Oregon Auto. Ins. Co. v. Watkins
| Decision Date | 15 February 1973 |
| Parties | OREGON AUTOMOBILE INSURANCE COMPANY, Appellant, v. Wesley A. WATKINS dba Gem Electric, Defendant, Fireman's Fund American Insurance Companies and St. Paul Insurance Companies, Respondents. |
| Court | Oregon Supreme Court |
Roger C. Germundson of Hawkins, Germundson & Scalf, Gresham, argued the cause and filed a brief for appellant.
David C. Landis of Gearin, Landis & Aebi, Portland, argued the cause and filed a brief for respondents.
The plaintiff, Oregon Automobile Insurance Company, brought this declaratory judgment proceeding asking the court to declare that it does not have to pay a judgment against its insured, the defendant Watkins, because the property damaged by Watkins was in his 'care, custody or control.' The trial court properly found that Oregon Auto was liable under its policy. We affirm.
It appears from the record that Oregon Auto issued a policy of general liability insurance to the defendant Watkins, an electrical contractor. Watkins contracted with KGW-TV to install additional electrical service in its broadcasting building. The installation required the defendant to work on a large panel with electrical cables, wires, bus bars, and various switches located inside the panel. While Watkins was working on the panel he observed a 'chute of flames coming up under my arm,' a series of three explosions occurred and the panel was severely burned and damaged by fire. Watkins was the only person working on the panel and, in fact, the only person in the room when the explosion and fire occurred.
KGW's fire loss was paid by its insurers St. Paul and Fireman's Fund, who, in turn, as subrogees, sued Watkins for the damage to KGW's building and equipment. The judge who tried the case without a jury found against Watkins solely on the doctrine of res ipsa loquitur and awarded judgment against Watkins for $12,951.63. The judgment against Watkins was appealed to this court on the ground that res ipsa loquitur did not apply to the facts in that case. We affirmed the judgment in St. Paul Fire and Marine Insurance Co. v. Watkins, 261 Or. 473, 495 P.2d 265 (1972).
Oregon Auto refused to pay the judgment against Watkins as affirmed and brought this proceeding. Oregon Auto relies solely on the following exclusion clause of its policy:
'* * * property damage to * * * property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control, * * *.'
Oregon Auto argues, in effect, that since we held Watkins liable to KGW under the doctrine of res ipsa loquitur because the damaged property was under his exclusive control we are bound to hold for the same reason that Oregon Auto is relieved of liability under the care, custody or control exclusion of its policy. We pause to say that at least plaintiff's counsel has advanced an ingenious argument.
We have consistently held that a declaratory judgment proceeding to determine the liability of the insurer to its insured under its policy is in the nature of an action an law and governed by the same rules. 1 This proceeding is in reality an action by Watkins to collect the protection due him from Oregon Auto under his policy. The parties appear in inverse order only because Oregon Auto initiated the action. 2
Viewed as an action at law appellant's brief presents nothing for us to decide. the two assignments of error raise only the following questions:
1. Was Watkins exercising exclusive physical control over the panel?
2. Was KGW-TV in control and did it have the right to control the electrical panel at all times?
3. Was the panel box permamently affixed to the cement walls and foundations of the KGW building?
4. Were all parts of the electrical distribution system which were damaged in the fire parts of the real property?
5. Did the trial court err in finding that As real property all component parts of the damaged portion of the electrical distribution system within the building was excluded under the care, custody or control exclusion of the policy?
It will be noted that the first four questions are pure questions of fact. As to the third question Oregon Auto stipulated in this case that
'The panel box in which the...
To continue reading
Request your trial
-
Lee v. State Farm Mut. Auto. Ins. Co.
...is reversed with instruction to enter a judgment for defendant in accordance with this opinion. 1 Oregon Automobile Ins. Co. v. Watkins et al., 96 Or.Adv.Sh. 812, 506 P.2d 179 (1973); Frontier Ins. v. Hartford Fire Ins., 262 Or. 470, ---, 499 P.2d 1302, 1306 (1972); May v. Chicago Insurance......
-
International Health & Life Ins. Co. v. Lewis
...accept the trial court's findings of fact if those findings have adequate support in the evidence.' In Oregon Auto Ins. Co. v. Watkins, 264 Or. 464, 467, 506 P.2d 179, 180 (1973), which was a declaratory judgment action brought by plaintiff for a declaration that it was not liable for a jud......
-
Hartford Fire Ins. Co. v. Aetna Ins. Co.
...393, 494 P.2d 885 (1972); Frontier Ins. v. Hartford Fire Ins., 262 Or. 470, 478--479, 499 P.2d 1302 (1972); Oregon Auto. Ins. Co. v. Watkins, 264 Or. 464, 467, 506 P.2d 179 (1973); Lee v. State Farm Auto. Ins., 265 Or. 1, 2, 507 P.2d 6 (1973). As a result we are bound by the trial court's f......
-
Topco, Inc. v. State, Dept. of Highways
...law or fact. Penn v. Burlington Northern, Inc. (1980), 185 Mont. 223, 228, 605 P.2d 600, 603-4 (citing Oregon Automobile Insurance Company v. Watkins (1973), 264 Or. 464, 506 P.2d 179). Accordingly, on either approach to this issue, we hold that the District Court was correct in concluding ......