*1 30,1998, Arguеd part; and submitted reversed November and remanded in 4, 1999 August otherwise affirmed John MINNIS Co., LLC, and Little John’s Pizza Appellants, v.
OREGON MUTUAL COMPANY, INSURANCE
Respondent. A98241) (C96-1230-CV; CA P2d 77 *2 199-a
Christopher Rycewicz argued A. cause appellants. for With him on the briefs were Brian D. Chenoweth and Chenoweth, P.C., & Rycewicz and Michael Knapp J. Myers & Knapp.
William G. Earle argued respondent. cause With him Abbott, Davis, on the brief were Alan Gladstone and Rothwell, Earle, Mullin & P.C. Edmonds, Presiding
Before Judge, Armstrong Kistler,* Judges.
KISTLER, J.
Edmonds, J.,P. dissenting.
* Kistler, J., Warren, J.,P. vice retired.
199-b *4 KISTLER, J.
Plaintiffs, a corporation owner, and its from a appeal summary judgment dismissing their claim for breach of an policy. They insurance that defendant a argue duty had to (Winters) a to an provide defense action that a third party filed them. also against Plaintiffs seek for the indemnity cost of settling the case. We had conclude that defendant a to duty defend the and it corporation that was entitled to sum- mary judgment on the related of whether it question had conclude, however, to duty indemnify corporation. We no duty defendant had to defend the owner. Accordingly, we the judgment reverse as to the affirm corporation, to judgment owner, and as remand.
In determining whether an insurer
a duty
has
to
against
insured,
defend an action
its
the court looks at two
things:
alleged
the facts
in the
complaint
the terms of the
An
policy.
insurance
insurer has a
to defend an
duty
action
if
against
its insured
the claim stated in the underlying com
plaint could,
amendment,
without
for con
impose
duct the
insurer
policy covers. The
should be
to deter
able
mine from the face of the
whether
complaint
accept
or
reject the tender of defense. It has a
if the
duty
defend
com
plaint
basis of
provides any
recovery
which the insurer
provides coverage, resolving any
in the
ambiguity
Gutoski,
favor
insured.
v.
399-
Ledford
(1994).
400,
Given that we state facts Winters alleged them the underlying complaint. Plaintiff John (John) Co., Minnis is the owner of Pizza plaintiff (Tuck) LLC. Trick employed Little John’s Minnis to manage restaurant. Winters she been had an Little John’s and while she was employed, Tuck in a engaged variety misconduct towards her. Throughout John’s, Winters’ with Little allegedly subjected sexually to a hostile work environ- “[ujnwelccme included, ment statements and graphic habits, activities, body of sex descriptions parts abilities” comments repeated “offensive sexual about the anatomy * * of females According complaint, “sexual *5 manage- Minnis’ defendant Tuck part harassment was ment style.” misconduct occurred on alleged of Tuck’s
Most on the rely at his Plaintiffs apartment. Some occurred job. to estab- occurred at the apartment harassment sexual 8 Paragraph defend them. duty that defendant had a to lish complaint alleges: of Winters’ 28,1995, supervisor, defen- May plaintiffs
“On or about Minnis[,] at home at 3:45 a.m. and dant Tuck called her roommate, her female the assistant man- implored her and Co., L.L.C., come to his ager of Little John’s Pizza to over grieve him the death of his brother. apartment help to to his and Plaintiff and her roommate went During 4:30 a.m. until 9:00 a.m. stayed approximately from subjected sexually explicit, to period plaintiff that time unwelcome, was intimidating offensive and comments and con- Minnis.” Tuck supervisor, duct from her defendant 9, In paragraph alleged specific “intimidating, Winters unwanted, demeaning and sexual contact and remarks directed from defendant Tuck Minnis while plaintiff’ Winters was at Tuck’s that Tuck apartment, including “[ujnwelcome touching forced and engaged kissing, while her arms plaintiffs pinning against wall[.]” breasts alleged She also that while she was at the apartment, made to fire “[ijntimidating ability statements about Co., L.L.C., at Little Pizza employees [Win- John’s but that ters] should think of herself as his friend.” asserted six claims for relief variously
Winters
John’s, Tuck,
Little
and John. We summarize the
against
that are
Her third
three claims
relevant
to our decision.1
claim,
she labeled as “Sexual Assault and Battery,”
which
claim,
against
Tuck and Little John’s.
Winters
harmful, offensive, hostile,
that Tuck “intended
and
alleged
appear
rely
paragraphs
and
in isolation
Plaintiffs
on the
they
complaint,
arguing
coverage.
are entitled
That
from the rest of the
limited,
any specific
in the under
focus is too
however. The issue is whether
claim
coverage
lying complaint
give
coverage.
would
rise to
The basis for
is not necessar
claim,
ily
legal theory
underlying plaintiff
limited to the
with which the
labeled
Ins.,
496, 507,
(1969),
Ferguson Birmingham
v.
