Devine v. Great Divide Insurance Company , 350 P.3d 782 ( 2015 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
KATHERINE DEVINE and )
THOMAS SINDORF, ) Supreme Court No. S-15209
)
Appellants, ) Superior Court No. 3AN-11-10496 CI
)
v. ) OPINION
)
GREAT DIVIDE INSURANCE ) No. 7009 – May 15, 2015
COMPANY, PAUL CHATARI, )
CHRISTOPHER TODD ALLEN, )
and JOHN DOES I-V, )
)
Appellees. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Michael Cohn, Weidner & Associates,
Anchorage, for Appellants. Timothy Lynch, Lynch &
Associates, Anchorage, for Appellee Great Divide Insurance
Company. No appearance by Appellee Paul Chatari.1
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
A man who assisted at a concrete-pouring job was assaulted by another
1
Neither Christopher Todd Allen nor John Does I-V were ever served.
worker at the job site. The injured man filed a lawsuit against his assailant as well as
both the concrete-pouring company and its owner. Although the company’s commercial
general liability insurer initially provided a defense attorney in the negligence action, the
insurer later brought a declaratory judgment action alleging that the incident fell within
the policy’s employee-exclusion clause. The superior court granted summary judgment
to the insurance company. Finding no error, we affirm.
II. FACTS AND PROCEEDINGS2
Thomas Sindorf and Paul Chatari operate separate concrete businesses in
the Kenai Peninsula. Chatari does business under the name Complete Concrete. Chatari
purchased general commercial liability insurance for Complete Concrete from Great
Divide Insurance Company for the policy period from July 29, 2008 to July 29, 2009.
Chatari did not purchase workers’ compensation coverage.
At the time of the incident giving rise to this lawsuit there was only one
concrete-pumping truck available for rent in the Sterling area. Both Sindorf and Chatari
needed the truck on July 7, 2009, because they “both had jobs that day requiring the
pump truck.” Chatari had reserved the truck for his job, so Sindorf offered to help
Chatari in order to free the truck up for Sindorf’s use sooner. Chatari accepted Sindorf’s
offer to help; Chatari did not pay Sindorf for his work on the pour job.
Another man whom Chatari had engaged to help with the pour was
Christopher Todd Allen. Chatari knew Allen; according to the allegations in Sindorf’s
complaint, Chatari had “provided a place to stay and a job to . . . Allen, a violent and
2
Because the case was decided on summary judgment, we state the facts in
the light most favorable to Sindorf and Devine. See Cabana v. Kenai Peninsula
Borough, 50 P.3d 798, 801 (Alaska 2002) (stating that on summary judgment the facts
are viewed in the light most favorable to the non-moving party). We rely principally on
the facts alleged in Sindorf’s personal injury complaint in the underlying lawsuit for the
facts in this insurance declaratory judgment appeal.
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unstable individual with a history of assaultive behavior and criminal conduct.” On the
day of the incident Allen told Chatari that he “was agitated by” Sindorf’s presence at the
job site. Allen told Chatari that he “could not work” in Sindorf’s presence. Chatari’s
response was to give Allen two Valium tablets in an effort to calm him down. Chatari
did not warn Sindorf that Allen was angry or agitated, nor did he convey any information
to Sindorf or other workers about the possibility that Allen might attack Sindorf.
Allen subsequently left the job site, but he then returned in a vehicle driven
by Dave Riss. Without warning, Allen “walked unimpeded” to where Sindorf was
running the concrete hose “with his back to” Allen. Other employees saw Allen “sneak
up” on Sindorf but did not warn Sindorf or stop Allen because they were “unaware of
the need to do anything because of the failure” of Chatari to “warn employees” to protect
Sindorf. Allen attacked Sindorf, punching him “from behind in the head.” Sindorf was
“staggering and stunned, but was still on his feet”; Allen “walked a few feet away” then
“walked back unimpeded” and hit Sindorf again, “knocking [him] down onto a concrete
stake and into the wet concrete.” Sindorf suffered significant injuries, including injuries
to his teeth, hip, shoulders, and head. Allen then left the job site again, with Riss driving
him away. Allen was charged with assault, and he was a fugitive at the time Sindorf filed
suit against him.
