Devine v. Great Divide Insurance Company, 350 P.3d 782

On July 7, 2009 Thomas Sindorf assisted at a concrete-pouring job for Paul Chatari/Complete Concrete; Sindorf was unpaid and later sued as an injured worker after being assaulted on site by another worker, Christopher Allen.
Chatari had commercial general liability (CGL) insurance with Great Divide but had not purchased workers’ compensation insurance.
Great Divide initially provided defense counsel but filed a declaratory-judgment action seeking a ruling that an employee-exclusion in the CGL policy precluded coverage for Sindorf’s injuries.
The policy’s employer-exclusion barred coverage for bodily injury to any “employee” arising out of and in the course of employment, and defined “employee” broadly to include volunteers, casual workers, contractors, etc.
The superior court granted summary judgment for Great Divide, concluding Sindorf’s injuries arose out of and in the course of employment because Chatari knew Allen posed a risk, gave him Valium, failed to warn/protect Sindorf, and thus had engendered/exacerbated/facilitated the assault.
The Alaska Supreme Court affirmed, applying workers’ compensation law to interpret the “arising out of and in the course of employment” phrase and finding the alleged facts met that standard.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Great Divide had a duty to defend/indemnify Chatari under the CGL policy given the employee-exclusion	Sindorf: even if an "employee" under the policy, Great Divide failed to prove the injury arose out of and in the course of employment; the assault was personally motivated and factual issues preclude summary judgment	Great Divide: policy excludes injury to any employee "arising out of and in the course of" employment; Sindorf was an employee as defined and the assault was causally linked to employment	Held: No duty to defend/indemnify. Applying workers’ compensation principles, the alleged facts show the employer engendered/exacerbated/facilitated the assault so the injury arose out of and in the course of employment, triggering the exclusion.

Temple v. Denali Princess Lodge, 21 P.3d 813 (Alaska 2001) (assaults personally motivated are generally not within course of employment absent employer contribution)
Estate of Milos v. Quality Asphalt Paving, Inc., 145 P.3d 533 (Alaska 2006) (illustrates fact-sensitive inquiry for employment nexus)
Murphy v. Workers’ Compensation Appeals Board, 150 Cal. Rptr. 561 (Cal. Ct. App. 1978) (employer’s knowledge of imminent attack and failure to act can bring assault within course of employment)
Ottumwa Housing Auth. v. State Farm Fire & Cas. Co., 495 N.W.2d 723 (Iowa 1993) (phrase "arising out of and in the course of employment" in CGL exclusion interpreted same as workers’ compensation)
Royal Globe Ins. Co. v. Poirier, 415 A.2d 882 (N.H. 1980) (employee exclusion aims to avoid duplication with workers’ compensation/employers’ liability coverage)