Nielsen v. St. Paul Companies

Decision Date12 September 1978
Citation583 P.2d 545,283 Or. 277
PartiesJohn L. NIELSEN, Respondent, v. The ST. PAUL COMPANIES, Appellant. TC 76 03 03809; SC 25478.
CourtOregon Supreme Court

Gerald R. Hayes, Portland, argued the cause and filed briefs for appellant.

Thomas L. Gallagher, Jr., of Hardy, Buttler, McEwen, Weiss & Newman, Portland, argued the cause and filed a brief for respondent.

Before HOLMAN, P. J., and HOWELL, BRYSON and LENT, JJ.

HOLMAN, Justice.

This is an action by an insured against his liability insurer to recover a sum paid in settlement of an action against the insured plus the cost of defense in that case and his attorney fees in the present action. The insurance company appeals from a judgment for the insured.

The insurer issued plaintiff a storekeeper's liability policy which contained the following coverage:

"The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this Insuring Agreement applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defendant any suit after the applicable limit of the Company's liability has been exhausted by payment of judgments or settlements."

The policy defined an "occurrence" as follows:

" 'Occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured:" A Mrs. Palin filed a complaint against plaintiff which contained, among others, a count alleging the following:

" 'That on or about the 24th day of July, 1975, the above named defendants under the direction and control of John Nielsen undertook to repossess a certain grandfather clock, the property of the plaintiff, sold to her by the defendant John Nielsen. That said parties without legal authority or permission from plaintiff entered plaintiff's vehicle in front of plaintiff's home residence and subsequently entered plaintiff's residence without authority and removed and repossessed that grandfather clock without permission or authority. That in so doing, defendants struck plaintiff on her arms and otherwise rendered her nervous and upset, all to plaintiff's damage in the sum of $25,000.00."

Plaintiff tendered the defense of the action to defendant which refused the tender because it claimed the complaint was based upon the intentional, wilful and malicious misconduct of plaintiff. Plaintiff then undertook his own defense and eventually settled the case. There is no issue concerning the reasonableness of the amount of the settlement or the cost of the defense.

The first issue raised upon appeal is whether the trial court erred in finding that defendant had a duty to defend plaintiff. Defendant contends the complaint against plaintiff alleges the commission of intentional acts which amount to an assault and battery and that such acts are not within the policy coverage because they amount to the intentional infliction of harm.

When complaint is filed against the insured which alleges, without amendment, that the insured is liable for conduct covered by the policy, the insurer has the duty to defend the insured, even though other conduct is also alleged which is not within the coverage. Oakridge Comm. Ambulance v. U. S. Fidelity, 278 Or. 21, 24, 563 P.2d 164 (1977); Ferguson v. Birmingham Fire Ins., 254 Or. 496, 507, 460 P.2d 342 (1969); Blohm et al v. Glens Falls Ins. Co., 231 Or. 410, 414-15, 373 P.2d 412 (1962). The insurer owes a duty to defend if the claimant can recover against the insured under the allegations of the complaint Upon any basis for which the insurer affords coverage. Oakridge Comm. Ambulance v. U. S. Fidelity, supra at 24, 563 P.2d 164; Casey v. N. W. Security Ins. Co., 260 Or. 485, 489, 491 P.2d 208 (1971). Insurance coverage for the protection of one who intentionally inflicts injury upon another is against public...

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62 cases
  • Minnis v. Oregon Mutual Ins. Co.
    • United States
    • Oregon Court of Appeals
    • August 4, 1999
    ...intended to cause the injury that gives rise to coverage. See Ledford, 319 Or. at 402, 877 P.2d 80; Nielsen v. St. Paul Companies, 283 Or. 277, 280-81, 583 P.2d 545 (1978). More specifically, the question is whether the allegations establish that Little John's specifically intended to cause......
  • School Dist. No. 1, Multnomah County v. Mission Ins. Co.
    • United States
    • Oregon Court of Appeals
    • August 25, 1982
    ...Northwestern argues that it is against public policy to insure against intentional wrongdoing of an insured, see Nielsen v. St. Paul Companies, 283 Or. 277, 583 P.2d 545 (1978); Snyder v. Nelson/Leatherby Ins., 278 Or. 409, 564 P.2d 681 (1977); Isenhart v. General Casualty Co., 233 Or. 49, ......
  • Zrz Realty v. Beneficial Fire and Cas. Ins.
    • United States
    • Oregon Court of Appeals
    • October 1, 2008
    ...For the reasons that follow, we are not persuaded that any of those cases controls the issue before us. In Nielsen v. St. Paul Companies, 283 Or. 277, 583 P.2d 545 (1978), the insured filed an action against his insurer to recover the amount that the insured paid to settle a claim against h......
  • ZRZ REALTY Co. v. FIRE
    • United States
    • Oregon Supreme Court
    • October 14, 2010
    ...similar to the express fortuity policies in this case. See Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80 (1994); Nielsen v. St. Paul Companies, 283 Or. 277, 583 P.2d 545 (1978). In both Ledford and Nielsen, the insurance policies provided coverage for bodily and property damage that resulted......
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