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MacMillan v. John Deere Insurance Co.12/20/2000
En Banc
Argued and submitted April 24, 2000; resubmitted en banc November 9, 2000.
Affirmed.
Brewer, J., dissenting.
LANDAU, J.
At issue in this case is whether defendant John Deere Insurance Company (John Deere) has a duty to defend plaintiff Trus Joist MacMillan (Trus Joist), whose employee assisted in the loading of a truck that John Deere insured. The trial court held that, under Oregon law, the duty to defend applies only to persons who "used" the insured's truck, and that, by merely assisting in the loading of the insured's truck, the Trus Joist employee did not "use" it. We affirm.
The relevant facts are undisputed. Trus Joist manufactures and sells wood floor joists. A customer purchased several bundles of joists. Newton & Sons, Inc. (Newton), arrived to pick up the joists and transport them to the customer. The parties stipulated that Newton did not work for Trus Joist and that Trus Joist did not hire Newton to transport the joists.
Newton is insured by John Deere. The policy defines an "insured" to include permissive users, with specified exceptions:
"1. WHO IS AN INSURED
"The following are 'insureds':
"a. You for any covered 'auto.'
"b. Anyone else while using with your permission a covered 'auto' you own, hire or borrow, except:
"* * * * *
"(4) Anyone other than your employees, partners, a lessee or borrower or any of their employees, while moving property to or from a covered 'auto.'"
One of Trus Joist's employees helped Newton to load and secure several bundles of joists onto Newton's tractor-trailer. Some hours later, as the Newton truck proceeded to its destination, it veered across the center lane of the highway, spilled its load, and hit an oncoming car, killing its driver, Earl Shew. Shew's estate filed a wrongful death action against Newton. Newton then filed a third-party complaint against Trus Joist, alleging that the accident occurred in part because the load of joists had shifted due to Trus Joist's negligence in assisting with the loading. Trus Joist then tendered the defense of the action to Newton's insurer, John Deere, arguing that it was entitled to defense as permissive users of Newton's truck. John Deere denied coverage and refused to defend Trus Joist in the Shew action. Trus Joist then initiated this action for a declaration that John Deere is obligated to defend it in the Shew action.
John Deere moved for summary judgment, relying on the policy provision that excluded coverage for persons "moving property to or from" a covered vehicle. Trus Joist filed a cross-motion for summary judgment, arguing that the exclusion does not apply and that, in any event it is "trumped" by ORS 806.080, which requires all motor vehicle liability policies to include coverage for permissive users of an insured vehicle. According to Trus Joist, by helping Newton to load its truck, the Trus Joist employee became a permissive user of the Newton truck. The trial court held that, even if the Trus Joist employee "used" the Newton truck within the meaning of the term in ORS 806.080, that use ceased long before the accident that resulted in Shew's death. Accordingly, the trial court entered summary judgment for John Deere.
On appeal, Trus Joist argues that the trial court erred in allowing John Deere's summary judgment motion and in denying the cross-motion. According to Trus Joist, the policy exclusion does not apply, because it excludes coverage only while property is being loaded and unloaded, and, in this case, the accident did not occur until long after. In the alternative, Trus
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