Sindorf and his mother Katherine Devine3 filed a personal injury action
against Chatari, Complete Concrete, Allen, Riss, and various John Does. Chatari notified
Great Divide of the lawsuit. Great Divide sent Chatari a letter to the effect that it would
initially provide him with a defense attorney for the negligence action Sindorf filed but
would seek a declaration that its policy did not cover the incident. Great Divide took the
3
We refer to the plaintiffs in the underlying action as “Sindorf” unless the
context requires otherwise.
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position that the incident fell under the employee exclusion of the policy because Sindorf
was a “volunteer employee” and the assault happened in the course and scope of
employment.
Several weeks later Great Divide filed a declaratory judgment action
naming all those involved in the Sindorf litigation (except Riss) and sought a declaration
of no coverage. Only Sindorf answered the declaratory judgment complaint. The
superior court, in granting default against Chatari, wrote that the default was “[w]ithout
prejudice to [d]efendants ‘Sindorf’ [sic] right to contest judgment.”
Great Divide then moved for summary judgment, which Sindorf opposed.
Great Divide’s motion rested on its contention that Sindorf was Chatari’s “employee”
because the definition of “employee” in Chatari’s general liability policy included
volunteers, temporary and casual workers, subcontractors, and independent contractors.4
Relying on the policy’s terms Great Divide asserted that the policy “excludes bodily
injury to any employee arising out of the performance of any duties related to the
conduct of the insured’s business.”
The court granted summary judgment for Great Divide after determining
that “Sindorf’s bodily injuries arose out of and in the course of the performance of job
duties.” The court concluded that Great Divide had no duty to defend Chatari and no
“duty to indemnify [him] for any resulting liability.” Sindorf moved for reconsideration,
arguing that Great Divide had “failed to even address ‘arising out of employment’ in
briefing and in opening oral argument” and had failed to meet its burden of proof. The
court denied reconsideration, reasoning that Sindorf could not allege both that his
injuries did not arise out of his employment by Chatari and that Chatari’s negligence in
4
Although there was some disagreement in the superior court about whether
Sindorf was an employee as defined in the policy, he has since conceded on that point.
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the conduct of the business was a legal cause of those injuries. Because coverage under
the policy required both of these elements, the court concluded there was no coverage.
Sindorf appeals.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.5 Summary judgment is
proper if there is no genuine factual dispute and the moving party is entitled to judgment
as a matter of law.6 In reviewing a summary judgment motion, we draw all reasonable
inferences in favor of the non-moving party.7 The party seeking summary judgment “has
the initial burden of showing by admissible evidence that there is an absence of genuine
factual disputes and that it is entitled to judgment as a matter of law.”8 “Once the moving
party satisfies its burden, the non-moving party must produce ‘admissible evidence
reasonably tending to dispute or contradict the movant’s evidence.’ ”9
Interpretation of an insurance contract is a question of law that we review
de novo, looking “to the language of the disputed policy provision, other provisions of
the policy, and relevant extrinsic evidence.”10 “[B]ecause of inequities in bargaining
5
Parker v. Tomera, 89 P.3d 761, 765 (Alaska 2004) (citing Therchik v.
Grant Aviation, 74 P.3d 191, 193 (Alaska 2003)).
6
Id.
7
Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000).
8
Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)
(citation omitted).
9
Id. (quoting Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska
2005)).
10
Whittier Props., Inc. v. Alaska Nat’l Ins. Co., 185 P.3d 84, 88 (Alaska
2008) (citations omitted).
