Multnomah County v. Oregon Auto. Ins. Co.

• Decision Date: 10 June 1970
• Citation: 470 P.2d 147,256 Or. 24
• Parties: MULTNOMAH COUNTY, Oregon, Appellant, v. OREGON AUTOMOBILE INSURANCE COMPANY, Respondent.
• Court: Oregon Supreme Court

Page 147

470 P.2d 147

256 Or. 24

MULTNOMAH COUNTY, Oregon, Appellant, v. OREGON AUTOMOBILE INSURANCE COMPANY, Respondent.

Supreme Court of Oregon.

Argued and Submitted May 6, 1970.

Decided June 10, 1970.

Charles S. Evans, Portland, argued the cause for appellant, On the briefs were George Van Hoomissen, Dist. Atty., Portland, and David S. Shannon, Deputy Dist. Atty., Portland.

George M. Joseph, Portland, argued the cause for respondent. With him on the brief were Morrison & Bailey, Portland.

Before McALLISTER, P.J., and SLOAN, O'CONNELL, DENECKE, HOLMAN, and HOWELL, JJ.

HOLMAN, Justice.

This is an action by Multnomah County (County) against Oregon Automobile Insurance Company (Company) seeking recompense for a sum of money expended to satisfy a judgment. The County appealed from a judgment in favor of the Company.

One, Barendrecht, became an inmate of the Multnomah County jail. He was a diabetic. He subsequently commenced an action for damages because of the failure of the authorities at the jail to give him insulin. This action resulted in a judgment against the head jailer.

The County, in conformance with ORS 243.120, ¹ had purchased a policy of liability insurance from the Company which protected employees of the sheriff's office from liability for causes of action arising out of the course of their employment. The County made a demand upon the Company to defend the action, and the Company refused. The County defended and satisfied the resultant judgment against the jailer pursuant to ORS 243.620, ² and then brought this action against the Company as a subrogee of the jailer to recover the amount it had paid.

The sole issue in the appeal is whether or not the Company had coverage of the loss because of the following policy provision:

'Exceptions: The following exposures shall not be subject of insurance hereunder:

'* * *.

'(2) Injury, sickness, disease, death or destruction due to the rendering of or Failure to render any professional service.' (Emphasis ours.)

The Company contended that, under the circumstances then and there existing, its policy provided no coverage because the failure to administer insulin to Barendrecht was the failure to render a professional service. The trial court upheld the Company's contention.

The evidence in the present case consists principally of the transcript in the action in which Barendrecht secured his judgment. This transcript, as is usual, contains disputed testimony. The present case is a law case tried by the court without a jury. We are required to uphold the trial court's judgment in favor of the Company if there is sufficient evidence to sustain it. Therefore, all factual disputes in the transcript in the first case, concerning the circumstances under which Barendrecht was not given an injection of insulin, must be resolved in a manner most favorable to the Company's position, and the facts will be stated with that rule in mind.

Barendrecht was taken into custody at about 3 p.m., and shortly thereafter was transported to the county jail at Rocky Butte. Upon his admission, he was interviewed by a medical technician who was attached to the jail. Barendrecht told the technician that he was a diabetic and that he took insulin at 7 a.m. and at 7 p.m. Barendrecht subsequently felt ill, at about dinner time, and told the technician that he was 'feeling real bad,' and that he wanted his injection of insulin. It was not given to him. Barendrecht subsequently was bailed from jail and released about 8 p.m. When removed from his cell, he fainted and was attended by the technician. He recovered consciousness and was administered aspirin. Barendrecht's wife came to the jail to pick him up and found him staggering around outside the jail in an incoherent condition. He was transported to a hospital at Dallas where he was found to be in a diabetic coma which was contributed to by a lack of insulin and a urinary infection.

The County first contends that the acts of a medical technician are those of a craftsman and not of a professional. It argues that the giving of a shot of insulin is something Barendrecht could have done for himself had the drug and the necessary equipment been furnished to him and, therefore, that it was not something which required professional skill.

A professional act or service is one arising out of a vocation, calling, occupation or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual rather than physical or manual. Marx v. Hartford Accident and Indemnity Company, 183 Neb. 12, 157 N.W.2d 870 (1968), and cases cited therein. If the ability to physically administer the insulin were the only consideration involved, the County's contention would be correct. However, it is our view that something more was required than the physical ability to administer the drug, and that something more was the ability to determine whether Barendrecht's physical condition was such that an injection of...