Cope v. West American Ins. Co. of Ohio Cas. Group

• Decision Date: 18 April 1989
• Docket Number: HURLEY-HENDERSO,INC
• Citation: 95 Or.App. 114,768 P.2d 410
• Court: Oregon Court of Appeals
• Parties: Georgia COPE, Appellant, v. WEST AMERICAN INSURANCE CO. OF the OHIO CASUALTY GROUP, an Ohio Corporation, Hurley-Henderson Insurance, Inc., formerly known as Driscoll, Padgett & Hurley, Respondents. WEST AMERICAN INSURANCE CO. OF the OHIO CASUALTY GROUP, an Ohio Corporation, Third-Party Plaintiff, v., an Oregon Corporation, dba Hurley-Henderson Insurance, Inc., formerly known as Driscoll, Padgett & Hurley, Third-Party Defendant. 86-356 CV; CA A45475

Page 410

768 P.2d 410

95 Or.App. 114

Georgia COPE, Appellant, v. WEST AMERICAN INSURANCE CO. OF the OHIO CASUALTY GROUP, an

Ohio Corporation, Hurley-Henderson Insurance,

Inc., formerly known as Driscoll,

Padgett & Hurley, Respondents.

WEST AMERICAN INSURANCE CO. OF the OHIO CASUALTY GROUP, an Ohio Corporation, Third-Party Plaintiff, v. HURLEY-HENDERSON, INC., an Oregon Corporation, dba

Hurley-Henderson Insurance, Inc., formerly known

as Driscoll, Padgett & Hurley,

Third-Party Defendant.

86-356 CV; CA A45475

Court of Appeals of Oregon.

Argued and Submitted May 18, 1988.

Decided Jan. 25, 1989.

Reconsideration Denied March 24, 1989.

Review Allowed April 18, 1989.

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

Timothy C. Gerking, Medford, argued the cause for respondent West American Ins. Co. of the Ohio Cas. Group. With him on the brief was Brophy, Wilson & Duhaime, Medford.

Christopher Ledwidge, Medford, argued the cause for respondent Hurley-Henderson Ins., Inc. With him on the brief was Frohnmayer, Deatherage, deSchweinitz, Pratt & Jamieson, Medford.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Plaintiff appeals a summary judgment entered in favor of defendants, arguing that there were genuine issues of material fact and that summary judgment was therefore improper. We reverse and remand.

In September, 1985, plaintiff drove her automobile to work and parked in her employer's parking lot, which was across a public street from her employer's premises. After parking her car, she walked across the lot and had either entered or was about to enter the public sidewalk area when she was struck by an automobile driven by a co-employe, who was also on his way to work. Plaintiff filed a claim with the co-employe's insurance company and was paid $25,000, the liability limit on his policy. She then filed an underinsured motorist claim ¹ with defendants, her own insurers, alleging additional damages in excess of $150,000. Defendants denied the claim, in part on the ground that her injury was not covered because she was within the scope of her employment at the time of the accident. ² Plaintiff then filed the present action for a declaratory judgment that she is covered under the policy and a judgment for her damages. ³ After depositions had been taken, defendants moved for summary judgment pursuant to ORCP 47. The trial court granted the motion, and plaintiff appeals.

Summary judgment is proper when

"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ORCP 47 C.

In reviewing a summary judgment, the record is viewed in the light most favorable to the party opposing the motion. Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978).

Plaintiff's underinsured motorist coverage provided that defendants would pay "damages which a covered person is legally entitled to recover from the owner or operator of an [underinsured] vehicle." Thus, if plaintiff was legally entitled to recover from the co-employe who hit her, then she was legally entitled to recover from defendants. Defendants argue that her recovery against them is barred by ORS 656.018(3), which exempts employes from liability for negligent acts committed against each other if the employer has complied with the Workers' Compensation Law and if the injured employe is acting within the course and scope of the employment at the time of injury. We agree that, if plaintiff was acting within the course and scope of her employment at the time of injury ORS 656.018(3) entitles defendants to judgment as a matter of law. The question presented on appeal, therefore, is whether there was a genuine issue of fact as to whether plaintiff was within the course and scope of her employment at the time of injury. ⁴

Oregon cases have uniformly held that employe injuries that occur in parking lots owned or maintained by the employer arise out of and in the course of employment. Montgomery Ward v. Cutter, 64 Or.App. 759, 762, 669 P.2d 1181 (1983). Defendants argue that the evidence clearly establishes that plaintiff's injuries occurred in employer's parking lot and, therefore, arose out of and in the course of her employment. Defendants rely on plaintiff's statements in her deposition, in which she stated that the accident occurred in the parking lot. Specifically, she testified:

"[Counsel for defendants]: Why don't you tell me how the accident happened; when it was; where you were going; how it happened--that kind of thing.

"[Plaintiff]: Okay, * * * I had parked my automobile, gotten out of my car, walked diagonally across the parking lot and was almost on the sidewalk when Mr. Tideman, the gentleman that hit me, turned into the driveway and struck my right leg.

" * * * * *

"As he pulled into the driveway, he hit me in the right leg and I fell down. I did not see him coming into the driveway, as I was facing sort of a diagonal, and like I said, I was almost on the sidewalk. * * *.

" * * * * *

"[Counsel]: Were you in the crosswalk at the time he hit you?

"[Plaintiff]: No; I was still in the parking lot."

" * * * * *

"[Counsel]: Were you in front of the entrance to the parking lot?

"[Plaintiff]: The driveway into the parking lot, you mean? I believe I had one foot on the sidewalk and one foot was still in the parking lot.

"It did not happen exactly in the driveway. He swung wide when he pulled in and it happened. I'm honestly not certain--it happened very, very fast * * *." (Emphasis added).

Plaintiff contends that there was a genuine issue of fact as to her exact location at the time of the accident. She relies on statements made in her affidavit submitted in opposition to defendant's motion for summary judgment:

"That I stated in my deposition * * * that I was almost to the sidewalk when struck by Mr. Tideman. I also stated in the deposition * * * that I had one foot on the sidewalk and one foot on the parking lot.

"That when giving the deposition I did not clearly describe the area for the reason that the sidewalk area is blacktop covered the same as the parking lot and the driveway from Klamath Avenue crosses the sidewalk area into the parking lot.

"That at the time that I was struck by Mr. Tideman's automobile I was in the crosswalk area, although I had one foot in the driveway area that crossed the sidewalk area when I was struck by Mr. Tideman's automobile.

"I cannot definitely say how far out into the sidewalk area I was at the time I was struck as I did not see the approaching vehicle of Mr. Tideman at the time I was struck."

Plaintiff also relies on exhibits attached to her response to the motion for summary judgment, which include a written statement by Tideman, the co-worker who injured her, and Keen, another co-worker who arrived on the scene after plaintiff had been hit. Tideman stated that, when his vehicle struck plaintiff, "she was in the sidewalk portion of the parking lot and she came to rest near the middle of the sidewalk after she fell." Keen's affidavit stated that he found plaintiff "lying on the sidewalk area * * * in between the curb area and a parking lot sign located at the edge of the parking lot and the sidewalk area."

Defendants argue, relying on Henderson-Rubio v. May Dept. Stores, 53 Or.App. 575, 632 P.2d 1289 (1981), that a material fact cannot be put in issue for purposes of opposing summary judgment by filing an...