Opinion
A8012-07083; CA A28753
Reconsideration denied September 20, 1985
Petitions for review denied November 5, 1985
Appeal from Circuit Court, Multnomah County.
John C. Beatty, Jr., Judge.
G. Kenneth Shiroishi, Portland, and Dunn, Carney, Allen, Higgins Tongue, Portland, for appellant's petition.
Susan E. Watts, Portland, and Dressler Granata and Kennedy, King Zimmer, Portland, for respondents' cross-petition.
Before Richardson, Presiding Judge, and Warden and Newman, Judges.
NEWMAN, J.
Petitions for reconsideration allowed; former opinion adhered to.
Plaintiff petitions and defendants cross-petition for review of our decision in Calif. Cas. Ins. v. David Douglas School Dist., 71 Or. App. 549, 693 P.2d 54 (1984). We treat the petitions as requests for reconsideration, allow them and adhere to our original opinion.
Plaintiff reasserts that St. Paul provided the district with general liability insurance which included primary coverage for any district liability in this case. In our original opinion, however, we stated:
If so, then plaintiff and St. Paul both insured the district and, if Salvo acted within the course and scope of his employment, an allocation of that shared responsibility would be at issue. See Lamb-Weston et al v. Ore. Auto Ins. Co., 219 Or. 110, 341 P.2d 110, 346 P.2d 643 (1959).
"St. Paul's policy by its terms did not insure the district against liability for Salvo's acts when he drove his own car, even if he was then within the scope of his employment." 71 Or App at 552. (Emphasis in original.)
That statement is correct. We have again reviewed the record. The only policy of St. Paul's in evidence is Exhibit 14, which includes the business auto policy. Although Exhibit 14 recites on the declarations page that St. Paul insured the district for "comprehensive general liability" with a $500,000 limit, the terms of the coverage, including any applicable "other insurance" clause, are not in evidence.
Every other type of coverage listed on the declarations page of Exhibit 14 has a corresponding underlying coverage form. Exhibit 14 omits the general liability coverage form.
On this record St. Paul did not provide the district with general liability coverage applicable to this case. Plaintiff relies on testimony of Harrigan, a St. Paul employe, to establish the terms of a general liability coverage. He testified:
Plaintiff asserts in its petition that:
"The issue of whether St. Paul was the district's insurer in these present matters was, thus, not in dispute. * * * Neither the district nor St. Paul ever took a contrary position either at trial or on appeal."
Defendants' pleadings, however, did put the matter in dispute, and their trial memoranda do not acknowledge that St. Paul insured the district's liability in this case.
"Q: If David Douglas was sued for the act of an employee driving his own car on behalf of David Douglas, under that insurance policy, David Douglas would be protected by St. Paul; is that correct?
"A: Yes, that's correct."
Exhibit 14 does not support his answer, and it is contradicted by other evidence. Plaintiff now asserts for the first time that St. Paul's business auto policy covered the district's first-dollar liability, not only for district-owned vehicles but for "any auto" and, therefore, for Salvo's automobile. Plaintiff's argument has no merit.
Plaintiff relies on the symbol "1", meaning "any auto," which appears on the declarations page of the business automobile liability policy. It defines the autos covered. "Any auto" might be defined on the back of page one of the "business auto policy supplementary declarations," but the back of that page is not in evidence. We are able to determine, however, from the portion of the supplementary declarations in evidence, that "any auto" includes only vehicles covered by items 4, 5 and 6 of the supplementary declarations. Those consist of 101 enumerated owned vehicles (Salvo's own car is not one of them) and vehicles hired or borrowed from employes or others. The liability premiums for those autos total exactly the premium charged for the business automobile liability coverage for "any auto."
In their cross-petition, defendants assert that we erred when we stated that, "as a matter of law, Salvo was acting within the scope of his employment * * *." 71 Or App at 551. We reaffirm our statement. The material facts are undisputed. The finder could not reasonably draw conflicting inferences from the facts. Whether Salvo acted within the course and scope of his employment is a question of law. See Stanfield v. Laccoarce, 284 Or. 651, 655, 588 P.2d 1271 (1978). In that case the court also stated:
Salvo's job as vice-principal included supervision of a Halloween dance at the school. His usual time of arrival would be around 7 p.m. He left school for home at 3:30 p.m. He and his wife went out for dinner and, to save time, ate at a short-order restaurant. The accident occurred just after they had left the restaurant for school. Salvo arrived at school only a few minutes after 7 p.m.
Salvo was not compensated for his regular daily commuting to school. Under his arrangement with the district for evening supervision, he was entitled to be compensated either for his dinner eaten near school or for his mileage to and from school. The district did not require that Salvo drive only on the Banfield Freeway. For the evening of the accident he submitted and received payment for mileage of 15.3 miles in each direction. The mileage for Salvo's usual route on the Banfield Freeway and the route that he followed that evening is almost identical.
"In deciding whether an employee was acting within the scope of his employment, the factors to be considered are whether the act in question is of a kind the employee was hired to perform, whether the act occurred substantially within the authorized limits of time and space, and whether the employee was motivated, at least in part, by a purpose to serve the employer. Gossett v. Simonson, 243 Or. 16, 24, 411 P.2d 177 (1966), quoting Restatement (Second) of Agency § 228 (1958)." 284 Or at 655.
Salvo's evening trip to supervise the school dance was of a kind he was hired to perform. He acted "substantially within" the district's time and space limitations. He was motivated to serve the district. His mileage compensation distinguishes that travel from his daily commute. Compare Heide/Parker v. T.C.I. Incorporated, 264 Or. 535, 539, 506 P.2d 486 (1973). As a matter of law, Salvo was acting within the course and scope of his employment. See Stanfield v. Laccoarce, supra; Heide/Parker v. T.C.I. Incorporated, supra; Gossett v. Simonson, supra; Wilson v. Steel Tank and Pipe Co., 152 Or. 386, 52 P.2d 1120 (1936).
Petitions for reconsideration allowed; former opinion adhered to.