Trus Joist MacMillan v. John Deere Ins. Co.

• Decision Date: 20 December 2000
• Citation: 171 Or. App. 476,15 P.3d 995
• Court: Oregon Court of Appeals
• Parties: TRUS JOIST MacMILLAN, an Idaho corporation, and Trus Joist MacMillan, a Limited Partnership, Appellants, v. JOHN DEERE INSURANCE COMPANY, Respondent, and Newton & Sons, Inc.; Dallas Wayne Newton; and Jo Jean Shew, Personal Representative of the Estate of Earl Eugene Shew, Deceased, Defendants.

15 P.3d 995

171 Or. App. 476

TRUS JOIST MacMILLAN, an Idaho corporation, and Trus Joist MacMillan, a Limited Partnership, Appellants, v. JOHN DEERE INSURANCE COMPANY, Respondent, and Newton & Sons, Inc.; Dallas Wayne Newton; and Jo Jean Shew, Personal Representative of the Estate of Earl Eugene Shew, Deceased, Defendants.

(; CA A104636)

Court of Appeals of Oregon, En Banc.

Argued and Submitted April 24, 2000.

Resubmitted November 9, 2000.

Decided December 20, 2000.

Scott L. Garland argued the cause for appellants. With him on the briefs were E. Joseph Dean and Stoel Rives LLP.

I. Franklin Hunsaker, Portland, argued the cause for respondent. With him on the brief were Ronald E. Bailey, Beth R. Skillern, and Bullivant Houser Bailey.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges.

Resubmitted En Banc November 9, 2000.

LANDAU, J.

At issue in this case is whether defendant John Deere Insurance Company (John Deere) has a duty to defend plaintiff Trus Joist MacMillan (Trus Joist),¹ whose employee assisted in the loading of a truck that John Deere insured. The trial court held that, under Oregon law, the duty to defend applies only to persons who "used" the insured's truck, and that, by merely assisting in the loading of the insured's truck, the Trus Joist employee did not "use" it. We affirm.

The relevant facts are undisputed. Trus Joist manufactures and sells wood floor joists. A customer purchased several bundles of joists. Newton & Sons, Inc. (Newton), arrived to pick up the joists and transport them to the customer. The parties stipulated that Newton did not work for Trus Joist and that Trus Joist did not hire Newton to transport the joists.

Newton is insured by John Deere. The policy defines an "insured" to include permissive users, with specified exceptions:

"1. WHO IS AN INSURED

"The following are `insureds':

"a. You for any covered `auto.'

"b. Anyone else while using with your permission a covered `auto' you own, hire or borrow, except:

"* * * * *

"(4) Anyone other than your employees, partners, a lessee or borrower or any of their employees, while moving property to or from a covered `auto.'"

One of Trus Joist's employees helped Newton to load and secure several bundles of joists onto Newton's tractor-trailer. Some hours later, as the Newton truck proceeded to its destination, it veered across the center lane of the highway, spilled its load, and hit an oncoming car, killing its driver, Earl Shew. Shew's estate filed a wrongful death action against Newton. Newton then filed a third-party complaint against Trus Joist, alleging that the accident occurred in part because the load of joists had shifted due to Trus Joist's negligence in assisting with the loading. Trus Joist then tendered the defense of the action to Newton's insurer, John Deere, arguing that it was entitled to defense as permissive users of Newton's truck. John Deere denied coverage and refused to defend Trus Joist in the Shew action. Trus Joist then initiated this action for a declaration that John Deere is obligated to defend it in the Shew action.

John Deere moved for summary judgment, relying on the policy provision that excluded coverage for persons "moving property to or from" a covered vehicle. Trus Joist filed a cross-motion for summary judgment, arguing that the exclusion does not apply and that, in any event it is "trumped" by ORS 806.080, which requires all motor vehicle liability policies to include coverage for permissive users of an insured vehicle. According to Trus Joist, by helping Newton to load its truck, the Trus Joist employee became a permissive user of the Newton truck. The trial court held that, even if the Trus Joist employee "used" the Newton truck within the meaning of the term in ORS 806.080, that use ceased long before the accident that resulted in Shew's death. Accordingly, the trial court entered summary judgment for John Deere.

On appeal, Trus Joist argues that the trial court erred in allowing John Deere's summary judgment motion and in denying the cross-motion. According to Trus Joist, the policy exclusion does not apply, because it excludes coverage only while property is being loaded and unloaded, and, in this case, the accident did not occur until long after. In the alternative, Trus Joist argues that, regardless of any exclusions in John Deere's policy, ORS 806.080 mandates coverage and creates a duty to defend, because its employee "used" Newton's covered vehicle when he assisted Newton in loading it. In support of its argument, Trus Joist places particular reliance on Liberty Mut. Ins. v. Truck Ins., 245 Or. 30, 420 P.2d 66 (1966), which it reads as holding that the loading of a truck amounts to using the truck for purposes of Oregon insurance law.

