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Minnis v. Oregon Mutual Insurance Company6/7/2002
er, and writing her up for alleged insubordination on the job.
"* * * * *
"As a result * * *, [Winters] has suffered lost wages and benefits of employment * * *."
In her claim of sexual assault and battery (brought against Tuck and Little John's), Winters realleged and incorporated the foregoing factual allegations of her claim of sexual harassment. In addition, she alleged that "Tuck Minnis intended harmful, offensive, hostile, and insulting physical contact of a sexual nature to person." She also alleged that, as a result of the sexual assault, she suffered
"severe emotional distress, depression, embarrassment, * * * physical anxiety, and pain and nausea."
Finally, in her two claims of intentional infliction of severe emotional distress (one brought against Tuck and Little John's, the other against Minnis and Little John's), Winters again realleged and incorporated the factual allegations of the sexual harassment claim, set out above. She also alleged that the intentional infliction of severe emotional distress resulted not only in severe emotional distress, but also "physical anxiety, pain and nausea."
During the time period addressed in Winters's complaint, Little John's was insured under a commercial general liability policy issued by defendant. Plaintiffs tendered defense of Winters's action to defendant. Before we describe the events that occurred after that tender, we first describe the relevant terms of the insurance coverage as set out in the insurance policy.
Under Little John's commercial general liability policy, defendant had a duty to defend employees of Little John's, acting in the course and scope of their employment, in any action seeking damages for "bodily injury " or "personal injury" as defined in the policy. The "bodily injury" coverage of the policy covered "bodily injury, sickness or disease sustained by a person * * *" and "caused by an occurrence" in the "coverage territory." That coverage specifically excluded "bodily injury to an employee of the insured arising out of and in the course of employment by the insured" (employee exclusion) and "bodily injury * * * expected or intended from the standpoint of the insured" (intended acts exclusion). The "personal injury" coverage of the policy covered "injury, other than bodily injury, arising out of" enumerated "offenses," including, to the extent relevant in this case, "false imprisonment." Although the personal injury coverage also had exclusions, none of those are relevant here.
Defendant refused to defend. After settling Winters's action, plaintiffs brought this action to recover the costs of settling and defending Winters's action. Plaintiffs and defendant moved for summary judgment. As noted above, the trial court entered summary judgment in favor of defendant, and plaintiffs appealed.
The Court of Appeals, in a split decision, affirmed the trial court's judgment in regard to plaintiff Minnis, but reversed it in regard to plaintiff Little John's. It held that Winters's allegations concerning Tuck's actions at the apartment could have imposed liability on Little John's under the "bodily injury" coverage of the policy. That holding was based on several conclusions. First, the majority explained that, even if Tuck was not acting in the course of his employment when he assaulted Winters at his apartment, Little John's nevertheless could have been vicariously liable according to the doctrine of respondeat superior because those assaults were a "'direct outgrowth of and engendered by'" Tuck's on-the-job harassment of Winters. Minnis, 162 Or App at 207, citing Fearing v. Bucher, 328 Or 367, 377, 977 P2d 1163 (1999). Second, t
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