St. Paul Fire & Marine Insurance v. McCormick & Baxter Creosoting Co. , 128 Or. App. 234 ( 1994 )

875 P.2d 537 (1994) 128 Or. App. 234

ST. PAUL FIRE & MARINE INSURANCE COMPANY, INC., and St. Paul Mercury Insurance Company, Inc., Respondents,
v.
McCORMICK & BAXTER CREOSOTING CO., Appellant,
National Continental Insurance Company, successor to American Star Insurance Company by change of name; Consolidated American Insurance Company; Hartford Accident & Indemnity Company; Certain Underwriters at Lloyd's, London; United States Fire Insurance Company; Continental Casualty Company; Gulf Insurance Company, Respondents, and
Boston Insurance Company; Mission Insurance Company (in liquidation); Mission National Insurance Company (in liquidation); National Union Fire Insurance Company of Pittsburgh, Pennsylvania; Scottsdale Insurance Company, Defendants.
McCORMICK & BAXTER CREOSOTING CO., Cross-Complainant-Appellant,
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, INC., and St. Paul Mercury Insurance Company, Inc.; National Continental Insurance Company, successor to American Star Insurance Company by change of name; Consolidated American Insurance Company; Hartford Accident & Indemnity Company; Certain Underwriters at Lloyd's, London; United States Fire Insurance Company; Continental Casualty Company; Gulf Insurance Company; National Fire Insurance Company of Hartford, Cross-Defendants-Respondents, and
Boston Insurance Company; Mission Insurance Company (in liquidation); Mission National Insurance Company (in liquidation), Cross-Defendants.

A8711-07096; CA A71072.

Court of Appeals of Oregon.

Motions for Reconsideration Filed March 23, 1994. Decided May 25, 1994.

Mildred J. Carmack, Jay T. Waldron and Schwabe, Williamson & Wyatt, Portland, for motion of respondent National Fire Ins. Co. of Hartford.

Eric R. Todderud, Barry S. Levin, Celia M. Jackson, Susan M. Leberman and Heller, Ehrman, White & McAuliffe, Portland, for motion of appellant McCormick & Baxter Creosoting Co.

Before ROSSMAN, P.J., and De MUNIZ and LEESON,^[*] JJ.

On Respondent National Fire Insurance Company of Hartford's and on Appellant McCormick & Baxter Creosoting Co.'s Motions for Reconsideration Filed March 23, 1994.

De MUNIZ, Judge.

Pursuant to ORAP 6.25, appellant McCormick & Baxter Creosoting Co. (M & B) and respondent National Fire Insurance Company of Hartford (National Fire) have each moved for reconsideration of our opinion. 126 Or.App. 689, 870 P.2d 260 (1994). We deny M & B's motion and allow the motion of National Fire.

In our opinion, we held that the trial court did not err in granting summary judgment to respondent Hartford Accident & Indemnity Company on the "accident" issue, but that we could not determine which other policies presented the same issue as that presented by the Hartford policy. National Fire points out that, although there may be issues of fact about the issuance and some of the terms of National Fire's alleged policy, there is no factual dispute that its policy covered only damage "caused by accident."

M & B concurs that the record shows that each policy National Fire issued to it obligated M & B to pay property damages "caused by accident." Accordingly, we modify our opinion to affirm the summary judgment in favor of National Fire.

McCormick & Baxter Creosoting Co.'s motion for reconsideration denied; National Fire Insurance Company of Hartford's motion for reconsideration allowed; opinion modified; reversed and remanded as to St. Paul Fire & Marine Insurance Company, Inc., St. Paul Mercury Insurance Company, National Continental Insurance Company, National Fire Insurance Company of Hartford, Certain Underwriters at Lloyd's, London, and Continental Casualty Company on "trigger of coverage" issue; reversed and remanded as to St. Paul Fire & Marine Insurance Company, Inc., on "accident" issue; otherwise affirmed.

NOTES

[*] Leeson, J., vice Buttler, J., retired.