Woo v. Fireman's Fund Insurance

¶75

J.M. Johnson, J.

(dissenting) — Dr. Robert C. Woo humiliated an anesthetized employee by inserting faux boar tusks in her mouth while prying her eyes open and photographing the results. Today’s majority decision rewards Dr. Woo’s obnoxious behavior and allows him to profit handsomely, receiving a total of $750,000, triple the damages paid to the real victim of his intentional offensive and likely tortious conduct. I would hold that Fireman’s Fund Insurance, as his professional practices insurer, does not have a duty to defend Dr. Woo for this intentional, tortious behavior. Any reasonable person would not define his actions as a dental procedure or an employment practice covered under Woo’s insurance policy and our dental practices statute. Therefore, I respectfully dissent.

Statement of the Case

¶76 Because I would simply affirm the Court of Appeals’ commonsense ruling in this case, I do not reach some of the arguments analyzed by the majority. See majority at 67-70. However, I wish to emphasize at the outset that awarding three quarters of a million dollars in damages to Woo based only on his self-interested testimony, without any expert testimony support whatsoever, is separately egregious. See majority at 70 (citing the trial court’s observation that damages could be viewed as “ ‘extraordinarily high given the absence of any medical, psychiatric or expert testimony’ ” (emphasis added)). Dr. Woo’s testimony merely dealt with his feelings and purported sleeplessness. He did not offer any documented evidence regarding economic loss at his practice, medical expenses to treat his alleged distress, or any other corroborating proof. The total lack of substantial *73corroborating evidence clearly triggers the exception to the rule that appellate courts rarely disturb a jury’s award. See Bingaman v. Grays Harbor Cmty. Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985) (“An appellate court will not disturb an award of damages made by a jury unless it is outside the range of substantial evidence in the record, or shocks the conscience of the court, or appears to have been arrived at as the result of passion or prejudice.”); see also Hill v. GTE Directories Sales Corp., 71 Wn. App. 132, 140, 856 P.2d 746 (1993). We should order remittitur of the award to Dr. Woo and remand to the trial court. Id.

¶77 More important, perhaps, is that the majority’s reward of Dr. Woo’s unethical and intentional behavior will likely be perceived as an abuse of the tort system. The insurance company must pay Dr. Woo $750,000 in damages, additional attorney fees, and also reimburse the $250,000 that Dr. Woo paid to the real victim. In total, Dr. Woo (and his attorneys) will receive a million dollars more than the amount that his traumatized ex-employee was compensated for this cruel “joke.” Br. of Resp’ts at 27. Ultimately, patients in Washington will pay for Woo’s malfeasance through their doctors’ higher costs and insurance premiums.

Facts

¶78 Tina Alberts worked as a surgical assistant for Dr. Woo.12 She informed Woo that she cared for abandoned potbellied pigs and even had named one “Walter.” Id. Woo had made remarks such as, “I am going to hunt Walter down and kill him,” “I am going to barbecue him,” and “I will find him and eat him.” Clerk’s Papers (CP) at 31. Woo went boar hunting and brought photographs of a dead boar into the office to show Ms. Alberts, as well as a picture of himself in front of a skinned pig hanging on a hook. Woo v. Fireman’s Fund Ins. Co., 128 Wn. App. 95, 97, *74114 P.3d 681 (2005). Without a trace of irony, Woo claims his comments about pigs were part of a “friendly working environment” he encouraged in his office. Br. of Resp’t at 4-5.

¶79 Ms. Alberts had two baby teeth that had never been replaced by permanent teeth. Woo told Ms. Alberts that he would replace the baby teeth with permanent implants. Woo, 128 Wn. App. at 98. On the day of the procedure, Ms. Alberts was given general anesthesia ostensibly so that her baby teeth could be removed. Id.