In response, John Deere begins by arguing that the policy exclusion for loading and unloading covered vehicles plainly does apply: Trus Joist can claim coverage only to the extent that it was a permissive user, and the basis for its claim of permissive use—loading and unloading of the vehicle—is expressly excluded. John Deere then contends that ORS 806.080 does not impose a duty to defend for either of two reasons. First, it argues that the statute applies only to motor vehicle liability insurance policies, while the policy issued to Newton was for a "motor truck." Second, John Deere argues that, even if the statute applies to commercial motor carrier policies, it does not create a duty to defend in this case because, by merely assisting Newton in loading Newton's truck, Trus Joist's employee did not "use" the truck within the meaning of the statute.

We begin with the parties' arguments about the effect of the policy exclusion. The policy defines as an insured anyone "while using" a covered vehicle, excluding anyone "while moving property to and from" a covered vehicle. Trus Joist argues that the exclusion does not apply, because the Shew accident occurred after the loading and unloading. As John Deere complains, however, the argument cannot be reconciled with the language of the policy. That policy provides coverage for permissive users of a covered vehicle. Trus Joist contends that its employee used the Newton truck when he assisted in the loading of that truck. But loading the truck is expressly excluded from coverage. Thus, the very act on which Trus Joist relies to demonstrate its permissive use is one that the policy excludes from coverage. We conclude that the policy unambiguously excluded from coverage the act of loading the Newton truck.

We turn to the question whether ORS 806.080 creates a duty to defend notwithstanding the policy exclusion. That statute provides, in part:

"(1) A motor vehicle liability insurance policy used to comply with financial responsibility requirements * * * must meet all of the following requirements:

"* * * * *

"(b) It must insure the named insured and all other persons insured under the terms of the policy against loss from the liabilities imposed by law for damages arising out of the ownership, operation, use or maintenance of those motor vehicles by persons insured under the policy. The policy must include in its coverage all persons who, with the consent of the named insured, use the motor vehicles insured under the policy * * *."

John Deere's first argument is that the statute does not apply, because the statute applies only to liability insurance for "motor vehicles," not "motor trucks." We disagree. ORS 801.355 provides that, for the purposes of ORS chapters 801 through 826, the term "motor truck" means "a motor vehicle that is primarily designed or used for carrying loads other than passengers." Thus, the statute defines a "motor truck" as a species of "motor vehicle."

John Deere's second argument is that, in any event, the statute does not create a duty to defend, because Trus Joist's employee did not "use" the Newton truck. With that argument we agree. The statute requires coverage for persons who, with permission, "use" the named insured's vehicle. That means that the person must actually put the vehicle to his or her own use. In this case, there is no evidence that Trus Joist's employee did that.

As with the construction of statutes generally, we begin with the text of the provisions of insurance statutes, in their context, to determine the intended meaning of the wording in dispute. Marcilionis v. Farmers Ins. Co., 318 Or. 640, 645, 871 P.2d 470 (1994). The ordinary meaning of the verb "use" is

"to put into action or service : have recourse to or enjoyment of : EMPLOY * * * to carry out a purpose or action by means of : make instrumental to an end or process : apply to advantage : turn to account : UTILIZE * * *."

Webster's Third New Int'l. Dictionary, 2523-24 (unabridged ed. 1993). To "employ," in turn, means "to make use of * * * to use or occupy advantageously * * *." Id. at 743. And to "utilize" means "to make useful : turn to profitable account or use." Id. at 2525. Putting aside the inherently tautological nature of this definitional exercise, the point is clear that "use" connotes acting in a way that serves some purpose of the user. See Couch on Insurance 3d § 111:35 (1997) (" `Use' is to be given its ordinary meaning. It denotes the employment of the automobile for some purpose of the user.") (footnote omitted).

When Trus Joist's employee assisted in the loading of Newton's truck, he did not "use" the truck. He did not put the truck into action, employ it, apply it to his or his employer's advantage, or utilize it. The parties, in fact, stipulated that Trus Joist did not hire the truck and that Newton did not work for Trus Joist. Trus Joist's employee simply offered assistance to Newton in its loading of its truck. Newton may have been using the truck, but Trus Joist's employee was not. That only makes sense. See State v. Steele, 33 Or.App. 491, 499, 577 P.2d 524 (1978) (statutes must be read "with the...