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Truck Insurance Exchange v. Gagnon8/23/2001
. Nationwide Mut. Ins. Co., 665 N.E.2d 1171, 1174 (Ohio Ct. App. 1995); Aberdeen Ins. Co. v. Bovee, 777 S.W.2d 442, 444 (Tex. App. 1989); Smith v. Animal Urgent Care, Inc., 542 S.E.2d 827, 834-36 (W.Va. 2000); Ottumwa Hous. Auth. v. State Farm Fire & Cas. Co., 495 N.W.2d 723, 726-27 (Ia. 1993); Meadowbrook, 559 N.W.2d at 419-20 (sexual harassment clearly arises out of employment and is not covered because it is excluded under the employee exclusion). There are only a few cases to the contrary. But see SCI Liquidating Corp. v. Hartford Ins. Co., 526 S.E.2d 555, 557 (Ga. 2000) (holding that "arising out of" is interpreted the same way as in worker's compensation law, and since sexual harassment does not "arise out of" employment under worker's compensation law, employee exclusion does not exclude coverage); Maine State Acad. of Hair Design, Inc. v. Commercial Union Ins. Co., 699 A.2d 1153, 1158-60 (Me. 1997) (insurance company had a duty to defend sexual harassment claim because some injuries pled may have arisen outside of work, and some injuries, disparagement and invasion of privacy, might be covered under the language of the policy).
We decline to follow SCI Liquidating Corp. and Maine State Acad. of Hair Design. We note that Maine State Acad. of Hair Design is distinguishable, and not strongly in favor of Smith's position, because it is based on specific facts that some of the incidents occurred outside of work, and the fact that some injuries (disparagement and invasion of privacy) may have been covered under the policy's specific language. Maine State Acad. of Hair Design, 699 A.2d at 1158-59.
Despite those authorities, Smith argues that Clauses 2 and 3 should be read together to exclude only workers' compensation injuries. However, the weight of authority is that, read together, the two clauses express a blanket exclusion for all injuries to employees arising out of and in the course of employment whether or not they are covered by workers' compensation. See Meadowbrook, 559 N.W.2d at 420; Am. Motorists Ins. Co., 713 A.2d at 1013 (rejecting claim that the policy only excluded workers' compensation claims because to do so would make the "arising out of employment" clause redundant); McLeod, 865 P.2d at 1288 n.6 (clauses must be read together to exclude all claims by employees; contrary interpretation would read the "arising out of" clause out of the policy); Nat'l Union Fire Ins. Co., 906 F.2d at 198-99 (holding that limiting exclusion to workers' compensation claims would make the other clause, "arising out of," meaningless); Omark Indus., Inc., 590 F. Supp. at 119; Harnden v. Cont'l Ins. Co., 612 S.W.2d 392, 393-96 (Mo. Ct. App. 1981); Fieldcrest Cannon, Inc. v. Fireman's Fund Ins. Co., 477 S.E.2d 59, 70-71 (N.C. Ct. App. 1996) (holding that the two clauses, read together, exclude all bodily injuries to employees, including intentional infliction of emotional distress and negligent infliction of emotion distress, and are not ambiguous.); cf. Omni Aviation Managers, Inc. v. Buckley, 97 N.M. 477, 481, 641 P.2d 508, 512 (1982) (if possible, court will give effect to all parts of the contract and avoid an interpretation that makes a portion superfluous). But see SCI Liquidating Corp., 526 S.E.2d at 557 (holding that "arising out of" is interpreted the same way as in worker 's compensation law, and since sexual harassment does not "arise out of" employment under worker 's compensation law, employee exclusion does not exclude sexual harassment from coverage); Fed. Rice Drug Co. v. Queen Ins. Co., 463 F.2d 626, 630 (3d Cir. 1972).
Smith also argues that since sexual harassment does not "arise out of" employment for purposes of workers' compensation, Coates v. Wal-Mar
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