¶80 However, Woo had prepared a pair of artificial boar tusks without Ms. Alberts’ knowledge or consent. While Ms. Alberts was anesthetized and sleeping, Woo removed the oxygen mask, inserted the boar tusks in her mouth, and took mocking photographs, some with her eyes pried open. Id. (Because of the anesthesia he had administered, she remained unconscious throughout.) Woo then took out the boar tusks and resumed the dental procedure. CP at 32.

|81 Woo had the pictures developed and prints made at a public photo shop. CP at 33. A few days later, Ms. Alberts was given one wrapped package as a birthday present. Upon opening the package, Ms. Alberts saw the pair of shaped boar tusk “flippers.” Moments later, Dr. Woo’s assistants gave Ms. Alberts another envelope. This envelope contained pictures of Ms. Alberts, while under anesthesia, with the boar tusks protruding from her mouth while her lips and eyes were pried open. She was stunned. Woo, 128 Wn. App. at 98. Woo exhibited no remorse at the time, telling Ms. Alberts she “had a trophy to take home.” Ms. Alberts suffered severe emotional distress as a result of the experience, left the office, and never returned to work. Id.

¶82 Ms. Alberts later filed suit against Woo alleging outrage, battery, invasion of privacy, false light, public disclosure of private acts, nonpayment of overtime wages, retaliation for requesting payment of overtime wages, medical negligence, lack of informed consent, and negligent infliction of emotional distress. Id. Woo’s insurance provider *75(Fireman’s) notified Woo that his professional practices policy did not cover the claims asserted in Ms. Alberts’ suit.

¶83 Woo subsequently hired an attorney to defend him, and Ms. Alberts’ lawsuit was settled for $250,000. Id. at 101. Woo then brought suit against Fireman’s Fund Insurance, alleging a breach of duty to defend under the provisions of the insurance policy, bad faith, and a violation of the Consumer Protection Act, chapter 19.86 RCW. The trial court granted Woo’s motion for partial summary judgment, holding that Fireman’s breached its duty to defend under the policy. Woo, 128 Wn. App. at 101. Division One of the Washington Court of Appeals unanimously vacated the trial court decision with instructions to dismiss the case. Id. at 108. We subsequently granted Woo’s petition for review. Woo v. Fireman’s Fund Ins. Co., 156 Wn.2d 1035, 134 P.3d 1171 (2006).

Analysis

¶84 The majority correctly states that the “insurer has a duty to defend ‘ “when a complaint against the insured, construed liberally, alleges facts which could, if proven, impose liability upon the insured within the policy’s coverage.” ’ ” Majority at 52-53 (quoting Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 760, 58 P.3d 276 (2002) (quoting Unigard Ins. Co. v. Leven, 97 Wn. App. 417, 425, 983 P.2d 1155 (1999))). “Although the duty to defend is broad, an insurer has no duty to defend claims based on factual allegations that are clearly not covered by the policy.” Woo, 128 Wn. App. at 102.

¶85 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. See id. at 102-03 (citing Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 64, 1 P.3d 1167 (2000)). “The [insurance] policy language is to be given the same ‘ “fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing *76insurance.” ’ ” Butzberger v. Foster, 151 Wn.2d 396, 401, 89 P.3d 689 (2004) (quoting Overton v. Consol. Ins. Co., 145 Wn.2d 417, 424, 38 P.3d 322 (2002) (quoting Sears v. Grange Ins. Ass’n, 111 Wn.2d 636, 638, 762 P.2d 1141 (1988))).

¶86 Woo claimed that Fireman’s had a duty to defend him under three separate provisions in his policy: (1) professional liability, (2) employment practices liability, and (3) general liability. See Pet. for Review. In their opinion, the majority correctly dismisses Woo’s employment liability claims but holds that Fireman’s had a duty to defend Woo under both the professional and general liability provisions. Majority at 49 (“We hold that Fireman’s had a duty to defend under the professional liability and general liability provisions but not under the employment practices liability provision.”). I disagree with this conclusion.

¶87 An insured has no right to claim that his insurer must contribute to the expenses of defending intentional torts or noncovered claims. N.Y. Underwriters Ins. Co. v. Doty, 58 Wn. App. 546, 549, 794 P.2d 521 (1990). Here, the proper inquiry is whether a reasonable person would find the insertion of faux boar tusks into the mouth of an unconscious patient to be covered as the practice of dentistry. If not, such actions constitute a noncovered claim.