Fire
insulting physical her, contact of a sexual nature” to that he employment, did so within the of his that Little conduct, condoned Tuck’s and that Tuck’s conduct was not unexpected any policy because of Little John’s failure to have training relating or to sexual harassment. As a result of allegedly actions, Tuck’s suffered “severe emotional depression, apprehension, fright, distress, anguish, embarrassment, dignity, physical anxiety, humiliation,
loss of pain nausea[.]” She also that both defendants willfully, wantonly, maliciously, entitling acted her to punitive damages punish in order to them and deter similar conduct the future. against claim,
Winters labeled her fourth Tuck and John’s, “Intentional Infliction of Severe Emotional Dis- *6 alleged tress.” She that Tuck acted “volitionally knowledge with that his acts would cause plaintiff distress, severe emotional and also with the intent to plaintiff cause severe emotional distress. Defendant intentionally Tuck Minnis and deliberately committed the alleged acts under likely circumstances which it was plaintiff would suffer such distress.” alleged She also that Tuck’s actions reflected the “deliberate intent of defendant Little Co., John’s Pizza L.L.C.” Her alleged harm was ofthe same nature as that described in the allegation concerning punitive damages claim, third and her was the same.
Winters’ fifth claim was directed at Little John’s and John. That claim was also labeled “Intentional Infliction of alleged Emotional Distress.” Winters that John acted with alleged the same state of mind that she had in the fourth alleged had, claim that Tuck had and she the same harm that she had in the third and fourth claims. Winters alleged that John and Little John’s “condoned defendant subjecting plaintiff Tuck Minnis’ conduct in to sexual harass- battery” against ment, assault and and “rеtaliated her for resisting reporting the harassment and other in a abuse plaintiff job.” successful effort to force from her policy In the it John’s,2 issued to Little defen- agreed pay dant to those sums that Little John’s became 2John was a insured covered as an officer of Little John’s. of bodily injury “as because pay damages to
legally obligated * * * any a defense for provide and to personal injury” [or] injuries. policy applies for those damages action seeking “occurrence” by during caused an bodily injury an “offense” arising and to caused period personal injury defines to mean bodily injury out of the business. The policy It sickness or disease sustained “bodily injury, person[.]” mean other than “injury, bodily defines “personal injury” listed offenses. One of out of one of several injury” arising arrest, those offenses is detention or imprisonment[.]” “[f]alse coverage bodily There are a number of exclusions to the injuries; coverage personal injuries no exclusion to the relevant to this case. Co., In Klamath v. Reliance Corp. Ins. 151 Or Pacific 405, (1997), P2d
App on recons 152 Or App (1998), P2d 340 we held that an of “severe allegation physical * * * bodily injury. distress” stated a claim for App that, decisions, 414. Defendаnt under this court’s recognizes ** * Winters’ that she suffered allegations “physical pain and nausea” as a result of Tuck’s actions state potential claims bodily injury hand, under the On the other policy. distress, that she “severe suffered emotional depression, embarrassment, apprehension, fright, anguish, of dignity” [and] loss state claims for potential personal rather than claims bodily injury. thus raise issues under policy coverages. both
We first consider whether defendant had a duty defend Winters’ claims Little John’s for against bodily injury. *7 Because Winters’ a claim complaint alleges bodily injury for John’s, against the issues on reduce to appeal primar- two The first is whether claims are ily questions. excluded from arose out of and in the coverage they because course of her The second is whether because employment. Tuck acted sustained intentionally, injuries policy were either not an occurrence under the or were sub- acts. ject exception to an for intentional initially Defendant that exclusion argues out bodily injury arising “[a]n for insured justifies of and in the course of the insured” employment Defendant acknowledges its refusal to defend Little John’s. that the bodily injury Winters suffered could havе arisen when Tuck sexually assaulted her at his apartment. And because Tuck called her Winters at home and “implored” her her roommate “to him come over to his to help the death grieve brother,” of his it does not that appear injuries Winters sustained at the apartment occurred in the course of her employment. case, thus, This differs from McLeod v. International, Tecorp Ltd., 208, 216-17, 865 318 Or P2d (1993), and Klamath where Pacific, all of the harassment that gave rise to the employees’ injuries occurred job.3 on the however,
Defendant argues, that Little can- not be vicariously liable Tuck’s conduct at the apartment unless Winters was in the acting course of her employment. Defendant observes that Winters sought hold Little John’s vicariously liable for Tuck’s misconduct on theory Tuck performed “his management functions in accordance with a management style incorporated sexual harass- It follows, ment.” reasons, defendant that Little John’s could be held liable for Tuck’s conduct at his apartment if Tuck only were supervising Winters at that time. Defen- dant concludes that if Tuck were supervising Winters at the apartment, Winters was also necessarily acting the course of her employmеnt. Alternatively, defendant argues “[i]f Winters were not as an acting employee at the time of Tuck Minnis’s conduct in his apartment, then Minnis could not short, have been her. In supervising Winters, as pleaded by she could not recover against [Little John’s] if she were not the course of her employment.” argument
Defendant’s
turns on two
Its
assumptions.
argument assumes
that Little
initially
John’s could be held
vicariously liable for
if,
Tuck’s sexual harassment
as Winters’
complaint alleges, sexual harassment
part
ofTuck’s way
explained
“[pjlaintiffs complaint
The court
in McLeod that
contains no alle
gations concerning
employ
events that occurred other than in connection with her
Tecorp, during
Tecorp,
ment at
and while she was at work at
Tecorp.”