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power, we construe coverage broadly and exclusions narrowly, in favor of insureds.”11
Insurance contracts are construed using the reasonable expectations doctrine, under
which the “objectively reasonable expectations” of an insurance applicant about the
terms of the insurance contract will be honored “even though painstaking study of the
policy provisions would have negated those expectations.”12 “To determine the parties’
reasonable expectations, we examine (1) the language of the disputed policy provisions;
(2) the language of other provisions in the same policy; (3) extrinsic evidence; and
(4) case law interpreting similar provisions.”13
IV. DISCUSSION
A. Overview Of Employer Insurance Policies Pertaining To Coverage Or
Exclusions For Employee Injuries “Arising Out Of And In The Course
Of Employment”
As relevant to this case, insurers of employers generally offer three types
of insurance: (1) workers’ compensation insurance to cover an insured’s liabilities under
state workers’ compensation statutes; (2) employers’ liability insurance to cover an
insured’s liabilities to employees for work-related injuries that do not fall within the
ambit of workers’ compensation statutes; and (3) commercial general liability insurance
to cover other liabilities not covered by the first two products.14
11
Id. (citing Hahn v. Alaska Title Guar. Co., 557 P.2d 143, 144-45 (Alaska
1976)).
12
West v. Umialik Ins. Co., 8 P.3d 1135, 1138 (Alaska 2000) (quoting State
v. Underwriters at Lloyds, London, 755 P.2d 396, 400 (Alaska 1988)) (internal quotation
marks omitted).
13
Id. (citation omitted).
14
See generally 21 ERIC M ILLS HOLMES, HOLMES’ APPLEMAN ON INSURANCE
§ 132.5[C][1], at 66 (2d ed. 1996) (defining workers’ compensation and employers’
liability insurance and discussing their relation to commercial general liability
-6- 7009
The first two types of insurance are generally sold bundled in a single
insurance product termed a workers’ compensation and employers’ liability policy, while
the commercial general liability policy is usually sold separately.15 These two insurance
products are generally based on form contracts produced by a nationwide industry
association.16 They are intended to be modular; many insureds purchase one product
from one insurer and the other from a different insurer,17 or both from a single insurer,18
as they see fit.
The insurance products are drafted to ensure that there is no overlap and no
gap in coverage among the three types of insurance.19 Courts interpret the phrase
insurance). A fourth type of insurance not at issue in this case, umbrella insurance, is
sometimes purchased either to insure against risks surpassing aggregate caps for risks
covered by the first three types of primary insurance, or to insure against risks excluded
from coverage by the first three types of primary insurance. 3 N EW A PPLEMAN ON
INSURANCE LAW LIBRARY EDITION : COMMERCIAL G ENERAL L IABILITY INSURANCE
§ 16.02[3][d][i]&[ii], at 16-38 to 16-39 (Jeffrey E. Thomas et al. eds., 2014).
15
21 H OLMES , supra note 14, § 132.5[C][1], at 66; 15 id. § 111.2(B)(1), at
121; 3 N EW A PPLEMAN , supra note 14, § 16.02[3][a][vi][C], at 16-32; see, e.g., Travelers
Indem. Co. v. PCR Inc., 889 So. 2d 779, 784 n.7 (Fla. 2004) (“[A] workers’
compensation insurance policy often is issued together with an employer’s liability
insurance policy . . . .”).
16
3 N EW A PPLEMAN , supra note 14, at 16-2.
17
See, e.g., Bond Builders, Inc. v. Commercial Union Ins. Co., 670 A.2d
1388, 1389 (Me. 1996).
18
See, e.g., Royal Globe Ins. Co. v. Poirier, 415 A.2d 882, 884 (N.H. 1980).
19
Significantly in this case, however, we are not faced with the problem of
a gap between the employer’s workers’ compensation/employers’ liability policy and its
general liability policy. The insurance policy purchased by Chatari and Complete
Concrete at issue in this appeal is a general commercial liability policy. Chatari did not
have a workers’ compensation policy in effect at the time of the attack on Sindorf.