¶88 This court has clearly held that “ ‘[t]he contract should be given a practical and reasonable rather than a literal interpretation; it should not be given a strained or forced construction which would lead to an extension or restriction of the policy beyond what is fairly within its terms, or which would lead to an absurd conclusion, or render the policy nonsensical or ineffective.’ ” E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 907, 726 P.2d 439 (1986) (quoting Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 434-35, 545 P.2d 1193 (1976)).13

*77¶89 The Court of Appeals unambiguously applied this reasonable expectation of coverage test. Under this standard, Dr. Woo’s actions are not covered by his insurance. The Court of Appeals referred to the dental services definitional statute, RCW 18.32.020, and applied the correct reasonable person standard to interpret the policy. Woo, 128 Wn. App. at 103. The court noted, “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.” Id. (emphasis added). This court must also apply the average reasonable person standard to determine if a claim is “clearly not covered by the policy.” Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 561, 951 P.2d 1124 (1998). In sum, we must determine if Woo’s actions are within the scope of covered claims, as reasonably understood by the average insurance purchaser. See E-Z Loader, 106 Wn.2d at 907; see also Butzberger, 151 Wn.2d at 401. Using this test, we now proceed at more length to analyze Woo’s several claims under sections of the policy.

Professional Liability

¶90 Woo contends that the professional liability provision protects him from any claims that allege faulty dental services.14 Suppl. Br. of Pet’r at 1. He argues that creating the boar tusks and inserting them in Ms. Alberts’ mouth was the practice of dentistry. See RCW 18.32.020.15 Based *78on a coixiixionsense reading of the relevant provisions and Washington statutes, I strongly disagree.

¶91 In his briefing to this court, Woo specifically argues that his invasion of Ms. Alberts’ privacy was “dentistry,” as defined by subsections (1), (3), and (5) of the statute. Suppl. Br. of Pet’r at 4. However, the grotesque invasion of privacy perpetrated by Woo is not covered by the statutory definition of dentistry as reasonably construed. Clearly, the actionable behavior was the unauthorized porcine “joke,” not the eventual and separate proper replacement of Ms. Alberts’ teeth.

¶92 Woo was not practicing dentistry within the statutory definition when he placed boar tusks in Ms. Alberts’ mouth, then pried her eyes open, and took distasteful photographs (which also had no dentistry function, unlike earlier x-rays or impressions).16 Clearly, the placement of the foreign tusks in Ms. Alberts’ mouth was not intended to treat any “disease, pain, injury, deficiency, deformity, or physical condition,” and Woo did not represent that the tusks had any therapeutic or cosmetic value. RCW 18.32.020(1). Indeed, he did not tell the patient about these *79actions. In short, just because Woo is a dentist does not mean that every act he perpetrates in his office is dentistry.

*78Q And the reason why the mouth was opened, the eyes were propped open, took pictures is because that was part of the practical joke that you were going to show Tina later.
A As far as the eye goes it could be. I don’t know why. Could be we checking the eye, could be the staff thought it would be more funny so they do that.
“[Question:] Her eyes would ordinarily be closed at this point in the anesthesia?
“Answer: Yes, yes.”

*79¶93 Next, Woo argues that his joke is covered under RCW 18.32.020(3) because it was “intertwined with employee and patient relationships,” although he admits that the actual plan was “ill-conceived in hind-sight.” Suppl. Br. of Pet’r at 5. The average person would agree that such relationships require a baseline level of respect for personal and social boundaries. See E-Z Loader, 106 Wn.2d at 907; see also Butzberger, 151 Wn.2d at 401. Here, Woo ignored his employee and patient relationships by violating the victim’s trust and committing an intentional tort. Woo’s stunt was not intertwined with employee relationships, but it was perpetrated in spite of them, as an attempt to satisfy his own odd sense of humor. We should reject Woo’s strained reasoning as an effort to rewrite an insurance policy to avoid his own responsibility. An average, reasonable person would not consider this unauthorized temporary tusk implantation as “employee relations” or “business operation aspects.” Suppl. Br. of Pet’r at 5.

¶94 Finally, Woo asserts that faux boar tusks are covered under the statutory definition as a “prosthetic denture, bridge, appliance, or other structure to be worn in the human mouth.” RCW 18.32.020(5). The Court of Appeals unanimously rejected this rationale, correctly in my view. Woo, 128 Wn. App. at 103. The court clearly stated:

While Dr. Woo was clearly rendering dental services when he administered anesthesia, removed Alberts’ teeth, and put in the proper flippers, we conclude as a matter of law that when he placed the boar tusks in her mouth and took pictures, he was not rendering professional services.