Similarly,
Pacific,
explained
205 supervising Defendant’s employees. argu- ment also assumes that Little John’s could be held vicari- ously liable for Tuck’s apаrtment only conduct at the if Tuck was supervising Winters at that time. We with the first agree It is both assumption. supported by the and consis- complaint Morrow, Mains v. II tent with this court’s decision in Inc., (1994). 625, Or 631-33, 877 P2d App We with the disagree second assumption. Even if Tuck acting were not as Winters’ he supervisor when invited her to his apartment,4 it does not follow necessarily that Little John’s may not be held vicari- ously liable for Tuck’s Rather, conduct at the apartment. Supreme Court’s recent decisions make clear that Little John’s may be vicariously hable for Tuck’s intentional torts at the apartment if those torts were a direct outgrowth of ear- lier actions he took on behalf of Little John’s. case, seminal issue, for the of this purposes
Chesterman
Barmon,
v.
(1988).
305 Or
The
Chesterman
court
superior applied
respondeat
as of
whether
it had “determined
injury
explained,
Id. at 444. It
that the
occurred.”
the time
determining
only
not the
basis for
however, that
that
superior applies.
respondeat
reasoned
The court
whether
that
allegedly producing
‘time-lag’
the act
“in
there is a
between
cases where
resulting
harm, it is
the harm and the
respondeat superior
inappropriate to determine whether
Fearing
injury
applied
v.
occurred.”
as of the time when
(1999) (summarizing
Bucher,
367, 373,
Chesterman establishes
employee’s
propositions.
tort need not
First, an
intentional
job
space
hold the
limits of the
within the time and
occur
vicariously
employer
That much follows from
liable.
though
holding
in that
the intentional torts
that even
court’s
time and
the authorized limits of
case occurred “outside
space”
employer
employee’s
could still be
work,
of the
vicariously
Second,
for them.
a
jury to find
she met that standard.
Fearing,
See
328 Or
376-77; Blohm
at
et
Co.,
410, 416,
al v. Glens Falls Ins.
231 Or
(1962).
The dissent concludes that Little John’s cannot be
held
liable
vicariously
for Tuck’s sexual harassment
at the
apartment because there was
causal
no
connection between
his
at
actions
the restaurant
and his
at
apart-
actions
the
ment. The dissent’s conclusion
to turn on
related
appears
two
but separate propositions. The dissent begins by drawing the
the
following proposition
Supreme
from
Court’s cases: In
order for there to be “a causal connection between the actions
by
authorized
the
and the
employer
acts that
resulted
* * *
[victim],
harm
occurred
[must have]
harm to the
the
while was
in an
on
employee
engsiged
activity
behsdf
added.)
however,
held,
The court
employer.” (Emphasis
in Chesterman that even
intentional
though
employee’s
in that case occurred “outside the authorized limits of
torts
work,
of his
could still be held
space”
time and
if
hable
those torts were caused
earlier acts the
took оn the
behalf.
209 or stratagem one her, by to lure try him to caused work there. A assault sexually another, to his conclusion, we but course, opposite reach the could juror, lаw, allegations the a matter of as say, cannot her to establish permitted not have would complaint Or at 376- 328 Fearing, See causal connection. requisite the connection (a necessary causal reasonably infer could jury directly alleged had not plaintiff though even injuries). the plaintiffs activities caused priest’s work-related where, here, the issue true particularly That had a an insurer whether deciding in the context arises complaint. a third-party’s against defend its insured duty to “ as to whether Blohm, ‘doubt any explained court As the the insured state complaint against of a allegations or not suf liability policy of a coverage of action within a cause ** * will be the action the insurer to defend ficient to compel ” 416, Blohm, quot 231 Or at in the insured’s favor.’ resolved v. Insurance, 1454; Cooper see 567, Am Jur ing § 29A Co., 539, 543, 699 Or App Land Title Ins. Commonwealth (1985). that standard We follow P2d rev den 299 Or in Winters’ concluding vicari find Little John’s juror a reasonable permit would at the apartment.6 for Tuck’s conduct ously liable sup- raises to issue defendant turn to the second We arises That issue defend Little John’s. its decision not to port (1) caused bodily injury whether in several contexts: accident, as “an defines “occurrence,” policy which the by an substantially exposure continuous or including repeated (2) conditions;” whether same harmful from the or intended for bodily injury “expected exclusion coverage; to avoid applies of the insured” standpoint (3) insurance cover- against public policy the state whether We con- coverage. prohibit acts applies for intentional age caused that are injuries the limitation on that neither clude its should not advance Although that a court the dissent’s concern we share litigants, it is we believe that theory apart legal that advanced from own Supreme decisions required, apply Court’s recent we appropriate, if parties raised and question that the Fearing ofvicarious and Lourim to the judg entered its after the trial court issued Those decisions were debated below. may held ment, be they on which an clarified the terms of others. employee’s sexual harassment its liable for
210 by injuries accident nor the exclusion for that are caused intentionally negates duty defendant’s to defend Little John’s. “accident,” does not define the term that the term but recognized usually
we have
means actions that
unexpеcted,
“unforeseen,
are
or
unintended
the like.” Safeco
App
House,
89, 96,
862,
Ins. v.