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“arising out of and in the course of employment” in workers’ compensation/employers’
liability policies in light of the identical language in workers’ compensation cases in
order to ensure that no overlap or gap develops between the two halves of the workers’
compensation/employers’ liability policy: the insurance covering workers’
compensation liability and the insurance covering certain other liabilities for employee
injuries not subject to workers’ compensation statutes.20
The same is true of courts’ interpretation of the contractual phrase “arising
out of and in the course of employment” in commercial general liability policies’
exclusions for liability falling within the scope of workers’ compensation/employers’
liability coverage (whether the insured has purchased workers’ compensation/employers’
liability insurance or not). Courts frequently state that the commercial general liability
phrase “arising out of and in the course of employment” is intended to avoid duplication
of coverage or the emergence of a gap between commercial general liability and
workers’ compensation/employers’ liability policies.21 As a leading insurance treatise
20
See generally 7B JOHN APPLEMAN , INSURANCE LAW AND PRACTICE § 4571,
at 2 (Walter F. Berdal ed.,1979) (“[W]orkers’ compensation is routinely written in
combination with an employer’s liability policy to provide protection for those situations
where [workers’] compensation may not apply and thus avoid a gap in protection
because employee claims subject to workers’ compensation law are generally excluded
in other types of liability policies. However, the coverages are mutually exclusive.”
(emphasis added) (footnote omitted)); see also, e.g., Travelers Indem. Co., 889 So. 2d
at 784 n.7 (noting that workers’ compensation and employers’ liability insurance are
generally sold together and that the latter acts as a “gap-filler” to provide coverage for
employee injuries that do not fall under workers’ compensation).
21
See, e.g., Royal Globe Ins. Co., 415 A.2d at 885 (“The provision first
excludes coverage for ‘bodily injury to any employee of the insured’. . . . The objective
of this exclusionary clause is to avoid duplication of coverage with respect to the subject
matters covered by a standard ‘Workmen’s Compensation and Employer’s Liability
Policy.’ ” (emphasis in original)); Am. Motorists Ins. Co. v. L-C-A Sales Co., 713 A.2d
1007, 1013 (N.J. 1998) (“Aside from the plain language of the employee exclusion, the
-8- 7009
states:
The intent of the employment exclusion [in a commercial
general liability policy] appears to be to avoid duplication of
coverage provided under Workers’ Compensation and
Employers Liability policies. Accordingly, any interpretation
of the commercial general liability exclusion that bars
coverage for claims not covered under a Workers’
Compensation and Employers Liability policy would appear
to deny coverage erroneously and to create a gap in coverage
that almost surely was not intended by the policyholder.[22]
But this comment must be understood in the context of a case where the employer
policyholder has purchased both commercial general liability insurance and workers’
compensation/employers’ liability insurance. In such a case, it is reasonable to conclude
that the employer policyholder intended to have insurance to cover an employee’s injury
that arose out of and in the course of employment no matter whether it is later determined
that one or the other policy did not apply.
But again, in the case before us Chatari did not purchase both commercial
general liability insurance and workers’ compensation/employers’ liability insurance; he
only purchased commercial general liability insurance. Thus the “gap” that Sindorf
alleges exists as a consequence of the superior court’s decision is not the kind of gap the
treatises and courts refer to when they speak of gaps in coverage that should be
prevented through appropriate contractual interpretation. The “gap” in this case results
from the fact that Chatari chose not to purchase a workers’ compensation/employers’
presence of the workers’ compensation exclusion immediately preceding the employee
exclusion demonstrates that the objective of the [commercial general liability] policy was
to exclude from coverage all claims — whether falling within or beyond the workers’
compensation system — ‘arising out of and in the course of’ Picciallo’s employment”
because those claims would be subject to another insurance policy instead.).
22
21 H OLMES , supra note 14, § 132.5 [C][1], at 66-67.
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liability policy that presumably would have covered Sindorf’s injuries arising out of and
in the course of his employment by Chatari.
In sum, because courts look to workers’ compensation law to give meaning
to the phrase “arising out of and in the course of employment” in workers’
compensation/employers’ liability policies, and because commercial general liability
policies are designed to avoid the existence of an overlap or a gap between workers’
compensation/employers’ liability and commercial general liability policies, sister
jurisdictions interpret the same phrase in employee-exclusion clauses in commercial
general liability policies in light of the identical language in workers’ compensation
statutes.23 We have found no case law holding that the contractual phrase “arising out
of and in the course of employment” in commercial general liability exclusions should
be interpreted differently from the identical phrase in workers’ compensation statutes.
For purposes of this appeal, we will use workers’ compensation case law to interpret the
meaning of the commercial general liability policy’s exclusion of coverage for bodily
injury “arising out of and in the course of employment.”
