OLYMPIA – An oral surgeon who played a practical joke on his assistant, and got sued for it, ended up getting a last laugh.
Dr. Robert Woo of Auburn temporarily implanted fake boar tusks in his employee’s mouth while she was under anesthesia and took photos that later made the rounds. The employee, Tina Alberts, felt humiliated and quit, later suing her boss.
When Woo’s insurance company, Fireman’s Fund, wouldn’t deal with the lawsuit, Woo settled out of court with Alberts for $250,000 – and sued the insurers. A King County Superior Court jury agreed with him and awarded him $750,000, plus the out-of-court settlement he had paid.
The insurance company won the next round, with the state Court of Appeals saying the prank had nothing to do with Woo’s practice of dentistry and that the carrier had no duty to represent him in the lawsuit. But the state Supreme Court on Thursday restored the award for Woo.
The court decision was 5-4, with Justice Mary Fairhurst writing the majority opinion and Justices Charles Johnson and James Johnson writing separate dissents.
Fairhurst’s opinion starts with the phrase “This case arises from a practical joke” and describes how the Hong Kong-born dentist pulled off the prank.
The back story, the court said, is that Alberts’ family raises potbellied pigs and that she frequently talked about them at the office where she worked for five years. “Woo made several offensive comments about her pigs,” the court said. Woo later said that his jest was part of “a friendly working environment” he fostered in the office.
One day when Woo was performing oral surgery on Alberts to replace two teeth with implants, he installed temporary bridges that he had shaped to look like boar tusks. While she was still under anesthesia, he took photos, some with her eyes propped open. Before she woke up, Woo removed the “tusks” and put in the proper replacement teeth.
Woo says he didn’t personally show her the pictures, thinking them too ugly, but that staffers gave her copies at her birthday party. Stunned, she went home and never went back to work. Woo tried to apologize; Alberts didn’t respond.
Soon, though, she sued, alleging “outrage, battery, invasion of privacy” and so forth. Fireman’s told Woo his policy didn’t cover such claims and declined to pay for his defense. The practical joke was intentional and not a normal business activity, the insurers said.
Woo hired a lawyer on his own and eventually paid Alberts $250,000 just before the case went to trial. Woo sued the insurers. King County Superior Court agreed with him that Fireman’s had a duty to defend him. A jury awarded him $750,000, plus the $250,000 he was out, as well as lawyers’ fees – well over $1 million all told.
The state appeals court threw that out and Woo appealed to the high court, and now has won the full amount, plus his appellate legal bills.
Fairhurst said the practical joke was an integral, if odd, part of the act of performing the woman’s dental surgery and “conceivably” should trigger the professional liability coverage of his policy.
Dissenting justices said the appeals court got it right and that the prank wasn’t a dental procedure at all.
“Today’s majority decision rewards Dr. Woo’s obnoxious behavior and allows him to profit handsomely,” wrote Justice James Johnson.
Woo was delighted with the ruling, said his lawyer, Richard Kilpatrick, who described Woo as a kindhearted and fun-loving man who was chagrined that an office prank involving him and three other women staffers turned out so badly.
“He hopes more insurers will think twice before running for the hills and not defending their clients. This showed how cavalier they can be,” he said.
Attorneys for the insurance company did not immediately return calls for comment.
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