80 Or
721 P2d
rev den 302 Or
(1986).
way,
question
86
When the term is
defined that
bodily injury
by
whether a
was caused
an “accident” and the
question
intentionally present
whether it was caused
two
Country
sides
See
v.
Co.,
same coin.
Fox
Mutual Ins.
(1998) (recognizing
n
500,
11,
327 Or
515
First, to Winters’ Tuck acted sexually intentionally when he harassed Winters. As explained above, however, Winters have сould introduced complaint evidence under the have in her that would permitted jury hold Little John’s liable under the superior, respondeat misconduct. doctrine of not for its own Fidelity Guaranty, See 636-37; Farris v. U.S. & 273 Or App Supreme Albertson’s, Or 83 at 531-32.And the Court has recently may an reaffirmed that be liable its 7 course, always policy, differently An insurance could define “accident” from did, question understanding the common of that term. If it then the whether the injury might question an of the was caused accident not be obverse whether intentionally. it was caused
211
respondeat
oí
employee’s
under the doctrine
torts
intentional
employer’s part.
any wrongdoing
superior
See
on
without
Tecorp
Fearing,
Interna
McLeod v.
377;
also
328 Or at
see
(1992),
App
mod
499, 502-03,
intended tress, injury. Specifically, bodily allege it that he intended to cause her but did *13 alleged for relief third claim Winters’ insulting “harmful, offensive, hostile, and Tuck intended that physical for a Her fourth claim contact оf sexual nature.” allegation by incorporated It also relief that reference. alleged the that Tuck and Little John’s acted intent with they causing her “delib severe emotional distress and that erately alleged in committed the under circumstances acts likely [Winters] it distress.” which was would suffer such allegations determining In whether those establish bodily injury, we Tuck intended to cause Winters construe any ambiguities underlying complaint in the in favor of the 400. insured. 319 Or at Ledford, allegations require jury might to
Winters’ a conclude They to her distress. do that not, intended cause emotional require jury to however, a to conclude that he intended bodily injury, inquiry. cause her which is the relevant Although for the third and fourth claims relief * ** physical Tuck intended “harmful contact of a sexual ambiguous. nature,” the use of the “harmful” is It could word the describe nature the contact rather than the notion that Moreover, if he Tuck intended to inflict harm as such. intended to inflict even reasonably allegation may harm, the be 8 Farris, employee’s underlying complaint alleged that the acts were “knowledge, employers’ with direction.” 273 Or committed ratification or that, despite allegations, underlying complaint would 636. The court held those jury impose liability employers respondeat permit still to on the on the basis oí that, superior employers, Id. and to the acts were not intentional. find to applies allegations complaint against Little That same rationale to the in Winters’ John’s.
read as limited to emotional rather than harm. It bodily fol- bodily lows that Winters suffered was injury accidental and, as to Tuck a Little fortiori, as to John’s. We conclude had duty that defendant a to defend Little John’s against Winters’ claims for a bodily Because defendant had injury. claim, duty to defend Little John’s on one it a to duty had defend Little John’s on all of Winters’ claims. a
We reach different conclusion to defen respect with dant’s to duty allegations defend John. The Winters’ fifth claim for relief are the only allegations relevant against John.9 Winters’ allege does that John was Tuck’s employer,10 allegations John reduce to against proposition bodily Winters suffered injury when John behavior, condoned Tuck’s against retaliated for it, and reporting effectively quit job. forced her All of the allegations fifth claim for Winters’ relief involve actions that were taken as owner of capacity Little John’s against Winters in the course and of her employ fall ment. Because those squarely within the pol icy injuries exclusion out of bodily arising course of Winters’ employment, duty defendant had no John defend against claim.*
For the reasons
above,
stated
we conclude that
defendant
no duty
had
to defend John. It did
duty
have
John’s;
defend
remand,
court
trial
should enter
partial summary judgment
for Little John’s on that issue. See
Connell,
933, 939-40, 632
Cochran v.
53 App
Or
P2d
rev
*14
(1981).
