Allen v. Continental Cas. Co.

• Decision Date: 20 December 1977
• Citation: 572 P.2d 617,280 Or. 631
• Parties: Virginia Marie ALLEN, personal representative of the Estate of Kenneth Duane Allen, Deceased, Appellant, v. CONTINENTAL CASUALTY COMPANY, an Illinois Corporation, Respondent.
• Court: Oregon Supreme Court

Page 617

572 P.2d 617

280 Or. 631

Virginia Marie ALLEN, personal representative of the Estate

of Kenneth Duane Allen, Deceased, Appellant, v. CONTINENTAL CASUALTY COMPANY, an Illinois Corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Nov. 9, 1977.

Decided Dec. 20, 1977.

Brian E. Jeanotte, Portland, argued the cause for appellant. With him on the brief were George R. Waldum and Roger V. Holm, Portland.

William R. Miller, Jr., Portland, argued the cause for respondent. With him on the brief was William L. Hallmark and Jones, Lang, Klein, Wolf & Smith, Portland.

Before DENECKE, C. J., HOLMAN and TONGUE, JJ., and GILLETTE, J. Pro Tem.

TONGUE, Justice.

This is an action to recover accidental death benefits under an insurance policy issued by defendant to Mt. Hood Community College for the benefit of its employees. The case was tried on stipulated facts before the court, without a jury. Plaintiff appeals from a judgment for the defendant.

The insurance policy included the following provisions:

"The hazards against which insurance is provided under this policy, provided such hazards arise while the insured person is on the business of the holder, are injuries sustained by an insured person anywhere in the world (excluding every day travel to and from work and bonafide vacations).

" * * *fro

"The term 'on the business of the employer', as used in this policy, means on assignment by or with the authorization of the holder for the purpose of furthering the business of the holder." (Emphasis added)

The question to be decided is whether, at the time of his death, decedent was "on assignment by or with the authorization of the holder for the purpose of furthering the business of the holder."

In deciding this question we must bear in mind that although an insurance company is ordinarily entitled to the enforcement of an insurance policy as written by the company if its terms are clear and unambiguous, in the event of an ambiguity in the terms of an insurance policy any reasonable doubt will be resolved against the insurance company and in favor of extending coverage to the insured. Farmers Mut. Ins. Co. v. Un. Pac. Ins., 206 Or. 298, 305, 292 P.2d 492 (1956); Chalmers v. Oregon Auto Ins. Co., 262 Or. 504 508-09, 500 P.2d 258 (1972).

We have also said that when words or terms of a general nature are used in an insurance policy such words or terms may be ambiguous, in the legal sense, when they can reasonably be given a broader or a narrower meaning, depending upon the intention of the parties in the context in which such words are used by them. See Shadbolt v. Farmers Insur. Exch., 275 Or. 407, 410-11, 551 P.2d 478 (1976), and cases cited therein.

The agreed facts in this case are as follows. On July 1, 1975, at about 9:54 a. m., while driving from Mt. Hood Community College to the Portland Teacher's Credit Union, Kenneth Duane Allen was killed when his car was involved in an automobile accident.

At the time of his death, Mr. Allen was a full-time employee of the Security Department of Mt. Hood Community College. Security was generally responsible for traffic control, first aid, emergency services, responding to bomb threats, fights, fires, and the like. Most of these services were performed by security employees on the campus. Security employees also performed investigations and other services, and picked up and delivered equipment off campus.

Mr. Allen was employed as a patrolman. He was employed on a salary basis with overtime pay for any work over 40 hours in any week. He worked five days a week, from 8 a. m. to 4 p. m., including a paid half-hour lunch. As a patrolman, Mr. Allen was expected to be on duty and responsive to events during his entire eight-hour shift. He was not allowed to schedule set coffee breaks or lunch times. He was expected to break or eat whenever the press of events allowed. Furthermore, during a break or lunch period he was required to stand by to respond to emergency or other situations.

Mr. Allen wore a uniform with certain equipment. He was required to carry and monitor a two-way transceiver radio with him while on duty, including those times when he was off campus. Security's base radio could communicate with a patrolman via his radio at a range of 25-30 miles. The radios were used to call patrolmen to respond to emergencies and for other communications. A patrolman was permitted to leave campus during his lunch so long as he remained available to and did in fact respond to radio calls. A patrolman who did not respond to a radio call would usually be counseled in the first instance, reprimanded in the second instance, and probably fired in the third instance.

Prior to his death, Mr. Allen usually ate lunch at home, located two miles from campus. He had been called upon via radio to answer questions about log entries or the like during his lunch. He had occasionally been required to interrupt and cut short his lunch in response to a radio call to return to campus for such reasons as to cover the campus while a fellow patrolman took an injured party to the hospital or to assist a motorist.

Full-time employees of the college were allowed to join the Portland Teacher's Credit Union as a voluntary fringe benefit. Mr. Allen had so joined.

Before leaving campus a patrolman was required to notify the security switchboard operator of his destination. He was also required to turn his radio on. On the date of his death, shortly before 10 a. m., Mr. Allen informed the switchboard operator he was taking an early lunch to go to the credit union and that he had his radio so they could reach him if they needed him. Mr. Allen wanted to go to the credit union to reduce the amount deducted by the college from his paycheck on behalf of the credit union for repayment of car loans. He then left for the credit union. He was killed about four minutes after he left campus.

The college did not ask Allen to do anything for it while he was on this errand. His errand was not precipitated by any of the requirements that occasionally take security personnel off campus.

The college permitted Allen to take a security truck home for lunch only when Allen was the only patrolman, other than a student, on duty at the campus. His supervisor, Mr. Schmelger, "would have frowned" on Allen using a security truck for personal business. At the time of the accident, Allen was not driving a college-owned vehicle, but rather was driving his personal automobile. The security truck had no mechanical problems which would have prevented Allen from using it were he on official business.

Defendant's contentions may be summarized as follows: To prove coverage, plaintiff must establish as a matter of law that Allen was "on assignment by or with the authorization of" Mt. Hood Community College and that his errand was "for the purpose of furthering the business of" the college; that plaintiff has been unable to identify any facts or cite any case supporting her argument that Allen's conduct at the time of his death was "for the purpose of furthering" his employer's business; that "when reduced to its simplest form," plaintiff's argument is that because Allen was "on call" at the time...