Rogowski v. Safeco Ins. Co.

An insurer’s duty to defend its insured is determined by comparing the four corners of the complaint to the four corners of the insurance policy. West Hills Development Co. v. Chartis Claims, 360 Or 650, 653, 385 P3d 1053 (2016). Under that so-called “four-corners” or “eight-corners” rule, “[t]he insurer has a duty to defend if the complaint provides any basis for which the insurer provides coverage,” even if the complaint also asserts claims that fall outside the policy’s coverage. Ledford v. Gutoski, 319 Or 397, 403, 877 P2d 80 (1994) (emphasis in original).

Landlord’s premises liability policy contained a pollutant exclusion and explicitly listed carbon monoxide in its definition of “pollutants.” A tenant filed a complaint against Landlord and claimed Landlord’s negligence, improper modifications, and failure to maintain properly functioning ducts resulted in long-term carbon monoxide exposure and other injurious conditions. Landlord looked to Insurer for defense under the policy, but Insurer denied coverage. Landlord then filed a breach of contract claim against Insurer. The trial court ruled that Insurer had a duty to defend and denied Insurer’s motion for summary judgment. Insurer appealed and argued that the tenant’s complaint “only allege[d] claims for exposure to carbon monoxide, which [was] explicitly excluded.” Landlord agreed that the pollutant exclusion unambiguously excludes liability related to the carbon monoxide claims but argued that the other claims in the complaint relating to the natural gas and degraded indoor air quality still fell within the policy’s coverage. Ambiguities in the complaint will be resolved in favor of the insured. Leach v. Scottsdale Indemnity Co., 261 Or App 234, 246, 323 P3d 337, rev den, 356 Or 400 (2014). According to the Court, the four-corners analysis does not permit an examination of the merits of the complaint. The Court found that Insurer had a duty to defend Landlord “[b]ecause the complaint allege[d] conduct that [was] covered by the policy, and because at least one plausible interpretation of the policy’s pollutant exclusion [did] not exclude that conduct.” Thus, the Court held that the trial court did not err in denying the insurer’s motion for summary judgment. Affirmed.