den
Reversed and Co., affirmed. LLC; Pizza otherwise dissenting. J.,
EDMONDS, P. allegations against majority holds that the The complaint trigger suffice to defen- Little John’s Winters’ policy. duty its under insurance to defend Little John’s dant’s manager, allegations Tuck Min- are Little John’s Those rds, that employment he sexu- of his when acted within ally employee at Tuck’s assaulted Little John’s disagree apartment. follow, I with the For reasons majority’s analysis with its conclusion that defendant’s policy provides coverage to Little John’s. majority duty to
The is correct that defendant’s governed by defend is
against policy insuring Little John’s and terms of defendant’s insurance policy, agrees
Little John’s. defendant legally “pay to those sums that the Insured becomes obli- * * * damages bodily injury gated pay as because of applies.” cov- which this insurance The then excludes erage bodily injury emplоyee “[a]n insured aris- insured[.]” ing employment by in the out of and course of relying argues: Defendant, exclusion, on that John’s] contend[s] “The conduct did not only [Little place [Winters’] in the employment take course with Tuck Minnis’s place [Little John’s] conduct took at However, ‘after hours.’ because claim acting [Little against is] [Little [Tuck] time, had to have supervisor John’s] [Winters] also being as an employee the course of her been [Tuck], exclusion ‘supervised’ Accordingly, coverage.” defeats argument by majority responds to defendant’s
reasoning, argument assumptions. two Its
“[d]efendant’s turns on initially could be held argument assumes that Little John’s *15 214 vicariously if, for liable Tuck’s sexual harassment as complaint alleges, part sexual harassment was of way supervising
Tuck’s of Little employees. John’s Defen- argument dant’s also assumes that Little John’s could be vicariously apartment held liable for Tuck’s conduct at the only if Tuck supervising at agree that time. We * * * assumption. with first disagree We with second assumption. if Even Tuck were not acting as Winters’ supervisor when he invited apartment, her to his it does not necessarily follow may that John’s held be vicar- iously liable for apartment. Rather, Tuck’s conduct at the Supreme Court’s recent makе decisions clear that Little may be liable Tuck’s for intentional torts outgrowth if those torts awere direct of earlier actions that he took on behalf Little John’s.” 162 omitted). (footnote App Or at 204-05
The majority proceeds to discuss the applicability of
Barmon,
holdings
439,
Chesterman v.
305 Or
753 P2d
(1988),
404
Bucher,
v.
Or
Fearing
367,
“[I]n order to hold an employer vicariously liable when has lag1 there been a ‘time between acts taken on the employer’s behalf torts, plain later intentional tiff must establish a causal between connection the two sets * * of acts. *. “* * * Lourim], [Fearing both recognized the court employee, part job, that an relationship may his or establish a person
with another
results
sexual
explained
abuse.
court
it was not
sufficient
vicarious
that the employment merely ‘brought the
and,
together
tortfeasor
the victim
time and place
therefore, gave the
“opportunity”
tortfeasor the
to commit
Fearing,
(explaining
the assaults.’
“The in Winters’ atApp standard.” 162 Or 206- she met that jury to find that 07. *16 important it is reasoning, majority’s
To the unpack the is on postured of how case understanding with an to begin summary a of grant from John’s has appealed Little appeal. that the trial after the court concluded by the court judgment the acts of coverage complained did for policy provide not coverage in a dilemma. To obtain Little John’s is Winters. it is the John’s must demonstrate that policy, under Little that is covered for Tuck’s conduct —conduct liable Winters, its it also that the must demonstrate —but of her acting scope employment was not within the employee, Otherwise, for when she Tuck. the exclusion injured by was (Winters) out of the arising to an bodily injury Two coverage. hypothet- of would defeat employment course If sexually illustrates the Tuck had examples ical dilemma. they delivering pizza together while were assaulted Winters customer, then it be that the successfully argued to a could rise assault resulted from employment, giving sexual Tuck’s However, of Little John’s. because Win- to vicarious of her injuries employment, ters’ occurred within the course preclude would for Little John’s сoverage exclusion she if bodily injury Alternatively, claim that could any bring. and parlor, Tuck had been on roof of working pizza Winters, shift, her home on a finishing walking after a public underneath roof when Tuck dropped sidewalk her, successfully argue brick that hit then Little John’s could the exclusion did not because Winters was apply Thus, in whether injured employment. the course of a depends scrutiny exclusion on careful of the facts applies in she and by Winters order determine whether are have been in course of their Tuck deemed to employment. complaint, of second amended paragraph plaintiffs Tuck Minnis was "[defendant alleges scope and acted at all material times supervisor
direct added.) con- language employment.” (Emphasis That (that supervi- Tuck was Winters’ an fact allegation tains (that sor) times, acting a at all Tuck was and conclusion those allegations, of his From employment). argues it be could inferred from the allegation that Tuck inwas the act of supervising Winters when the facts operative that resulted sexual assault occurred and it is Tuck’s act of supervision on which vicarious lia- bility imputed allegedly to Little John’s.
Paragraphs 8 and 9 of thе allege the about facts what occurred while was allegedly supervis- ing Winters.
“7. “During throughout employment such as stated above, plaintiffs supervisor, Minnis, defendant Tuck aman twenty approximately years than plaintiff, older encour- aged engaged pattern a and practice continuous plaintiff subjecting sexually explicit conduct and com- ments, creating environment, sexually work hostile conditioning plaintiffs acquies- continued cence to such an environment. Minnis’[s] Defendant Tuck *17 included, sexually explicit comments but were not limited the following: to
“(a) Unwelcome graphic descriptions statements and habits, activities, body abilities; of sex parts and “(b) Repeated offensive sexual comments about females; anatomy of
“(c) Telling employee supervision another under his that he plaintiff wanted to ‘wear short skirts with fishnet stockings.’