Id. Again, the statutory and commonsense definition refers to devices that aid patients’ oral health and could include cosmetic devices that are consensually installed. Neither definition applies to the tusks. The mere fact that the boar tusks were produced with dental techniques does not place them within the scope of the statute.

*80¶95 The majority’s conclusion that Woo’s insertion of faux boar tusks into an unsuspecting patient and prying her eyes open for a series of humiliating photographs was “integrated into and inseparable from the overall procedure” is an improper construction of “dental services” under the insurance policy and our case law. Majority at 57. Such reasoning erroneously converts our mandate of broad insurance coverage into total coverage. Cf. E-Z Loader, 106 Wn.2d at 907; see also Butzberger, 151 Wn.2d at 401. Under the majority’s analysis, no act is outside the scope of the policy, no matter how tortious, as long as the victim is anesthetized and sitting in a dentist’s chair. Such reasoning belies the fundamental principles of insurance underwriting where inconceivable, tortious activity must be excluded from coverage. I would hold that there is no statutory basis for coverage under any section of RCW 18.32.020.

¶96 Next, the majority asserts that Blakeslee was improperly applied to the instant case by the Court of Appeals. See Standard Fire Ins. Co. v. Blakeslee, 54 Wn. App. 1, 771 P.2d 1172 (1989); majority at 58-59. Blakeslee stands for the proposition that when defining “professional liability insurance coverage in cases involving sexual misconduct during dental or medical procedures, ‘courts look to the act itself, rather than the title of the party performing the act or the place where the act occurred.’ ” Woo, 128 Wn. App. at 103 (quoting Blakeslee, 54 Wn. App. at 9). In my view, the Court of Appeals properly applied the Blakeslee rationale to the instant case, holding that the mere fact the “joke” took place within a dental office is not sufficient. Id. Further, Woo’s behavior was not a “legitimate course of treatment” merely because it occurred in a dentist’s chair. Id. at 104.

¶97 Blakeslee held that the insurer had no duty to indemnify the insured dentist in a suit alleging that the dentist lifted his patient’s shirt, fondled her while she was anesthetized, and then proceeded to fill her cavities. 54 Wn. App. at 2-3. Similarly, Woo may have begun a dental procedure, but he stopped providing dental services and began his intentional “practical joke,” inserting tusks and *81taking crass pictures. Only later did Woo resume legitimate dental services by installing replacement teeth. Inserting boar tusks into an unwitting patient is not a “legitimate course of treatment,” even if Woo’s intent was not to physically injure but only to humiliate. Id. at 9.

¶98 The majority attempts to limit Blakeslee’s significance by asserting “that application of Blakeslee to other contexts could inappropriately narrow the duty to defend.” Majority at 58 (arguing that the sexual assault rationale in Blakeslee is applicable only to the narrower duty to indemnify). I disagree. Applying Blakeslee in the instant case does not narrow the duty to defend; it merely affirms the commonsense conclusion that the duty to defend extends only to “legitimate courses of treatment” and not to intentional tortious activities. Blakeslee, 54 Wn. App. at 9.

¶99 Clearly, the personal privacy concerns inherent in the Blakeslee decision are also present in the nonsexual humiliation of an anesthetized patient. See Woo, 128 Wn. App. at 104 (“like Blakeslee, Dr. Woo took advantage of his patient’s anesthetized state to take actions for his own purposes rather than for her treatment”). Ms. Alberts’ injuries do not arise from the practice of dentistry or any legitimate course of treatment, but from an unauthorized stunt performed on an unconscious employee. See id. This legal issue is not “fairly debatable,” and Fireman’s correctly relied on Blakeslee’s general proposition that our inquiry is focused only on the act, not the profession of the actor. Blakeslee, 54 Wn. App. at 9; see majority at 60.