B. Sindorf’s Injury Arose Out Of And In The Course Of Sindorf’s
Employment And Is Subject To The Employee Exclusion.
Great Divide argued in its motion for summary judgment that it had neither
a duty to defend nor a duty to indemnify Chatari. An insurer’s duty to defend is broader
23
See, e.g., Gear Auto. v. Acceptance Indem. Ins. Co., 709 F.3d 1259, 1264
(8th Cir. 2013) (“Because this exclusionary language [arising out of and in the course of
employment] is borrowed from Missouri’s Workers’ Compensation Act, the exclusion
is given the same interpretation.” (citing Truck Ins. Exch. v. Vassholz, 839 S.W.2d 22,
23 (Mo. App. 1992))); Ottumwa Hous. Auth. v. State Farm Fire & Cas. Co., 495 N.W.2d
723, 727 (Iowa 1993) (“We think this same meaning [from workers’ compensation
cases] was intended to apply to the language ‘arising out of and in the course of
employment’ in the employee exclusion clause.”).
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than its duty to indemnify.24 The duty to defend exists when the facts as alleged in the
underlying complaint, if proven, “would give rise to a finding of liability covered by the
policy.”25 “The duty to defend is triggered if there is at least one cause of action alleged
in the complaint for which there is a possibility of coverage under the policy.”26 “[W]hen
a complaint is sufficient on its face to create an issue of liability covered by the policy,
even though based on ‘false, fraudulent, or groundless’ allegations, an insurer may not
look to extrinsic facts to escape its duty to defend the insured.”27 Thus to prevail on its
motion for summary judgment, Great Divide was required to show that there were no
disputed issues of material fact and that it was entitled to judgment as a matter of law that
insurance as provided in its contract with Complete Concrete did not cover any of the
causes of action alleged in Sindorf’s complaint against Chatari and Complete Concrete.28
1. The superior court did not err in granting
summary judgment and denying reconsideration
when it interpreted the employee-exclusion clause
using workers’ compensation law.
Great Divide’s appellate argument concerns the employee exclusion,
particularly the broad definition of “employee” in the policy; similarly, its argument in
24
Brannon v. C ont’l Cas. Co., 137 P.3d 280, 284 n.11 (Alaska 2006)
(citations omitted).
25
State, Dep’t of Transp. & Pub. Facilities v. State Farm Fire & Cas. Co.,
939 P.2d 788, 792 (Alaska 1997) (citing Afcan v. Mut. Fire, Marine & Inland Ins. Co.,
595 P.2d 638, 645 (Alaska 1979)).
26
Id. (citing Sauer v. Home Indem. Co., 841 P.2d 176, 181 (Alaska 1992)).
27
Afcan, 595 P.2d at 645 (citations omitted).
28
We observe that Great Divide complied with its duty to provide defense
counsel, and subsequently filed a declaratory judgment action to determine whether the
policy provided coverage for the incident.
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support of its motion for summary judgment focused on Sindorf’s status as an employee
as defined in the insurance contract rather than the manner in which the injury arose.
Sindorf argues on appeal that, even assuming he fell within the contract’s definition of
“employee,” Great Divide did not meet its burden of proof with respect to the question
whether his injury arose out of and in the course of either his employment by Chatari and
Complete Concrete or performing duties related to the conduct of Chatari’s business.
The general liability insurance contract between Chatari and Great Divide
provided as follows:
A. Exclusion e. Employer’s Liability under Paragraph 2.,
Exclusions of Section I - Coverage A - Bodily Injury And
Property Damage Liability is replaced by the following:
This insurance does not apply to:
e. Employer’s Liability
“Bodily injury” to:
(1) An “employee” of any insured arising out
of and in the course of:
(a) Employment by any insured; or
(b) Performing duties related to the
conduct of any insured’s business . . . .
....
This exclusion applies:
(1) Whether any insured may be liable as an
employer or in any other capacity . . . .
....