“8. May 28,1995, “On plaintiffs or about supervisor, defen- Minnis dant Tuck called her at home at 3:45 a.m. and implored roommate, her and her female man- the assistant Co., L.L.C., of ager Little John’s Pizza to to his come over apartment help grieve to him death of his brother. apartment Plaintiff her and roommate went his and stayed approximately 4:30 until During from a.m. 9:00 a.m. plaintiff subjected sexually explicit, that time period was unwelcome, intimidating and offensive comments and con- supervisor, duct from her Tuck Minnis. defendant
“9. unwanted, demeaning and sexual intimidating, “The Tuck Minnis and remarks directed from defendant contact 28,1995, May or about included but were plaintiff following: limited to the “(a) touching plain- kissing, forced and Unwelcome wall; pinning against her arms
tiffs breasts while
“(b) lifting up plaintiffs clothes Unwelcome underneath; fondling plaintiffs body “(c) Following against into the her plaintiff bathroom will; touching against her wishes “(d) com- Intimidating graphic and offensive sexual (T come’) you forcing to make himself on ments want while asking her to have sex with him. top plaintiff “(e) rubbing body against of defendant’s Unwelcome body. plaintiffs
“(f) Intimidating ability statements his to fire about Co., L.L.C., employees plain- at Little John’s Pizza but that tiff think of herself as his friend.” should argues
Based on the above Little John’s allegations, does not policy apply exclusion 8 and 9 paragraphs because “the tortious conduct occurred off the and not underlying complaint job of the argument ignores the course of Winters’ That employment.” If Tuck was paragraph supervising the facts stated 8. at his then it follows that Win- alleged, in the course of her being suрervised by ters was thereby exclusion. Moreo- employment, triggering ver, the that Tuck within the course of acting conclusions the course of her and Winters was not within employment alleged. are the facts Accord- actually belied his apartment to the Winters was called to ing complaint, Tuck to the death of his brother. help grieve *18 from that
The rescues Little majority It reasoning. course of by dilemma on a different embarking acting fact that that Tuck was ignores alleges * * * “implored the course of his when he the death of his grieve to his him apartment help come over Tuck sex- Rather, that, because majority brother.” holds was supervising at work while he ually harassed Winters necessarily vicariously her, it followsthat Little John’s is lia- apartment holdings ble for his actions at his under the Fearing allegation words, Lourim. other acting Winters’ that Tuck was at all times apartment supervisor Tuck’s majority’s analysis. as Winters’ is immaterial to the problems majority’s
There are at least three with the reasoning. There is no causal connection between Tuck’s harassment of Winters at Little John’s and the assault at his apartment responsible that could render Little John’s under respondeat superior. proper Sеcond, doctrine of focus analysis for an under Chesterman is on the circumstances presence apartment that resulted in Winters’ in Tuck’s rather than the sexual harassment that occurred at Little majority’s disregards Third, John’s. rationale the fact complaint alleges “supervision” that Winters’ at Tuck’s gravamen as the ofLittle John’s vicarious obligation and that defendant’s to defend is circumscribed theory majority of her case. The should not advance legal theory apart its own pleading from that advanced Winters’ responsible
and hold defendant under its on a theory pled. beginning point majority’s reasoning of the reading holdings Fearing
based on its Chesterman, of the and Lourim.1 A discussion of the facts in each case is instruc- proper analysis. tive as to the In Chesterman, defendant’s potential during evening met with customers an meeting remodeling project plans to formulate and to obtain information for a employer. finishing
on behalf of his After inspection property, hallucinogenic drug of the he took a property feelings depression while still on the to counter give energy prepare project. and to him a bid for the While driving prepare to the site where he intended to the bid, he stopped, plaintiffs broke into the locked bedroom and sexu- ally assaulted her. The issue was whether the defendant liable for the assault. Preliminar- ily, said, the court arguments The briefs and in this ease were submitted after Chesterman but Fearing
before and Lourim were decided.
219 the attempted premise had plaintiff if “[consequently, employee’s] liability solely [its vicariously [employer’s] would assault, [employer] the entry and acts of Barmon’s not be vicariously found may still be [employer] The vicariously liable. were within liable, however, if acts which other acts in the employment resulted scope of employee’s] [its (emphasis Or at 443 injury plaintiff.” led to which original). require- three issue, court said the the analyzing
In met: must be vicarious ments for “(1) substantially within the act occurred whether the by employment; the space limits authorized time and (2) motivated, partially, at least employee was whether the (3) the act is of employer; whether by purpose a to serve the Or at perform.” hired to employee the was a kind which 442. the requirements
The court then above applied employee the fact that the defendant’s the facts. It relied on his employer’s he was on the drug property took the while him the bid. The prepare customers and to potential help one traveling was from employee assault occurred while the the course and while he was still within work site to another fact that the The court also to the pointed of his employment. a to serve by purpose was motivated employee defendant’s court Finally, the the ingested drug. when he employer that, the defendant’s that a could find because jury observed corporate employer, the of the president was also employee con- measures to enable himself to authority he had to take of the employer argu- tinue to work on the on behalf project — The court by ingesting drug. ably benefiting into the breaking find that jury concluded that a could were plaintiff and his assault of house ingestion drug employee’s acts that resulted from the employer’s on behalf of his business.2 were allegations by plaintiff Fearing, under youth by priest as a sexually he had been abused The issue was defendant Archdiocese. of the supervision summary judgment for the of a came to the court for review Chesterman employer.
whether the Archdiocese was ities of the liable for the activ- priest. plaintiff alleged priest that the youth pastor authorized the defendant to act as a and that development relationship spiri- as the result of the of a as a priest relationship mentor, tual advisor and to had used the sexually explained, assault him. Further, as the court “[t]he priest’s] [the describes performance of his priestly pastoral in developing duties a trust relation- ship plaintiff with family, together and his with the even- assaults, tual sexual ‘[manipulations.’ Plaintiff then alleges:
“
* * *
[manipulations
‘The
were committed within the
space
time and
[the
limits
priest’s] employment as
of
youth pastor and priest, were
desire,
committed out of a
initially
at least
partially,
and
to fulfill his employment
youth
duties
as
pastor
priest,
and
[manipulations
generally
were
actions of a kind and
nature
priest]
[the
which
required
was
perform
to
as
”
youth pastor
priest.’