¶100 In sum, Woo’s “joke” is easily separated from the legitimate course of treatment (the permanent replacement of two baby teeth). Under Blakeslee, and under a commonsense interpretation of the insurance policy, these separate actions do not fall under any covered provision of Woo’s professional liability policy.17

*82General Liability

¶101 Woo argues that his questionable behavior should also be covered under the general liability provision of his policy, specifically pointing to the (1) bodily injury and (2) personal injury portions.18 See Br. of Resp’t at 39-42.1 will examine each provision of the policy by applying the “average person purchasing insurance” test from Butzberger.

|102 Woo contends that his behavior should be construed as an “accident” and cites Ms. Alberts’ allegation of accidental touching as proof. Woo further contends that Ms. Alberts’ injuries could be considered accidental because he did not intend the severe emotional distress suffered by Ms. Alberts.19 Br. of Resp’t at 39-42. Fireman’s disagrees, arguing that the inclusion of alternative theories of liability does not change the fact that Ms. Alberts alleged that Woo’s actions were intentional, not accidental.

¶103 The insured must be given the benefit of the doubt if the complaint alleges acts that are conceivably covered by the insurance policy. See Truck Ins. Exch., 147 Wn.2d at 761. However, the facts of this case are undisputed and require a holding of noncoverage. The complaint alleged intentional acts by Woo, regardless of the complaint’s several alternative theories, which are common in notice pleading. The plaintiff’s argument should not be prejudiced because she asserted alternative theories of liability.

*83¶104 Woo’s policy covers only bodily injury that is caused by an “accident,” a statutorily defined term. Clearly, Woo intended the insertion of the boar tusks and taking of the photographs; this was no accident. A commonsense reading of the policy does not allow such actions or behavior to be considered as “accidental” in order to find coverage, regardless of whether he intended to give her the photos. The majority engages in faulty analysis by suggesting that the consequences of Woo’s actions must also be “ ‘expected or intended.’ ” Majority at 64.

¶105 This is simply wrong because the “ ‘expected or intended’ ” language in the policy refers to the actual “circumstance, event or happening” and is not dependent on the victim’s response. CP at 85. Thus, the response to the prank is not the subject of our bodily injury coverage analysis. Rather, we need examine only Woo’s actions to determine if they were intentional or not. Woo ordered and prepared the boar tusks days in advance. This premeditation is prima facie evidence of a planned event, not an accident. In sum, Fireman’s did not have a duty to defend Woo’s intentional actions under the bodily injury portion of the general liability provision.20

¶106 Next, Woo argues for general liability coverage under the personal liability portion of the policy. Fireman’s has no duty to defend Woo under the general liability provision if either (1) the “occurrence” was not an “accident” or (2) the “accident” did not arise from a “business activity.”

¶107 Consistent with my bodily injury policy analysis, supra, Woo’s personal injury coverage claim also fails because his behavior was not an “accident.” Further, I agree with the Court of Appeals that Woo’s conduct did not arise *84from a “business activity.” The court explains in relevant part:

the activities involved here — ordering boar tusks, placing them in a patient’s mouth, taking pictures, and telling the patient that the tusks and pictures were “a trophy to take home” — are not incident to providing the professional dental services of administering anesthesia, removing teeth, and fitting temporary false teeth. Thus, any “personal injury” alleged in the Alberts’ complaint did not arise from Dr. Woo’s business.

Woo, 128 Wn. App. at 107-08 (citing Jackson v. Frisard, 96-0547 (La. App. 1 Cir. 12/20/96), 685 So. 2d 622, 629 (concluding that the “horseplay” conduct of striking a fellow employee on the back was the type of activity which was ordinarily incident to nonbusiness pursuits)).

¶108 No reasonable person would consider Woo’s administering an anesthetic, inserting boar tusks into her mouth, and taking pictures of the disturbing incident to legitimately “arise out of [the dental] business.” CP at 74. There is no benefit to a dental business from such activity. The stunt was a wholly personal and likely tortious undertaking. Under these circumstances, the activities incident to the “prank” were all nonbusiness actions, and Fireman’s had no duty to defend under the general liability provision.

Attorney Fees and Costs

¶109 I would not award Woo attorney fees because I would affirm the Court of Appeals ruling. See RAP 18.1.

Conclusion

¶110 The perpetrator of a humiliating “joke” who inserted faux boar tusks into the mouth of an anesthetized patient will receive $750,000 because he happens to be a dentist with a professional liability insurance policy. To put that figure in context, the real victim in this case was paid only $250,000 for her distress and anguish.