C. For the purpose of this endorsement, the definition of
“Employee” in the Definitions Section is replaced by the
following:
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“Employee” is any person or persons who provide
services directly or indirectly to any insured, regardless of
where the services are performed or where the “bodily
injury” occurs, including, but not limited to a “leased
worker”, a “temporary worker”, a “volunteer worker”, a
statutory employee, a casual worker, a seasonal worker, a
contractor, a subcontractor, an independent contractor, and
any other person or persons hired by, loaned to, or contracted
by any insured or any insured’s contractor, subcontractor, or
independent contractor. . . .
Sindorf”s personal injury complaint against Chatari and Complete Concrete
alleged the following facts:
Defendant Chatari . . . provided a place to stay and a job
to . . . Allen, a violent and unstable individual with a history
of assaultive behavior and criminal conduct.
....
On July 7, 2009, . . . Allen was working as an employee
for . . . Chatari and/or Complete Concrete, LLC, and was
agitated by the presence of the Plaintiff. Allen told . . .
Chatari he could not work in the presence of Plaintiff. On
information and belief, Plaintiff was unaware of the looming
threat to his personal safety.
Defendant Chatari, on information and belief, merely
gave . . . Allen two [V]alium tablets to calm him down. Allen
thereafter left the job site. At no time did Defendant Chatari
take any additional steps to warn or protect the Plaintiff.
Defendant Allen returned to the job site some time later and
parked his truck. On information and belief, Mr. Allen
parked his truck about a half mile from the work site and got
into a red car driven by . . . Riss, who drove Mr. Allen to the
work site.
Defendant Riss proceeded to drive Mr. Allen to the job site
and backed his vehicle up to the site. Then, Mr. Allen . . .
walked unimpeded to where Plaintiff was running the hose
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with his back to Mr. Allen. On information and belief, other
employees of Defendant Chatari, and/or Defendant Complete
Concrete, LLC, saw Mr. Allen sneak up on the Plaintiff
Sindorf and negligently failed to stop Mr. Allen and/or warn
Plaintiff Sindorf and/or were unaware of the need to do
anything because of the failure of Mr. Chatari to take steps to
warn employees or protect the Plaintiff.
Mr. Allen then punched Plaintiff Sindorf, who was focused
on distributing concrete from the pumper truck into the
concrete forms, from behind in the head. Plaintiff Sindorf
was staggering and stunned, but still was on his feet holding
the hose. . . . Mr. Allen walked back unimpeded by any other
employee of Defendant Chatari and/or Complete Concrete,
LLC, and hit Plaintiff Sindorf again, knocking Plaintiff down
onto a concrete stake and into the wet concrete.
Mr. Allen then ran back to the running car and sped away.
....
Defendants Chatari and/or Complete Concrete, LLC, are
liable for negligent supervision, negligent hire, negligent
security, negligent failure to warn Plaintiff and others of the
threat, and also vicariously liable for the actions of Allen
and/or other employees and/or John Does 1-5.
Defendants are liable for reckless indifference to the safety of
others.
In its order on summary judgment, the superior court correctly concluded
that to establish the employer’s liability exclusion Great Divide had to show both that
there were no genuine issues of material fact that Sindorf was an employee of Complete
Concrete and that his injury arose out of and in the course of his employment, not simply
that Sindorf was an employee under the policy. The court also astutely observed in its
order denying Sindorf’s reconsideration motion that Sindorf “find[s] [himself] in a
catch-22 where [he] must simultaneously show that Great Divide’s policy — which
covers Chatari only ‘with respect to the conduct of [his] business’ — covers the incident
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and is not subject to Exclusion e, which requires that the injuries do not arise out of
employment.” Sindorf contends that the superior court’s conclusion “is contradictory.”
We disagree.
In the superior court, the parties agreed that the phrase “arising out of and
in the course of” employment or performance of duties in the insurance contract should
be construed as having the same meaning that it does in workers’ compensation law, and
the court applied workers’ compensation cases in its analysis. As explained above, for
purposes of this case, we agree that the phrase has the same general meaning in both
contexts. “The intent of the employment exclusion [in a commercial general liability
policy] appears to be to avoid duplication of coverage provided under Workers’
Compensation and Employers Liability policies.”29 As a result, we give the phrase
“arising out of and in the course of employment” the same meaning in the general
liability insurance contract that it has in workers’ compensation law.30
2. The attack arose out of and in the course of
employment because Chatari “engendered,
exacerbated, or facilitated” Sindorf’s injury.
