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Minnis v. Oregon Mutual Insurance Company6/7/2002
he majority concluded that the employee exclusion of the bodily injury provision did not exclude from coverage the bodily injury ("pain and nausea") Winters suffered as a result of Tuck's actions at his apartment, because Winters was not then acting in the course of her employment. Id. at 204. Finally, the majority also concluded that Tuck's assaults of plaintiff at his apartment were "occurrences" as defined in the policy and were not excluded under the intended acts exclusion. Id. at 209-10.
Presiding Judge Edmonds dissented. He would have held that Little John's was not vicariously liable for Tuck's conduct at the apartment because Tuck's conduct at work was "not part of the chain of causation that resulted in" the sexual assault at the apartment. Id. at 224. He also would have held that, because Tuck's "supervision" of Winters was "the gravamen of Little John's vicarious liability" according to the theory of Winters's allegations, Winters's injury would have been excluded from coverage by the employee exclusion. Id. at 218, 225. As previously noted, we allowed defendant's petition for review.
We review the record on summary judgment in the light most favorable to the party opposing the motion. Miller v. Water Wonderland Improvement District, 326 Or 306, 309, 951 P2d 720 (1998). In this case, such review presents several questions of law. The ultimate question is whether defendant has a duty to defend Little John's against Winters's claims. It has that duty only if the allegations in Winters's complaint state a claim for "bodily injury " or "personal injury" that is covered by the policy. See Marleau v. Truck Insurance Exchange, 333 Or 82, 91, 37 P3d 148 (2001)(insurer has duty to defend if factual allegations of complaint state claim for any offense covered by policy). Accordingly, we must examine the insurance policy to determine what the parties intended the policy to cover, Hoffman Construction Co. v. Fred S. James & Co., 313 Or 464, 469, 836 P2d 703 (1992), and the complaint to determine if it, "without amendment, may impose liability for conduct covered by the policy," Ferguson v. Birmingham Fire Ins. Co., 254 Or 496, 507, 460 P2d 342 (1969). We begin by considering whether Winters's allegations may impose liability for conduct covered under the "bodily injury" provisions of the policy.
On review, Little John's adopts the reasoning of the majority of the Court of Appeals. First, in arguing that the policy covers Winters's bodily injury claim, Little John's relies only on the allegations of bodily injury that Winters suffered as a result of the episode at Tuck's apartment, because any injury Winters suffered at work, even if the result of otherwise covered conduct by Tuck, would have been excluded from coverage under the employee exclusion as an injury "arising out of and in the course of" Winters's employment. In addition, in regard to the injury Winters suffered as a result of the episode at the apartment, Little John's does not argue that Tuck was then acting in the course and scope of his employment. Instead, Little John's argues as follows: (1) The act that resulted in Winters's injury was Tuck's sexual harassment of Winters on-the-job (even if the particular episode of harassment did not take place there); and (2) Tuck was acting within the course and scope of employment when he harassed Winters at the pizza parlor. Accordingly, Little John's contends that, under this court's case law concerning the doctrine of respondeat superior, Winters's allegations are sufficient to impose vicarious liability on Little John's for Tuck's sexual abuse of Winters at his apartment. In addition, Little John's argues that the injury Winters suffered as a result of what happened at Tuck's
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