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Thompson v. Estate of Pannell8/15/2001
t of authority or domination that is absent from the facts alleged in this case. For instance, in construing a statute addressing the control of real property by public utilities, the Supreme Court quoted the definition of "control" in Webster's Third New International Dictionary and concluded that "control" in that context meant "the power or authority to guide, manage or direct [such property], or even [the power to] * * * restrain another entity's domination of that property." Western Generation Agency v. Dept. of Rev., 327 Or 327, 332-33, 959 P2d 80 (1998) (citations and internal quotation marks omitted).
In a case that is more factually similar to this one, we construed the meaning of "borrow" in an insurance policy and held that it contained an element of control that the trial court could properly conclude was missing in light of the evidence before it. Gold v. Casserly Landscape, Inc., 121 Or App 62, 64-65, 853 P2d 1341 (1993) (Gold II). The vehicle at issue in Gold II was registered as a personal vehicle by a corporate officer named Casserly. Casserly had repeatedly used the vehicle for corporate business, and, when he did so, the corporation reimbursed him for expenses related to that use. Additionally, Casserly often lent the vehicle to Vandercook, another officer of the corporation, for transportation to and from work. Gold v. Casserly Landscape, Inc., 104 Or App 313, 315, 801 P2d 844 (1990), on recons 107 Or App 441, 812 P2d 33, rev den 312 Or 234 (1991) (Gold I). Vandercook was using the vehicle in the course of his employment for the corporation when he struck and killed plaintiff's decedent. One of the corporation's insurance policies covered non-owned vehicles, and it defined "non-owned" to exclude vehicles that were leased or borrowed. Plaintiff sued the insurance company on that policy, alleging that the vehicle was "non-owned," in other words, that it had not been borrowed by the corporation and therefore was covered under the policy. Id. In Gold II, we held that the evidence supported the trial court's conclusion that the corporation had not borrowed the vehicle, in spite of the fact that Vandercook had used it for the corporation's benefit. Gold II, 121 Or App at 64-66. In so holding, we noted that
" he ordinary meaning of 'borrow' includes not only that one receives the benefit of the object's use but also that the borrower receives temporary possession, dominion over or control of the object's use. Some element of substantial control is generally understood to be included within the meaning of the act of borrowing." Id. at 65 (citations omitted).
To survive defendant's motion for judgment on the pleadings, plaintiff would have had to allege facts that, if true, could lead a reasonable person to conclude that defendant controlled plaintiff's van while plaintiff used it for defendant's benefit. Our analysis in Gold II indicates that use and control are separate issues, and, therefore, the fact that plaintiff used her van for defendant's benefit would not be sufficient to permit a reasonable person to conclude that defendant controlled the van.
In her complaint, plaintiff alleged that she "was engaged in defendant's business" in that she "was driving her privately owned vehicle on approved school business" and that she was "an agent of [defendant] for the transportation of student, staff and non-staff luggage." She further alleged that defendant was "required or instructed" by the camp to transport its luggage separately from the students, that defendant "did not have the staff or employees available to effect the separate luggage transport," that defendant lacked the funds to hire separate luggage transport, and that defendant specifically asked plai
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