Sindorf contends on appeal that Allen’s attack on him did not arise out of
and in the course of his work for Chatari because the attack was based on “personal
animus” that was not related to Sindorf’s performance of his duties at the concrete pour
the day of the attack. He argues that the superior court improperly made factual
inferences that favored Great Divide in reaching its decision and erred in concluding that
any negligence on the part of Chatari brought the personal injury within the employee
29
21 H OLMES , supra note 14, § 132.5 [C][1], at 66-67.
30
See Ottumwa Hous. Auth. v. State Farm Fire & Cas. Co., 495 N.W.2d 723,
727 (Iowa 1993) (holding that “arising out of and in the course of employment” had the
same meaning in insurance contract that it had in workers’ compensation law).
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exclusion. He maintains that proper application of Temple v. Denali Princess Lodge31
shows that his injury did not arise out of and in the course of employment. He also
argues that Estate of Milos v. Quality Asphalt Paving, Inc.32 shows the fact-sensitive
nature of determining whether an injury arose out of and in the course of employment,
rendering summary judgment inappropriate in his case.
But the superior court evaluated the case using principles we discussed in
Temple and decided that Allen’s warning to Chatari “that he was agitated by Sindorf’s
presence at the site” supplied “a causal link between the fact of Sindorf’s employment
and the assault.” The court reasoned that Sindorf’s case was more closely akin to
Murphy v. Workers’ Compensation Appeals Board,33 a California case we discussed in
Temple, than it was to Temple itself. The superior court characterized the facts as alleged
in Sindorf’s complaint as follows: “Chatari knowingly brought Allen in close proximity
to Sindorf in order to complete the job that day, possessed foreknowledge of the looming
danger to Sindorf’s safety, and opted not to warn Sindorf.” The court interpreted the
complaint as alleging that “Chatari possessed foreknowledge of a unique risk of danger,
[but] failed to warn [Sindorf],” which made the case similar to Murphy.34
As we stated in Temple, a personally motivated assault that occurs on the
job is not generally compensable because it does not arise out of and in the course of
31
21 P.3d 813 (Alaska 2001).
32
145 P.3d 533 (Alaska 2006).
33
150 Cal. Rptr. 561 (Cal. App. 1978).
34
Because the court accepted as true and undisputed Sindorf’s allegations in
his complaint for purposes of ruling on the motion for summary judgment, there were
no genuine issues of material fact precluding the court’s interpretation.
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employment.35 But an assault may be found to have arisen out of and in the course of
employment if the employer “contributed to the episode by engendering, exacerbating,
or facilitating the assault.”36 The question here is thus whether as a matter of law the
facts as alleged in Sindorf’s underlying complaint show that Chatari’s actions
engendered, exacerbated, or facilitated the assault. We hold that they do.
As a factual basis for his causes of action, Sindorf alleged the following:
(1) Chatari had provided a place to stay and a job to Allen, a “violent and unstable
individual with a history of assaultive behavior and criminal conduct”; (2) Chatari gave
Allen two Valium tablets in an attempt to calm him down after Allen “was agitated by
the presence of [Sindorf]” and told Chatari “he could not work in the presence of
[Sindorf]”; (3) Chatari failed to warn Sindorf of Allen’s statements; (4) Chatari failed to
“take any additional steps to warn or protect” Sindorf, such as informing other
employees of Allen’s statement; and (5) Chatari (through his other employees)
negligently failed to stop Allen when he came to attack Sindorf. Based on these factual
allegations, Sindorf claimed that Chatari was “liable for negligent supervision, negligent
hire, negligent security, negligent failure to warn [Sindorf] and others of the threat, and
also vicariously liable for the actions of Allen and/or other employees . . . .” Sindorf did
not otherwise specifically delineate the duties Chatari owed him, the manner in which
Chatari breached those duties, or the way any breach caused his injuries. It is difficult
to imagine how Sindorf’s injuries could not have arisen out of and in the course of his
employment by Chatari given that Sindorf himself concludes that Chatari breached his
duties to Sindorf to properly (that is, non-negligently) hire and supervise Allen, secure
35
21 P.3d at 817-18 (citation omitted).
36
Id. at 817 (citing Marsh v. Alaska Workmen’s Comp. Bd., 584 P.2d 1135,
1136 (Alaska 1978)).
