Bighorn Logging Corp. v. Truck Ins. Exch.

437 P.3d 287, 295 Or. App. 819
CourtCourt of Appeals of Oregon
DecidedJanuary 30, 2019
DocketA163054
StatusPublished
Cited by17 cases

This text of 437 P.3d 287 (Bighorn Logging Corp. v. Truck Ins. Exch.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bighorn Logging Corp. v. Truck Ins. Exch., 437 P.3d 287, 295 Or. App. 819 (Or. Ct. App. 2019).

Opinion

SHORR, J.

*290*821This appeal arises from an action for defense costs and indemnity brought by Bighorn Logging Corporation (Bighorn) against Truck Insurance Exchange (Truck). Bighorn was the defendant in a timber trespass lawsuit filed by Paul Ater. In April 2012, Bighorn had approached Ater requesting a limited license to use up to three Douglas fir trees on Ater's property (the Ater property) as "tail hold trees" that would be used to secure "yarder lines" in connection with a logging operation on an adjacent property owned by Dr. Edney (the Edney property).1 Bighorn explained to Ater that it would use only two or three trees and take specific precautions to ensure that there was no or minimal damage to Ater's trees. Under those proposed conditions, Ater granted Bighorn a limited license to use the indicated trees.

In his complaint, Ater alleged that, contrary to its representations, Bighorn failed to effectively employ methods designed to minimize damage to Ater's trees. Instead, Bighorn used a chainsaw to "girdle" the trees and create wedge-shaped cuts to keep the steel yarder lines in place. In total, Bighorn cut down or severely damaged 18 Douglas fir and alder trees as well as numerous shrubs and small trees on Ater's property. The Ater lawsuit went to trial, and Bighorn was found liable by a jury for "intentionally or recklessly" damaging Ater's trees.

Bighorn tendered defense of Ater's claim to Truck pursuant to a commercial general liability (CGL) insurance policy that Bighorn had purchased from Truck. Truck concluded that it was not obligated to defend or indemnify Bighorn because, in its view, Ater's complaint alleged conduct for which the policy did not provide coverage and, in the event that there was coverage, Bighorn's alleged conduct was subject to exclusions in the insurance policy.

After Truck refused to defend or indemnify Bighorn, Bighorn brought a breach of contract action against Truck. The trial court entered summary judgment for Bighorn and denied Truck's cross-motion for summary judgment. On *822appeal, Truck assigns error to those rulings and reprises its arguments that it was not obligated under the insurance policy to defend Bighorn against Ater's timber trespass claim or to indemnify Bighorn against the liability that resulted from that claim. For the reasons explained below, we affirm.

I. BACKGROUND

Before discussing Truck's duty to defend and indemnify Bighorn in the Ater case, we turn to a more detailed explanation of the factual and procedural background leading to this appeal. The following material facts are undisputed.

A. Insurance Policy Provisions

The insurance policy that Truck sold to Bighorn provided that Truck would defend and indemnify Bighorn in certain lawsuits. Regarding those duties, the policy provided, in relevant part, that

"[Truck] will 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. [Truck] will have the right and duty to defend the insured against any 'suit' seeking those damages."

The policy applies to "property damage" only if the damage was "caused by an 'occurrence' that takes place in the 'coverage territory' " and "during the 'policy period.' "

The policy contains several exclusions, three of which are relevant to this appeal. Exclusion 2(a) excludes coverage for property damage "expected or intended" by the insured. Exclusion 2(j)(5) excludes coverage for "property damage" to "that particular part of real property on which you *** are performing operations, if the 'property damage' arises out of those operations." Exclusion 2(j)(6) excludes coverage for "property damage" to "that particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it."

*291The policy also defines several terms. The term "occurrence" as used to describe the kind of property damage covered by the policy means "an accident, including continuous or repeated exposure to substantially the same *823general harmful conditions"; the policy does not further define the term "accident." "Property damage" means "physical injury to tangible property, including all resulting loss of use of that property." "Your work" as used in exclusion 2(j)(6) means "work or operations performed by [Bighorn]." The policy does not further define the term "operations" as used in exclusion 2(j)(5) and the definitional language in exclusion 2(j)(6) or what it means for property damage to be "expected or intended" as used in exclusion 2(a).

B. Ater's Complaint Against Bighorn

In 2013, Ater filed a timber trespass action against Bighorn. In the original complaint, Ater alleged that Bighorn had "willfully" and "intentionally" trespassed on Ater's property, resulting in timber damage. In the first amended complaint, Ater specifically alleged both "intentional" and "negligent" timber trespass, ORS 105.810 ; ORS 105.815. Ater relied on the same factual allegations to support both claims, namely, Ater alleged that Bighorn had exceeded the limited license granted by Ater when it used a chainsaw to cut and girdle numerous trees on Ater's property in lieu of using the promised methods designed to minimize tree damage. With respect to the intentional trespass claim, Ater alleged that Bighorn had "blatantly violated the limited license granted by plaintiff and willfully, intentionally and without plaintiff's consent trespassed on plaintiff's property." With respect to the negligent trespass claim, Ater alleged only that Bighorn had "negligently" damaged the trees.

Timber trespass includes cutting down, girdling, or otherwise injuring any "tree, timber, or shrub on the land of another person." ORS 105.810(1). Under ORS 105.815(1), "judgment shall be given for double damages" for timber trespass if, among other things, it "appears that the trespass was casual or involuntary." Proof of "casual or involuntary" trespass does not require a showing of negligence, as "that disjunctive statutory language encompasses non-negligent, non-volitional trespass." Wyatt v. Sweitz , 146 Or. App. 723, 728, 934 P.2d 544 (1997). By contrast, damages are trebled if the acts listed in ORS 105.810

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Bluebook (online)
437 P.3d 287, 295 Or. App. 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bighorn-logging-corp-v-truck-ins-exch-orctapp-2019.