Greetings! Thanks to Walter Olson for allowing me the opportunity to guest blog this week at Overlawyered. I am Jason Barney and have worked for self-insured corporations as a claims investigator, a mid-sized northwest-based insurer investigating casualty and property claims, and now a large, self-insured northwest municipality as a tort claims investigator. All told, I have nearly ten years of claims and litigation management experience.

First things first: I have significant and genuine respect for attorneys and other legal professionals. I don’t take this blog as an opportunity to bash lawyers, but to “[Chronicle] the high cost of our legal system.” And, as it turns out there is a lot of that to be had.

One story that recently caught my eye and has been covered in these pages of late is a Washington Supreme Court ruling that reversed an appeals court ruling in favor of a dentist’s insurer for refusing to defend him for a practical joke gone wrong. The court’s ruling was recently criticized by The Seattle Times here and the insured’s counsel responded via letter to the editor here (scroll down to fifth letter – “The justices get it”.)

The crux of the dispute is whether or not the dentist’s actions arose out of “dental services.” In my mind, placing faux boar tusks in a sedated patient’s mouth and taking photos of this with her eyes pried open clearly falls outside of the policy or common definition of “dental services” and coverage would be precluded. It also probably follows outside of the insured counsel’s rebuttal of “operat[ing] an office for the practice of dentistry.”

Now, although I respectfully disagree with the Court’s ruling (the dissent’s opinion is superior in quality and logic and can be found here) we find that Fireman’s for eventually being found “wrong” (as defined by the majority of the Washington court) pays a windfall to the policyholder all at the greater expense of insurance paying dentists, and by logical extension—dental consumers.

The insured’s counsel says that Fireman’s, “acted in bad faith, as determined by the jury.” I will not substitute my judgment for that of the jury’s but can’t help but wonder if Fireman’s conduct was so egregious and in bad faith why did the appeals court rule in its favor and a slim majority of the Washington Supreme Court overrule? And that only one vote makes the prankster dentist a millionaire might give you something to ponder the next time you are getting your teeth drilled.

Filed under: medical, Seattle