State Farm Fire and Cas. Co. v. Reuter
Decision Date | 15 June 1984 |
Docket Number | No. 16-80-07796,16-80-07796 |
Citation | 680 P.2d 1000,68 Or.App. 17 |
Parties | STATE FARM FIRE AND CASUALTY COMPANY, Respondent, v. Richard Scott REUTER, Defendant, Gail Theresa Bullen, Appellant. ; CA A22866. |
Court | Oregon Court of Appeals |
James C. Jagger, Eugene, appeared for appellant. With him was Jagger & Holland, Eugene.
Daniel M. Holland, Eugene, appeared for respondent. With him was Jaqua, Wheatley, Gallagher & Holland, P.C., Eugene.
Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.
This case is a declaratory judgment proceeding before us on remand from the Supreme Court, which determined that a justiciable controversy is presented and that the trial court, and this court, had jurisdiction to determine plaintiff's liability. 1 We reverse and remand.
The facts, as we stated in our original opinion, are:
59 Or.App. at 105, 650 P.2d 172.
In Casey v. N.W. Security Ins. Co., 260 Or. 485, 491 P.2d 208 (1971), the court held that an insured who had been convicted of intentional assault could not require his insurer to defend a later civil suit by the victim of the attack. The court stated:
The question presented in this case is whether the victim of such an attack is also bound by the determination that an act was intentionally done.
The requirements for the application of the doctrine of collateral estoppel were established in Bahler v. Fletcher, 257 Or. 1, 474 P.2d 329 (1970), in which the court expressed approval of the following:
" * * * " 257 Or. at 20, 474 P.2d 329.
In this case, although defendant argues to the contrary, we are satisfied that there is the required identity of issue presented. Reuter was charged with knowingly committing the crime of first degree rape and was convicted. ORS 161.085 provides that "knowingly"
"when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that his conduct is of a nature so described or that a circumstance so described exists."
An attack that was "knowingly" committed must be, under the policy, "either expected or intended from the standpoint of the insured."
Whether there was a full and fair opportunity to contest the decision is a more difficult question. Collateral estoppel may only be invoked against one who was a party or in privity with a party to the action in which the original decision was made. Jones v. Flannigan, 270 Or. 121, 526 P.2d 543 (1974); Gaul v. Tourtellotte, 260 Or. 14, 488 P.2d 416 (1971). Bullen was not a party to the criminal action in which Reuter was convicted of first degree rape. She may only be bound if she was in privity with a party to that proceeding.
Jones v. Flannigan, supra, 270 Or. at 124, 526 P.2d 543.
In Rynearson v. Firestone Tire, 43 Or.App. 943, 607 P.2d 738 (1979), rev. den. 288 Or. 527 (1980), we held that the plaintiff "did not have any degree of control necessary for him to have had a fair and complete opportunity to litigate the issue of liability." 43 Or.App. at 946, 607 P.2d 738. There the plaintiff was a passenger in an automobile which was involved in an accident that was allegedly caused by a defective tire. The driver of the automobile was killed. The personal representative of the driver's estate and the plaintiff retained the same attorney. The plaintiff testified in the wrongful death case, which was tried first. The jury returned a verdict for the...
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State Farm Fire and Cas. Co. v. Reuter
...was entered against Bullen and Reuter. Bullen appealed; Reuter did not. The Court of Appeals reversed. State Farm Fire & Cas. v. Reuter, 68 Or.App. 17, 680 P.2d 1000 (1984). If a person has had a full and fair opportunity to litigate a claim to final judgment, most courts (including this on......
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