Placing prosthetic boar tusks into a sedated employee's mouth, taking photographs, and then showing the pictures to the employee once she regained consciousness are not acts covered by an oral surgeon's liability insurance, a state appeals court has ruled.

The decision by the Washington State appeals court could set a precedent with regard to personal injuries incident to business, said Emilia Sweeney, a lawyer representing Fireman's Fund.

"The case does address at least one coverage clause not addressed by any other court in the United States, and that is the personal injury caused by an offense caused by a business," she said. "It provides some helpful guidance that heretofore was really only in insurance treatises."

In the latest round of legal sparring, the appeals court sided with the insurer against dentist Robert Woo. The court found the dentist guilty of "devising a scheme to humiliate and denigrate" his patient, and that because of this, it wasn't the insurer's duty to defend its client.

Citing a precedent set in Standard Fire Ins. Co. v. Blakeslee in which a dentist groped a patient while she was anesthetized, the appeals court found that professional liability in the Woo case lay with the act of placing tusks in a patient's mouth, not in the fact that it occurred in a dentist office.

Woo's actions could hardly be considered dentistry, the court found. "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," the court ruled.

Woo had ordered two tusk-shaped "flippers," or temporary dental implants, for his employee who wanted chipped teeth replaced, according to court documents. After the employee awoke from the tooth-replacement procedure, she was shown a photo of herself, sedated with her mouth and eyes pried open and pig teeth in place.

Woo also spent years disparaging Walter, the patient's pet pot-bellied pig, according to court documents. After a hunting trip for wild boar, for example, Woo showed his employee a photo of a skinned pig. "There is how Walter will look," Woo told her, according to the appeals court opinion.

The employee eventually left the office and filed a suit against Woo. Following a settlement with his employee, Woo turned around and sued Fireman's Fund.

In an earlier decision in Robert & Ann Woo vs. Fireman's Fund Insurance Co., the trial court sided with the dentist. Woo argued that it was his insurer's responsibility to defend him on professional liability grounds because he had provided a dental service in placing tusks in a patient's mouth.

That court found the insurer, who refused to defend Woo, had breached its duty toward its client. The lower court awarded Woo damages under the Consumer Protection Act, attorney fees and legal costs.

The appeals court, however, found that not only was Fireman's not liable under Woo's professional liability insurance, but the insurer was also not liable under the dentist's other two coverages. Employment practices liability protected against damages from wrongful discharge, on which the court found that "there is no wrongful termination tort based on boorish behavior by one's employer."

Woo's general liability covered damages from personal injuries caused by any "offense" or accident related to his business, according to court papers. The dentist's claims that Fireman's should defend him on these broad grounds had no teeth either.

"There the court looked at whether or not this is an incident ordinarily related to business pursuits," said Sweeney, "and it's not. A practical joke is not business."

In July, Woo moved for reconsideration after which he could appeal the case to the Washington Supreme Court, said Sweeney. "It's going to be quite some time before we know whether or not this is a done deal," said Sweeney.

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