Allianz Global Risks v. ACE Property & Casualty Ins. Co.

"The existence of side agreements, indemnification promises, or an insured's waiver of policy terms is simply irrelevant to the contribution rights set out in the OECAA. Under that statute, as under our coverage cases, see Ledford v. Gutoski, 319 Ore. 397, 399-400, 877 P2d 80 (1994), whether an insurance company has a 'duty to defend or indemnify' its insured depends on two documents: the insurance policy and the complaint."

Petitioner, Con-Way, petitioned the Court for reconsideration of its decision in the former case addressing this matter. Petitioner filed a petition for reconsideration alleging that the Court incorrectly characterized its earlier cases regarding the duties of an insurer to defend or indemnify its insured. Petitioner assigned error to to the court's holding that "certain 'side' agreements between Con-Way and three of its insurers were to be considered separately from the insurance policies that those companies issued to Con-Way’s subsidiary." The Court has held, "the existence of side agreements, indemnification promises, or an insured's waiver of policy terms is simply irrelevant to the contribution rights set out in the OECAA. Under that statute, as under our coverage cases, see Ledford v. Gutoski, 319 Ore. 397, 399-400, 877 P2d 80 (1994), whether an insurance company has a 'duty to defend or indemnify' its insured depends on two documents: the insurance policy and the complaint." Because the Court previously held that the duty to defend is distinct from the duty to indemnify, the Court agreed that the petitioner was correct. Accordingly, the Court modified the former opinion and adhered to it as modified. Reconsideration allowed.