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Minnis v. Oregon Mutual Insurance Company6/7/2002
old that defendant did not have a duty to defend Little John's under the "bodily injury" provision of the policy.
Before addressing the Court of Appeals' contrary conclusion, we offer the following point of clarification. According to the factual allegations of Winters's complaint, her claims against Little John's and John Minnis were based on their direct liability for sexual harassment, not on their vicarious liability for Tuck's actions at his apartment. Our conclusion, above, that Little John's was not vicariously liable for Tuck's actions at the apartment, has no bearing on whether Little John's could be directly liable for the alleged pattern and practice of sexual harassment of which Tuck's actions at his apartment formed a significant part. This case does not pose that question. Although that should be clear from our opinion, we emphasize it here because a case like this, which involves both an underlying action concerning the employer's direct liability and an insurance action that concerns the employer's vicarious liability, has the potential to cause confusion. That said, we turn to our discussion of the opinion of the Court of Appeals.
The Court of Appeals reasoned that the "causal connection" that Winters alleged between Tuck's workplace actions and Winters's injury from the assault at the apartment was as strong as the "causal connection" identified by this court as sufficient to support vicarious liability in Fearing and Lourim v. Swensen, 328 Or 380, 977 P2d 1157 (1999). Minnis, 162 Or App at 206-07. Indeed, the Court of Appeals used phrases from this court's opinion in Fearing to form the standard that it used in this case, holding, as set out above, that Little John's could have been vicariously liable because Tuck's assaults of Winters were the "'direct outgrowth of and engendered by'" Tuck's on-the-job harassment. Id. at 207. However, as explained below, the Court of Appeals' reliance on Fearing and Lourim is misplaced.
Unlike Chesterman, Fearing and Lourim did not concern the first requirement of the respondeat superior test, namely, whether the employee's act was within the time and space limits authorized by the employment. Fearing and Lourim did not involve a "time-lag" between the act on which vicarious liability depended and the resulting harm. Instead, those cases focused more specifically on the other requirements of the respondeat superior test, whether the employee was motivated by a purpose to serve the employer and whether the act at issue was of a kind that the employee was hired to perform.
Fearing and Lourim presented this court with similar material facts. In each, the plaintiff had alleged that a person in a position of trust by virtue of his employment (in Fearing, a priest; in Lourim, a Boy Scout leader) used that position of trust to gain the opportunity to sexually assault the plaintiff. Fearing, 328 Or at 372; Lourim, 328 Or at 384-85. Each plaintiff characterized the tortious conduct as "manipulations committed within the time and space limits" of the tortfeasor's employment that were "generally actions of a kind and nature" that the tortfeasor was required to perform in his employment role (in Fearing, the tortfeasor's role as priest, in Lourim, the tortfeasor's role as Boy Scout leader). Fearing, 328 Or at 372; Lourim, 328 Or at 385.
This court explained in Fearing that, in the context of intentional torts, "it usually is inappropriate for the court to base its decision * * * on whether the complaint contains allegations that the intentional tort itself was committed in furtherance of any interest of the employer or was of the same kind of activities that the employee was hired to perform." Fearing, 328 Or at 375
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