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Drake v. Mutual of Enumclaw Insurance Company5/24/2000
Appeal from Circuit Court, Multnomah County.
Ann L. Fisher, Judge pro tempore.
Argued and submitted December 3, 1999.
Affirmed.
BREWER, J.
The issue in this case is whether defendant Mutual of Enumclaw Insurance Company had a duty to defend its insureds, Dale and Bobbe Drake, in an action brought against them that included claims for undue influence, breach of fiduciary duty, and interference with economic relations. The trial court entered summary judgment for defendant, concluding that defendant had no duty to defend, because the complaint in the underlying action alleged conduct that was not covered under the insurance policies issued to plaintiffs. We affirm.
In 1996, plaintiffs purchased a homeowner's insurance policy from defendant that included personal liability and property damage coverage. At the same time, defendant also issued to plaintiffs a personal umbrella insurance policy that included personal liability and property damage coverages subject to a liability limit of $1,000,000. In January 1997, while both policies were in effect, Dallene Connell filed an action against plaintiffs in Marion County Circuit Court. Connell is Bobbe's sister. The overarching theme of Connell's complaint, which included eight separate claims, is that plaintiffs caused the sisters' mother, Mary Sullivan, to disinherit Connell in order to obtain a larger share of Sullivan's estate for themselves.
Shortly after being served, plaintiffs tendered the defense of the Connell action to defendant. Defendant rejected the tender and, as a consequence, plaintiffs had to retain counsel at their own expense in the Connell action. In July 1998, plaintiffs initiated this action for a judgment declaring that defendant owes a duty to defend them in the Connell action and that defendant is liable for their defense costs. Defendant moved for summary judgment, arguing that each of Connell's claims alleged only intentional conduct and, therefore, did not allege an "occurrence" under the policies. Defendant also asserted that none of Connell's claims sought relief for a "personal injury" or "property damage," one of which must be alleged for coverage to exist. The trial court granted the summary judgment motion, holding that "defendant owes no duty to defend or indemnify plaintiffs against [the claims of] Dallene Connell * * *."
On appeal, plaintiffs argue that the trial court erred in concluding that defendant had no duty to defend them in the Connell action. The parties' dispute requires interpretation of the insurance policies and sorts into these questions: (1) whether any of Connell's claims alleges an "occurrence" within the meaning of the policies; and (2), if so, whether her complaint either alleges "property damage" or "personal injury" resulting from such an occurrence.
Because the material facts are not in dispute, we review the trial court's grant of summary judgment to determine whether defendant was entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). Whether an insurer has a duty to defend presents a question of law, which is determined by comparing the terms of the insurance policy with the allegations of the complaint against the insured. Klamath Pacific Corp. v. Reliance Ins. Co., 151 Or App 405, 413, 950 P2d 909 (1997), on recons 152 Or App 738, 955 P2d 340 (1998). If the complaint alleges facts that, if proved, would impose liability covered by the policy, the insurer must defend, even if some of the conduct alleged would not be covered. Ledford v. Gutoski, 319 Or 397, 400, 877 P2d 80 (1994); Timberline Equip. v. St. Paul Fire and Mar. In
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