REPWEST INSURANCE COMPANY, fka Republic Western Insurance Company, an Arizona corporation, Plaintiff-Respondent,
PORTLAND ADVENTIST MEDICAL CENTER, an Oregon corporation, Defendant-Appellant.
and submitted April 5, 2016
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.
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.
Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog,
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
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.
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. 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.
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."
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 ...