Washington & Lee law professor and insurance law expert Adam Scales has a fascinating column on this at findlaw, here (part I) and here (part II).
Also, as a practical matter, smart plainiffs' attorneys who have a clear claim of intentional injury will often plead a claim of accidental injury in order to get insurance coverage - they will "plead into coverage." Given these kinds of games, it is inevitable that an insurer will end up defending claims that it has no intention to pay if it loses. Sorting the facts out is just too hard.
Tusk caries make bad law.
Are you with me Doctor Wu
Are you really just a shadow
Of the man that I once knew
She is lovely yes she's sly
And you're an ordinary guy
Has she finally got to you
Can you hear me Doctor
Obviously, there have to be reasonable limits on insurance to make the bargain work, but the idea that somehow it is OK for a liability insurer to leave its insured without a defense because the insured's underlying act was wrongful is simply incoherent. If the underlying act wasn't wrongful, there would be no liability and no need for either defense or indemnity.
The $250,000 represented his economic damages. The remaining $750,000 were awarded as mental pain and suffering damages
I found the hot coffee comment offensive. That case gets trotted out by tort reformers all the time, but the facts suggest that the award may not have been all that unreasonable.
Having their coffee as ingested on the road be of a pleasingly high temperature relative to MacDonald's rivals gave MacDonalds a competitive advantage.
Considering all the bad practical jokes I've been the butt of in my life I really can't begrudge the dentist from winning his case against the insurance company considering I have no real sympathy for the office worker. [Bob Van Burkleo]
There's one victim here, and that's the insurance company.
If the courts decide that decisions to depart from good practice vitiate coverage just because the decision seems outrageous, they are really just making it more difficult for the patient to recover for the worst misconduct.
Where did the emotional distress damages come from? Since when are there ED damages on what is essentially a breach of contract claim?
So MacDonalds was serving hotter coffee -- not to save themselves money, in which case it could be argued that the award internalized the previously external cost of burns, but because their customers preferred it. In other words, the "victim" went to MacDonalds exactly because the coffee was hotter there, then mishandled it and blamed the injury on someone else.
I ran this story by a few health care professionals, including my parents, and all were amazed that he still practices unrestricted, which may give you some idea of just how far beyond the pale this guy's behavior was.
Had I been the patient, the tort lawyer would have been my third stop on the way home. My first would have been the police station and my second would have been the dental board.
You're so very clever, Fub. And you're right, I should just hearken back to those halcyon days of youth when I played that joke on my drunk buddy or when I took a picture of my boss in his underwear. That is so much more applicable to the issue at hand than the opinion of actual health care professionals who are familiar with the standards of care and ethics in their professions.
Tragedy is when I get a papar cut. Comedy is when you fall into a manhole and
I also find the decision's broad sweep - basically anything short of sexual assault that occurs in the doctor's office is a covered event, including this vile "practical joke" - disturbing, but I expect that insurers will make the language in their policies a little narrower in future.
For the libertarians on this blog, this is a datapoint that should affect market behavior. Fireman's Fund agreed to provide this guy a defense when he really needed one (and got paid for that agreement). Instead of defending him, they left him hanging - not because they didn't have the *ability* to defend him, but because they decided they didn't owe their insured the benefit of the doubt. Is this the attitude you want your insurer to take? If not, then maybe this is one insurer you ought to avoid dealing with.