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the jobsite, and warn Sindorf and Chatari’s other employees about the danger Allen
presented. And if Allen’s attack on Sindorf were a personally motivated assault not
arising out of and in the course of employment, as Sindorf argues, how could Chatari be
held liable under a theory of respondeat superior for Allen’s assault? As the superior
court aptly commented, Sindorf finds himself in a Catch-22.
A negligence action requires proof of proximate cause as well as other
elements.37 The only way Chatari’s alleged negligence in hiring or supervising Allen or
failing to warn Sindorf of a possible assault by Allen could be a legal cause of Sindorf’s
injuries was if (1) Chatari had foreknowledge of Allen’s propensity for violence and his
animosity toward Sindorf or (2) Chatari knew that Allen was reasonably likely to assault
Sindorf at the concrete-pouring job that day.
Yet Chatari’s foreknowledge and failure to warn anyone, and his lack of
action to prevent the assault, are the types of employer behavior that other courts have
relied on to conclude that a personally motivated assault in the workplace arose out of
and in the course of employment, bringing an otherwise noncompensable injury within
the coverage of workers’ compensation. For example, the South Carolina Supreme
Court determined that an injury arose out of and in the course of employment when “the
employee was required to perform his duties under circumstances where he was
endangered by a peril from a source outside of and unrelated to his actual work, which
peril was known to the employer and against which the employer afforded no protection
or relief.”38 And in Murphy, a domestic assault was found to have arisen in the course
of employment when an employee’s husband told the employer in advance of his plan
37
Lindsey v. E & E Auto. & Tire Serv., Inc., 241 P.3d 880, 885 (Alaska 2010)
(citing Wickwire v. Arctic Circle Air Servs., 722 P.2d 930, 932 (Alaska 1986)).
38
Carter v. Penney Tire & Recapping Co., 200 S.E.2d 64, 67 (S.C. 1973)
(emphasis added).
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to assault his wife at work, but the employer took no action to prevent an attack.39 The
California court relied on the employer’s knowledge that “an attack was imminent” and
its failure to warn the employee of her husband’s “specific intent” in analyzing the case.40
Finally, a New York appellate court held that an employee’s murder arose out of and in
the course of employment when the employer made the employee deliver goods to an
individual who, the employer knew, had a “personal grievance” against the employee.41
Here there is no coverage under the commercial general liability insurance
policy because, taking as true the facts alleged in Sindorf’s complaint, Chatari knew of
the peril to Sindorf and either negligently exposed him to it or failed to take action to
protect him from harm. These allegations, presumed to be true, establish that Chatari,
as Sindorf’s employer under the policy, engendered, exacerbated, or facilitated Allen’s
attack on Sindorf as a matter of law. The resulting injury thus arose out of and in the
course of Sindorf’s employment by Chatari and is subject to the policy’s employee
exclusion.
We are unpersuaded by Sindorf’s argument that finding no coverage here
will create a gap in coverage, where injuries may not be covered by either workers’
compensation or commercial general liability policies. As we have explained, the “gap,”
if there is one, was created by Chatari’s failure to procure workers’ compensation
insurance; employees need not fear that our opinion will create gaps where employers
actually purchase both general liability insurance and workers’ compensation/employers’
liability insurance because today’s opinion does not pertain to those kinds of
circumstances.
39
150 Cal. Rptr. 561, 563-65 (Cal. App. 1978).
40
Id. at 564-65.
41
Berresi v. Ryan, 275 N.Y.S. 370, 371-72 (N.Y. App. Div. 1934).
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V. CONCLUSION
We AFFIRM the decision of the superior court.