206-624-1800 info@sohalang.com
Clarendon America Insurance Company v. State Farm Fire and Casualty Company,  Oregon District Court Cause No. 3:11-CV-01344-BR, Order on Cross-Motions for Summary Judgment (Dkt. No. 34), January 3, 2013 
This coverage action arises out of an underlying construction defect case.  Plaintiff Clarendon issued an insurance policy to its named insured, Curtom, who was a defendant in the construction defect case.   Curtom also tendered a defense to State Farm under an Apartment Policy issued to a different entity.  State Farm denied defense on the basis that Curtom did not qualify as an insured under the Apartment Policy (because the complaint did not allege that Curtom was  a real estate manager or partner of the named insured — the two provisions of the Who Is An Insured Section at issue in the case).  Clarendon sued State Farm for defense costs.  On summary judgment, State Farm additionally argued that the owned property exclusion precluded coverage, whether or not Curtom qualified as an insured.
As to the “insured status” question, the district court narrowly construed the extrinsic evidence “exception” for insured status questions as laid out in Fred Shearer (237 Or App 468), and found, “[t]he court in Fred Shearer merely carved out an exception to the general rule announced in Ledford to apply only in the particular circumstances that occurred in Fred Shearer; i.e., the insurer specifically alleged it was impossible to determine Fred Shearer’s status from the face of the complaint, and the court agreed. Accordingly, the court concluded a limited exception to [the 8 corners rule in] Ledford is permissible in instances when courts are attempting to determine whether an organization or individual was an insured under a policy.”  The court found that the rule in Fred Shearer, that an insurer can consider extrinsic evidence on the threshold issue of insured status, did not apply, when from the face of the Complaint and the policy, there is no question that the alleged insured does not qualify as an insured.
As to the “real estate manager” issue, the court found that because the term “real estate manager” was not defined in the policy, it must be given its plain meaning.   The court stressed,  “Although there is not any Oregon authority specifically on point, the Court notes courts in other jurisdictions have addressed this issue. For example, in Savoy v. Action Products Company the court held “a ‘real estate
manager’ is simply one who manages real estate for another. A manager is one who ‘conducts, directs or supervises something.’ He is a person who has the conduct or direction of a thing.” 324 So.2d 921, 923 (La. App. 1975). Similarly, in Insurance Company of North America v. Hilton Hotels the court adopted the reasoning of Savoy and “join[ed] several other courts in finding that the term ‘real estate manager’ is not ambiguous. Accordingly, the Court will consider the term in its usual and ordinary meaning.” 908 F. Supp. 809, 815 (D. Nev. 1995)(citations omitted).” The Court concluded, “the analysis in Savoy, Hilton Hotels, and City of Portland is helpful and, applying it here, concludes “real estate manager” has a plain meaning: One who conducts, directs or supervises another’s real estate as distinct from a construction manager who conducts, directs, or supervises another’s construction.”
The court thus concluded that allegations in the Complaint alleging that Curtom was the “construction manager” were insufficient to find that Curtom qualified as an insured as a real estate manager under the State Farm policy.  The court also found persuasive that the third party complaint differentiated between the terms construction manager and real estate manager.
As to the owned property exclusion, the court rejected Clarendon’s invitation to apply the exclusion as if the alleged insured was the “you,” who owned the property, rather than the named insured as the “you,” as provided by the policy definitions.  The court found that the term “you” was not ambiguous as to whether it applied to an entity that qualified as an insured, but was not a named insured (or additional insured). The court adopted the reasoning of Baumann (152 Or App 181) and rejected the reasoning in Triad (2007 WL 2713842 (D. Or. 2007)).