|May 1, 2003|
|The full text of these opinions can be found at http://www.publications.ojd.state.or.us/|
Stuart Abrams et al. v. General Star Indemnity Company, (00-35872) (SC S49593)
On certified question from the United States Court of Appeals for the Ninth Circuit, Honorable Stephen Trott and Honorable T.G. Nelson, United States Circuit Court Judges; and Honorable John S. Rhoades, Senior United States District Court Judge. Certified question answered. Opinion of the Court by Justice Thomas A. Balmer.
The Oregon Supreme Court today answered the following certified question:
"Does an insurer have a duty to defend an insured
alleges a subjective intent to harm but the claim
under an insurance policy with an 'intentional acts' exclusion if the complaint against the insured
could be proven through unintentional conduct?"
In the case before the Ninth Circuit, the complaint against the insured alleged conversion, which was a covered claim under the insurance policy. The factual allegations in the complaint alleged that the insured had acted intentionally, although proof of intent was not necessary to prove the claim. The insurance policy excluded intentional conduct.
The insured argued that, because the complaint alleged a covered claim, the insurance company had a duty to defend, regardless of the allegation of intentional conduct. The insurance company responded that, because the complaint alleged intentional conduct, the company did not have a duty to defend.
In a unanimous opinion, the Court stated that the question of duty to defend is a fact-specific inquiry requiring the examination of the insurance policy and the complaint. Under the above facts, the Court held that, because the complaint contained allegations of covered conduct, the insurer had a duty to defend, regardless of the allegations of excluded conduct. The Court also stated that, if a complaint does not contain allegations of covered conduct, then an insurer has no duty to defend.
On April 29, 2003, the Supreme Court:
1. Allowed petitions for review in:
State v. Glaspey, S50105, A112752
Petitioner James Lewis Glaspey (defendant) seeks review of a Court of Appeals decision that affirmed his convictions and sentences on two counts of assault in the fourth degree under ORS 163.160(3)(c), for a single assault of his spouse in the presence of two minor children.
ORS 163.160(3)(c) provides that assault in the fourth degree, which ordinarily is a Class A misdemeanor, is a Class C felony if "[t]he assault is committed in the immediate presence of, or is witnessed by, the person's or the victim's minor child or stepchild or a minor child residing within the household of the person or victim."
Defendant was indicted on two counts of fourth degree assault for assaulting his wife in front of his son and stepson. Each count was based on allegations that an individual child witnessed defendant's conduct. Defendant pleaded no contest. The trial court entered convictions on both counts and imposed concurrent sentences. However, pursuant to a plea agreement, the trial court entered the convictions as Class A misdemeanors.
Defendant appealed, arguing that the trial court erred by entering two judgments of conviction for a single assault. The Court of Appeals affirmed in a split, en banc decision. The majority determined that "[i]n combination, the ordinary meaning of 'victim,' the purpose and structure of ORS 163.160(3)(c), and the context of both ORS 163.160(3)(c) and ORS 161.067(2), manifest a legislative intent that children who witness a domestic assault be considered [separate] victims * * *." The dissent would have held that "the 'victim' of a crime is the 'direct victim' unless there is a clear legislative determination otherwise."
On review, the issue is whether multiple judgments of conviction may be entered under ORS 163.160(3)(c), for a single assault of a defendant's spouse in the presence of two minor children, or whether the convictions merge into a single conviction.
2. Denied petitions for review in:
Pederson v. Barnes, S50006, A113596
State v. Holm II, Inc., S50053, A112549
Devenport v. Lampert, S50069, A114851
State v. Russell, S50107, A112344
XREL/Juvenile Department of Jackson County v. Smith, S50115, A106007
State v. Olivarez, S50125, A114003
Weinstein and Weinstein, S50170, A108410
Martinez v. Czerniak, S50220, A116971
State v. Ortiz-Martinez, S50228, A115286
State v. Ortiz-Martinez, S50229, A115271
State v. Rhodes, S50246, A103519
Meriweather v. Morrow, S50261, A116837
State v. Martin, S50267, A115409
Frost v. Palmateer, S50286, A111191
State v. Ropp, S50299, A112101
State v. Lavender, S50304, A112516
State v. Sheehan, S50309, A119085
State v. Richardson, S50312, A114090
McCormick v. Hall, S50316, A117235
Lawrence v. Palmateer, S50317, A114116
3. Denied petitions for reconsideration in:
Schlimgen v. May Trucking Company, S49194, A107409
Van Horn and Van Horn, S50191, A111678
State v. Kay, S50249
4. Denied a petition for writ of mandamus in:
Harris v. Czerniak, S50275
Harris v. Czerniak, S50276
5. Dismissed a petition for alternative writ of mandamus in:
Foerster v. McCormick, S50110
6. Denied a petition for writ of quo warranto in:
XREL/Lewis v. Gallagher, Jr., S50292
XREL/Sparks v. Baisinger, S50340
7. Accepted Form ‘B’ Resignation from the practice of law in:
In Re: Annellie Sue Guthrie, S50350
In Re: Joseph J. O’Connor, S50353
8. Admitted the following persons to the practice of law in Oregon under Rule of Admission 15.05 relating to reciprocal admission:
Gregory Mark Abel John Potter Howard
Lizbeth Ann Englund Gail Marie Lundgren
P. Arley Harrel, Jr.