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Marleau v. Truck Insurance Exchange12/13/2001
As amended December 14, 2001.
LAWRENCE MARLEAU, MIKELEEN REED, AND OREGON TRAIL CUSTOM LOG HOMES, PETITIONERS ON REVIEW
v.
TRUCK INSURANCE EXCHANGE AND DAVID FLIPPEN, RESPONDENTS ON REVIEW
On review from the Court of Appeals. CC CCV 95 08 506 CA A93629
Christopher A. Rycewicz, of Rycewicz & Chenoweth, P.C., Portland, argued the cause for petitioners on review. With him on the briefs was Michael J. Knapp, of Meyers & Knapp, Portland. William G. Earle, of Abbott Davis Rothwell Mullin & Earle, PC, Portland, argued the cause and filed the briefs for respondents on review. With him on the briefs was Alan Gladstone. J. Michael Alexander, of Burt, Swanson, Lathen, Alexander & McCann, Salem, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
Before Carson, Chief Justice, and Gillette, Durham, and De Muniz, Justices.
The opinion of the court was delivered by: DE Muniz, J.
Argued and submitted September 7, 2000; reassigned June 20, 2001; resubmitted July 3, 2001.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
In this insurance case, we must determine whether Truck Insurance Exchange (defendant) had a duty to defend its insured, Marleau, and Marleau's business partner, Reed (plaintiffs), in a tort action alleging intentional infliction of emotional distress. The trial court entered summary judgment in favor of defendant. The Court of Appeals affirmed, holding that, although the insurance policy covered the conduct alleged, public policy against insurance coverage for intentionally inflicting injury upon another precluded coverage. Marleau v. Truck Insurance Exchange, 155 Or App 147, 154-55, 963 P2d 715 (1998). We allowed review and now conclude that the insurance policy at issue does not cover the conduct alleged in the claim for intentional infliction of emotional distress. Accordingly, we do not address the public policy argument upon which the Court of Appeals relied. We affirm the decision of the Court of Appeals and the judgment of the circuit court.
The material facts are not in dispute. Plaintiffs Marleau and Reed operated "Oregon Trail Custom Log Homes" (Oregon Trail), a log home construction business. Defendant issued a commercial general liability policy naming Marleau, doing business as Oregon Trail, as the insured. In addition to bodily injury and property damage, the policy covered "personal injury liability" of the insured:
"COVERAGE B. PERSONAL * * * INJURY LIABILITY
"1. Insuring Agreement.
"a. [Truck Insurance Exchange] will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal injury ' * * * to which this insurance applies. * * * "
A separate section of the policy defined "personal injury ":
"'Personal injury ' means injury, other than 'bodily injury,' arising out of one or more of the following offenses:
"a. False arrest, * * *;
"b. Malicious prosecution;
"c. Wrongful * * * eviction * * *;
"d. Oral or written publication of material that slanders or libels a person * * * or disparages a person's * * * goods, products, or services; or
"e. Oral or written publication of material that violates a person's right to privacy."
The policy excluded "personal injury * * * arising out of oral or written publication of material, if done by or at the direction of the insured with kno
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