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Minnis v. Oregon Mutual Insurance Company6/7/2002
apartment is not subject to the employee exclusion because Winters was not then at work. Finally, Little John's argues that Tuck's conduct was not "intended" by Little John's, and thus the injury resulting from that conduct is not subject to the intended acts exclusion.
Defendant adopts the reasoning of dissenting Judge Edmonds. It argues that Winters's allegations do not allow the inference that her injuries, as a result of Tuck's actions at his apartment, were caused by Tuck's actions at work or by any other act taken within the course and scope of employment. Therefore, Winters's allegations could not impose vicarious liability on Little John's. Defendant also argues that, because Winters alleges that her employment at Little John's is what "led to" the incident at the apartment and her resulting injury , even if Tuck's actions otherwise would be covered, coverage of Winters's injury is subject to the employee exclusion. Finally, defendant argues that, even if Tuck's actions otherwise could be covered by the policy, they nevertheless are excluded under the intended acts exclusion.
For the reasons set out below, we agree with defendant that, according to Winters's allegations, Winters's bodily injury was caused by Tuck's actions at his apartment, not by Tuck's actions at the workplace. Therefore, we reject Little John's theory of vicarious liability in this case. Also as we explain below, Little John's argument and the conclusion of the Court of Appeals to the contrary are based on a misinterpretation of our case law on the doctrine of respondeat superior. Because of our holding concerning vicarious liability, we do not reach the question whether the bodily injury Winters suffered as a result of those actions would otherwise be excluded from coverage under either the employee or the intended acts exclusion. We turn now to a discussion of the doctrine of respondeat superior.
Under the doctrine of respondeat superior, an employer is liable for an employee's tort when the employee acts within the course and scope of employment. Chesterman v. Barmon, 305 Or 439, 442, 753 P2d 404 (1988). This court has stated that three requirements must be met to conclude that an employee was acting within the course and scope of employment: (1) the act must have "occurred substantially within the time and space limits authorized by the employment; (2) * * * the employee was motivated, at least partially, by a purpose to serve the employer; and (3) * * * the act is of a kind which the employee was hired to perform." Id., citing Stanfield v. Laccoarce, 284 Or 651, 654, 588 P2d 1271 (1978).
In this case, before we apply the traditional respondeat superior test, we must identify the injury at issue and the act or acts that gave rise to it. Little John's does not argue that the injury Winters suffered while at work is covered by the policy, because any such injury presumably "arose out of and in the course of" Winters's employment and would be subject to the employee exclusion. Accordingly, the only injury that arguably is covered by the policy is the injury Winters suffered when she was not on duty, that is, the injury she suffered as a result of the episode at Tuck's apartment. As to the act or acts that gave rise to that injury, the parties disagree.
Defendant argues that the relevant act by Tuck that resulted in Winters's injury was his assaultive conduct at his apartment. Because Tuck was not acting within the course and scope of employment when he engaged in that assaultive conduct, defendant argues, Little John's cannot be vicariously liable for the resulting injury to Winters. In response to that argument, Little John's, as noted above, does not contend that Tuck was acti
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