With a hat tip to The Volokh Conspiracy, I recommend this two-part (part I; part II) series on our Supreme Court's widely denounced Woo v. Fireman's Fund decision. It's by Washington & Lee insurance law professor Adam Scales and is the most fascinating writing anyone has done so far on the case.
In Woo, the Supreme Court made a millionaire out of a Seattle dentist because his insurance company decided not to defend him when a former employee, on whom he was operating, sued him for inserting boar tusks in her mouth while she was under anesthesia, prying her eyes open, taking pictures of it, and then teasing her about it. Over a vigorous dissent, the court's majority held Woo was entitled to reimbursement of the $250,000 he settled with the victim and then $750,000 for a wrongful coverage denial.
Among Professor Scales's more astringent observations:
Unfortunately, the court went further than it needed to, and determined that Dr. Woo's perversions constituted the practice of dentistry, and thus were actually covered, rather than potentially covered. According to the 5-4 ruling, the stunt "did not interrupt the dental surgery procedure." Rather, "Woo's insertion of the boar tusk flippers was intertwined with and inseparable from the real treatment he performed on Alberts[.]"
A quick search for the precise legal term that describes these conclusions reveals that "stupid" falls most readily to hand.
Ouch. But there's more:
The rest is destined that place in legal history reserved for hot coffee lawsuits and false advertising claims against the makers of The Neverending Story. Because his insurer should have defended him, Dr. Woo recovered the $250,000 he had paid Alberts. But he also claimed emotional distress due to his insurer's abandonment. Despite "the absence of any medical, psychiatric or expert testimony" attesting these injuries, a jury awarded him $750,000, which suggests the rather even quality of justice throughout the judicial system of Washington State.
Double ouch. But he's not nearly done:
Woo will surely become an insurance casebook classic. . . . There is not a single page of the majority opinion - including the facts, the supremely unpersuasive leaps of reasoning, and the payoff at the end - that does not infuriate. . . .
You know who shouldn't be infuriated? The campaign to Reject R-67, because Woo is their poster child. If Woo could become a millionaire for assaulting a patient under current Washington insurance law, then (a) how could it possibly not be true that existing law is adequate to redress insurance consumers for coverage denials, and (b) how could R-67's major liberalization of insurance coverage law in favor of the plaintiff and his lawyer not result in more lawsuits, more pressure on insurers to settle, and higher insurance costs?
