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Repwest Insurance Co. v. Portland Adventist Medical Center

Court of Appeals of Oregon

April 26, 2017

REPWEST INSURANCE COMPANY, fka Republic Western Insurance Company, an Arizona corporation, Plaintiff-Respondent,
v.
PORTLAND ADVENTIST MEDICAL CENTER, an Oregon corporation, Defendant-Appellant.

          Argued and submitted April 5, 2016

         Multnomah County Circuit Court 120101077 Jerry B. Hodson, Judge.

          Matthew J. Kalmanson argued the cause for appellant. With him on the briefs was Hart Wagner LLP.

          R. Daniel Lindahl argued the cause for respondent. With him on the brief were Marianne Ghim and Bullivant Houser Bailey, PC, and Troy B. Froderman and Polsinelli PC.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary:

         Portland Adventist Medical Center appeals from a declaratory judgment entered in favor of its workers' compensation excess insurer, Repwest Insurance Company. Portland Adventist, over the course of several years, had settled workers' compensation claims made by an employee as benefits for aggravations of injuries the employee had sustained in 1992. Repwest sought a declaration that the insurance policy did not cover that “loss” because the benefits Portland Adventist paid were the result of accidents the employee had after 1992. Based on a jury verdict, the trial court entered a declaratory judgment for Repwest. On appeal, Portland Adventist argues that it was entitled to a directed verdict.

         Held: The trial court erred in denying Portland Adventist's motion for a directed verdict. As a matter of law, the policy's definition of “loss” covers Portland Adventist's payments to the employee because the actual payments made to the employee were made in settlement and only as a result of the employee's 1992 accident.

         Reversed and remanded.

          TOOKEY, J.

         Defendant Portland Adventist Medical Center appeals from a declaratory judgment entered in favor of its workers' compensation excess insurer, plaintiff Repwest Insurance Company. The parties had disputed whether Portland Adventist's insurance policy with Repwest covered excess payments Portland Adventist had made to an employee for workers' compensation benefits for aggravations of injuries the employee had sustained in 1992, during the policy period. To resolve that dispute, Repwest filed this action for a declaration that Portland Adventist's claim was not covered by the policy. Based on its interpretation of the policy, the trial court submitted the case to a jury to decide whether the employee's 1992 injuries were a major contributing cause of Portland Adventist's workers' compensation obligations to the employee. The jury answered "no" to that question, and the trial court entered a declaratory judgment for Repwest. Portland Adventist appeals that judgment, assigning error to the trial court's denial of its motion for directed verdict.[1] We conclude that the trial court erred because the text of the policy covers Portland Adventist's loss, as a matter of law. Accordingly, we reverse and remand for entry of a judgment that declares the rights of the parties consistent with this opinion.

         The following facts are undisputed. Portland Adventist is a self-insurer for purposes of the Workers' Compensation Law. See ORS 656.407 (qualifications for a self-insured employer). As required, Portland Adventist carries excess workers' compensation insurance. See ORS 656.430(8) (requiring self-insured employer to have appropriate excess insurance coverage). During 1992, Repwest was Portland Adventist's excess insurer for those purposes. Portland Adventist's 1992-1993 policy with Repwest provides that the policy

"applies to loss sustained by the Insured because of liability imposed upon the Insured by *** [t]he Workers' Compensation Act [of Oregon] *** on account of Bodily Injuries and Occupational Disease sustained by Employees employed by the Insured * * * as a result of occurrences taking place on or after the effective date and while this Policy is in force."

         "Loss" is defined by the policy as "only such amounts as are actually paid by the Insured in payment of benefits under the applicable Workers' Compensation Act, *** in settlement of claims for such benefits or damages, or satisfaction of awards or judgments for such benefits and damages [.]" "Occurrence, " for purposes of bodily injury, is defined by the policy as "Accident." The policy provided Portland Adventist with $5 million in coverage for "Each Occurrence, " with a $300, 000 self-insured retention for "Each Occurrence." Portland Adventist was responsible for the amount of the ...


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