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STK Enterprises11/15/2000
Argued and submitted February 28, 2000.
Affirmed.
Plaintiff operates The Refectory, a restaurant and bar in Portland. In this case, it seeks to recover from defendant, its insurer, the cost of defending and settling three customers' claims of racial discrimination. The trial court granted defendant's motion for summary judgment, ORCP 47, and plaintiff appeals. We affirm.
We first consider plaintiff's claims for the costs of defending the claims. To determine whether an insurer has a duty to defend an action against its insured, we compare two documents, the complaint filed against the insured and the insurance policy. If the complaint alleges facts that, if proved, would impose liability covered by the policy, the insurer must defend. Ledford v. Gutoski, 319 Or 397, 399, 877 P2d 80 (1994); American Hardware Ins. Group v. West One Auto., 167 Or App 244, 247, 2 P3d 413 (2000). In accordance with that legal standard, we state the facts as they appear in the complaints in the underlying actions.
The three claims involve two incidents. According to the amended complaints in the Taylor and Whitehurst cases, the plaintiffs, in these cases, who are African-American, went to The Refectory on May 10, 1996, between 11:00 and 11:30 p.m. When they tried to enter, a security guard approached them and told them that they could not come in. They alleged that the guard ordered them to get off the premises because they were African-American, thereby violating their rights under ORS 30.670. Whitehurst also alleged that the guard prevented him from using a telephone in the lobby of The Refectory to call the police. Each plaintiff sought damages of $35,000, plus attorney fees.
According to the complaint in the Lomax case, the plaintiff, also an African-American, sought admission to The Refectory on August 11, 1995, and offered to pay the required cover charge. However, the door guard refused the money and denied him entry. During the time while the plaintiff was on the premises, white patrons, similar to him in age and attire, were admitted. The plaintiff also alleged that the Refectory had engaged in a pattern and practice of refusing admission to African-American individuals. Lomax brought his claim under 42 USC ยง 1981 and sought $50,000 in damages, an injunction barring The Refectory from engaging in such discrimination in the future, and attorney fees.
Plaintiff tendered the defense of each of these claims to defendant, which refused the tenders. Plaintiff then defended the claims on its own. The Taylor and Whitehurst claims went to mandatory court-annexed arbitration. The arbitrator found against plaintiff and awarded damages. Plaintiff then settled those claims. The record does not indicate the current status of the Lomax claim.
On appeal, plaintiff argues that two portions of the policy provide coverage for these claims. The first is the "personal injury " coverage, which provides coverage for injuries, other than "bodily injury" (as the policy defines the term), that arise from a number of named "offenses":
"a. False arrest, detention or imprisonment;
"b. Malicious prosecution;
"c. Wrongful entry into or eviction of a person from, a room, dwelling or premises that the person occupies;
"d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, product or services; or
"e. Oral or written publication of material that violates a person's right of privacy."
Plaintiff argues that there is coverage under paragraph "c" because the underlying plaintiffs asserted a right to oc
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