¶111 In order to achieve this outcome, the majority misapplies case law that requires “we give it [an insurance *85policy] the same construction that an ‘average person purchasing insurance’ would give the contract.” Majority at 52 (quoting Roller v. Stonewall Ins. Co., 115 Wn.2d 679, 682, 801 P.2d 207 (1990), overruled on other grounds by Butzberger, 151 Wn.2d 396). I submit that the “average person” would conclude that the unauthorized insertion of faux boar tusks into the mouth of an anesthetized patient are not “dental services” as defined in the statute and that such actions are not covered by this insurance policy. The majority rewards the perpetrator for his unprofessional behavior — giving Woo more payment from the insurer for unsubstantiated damages than the real victim received for her documented trauma. Because insurance spreads risks and costs — subject to investment return — Washington’s dentist professionals and their patients will ultimately pay the bill. Neither the insurance policy here nor our statute supports this result. I dissent.

Alexander, C.J., concurs with J.M. Johnson, J.

After modification, further reconsideration denied February 6, 2008.

Woo v. Fireman’s Fund Ins. Co., 128 Wn. App. 95, 97, 114 P.3d 681 (2005).

Dr. Woo’s actions are not fairly within the terms of this policy, and extending coverage results in an “absurd conclusion.” See E-Z Loader, 106 Wn.2d at 907. For example, any dentist is covered under the majority if he or she chooses to insert unauthorized objects into unconscious patients, taking pictures of the event, as long as it is done in a jovial manner and under the guise of a legitimate procedure. *77Giving liability coverage for this malicious, intentional act is “nonsensical or ineffective.” Id.

The professional liability insurance provision provides protection for damages “that result from rendering or failing to render dental services,” including “all services which are performed in the practice of the dentistry profession as defined in the business and professional codes of the state where you are licensed.” CP at 140, 162.

RCW 18.32.020:

A person practices dentistry, within the meaning of this chapter, who (1) represents himself as being able to diagnose, treat, remove stains and concretions from teeth, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of the human teeth, alveolar process, gums, or *78jaw, or (2) offers or undertakes by any means or methods to diagnose, treat, remove stains or concretions from teeth, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of the same, or take impressions of the teeth or jaw, or (3) owns, maintains or operates an office for the practice of dentistry, or (4) engages in any of the practices included in the curricula of recognized and approved dental schools or colleges, or (5) professes to the public by any method to furnish, supply, construct, reproduce, or repair any prosthetic denture, bridge, appliance, or other structure to be worn in the human mouth.

(Emphasis added.)

See Resp’ts’ Suppl. Citation of Authorities from Oral Argument, Ex. A at 545-46:

The majority notes that the duty to defend “arises based on the insured’s potential for liability and whether allegations in the complaint could conceivably *82impose liability on the insured.” Majority at 60 (citing Truck Ins. Exch., 147 Wn.2d at 760). I agree. But even when construed liberally, Woo’s actions must be conceivable to the reasonable average purchaser. Woo fails this objective test.

“Bodily Injury” is defined as “bodily harm, sickness or disease caused by an occurrence.” NSW at 000032 (attach, to Def. Ex. 40). An “Occurrence” is defined as “[a]n accident, including continuous or repeated exposure to substantially the same general harmful conductions.” Id. at 000045. An “Accident” is defined as a “fortuitous circumstance, event or happening that takes place and is neither expected, nor intended from the standpoint of the insured.” Id. at 000043.

Dr. Woo argues that he did not intend to give photos to Ms. Alberts, and the presentation of the photos could be considered an accident. I disagree, as the entire scheme to humiliate Ms. Alberts was not dependent on the photos. The disturbing photos are only one part of Woo’s intentional plan and do not alter the knowing nature of his behavior.

The majority argues that Woo’s taunts regarding Ms. Alberts’ pig and the “joke” were all part of one “continuous or repeated exposure to substantially the same general harmful conditions” and should be covered under the policy. CP at 87; majority at 64. This is incorrect, as no reasonable person would expect the unsettling taunting to result in the nonconsensual insertion of faux animal tusks while under anesthesia. The leap of logic required to accept such a claim is both herculean and unnecessary.