Kisle v. St. Paul Fire & Marine Ins. Co.

Decision Date19 April 1972
Citation495 P.2d 1198,262 Or. 1
PartiesAdolf J. KISLE, Respondent, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a corporation, Appellant.
CourtOregon Supreme Court

George A. Rhoten, Salem, argued the cause for appellant. With him on the briefs were Rhoten, Rhoten & Speerstra, Salem, and Yokom & Mosgrove and Thomas M. Mosgrove, John Day.

Milo W. Pope, Milton-Freewater, argued the cause for respondent. With him on the brief were Galbreath & Pope, Milton-Freewater, and John N. Hutchens and Schroeder, Denning & Hutchens, Vale.

DENECKE, Justice.

This action involves the coverage of a liability insurance policy.

The plaintiff, Kisle, is a rancher in one of the more arid parts of eastern Oregon. He incurred damage to his sprinkler system and Harney County Farm Supply Co. agreed to procure parts and repair the damage. According to plaintiff, Harney Supply agreed to do this on March eighteenth and delivery was to be made as soon as it could obtain the pipe. According to Harney Supply, about April first, it undertook to secure the parts and make the repairs and gave no delivery date. The Harney Supply employee who was directed to get the parts became ill and he did not order the parts. Harney Supply's manager gave no reason why he or some other employee did not order the pipe. Plaintiff's foreman testified that Harney Supply's manager told him about March twenty-eighth that he would go to the hospital to see the employee and get everything 'straightened out.'

According to Harney Supply, its supplier received the order on May ninth, but because some of the parts were not in the supplier's stock and because of some unexplained delay by the supplier, the parts did not arrive until about June seventh. Plaintiff's foreman testified that the Harney Supply manager responded to his inquiry as to when the repairs could be made by stating, 'that he couldn't get to it,' and when the foreman said they would sue, the manager replied, 'Fine. You can't get blood out of a turnip.' The trial court made no finding on the cause of the delay.

The parts arrived about June seventh and the repairs were completed June ninth. As a consequence of Harney Supply's failure to perform its contract until June ninth, plaintiff was unable to irrigate until that time and his alfalfa crop was damaged.

Plaintiff brought an action against Harney Supply to recover the amount of his alfalfa damage. The complaint was entitled, 'Action for Breach of Contract,' and alleged that Harney Supply breached its contract by not making repairs within the time agreed.

The defendant, St. Paul Fire and Marine Insurance Company, had issued a comprehensive general liability policy to Harney Supply. Harney Supply tendered the defense of Kisle's action against it. St. Paul rejected the tender, stating that the action was for breach of contract and it did not cover Harney Supply's liability for such causes.

Harney Supply settled Kisle's lawsuit and assigned its claim against St. Paul to Kisle. This is an action upon that assigned claim.

The policy provides:

'The Company will pay on behalf of the Insured (Harney Supply) all sums which the Insured shall become legally obligated to pay as damages because of * * * property damage to which this Insuring Agreement applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of * * * property damage * * *.' The policy defines 'occurrence':

"(O)ccurrence' means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.'

Paraphrasing the coverage of the policy, St. Paul agrees to pay all sums for which Harney Supply 'shall become legally obligated' to pay because of property damage caused 'by accident.' St. Paul does not contend Harney Supply was not 'legally obligated' nor that Kisle did not incur property damage. The only remaining question about the coverage of this part of the policy is, was the damage caused by 'an accident.' We hold it was not.

We have had difficulties interpreting 'accident' in insurance policies. For the most recent example, see Pope v. Benefit Trust Life Ins. Co., 94 Or.Adv.Sh. 582, 494 P.2d 420 (1972). We do not want to further complicate the matter and intermingle cases involving liability policies with health and accident policy cases. We agree with the Casualty Committee of the International Association of Insurance Counsel:

'While the courts quite often use the decided cases in the accident field for authority in the public liability field, it is submitted that a difference in the purpose of the liability policy should bar such an indiscriminate use of the accident cases. In a general liability policy when the assured takes out a policy to protect himself from...

To continue reading

Request your trial
21 cases
  • Fox v. Country Mut. Ins. Co.
    • United States
    • Oregon Supreme Court
    • September 11, 1998
    ...are probably not many words which have caused courts as much trouble as 'accident' and 'accidental.' See Kisle v. St. Paul Fire & Marine Ins., 262 Or. 1, 5, 495 P.2d 1198 (1972). They are not words which lend themselves to specific or exact meanings [citations omitted], yet, everyone thinks......
  • Redevelopment Authority of Cambria County v. International Ins. Co.
    • United States
    • Pennsylvania Superior Court
    • November 25, 1996
    ...Inc. v. Providence Washington Insurance Company of Alaska, 648 P.2d 1008 (Alas. [Alaska]1982); Kisle v. St. Paul Fire and Marine Insurance Company, 262 Or. 1, 495 P.2d 1198 (1972); Boiler Brick and Refractory Co. v. Maryland Casualty Co., 210 Va. 50, 168 S.E.2d 100, 102 Rowland H. Long in h......
  • WILLMAR Dev. LLC. v. Ill. Nat'l Ins. Co.
    • United States
    • U.S. District Court — District of Oregon
    • June 21, 2010
    ...Oregon courts have differently interpreted the term “accident” within the meaning of insurance policies. Kisle v. St. Paul Fire and Marine Ins. Co., 262 Or. 1, 5, 495 P.2d 1198 (1972). They have recognized that there can be no “accident” when the resulting damage is merely a breach of contr......
  • Jones v. Emerald Pacific Homes, Inc.
    • United States
    • Oregon Court of Appeals
    • July 2, 2003
    ...106, 831 P.2d 7 (1992); Securities-Intermountain v. Sunset Fuel, 289 Or. 243, 259, 611 P.2d 1158 (1980); Kisle v. St. Paul Fire & Marine Ins., 262 Or. 1, 6-7, 495 P.2d 1198 (1972). The plaintiff's tort claim may exist even if it is based on an obligation that the defendant assumes as an exp......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT