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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Devine v. Great Divide Insurance Company (5/15/2015) sp-7009

Devine v. Great Divide Insurance Company (5/15/2015) sp-7009

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER .  

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

         corrections@akcourts.us.  



                  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.                                        )       O P I N I O N  

                                                   )  

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.  


----------------------- Page 2-----------------------

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.  



                                                                       -2-                                                               7009
  


----------------------- Page 3-----------------------

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.  



                                                                   -3-                                                                7009  


----------------------- Page 4-----------------------

                                                                        

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.  



                                                              -4-                                                           7009  


----------------------- Page 5-----------------------

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  



                                                                                              5  

                    We review a grant of summary judgment de novo.   Summary judgment is  

                                         



proper if there is no genuine factual dispute and the moving party is entitled to judgment  

                                                      



                            6  

as a matter of law.   In reviewing a summary judgment motion, we draw all reasonable  

                                                                                                              



                                                                 7 

inferences in favor of the non-moving party.   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  

                                                                                                       

                                                                   10   "[B]ecause of inequities in bargaining  

the policy, and relevant extrinsic evidence."     



          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).  



                                                               -5-                                                         7009
  


----------------------- Page 6-----------------------

                                                                                                                            11  

                                                                               

power, we construe coverage broadly and exclusions narrowly, in favor of insureds." 



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  



                                                                                     12 

                                                                                         "To determine the parties'  

policy provisions would have negated those expectations." 



                                                                                   

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 MILLS 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
  


----------------------- Page 7-----------------------

                    The first two types of insurance are generally sold bundled in a single  



insurance product termed a workers' compensation and employers' liability policy, while  



                                                                                              15 

                                                                                                  These two insurance  

the commercial general liability policy is usually sold separately. 



products  are  generally  based  on  form  contracts  produced  by  a  nationwide  industry  



                  16  

association.          They are intended to be modular; many insureds purchase one product  



                                                                                17                                           18  

                                                                                   or both from a single insurer, 

from one insurer and the other from a different insurer, 



as they see fit.  



                                                                                                       

                    The insurance products are drafted to ensure that there is no overlap and no  



                                                                                 19  

gap  in  coverage  among  the  three  types  of  insurance.                            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 NEW  APPLEMAN  ON  

INSURANCE  LAW  LIBRARY  EDITION :   COMMERCIAL  GENERAL  LIABILITY  INSURANCE  

 16.02[3][d][i]&[ii], at 16-38 to 16-39 (Jeffrey E. Thomas et al. eds., 2014).  



          15        21 HOLMES, supra note 14,  132.5[C][1], at 66; 15 id.  111.2(B)(1), at  

                                        



 121; 3 NEW APPLEMAN , 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 NEW APPLEMAN , 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.  



                                                              -7-                                                       7009
  


----------------------- Page 8-----------------------

                                                    

"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  



                                                                              21  

workers' compensation/employers' liability policies.                               As a leading insurance treatise  



          20        See generally 7B JOHN APPLEMAN ,I  NSURANCE 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
  


----------------------- Page 9-----------------------

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  

                                            

                                                                                                 [22] 

                   that almost surely was not intended by the policyholder.  



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  HOLMES,  supra note 14,  132.5 [C][1], at 66-67.  



                                                          -9-                                                    7009
  


----------------------- Page 10-----------------------

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  



            23  

                                                      

statutes.        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.").  



                                                              -10-	                                                        7009
  


----------------------- Page 11-----------------------

                                       24  

than its duty to indemnify.                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  



            25  

policy."     "The duty to defend is triggered if there is at least one cause of action alleged  



                                                                                                              26 

                                                                                                                  "[W]hen  

in the complaint for which there is a possibility of coverage under the policy." 



                                              

                                                     

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  



                                                                                           27  

                                                                                                        

look to extrinsic facts to escape its duty to defend the insured."                             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  



                                                                                                                            28  

                                                                                           

causes of action alleged in Sindorf's complaint against Chatari and Complete Concrete. 



                    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.   Cont'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.  



                                                            -11-	                                                      7009
  


----------------------- Page 12-----------------------

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:  



                                                          -12-                                                     7009
  


----------------------- Page 13-----------------------

                             "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  

                                                                                 



                                                           -13-                                                      7009
  


----------------------- Page 14-----------------------

                   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  

                                                                       



                                                            -14-                                                       7009
  


----------------------- Page 15-----------------------

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'  



                                                                                29  

Compensation  and  Employers  Liability  policies."                                   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  HOLMES, 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).  



                                                                 -15-	                                                          7009
  


----------------------- Page 16-----------------------

                                                                                                                                 31  

                                                                                            

                                                                                               

exclusion.  He  maintains that proper application of Temple v. Denali Princess Lodge 



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  



                                                                              33 

                                                                                                                  

Murphy v. Workers' Compensation Appeals Board ,   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,  



                                                                                                             34  

 [but] failed to warn [Sindorf]," which made the case similar to Murphy .  



                    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 tr               ue 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.  



                                                               -16-                                                        7009
  


----------------------- Page 17-----------------------

                    35  

employment.             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,  

                                                                                      

                                        36   The question here is thus whether as a matter of law the  

or facilitating the assault."  

                                                                                                                        



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)).  



                                                              -17-                                                        7009
  


----------------------- Page 18-----------------------

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  



              37  

                  The only way Chatari's alleged negligence in hiring or supervising Allen or  

 elements.                                                                       



 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  

               38   And in Murphy , a domestic assault was found to have arisen in the course  

or relief."        



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).  



                                                            -18-                                                       7009
  


----------------------- Page 19-----------------------

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).  



                                                                    -19-                                                               7009
  


----------------------- Page 20-----------------------

V.       CONCLUSION  



                 We AFFIRM the decision of the superior court.  

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