(emphasis
Or at 372
added).
allegedly
Thus, the sexual assaults
occurred while
priest
performing
priest. Relying
the
its
was
his duties as a
holding
inquiry
Chesterman,
the court held that its
did
determining
alleged
not end after
whether the
sexual assault
priest’s employment.
was outside the
of “The Arch-
diocese still could be found
liable, if acts that were
priest’s]
[the
scope employment
within
of
‘resulted in the acts
”
injury
plaintiff.’ Fearing,
which led to
to
“[t]he a trust rela- developing leader in troop his duties as ance of with the family, together plaintiff and his tionship with ‘[mjanipulations.’ assaults as eventual sexual Plaintiff were com- manipulations that the alleges perform- leader’s] Boy with [the mitted in connection Scout leader: troop ance his duties as
“
* * *
were committed within
[manipulations
‘The
troop
responsibilities as
space
time and
leader,
limits
desire,
initially
at least
committed out of
were
leader, and
troop
his duties as
partially,
to fulfill
[the
actions of a kind and nature which
generally
were
troop
required
perform
Boy
leader]
Scout
”
added).
(emphasis
In this the majority endeavors to Tuck’s bring actions within the same kind of characterization. Winters alleges that Tuck engaged a pattern "continuous and prac- tice of subjecting [her] to sexually explicit conduct and com- ments, a creating sexually hostile work environment, continued conditioning [her] employment acquiescence such an environment.” According to the majority, those alle- gations conduct allege for which Little John’s is vicariously and, liable because there was a continuation of Tuck’s offen- sive conduct outside the work environment when he assaulted Winters in apartment, therefore there is a suf- ficient casual connection to hold Little John’s vicariously lia- ble for the assault. The majority correctly describes the hold- Chesterman, ings Fearing and Lourim but misapplies case, them to the facts of this resulting a flawed analysis. to the According majority, jury reasonably “[a] could find that the sexual harassment that Tuck inflicted on Winters at the job site was within the of his emрloy- * * * ment,] [and] [t]he would also permit jury to infer that the sexual harassment at the job site was a ‘nec- essary precursor’ the sexual abuse” that occurred at Tuck’s apartment. 162 Or App words, 207. other the syllogism proffered by majority is that the sexual abuse of Winters at Tuck’s causally connected to Tuck’s because Tuck previously sexually harassed Winters at work. What that proposition ignores is that Little John’s vicarious for the sexual harassment *22 in acting Tuck was legally at occurs because work bis the It is Tuck’s supervisor super- as at time. role Winters’ the “precursor,” that serves as the conduct at work visory under that in liability conduct results authorized predicate missing predicate That is respondent superior. the doctrine of the to Winters the that describe allegations precursor in in Tuck’s being apartment. in work- necessity
The of Tuck involved a being at the a precursor apartment legally cognizable related the apartment between Tuck’s actions at casual connection the facts becomes when employment apparent and Winter’s the of the Chester- undergo scrutiny in this case all of must met before vicarious requirements, man which be The first is that Tuck’s аctions liability requirement exists. sub- in the assault must have occurred that resulted sexual limits of stantially space within the time and exists even a time by employer, though lag authorized the the the producing between authorized conduct the act Chesterman, harm. In a time existed between although lag assault, taking drug and the the midst of his duties when the assault employment-related Fearing occurred. The same factual existed predicate contrast, In not in midst of employ- Lourim. Tuck was his he parlor ment as the of Little John’s when manager pizza at grieving was at his for his deceased brother Chesterman, allegations a.m. 4:30 Unlike facts or Lourim, no com- Fearing and there are that that actions meet first Tuck’s plaint requirement resulted in the must have occurred sub- that sexual assault limits of the stantially space employ- within time and ment authorized employer. yvas requirement second asks whether
motivated,
least
partially, by
purpose
at
serve
activity
presence
Winters’
prompted
Again,
pleading clearly
Tuck’s
answers
apartment.3
come to Tuck’s
question.
“implored”
Winters was
G.L.,
recognized
most
limitation
“[t]he
common
the court
intent of
have been undertaken with the
is
the intentional act must
misguided
furthering
purposes
employer,
that intent
the business
of the
however
might seem.”
