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Portland General Electric Co. v. Liberty Mutual Insurance Co.

United States District Court, D. Oregon

June 24, 2015

PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, Plaintiff,
LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation, Defendant.

Daniel K. Reising, FUCILE & REISING LLP, Portland, Oregon, Attorney for Plaintiff.

Thomas M. Christ, Paul A.C. Berg, COSGRAVE VERGEER KESTER LLP, Portland, Oregon, Attorneys for Defendant.


MARCO A. HERNANDEZ, District Judge.

Plaintiff Portland General Electric Company (Plaintiff or PGE) brings this action against Defendant Liberty Mutual Insurance Company seeking a declaration that Defendant has a duty to defend Plaintiff in an underlying personal injury lawsuit and has a duty to indemnify Plaintiff in connection with that underlying action. Plaintiff also brings a second claim for damages suffered as a result of Defendant's failure to defend and indemnify.

Both parties move for summary judgment. I grant Plaintiff's motion in part and deny Defendant's motion.


In April 2014, Joel Belgarde brought an action against PGE in Multnomah County Circuit Court alleging that he was injured at PGE's Boardman coal plant in May 2012. Ex. 6 to Pl.'s SJ Mem. In the underlying Complaint, Belgarde alleges that he is a boilermaker and that he was employed by NAES Corporation to perform work at PGE's Boardman plant. Ex. 6 to Pl.'s SJ Mem. at ¶ 1. He alleges that at all times during his work at the plant, PGE controlled, directed, and monitored his work. Id. at ¶ 3. He contends that he was injured in an accident at the Boardman plant on May 2, 2012. Id. at ¶¶ 4-9. He brings a claim of negligence, contending that PGE was negligent in five specified ways. Id. at ¶¶ 10, 12-15. He also brings a claim under the Employer Liability Law (ELL), contending that PGE violated its duties under the law in those same five specified ways. Id. at ¶¶ 10, 16-21.

Several years before this incident occurred, Plaintiff and NAES entered into a written contract under which NAES performed maintenance at the Boardman Plant. Ex. 1 to Pl.'s SJ Mem. The contract required NAES to procure commercial general liability insurance covering all of its operations and insuring against bodily injury and property damage. Id. at 3 (page 12 of contract; Art. 28). The contract also required NAES to "name PGE, its directors, officers and employees as Additional Insureds by endorsement or otherwise[.]" Id. at 4 (page 13 of contract; Art. 28). A Certificate of Insurance dated May 16, 2012 lists the insured as NAES under a commercial general liability occurrence policy effective November 1, 2011 to November 1, 2012. Ex. 2 to Pl.'s SJ Mem. The insurer is listed as Liberty Mutual Insurance Company. Id.

The insurance policy obligates the insurer to "pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury' or property damage' to which this insurance applies" and "to defend the insured against suit' seeking those damages." Ex. 5 to Pl.'s SJ Mem. There is no dispute that Belgarde suffered a bodily injury and that the underlying action against PGE qualifies as a "suit" under the policy. Def.'s Cross-Mtn at 3. The issue in this case is whether PGE is an "insured."

The insurance policy states that the "word insured' means any person or organization qualifying as such under Section II - Who Is An Insured." Ex. 5 to Pl.'s SJ Mem. Although the "Who Is An Insured" section of the policy is not in the summary judgment record, Defendant represents, and Plaintiff does not contest, that Plaintiff is not an insured under that section of the policy.

The "Blanket Additional Insured" endorsement amends the "Who Is An Insured" portion of the insurance policy "to include as an insured any person or organization for whom you have agreed in writing to provide liability insurance." Ex. 3 to Pl.'s SJ Mem. Defendant represents that the "named insured" in this policy is actually AEGIS Insurance Services, but Defendant concedes that based on policy-related documents that Plaintiff failed to submit, NAES qualifies as a named insured as well. Def.'s Cross-Mtn at 5; see also Ex. A to Def.'s Cross-Mtn (Declarations showing Named Insured as AEGIS). Under the Blanket Additional Insured endorsement, the term "insured" includes anyone that either AEGIS or NAES agreed in writing to insure. Given the contract between Plaintiff and NAES noted above, Plaintiff appears to be an insured under the policy. However, its status as an insured depends on the interpretation of the insurance policy in light of Oregon Revised Statute § (O.R.S.) 30.140 as discussed below.


Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an ...

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