## Facts

- Dr. Robert Woo, an oral surgeon, employed Tina Alberts as a dental surgical assistant.
- Alberts needed replacement of two teeth; Woo agreed to perform the procedure, including temporary partial bridges (“flippers”) pending implants.
- Woo had two sets of flippers made: a normal set and a second set shaped like boar tusks.
- While Alberts was under general anesthesia during the dental procedure, Woo inserted the boar-tusk flippers and photographs were taken; he removed them and inserted normal flippers before Alberts regained consciousness.
- About a month later, Alberts was shown the photos and given the boar-tusk flippers at a gathering; she did not return to work and sued Woo for intentional torts (including battery and invasion of privacy) and wage-related claims.
- Woo held a business and professional liability policy with Fireman’s Fund that included (1) professional liability for “dental services” and (2) general liability for bodily/personal injury subject to an exclusion for injury “expected or intended” by the insured.
- Fireman’s Fund refused to defend, asserting the allegations did not arise from “dental services” and were barred by the intentional-acts exclusion.
- Woo defended himself, settled Alberts’s suit for $250,000, then sued Fireman’s Fund for breach of the duty to defend, bad faith, and Consumer Protection Act (CPA) violations.
- The trial court found a duty to defend; a jury found bad faith/CPA liability and awarded damages including the settlement amount and attorney’s fees; the Court of Appeals reversed; the Washington Supreme Court granted review.

## Issues

1. Whether the complaint’s allegations could conceivably fall within professional liability coverage for “dental services,” triggering a duty to defend.
2. Whether the allegations potentially fell within general liability coverage and, if so, whether the intentional-acts exclusion clearly barred a defense based solely on the complaint.
3. Whether refusal to defend constituted bad faith and a CPA violation, and what remedies were available.

## Decision

- The Washington Supreme Court held Fireman’s Fund owed Woo a duty to defend under the professional liability portion because the alleged conduct occurred during, and was at least conceivably part of, providing dental treatment.
- The court held the intentional-acts exclusion did not clearly eliminate the duty to defend at the pleading stage because the complaint did not unambiguously allege Woo intended the resulting harm.
- The court concluded the refusal to defend constituted bad faith as a matter of law and supported CPA liability.
- The court reinstated substantial relief in Woo’s favor (including defense-related remedies and settlement reimbursement) but modified aspects of the damages and remanded for further proceedings consistent with its rulings.

## Legal Principles

- An insurer must defend when the complaint, read with the policy, can be interpreted to trigger coverage; doubts are resolved in favor of the insured.
- For “professional services” coverage, acts occurring in the course of performing professional treatment may fall within coverage even if the manner of performance is alleged to be wrongful.
- An intentional-acts exclusion is not established merely by allegations of intentional conduct; the exclusion requires allegations (or clear showing) that the insured subjectively intended harm or knew harm was substantially certain to result.
- Wrongful refusal to defend breaches the insurer’s duty and constitutes bad faith; bad faith in claim handling can support liability under Washington’s CPA and remedial awards including defense costs, settlement amounts, and attorney’s fees.

## Conclusion

The court required the insurer to defend because the complaint plausibly alleged covered dental services and did not clearly establish an intended-injury exclusion, and it treated the insurer’s refusal to defend as bad faith supporting CPA remedies, with a partial remand to correct the damages disposition.


Woo v. Fireman's Fund Ins. Co., 161 Wash. 2d 43, 164 P.3d 454 (Wash. 2007)