In summary,
to
majority’s effort
this case
bring
under the holding of Chesterman and
avoid
to
Little John’s
dilemma
fail.
must
Tuck’s conduct at
his apаrt-
work
at
ment are
The only
they
discrete events.
connection that
have
with
is
they
each other
that
involve the same participants.
sexually
The fact that Tuck
harassed Winters at work is not
part
of
chain of causation that
resulted in his sexual
of
assault
her at the apartment.
allege
Winters does not
that
she was
prompted
go
apartment
Tuck’s
because she had
been
at work or
sexually harassed
that
the sexual assault
would not have occurred but for the
at
harassment
work.
Winters
that
went
alleges
apartment
she
to Tuck’s
because
he was her
supervisor.
only
work
The
plausible connection
between Winters’ work environment and her
at the
presence
apartment
supervisor.4
is that Tuck was her
Consequently,
logical
majority’s reasoning
employer
The
extension of the
is that an
becomes
any
against
employee
employee
liable for
tort committed
an
another
during
part
continuing pattern
if it can
tort
of a
off-work hours
be shown that the
majority’s rule,
effect,
during
of conduct that occurred
work hours.
makes
supervisor’s
the insurer of
off-work activities and extends the con
cept
liability beyond previously cognizable
of vicarious
boundaries. Mains v. II
Cf.
(1994)
Morrow, Inc.,
631-32,
App 625,
(reviewing
Little has John’s hable, not: to be vicariously has for it majority case what at his activity apartment have in an engaged Tuck must been it That is why that led the assault. on Little John’s behalf “at ah acting supervisor as Winters’ alleges avoid times.” That is also Little John’s cannot why material if of his man- acting its dilemma: Tuck was within he to come over to agerial “implored” duties when of his a.m. and him the death “help grieve 3:45 for in the course brother,” acting then the exclusion Winters in the also applies. light case, theory granting its trial court did err claims bodily on the summary judgment to defendant *24 injury.
The trial court also that defendant did not ruled of coverage have a to defend under the duty “personal injury” mean injury” the defines to policy. policy “personal than out of or more of injury, bodily injury, arising other one the offenses: following arrest, imprisonment;
“a. False detention or prosecution; “b. Malicious into, from, wrongful wrongful entry
“c. The eviction or room, of a right private occupancy of the or dwell- invasion person by a or on of its ing premises occupies, or that behalf owner, lessor; landlord or publication Oral or of material that slan-
“d. written organization per- person disparage or libels a or or a ders services; organization’s products or or goods, son’s or vio- publication “e. Oral or written of material that person’s right privacy.” lates she Winters that argues alleges of sub- meaning “detained” or within “imprisoned”
was occu- a. and that Tuck entered into a room wrongfully section allegations c. It to pied points Winters under subsection 226 assaulted against
that Tuck Winters “while her arms pinning the wall” and that he followed her “into the bathroom against However, her none of wishes.” Winters’ claims is identified in as a imprisonment wrongful false or entry claim.5
Nonetheless, the labels of a pleading are not deter- “[An] minative. insurer has a duty defend if the complaint any basis for provides provides which insurer coverage[,]” obligation and the depends of defendant defend any of alleged whether in Winters’ complaint can facts be reasonably to include conduct interpreted within the cov- Gutoski, 397, erage policy. 400, v. 877 Ledford (1994) P2d Even if (emphasis original). Winters’ com- plaint alleges some conduct for coverage personal outside if injury, duty defendant has a to defend allegations certain fact without impose amendment could conduct covered the policy. Here, Winters alleges she was pinned against wall while she was being sexually A assaulted. “false occurs imprisonment” when there is an unlawful restraint of one’s freedom of movement. The time, restraint need not be for more than a brief long so as the person being confined is aware of the confinement. See Lukas (1963). Co., 353, v. J. C. Or Penney P2d Winters’ can be reasonably interpreted satisfy tort elements of the of false imprisonment without It coverage amendment. follows in the for false imprisonment duty and defendant’s to defend Little John’s against claims of imprisonment false could triggered, be has ultimate assuming facts from which it can acting be inferred that capacity supervisor at the time. discussed,
For reasons none of previously *25 4, 7, 8, and 9 paragraphs suffices to impute vicarious to Little John’s for false imprisonment under Chesterman. The conсlusory allegation paragraph 4 that was “at all material in the acting times of complaint, According alleges to her claims for “Sexual Harassment 659.030,” Resisting “Wrongful for Retaliation Sexual Harassment-ORS Dis charge Resisting Harassment,” Battery,” Sexual “Sexual Assault and two Distress,” aiding counts of of “Intentional Infliction Severe Emotional abetting a violation ORS 659.030. The duty that —a conclusion. just is bald employment” on whether defend under policy depends defendant if that, true, would estab are facts” these “ultimate within the of that Tuck was course acting lish only pertinent The ultimate he assaulted Winters. when at supervisor that Tuck was her alleged by facts Winters are * * * over to his “implored work and that she was to come To him the death of his brother.” help grieve G.L., and, I allegation, echo the there no opinion court’s one, acting for the imagine cannot was furthering interest of the when Tuck purpose any at apartment. asked Winters to come to his 61.6 reasons, the above the trial did not err For court I summary judgment defendant. dissent. granting 6 G.L., sexually therapist plaintiff respiratory was assaulted recovering surgery. employed hospital at the where she was from defendant’s treating therapist when the occurred. Or 56. assault