dentist agreed to do this for her. The dentist ordered flippers, or temporary partial bridges, for the dental procedure. He also ordered a second set with boar tusks attached. During the procedure, he inserted the boar tusks into the mouth of the employee, propped open her eyes and took a photo. He later decided that he would not present the employee with the photo because he thought the image made her look ugly. However, another employee gave her the photo at an office gathering celebrating her birthday. That afternoon, she assisted in one more surgery, but after the procedure she went home and never returned to her job.
She subsequently sued her ex-employer for outrage, battery, invasion of privacy, nonpayment of overtime wages, retaliation for requesting payment of overtime wages, medical negligence, lack of informed consent and negligent infliction of emotional distress. The dentist asked his insurer to defend him but they refused. So he hired his own attorney and later settled with the ex-employee for two hundred fifty thousand dollars.
In real life terms, she had a tantrum because he kept teasing her. And she didn't quit kicking and screaming until she received a quarter million dollars. This is almost as good as spilling hot coffee in your lap.
It is amazing that our society, based upon freedom and individual liberty, has evolved to the point where a job is a right and state and federal bureaucracies are established to regulate the employment contracts and practices between employer and employee. Now, when a person encounters a hostile work environment, he no longer has to decide whether he will quit or grit. There is an avenue for filing grievances and collecting retribution.
And it doesn't matter whether the environment of hostility stems from malice or just an abrasive personality. As perceived by the media, the bloggers and the rest of the groupies, it is against the law for an employer to have an abrasive personality.
The longer of the two dissenting opinions for the Supreme Court captured the mood of the groupies, when it stated, "The majority rewards the perpetrator for his unprofessional behavior - giving [the dentist] more payment from the insured for unsubstantiated damages than the real victim [the employee] received for her documented trauma." [at 85]
Let's break this down: I think the dissenting opinion claimed that subjective (what we feel) damages are "documented" and objective (what it costs) damages are "unsubstantiated."
A): The employee was the brunt of several jokes related to her pigs. She is the good person because her employer made her cry. She stomped out the door, never to return and appealed to the state for her emotional distress and her now-loss of her job and she received two hundred fifty thousand dollars. That is her "documented trauma."
B): The employer had an abrasive personality and didn't know when to quit. He is the bad person because he brought this calamity on himself. He paid for an attorney to represent him; he paid two hundred fifty thousand dollars of his own money to satisfy the employee's claims; he had costs, fees and attorneys to take his case against the insurer to court, then on to appeal and on to the Supreme Court. This is his "unsubstantiated damages."
This is the mood: He was bad, she was good. He made her cry and made her quit her job. The good girl received pennies but the bad dentist got rich. On the other hand, while the talk centers on the atrocity of rewarding the dentist who brought this whole thing upon himself, never is the focus brought upon the insurer who created this huge liability by refusing to represent the dentist. This is because this story, as portrayed by the media, has nothing to do with facts, laws and contracts but is, rather, about a nasty employer who got rich for making an employee cry.
Our society measures everything by how we feel and not in what we think - because we don't think anymore! The media feeds the facts that feed their case and we have all judged the case before all the facts and the law are examined. Even the Appellate Court made mention several times, "reasonable person would believe . . ." or "average person would agree . . ." or something along that line. Unless we have lowered the standard for judging the facts and the law to our feelings, it doesn't matter what the whole average, reasonable world thinks.
Within the first paragraph of the aforementioned Supreme Court dissent, it is written: "Any reasonable person would not define his actions as a dental procedure or an employment practice covered under Woo's insurance policy." [at 72] Just like the Appellate Court, the media, the bloggers and the rest of the groupies, they have appealed to feelings - making the law relational. The necessary foundation is our feelings.
The majority opinion stayed focused. They state: "[W]hat a reasonable patient would believe a dentist would do is irrelevant to our determination of whether [the insurer] had a duty to defend." [at 56] Each one of the Justices on the majority was probably thinking in the back of their mind, "What was this guy thinking?" I know that I would. But when judging the facts and the law, one must stay focused on the facts and the law.
The words are clear in the law, case law and the insurance contract. We are not going to wrestle with all the aspects here, you can read the case. The fact of the matter is, regardless that the dentist got sidetracked on some practical joke, the damage, if you want to call it that, was done in the course of his work. As such, the insurer had a duty to defend.
The writer of the dissenting opinion still can't get his arms around that. "In order to determine whether the insurer has a duty to defend, we must examine the policy's insuring provisions to see if the complaint's allegations are conceivably covered." [at 75] What are you going to look for in the policy? "will cover practical jokes" or "won't cover practical jokes"?
On this point, the majority stays focused again: "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." [at 57] The majority also explains the insurance policy, "In addition to covering the rendering of dental services, the professional liability provision covers ownership, maintenance, or operation of an office for the practice of dentistry and [the employee's] complaint alleged [the dentist's] practical joke took place while [the dentist] was conducting his dental practice." [at 57]
Don't judge the law by how you feel: Look at the facts and the law. Fact One: the dentist did not break the law. Sorry, being an abrasive employer is not yet against the law - the news media has this one wrong. Fact Two: the insurer had a duty to defend. Regardless how you feel about the dentist, it would have been wrong for him to lose.
Any reasonable person knows we buy insurance to protect us from the idiotic things we do. And an average person would expect the insurance company to defend them. The dentist may have been stupid but he stands as a stark reminder to every businessman why insurance coverage is essential in this day of doing commerce within a victim oriented culture.
Rating the Usual Suspects:
| pass | Bergh, R Andrew | |
| pass | Bridge, Bobbe | |
| pass | Chambers, Tom | |
| pass | Fairhurst, Mary E | |
| pass | Harnetiaux, Bryan P | |
| pass | Kilpatrick, Richard B | |
| pass | Lum, Dean Scott | |
| pass | Owens, Susan | |
| pass | Sanders, Richard | |
| pass | Wiggins, Charles K | |
| fail | Alexander, Gerry | |
| fail | Baker, William | |
| fail | Grosse, C Kenneth | |
| fail | Johnson, Charles | |
| fail | Johnson, James Martin | |
| fail | Kennedy, Faye | |
| fail | King, Michael | |
| fail | Madsen, Barbara | |
| fail | Runyan, Michael H | |
| fail | Sweeney, Emilia L |