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Hofsheier v. Farmers Insurance Exchange6/24/1998
9603-02295
Appeal from Circuit Court, Multnomah County.
Ann Fisher, Judge pro tempore.
Argued and submitted November 21, 1997.
Affirmed.
Plaintiff initiated this action to recover damages for breach of an insurance contract and for a declaration of a duty to defend and indemnify against defendant Farmers Insurance Exchange, Inc. (Farmers). The trial court granted Farmers' motion for summary judgment and denied plaintiff's cross-motion for summary judgment. Plaintiff appeals, and we affirm.
ORCP 47 C provides that summary judgment shall be granted "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In reviewing a summary judgment, we view the admissible evidence in the record in the light most favorable to the party opposing the motion. Hickey v. Settlemeir, 318 Or 196, 203, 864 P2d 372 (1993). Here, the relevant facts are not in dispute. Therefore, the issue is whether Farmer's was entitled to prevail as a matter of law.
Farmers insured plaintiff under both a primary homeowner's policy and an umbrella liability policy. In 1996, he was named as a defendant in a suit brought by Aho Construction, Inc. Aho claimed that plaintiff and other residents of Banks engaged in concerted discriminatory efforts to prevent it from developing a parcel of real property in violation of the Fair Housing Act, 42 USC Sections 3601-3631, and Oregon law, ORS 659.033.
Plaintiff tendered the defense of that action to Farmers under both the homeowner's policy and the umbrella policy. Farmers denied coverage explaining that, first, the policy did not cover statutory race discrimination claims, and, second, the policy's intentional acts exclusion denied coverage. On Farmers' motion for summary judgment, the trial court held that the policy unambiguously excluded statutory race discrimination claims. On appeal, plaintiff argues that the court erred in finding that the umbrella liability coverage did not extend to statutory discrimination claims.
The insurance policy coverage provides that " e will pay damages on your behalf, subject to the exclusions." (Bold in original.) The policy defines "damages" as follows:
"5. Damages - means the total of:
"a. damages that you must pay * * * because of personal injury or property damage covered by this policy;
"b. reasonable expenses that you incur in the investigation, defense and settlement of a claim or suit because of personal injury or property damage covered by this policy * * *.
"8. Personal injury - means:
"b. Injury arising out of:
"(4) discrimination because of race, color, religion or national origin. Discrimination prohibited by law is excluded." (Bold in original.)
The policy specifically excludes "Damages due to discrimination in anyway connected with a violation of any State or Federal Civil Rights law." (Bold in original.)
The trial court held:
"Based on the narrow pleadings of the underlying case, which contain only statutory race discrimination claims, the pleadings do not presently obligate defendant to defend this underlying case. If the pleadings change to arguably include allegations within policy coverage, e.g., common law race discrimination claims, the duty to defend should be reviewed."
Plaintiff argues that the trial court erred because there is no such thing as "common law race discrimination." Further, he argues, an exclusion may not be
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