text:
    STATE of Oregon, Plaintiff-Respondent, v. Bernabe MURILLO-BEJAR, Defendant-Appellant.
    A162756
    Court of Appeals of Oregon.
    Submitted March 22, 2018. February 6, 2019
    Ernest G. Lannet, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Criminal Appellate Section, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Defendant appeals a judgment of conviction for three counts of first-degree sexual abuse. ORS 163.427. In his single assignment of error on appeal, defendant contends that the trial court plainly erred when it admitted a police officer's testimony that the victim, A, had received a diagnosis of "highly concerning for sexual abuse." See ORAP 5.45(1). In defendant's view, in light of the Supreme Court's decision in State v. Southard , 347 Or. 127, 218 P.3d 104 (2009) (holding that evidence of an expert's diagnosis of child sexual abuse is inadmissible under OEC 403 in the absence of physical evidence of abuse), the court had an obligation to sua sponte strike that testimony. As explained below, we agree with defendant that the trial court plainly erred in admitting that evidence and that it is appropriate to exercise our discretion to correct that error. See Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382, 823 P.2d 956 (1991). Accordingly, we reverse and remand defendant's convictions for first-degree sexual abuse.

The charges in this case arose as a result of disclosures of sexual abuse that A, a seven-year-old girl, initially made to her mother, M. Defendant and M had been involved in a romantic relationship on and off for several years and had one child together. Several months after M had given birth to that child, and when she and defendant were no longer in a relationship, A informed M that defendant had "raped" her. A later told M that defendant touched and smelled "her parts." M, who was a Spanish speaker, reported the disclosure to the police with the help of an English-speaking neighbor in October 2015. A deputy sheriff, Rejaian, responded to the call. Because her office does not interview children A's age who are alleged to be victims of child abuse, Rejaian referred the case to Liberty House, a child abuse assessment center, so that A could be inter-viewed there.

Rejaian received a report from Liberty House on November 16, 2015, and she arrested defendant a week later. Defendant was ultimately charged with, among other things, several counts of first-degree sexual abuse.

At trial, A testified that defendant had inappropriately touched her on several occasions. Perez, a forensic interviewer from Liberty House also testified about her interview of A. She described her education and experience, the interview process, and the disclosures A made during the interview. Perez also explained that a medical provider watches the interviews and conducts a physical examination of the child; that examination consists of a "head-to-toe checkup, including private parts."

During the interview, A told Perez that defendant had "smelled her where he wasn't supposed to," that another time he touched her inappropriately, and that, on another occasion, defendant had licked her private part over her clothing. Given the type of contact A described, Perez testified that she would not expect a physical examination to result in any physical evidence of the touching and, indeed, the examination of A conducted by the medical provider did not reveal any physical evidence of sexual abuse.

At trial, defendant testified that he had broken up with M a short time before A disclosed the abuse. According to defendant, M was upset and threatened him. He denied ever having inappropriately touched A.

Rejaian also testified at trial, and it is her testimony that is the subject of defendant's assignment of error on appeal. Among other things, Rejaian testified about referring A to Liberty House for an interview. She described Liberty House as being "specially trained in interviewing children" and further testified as follows:

"[The State]: And was that interview scheduled and attended by [A]?
"[Rejaian]: Yes.
"[The State]: And what was your next step?
"[Rejaian]: I received the report back from Liberty House on November 16 of 201[5], and in that report they said there was a diagnosis of highly concerning for child sexual abuse. So after that, I went and contacted [defendant] at a home in Woodburn."

Defendant did not object to Rejaian's testimony regarding the diagnosis contained in the report from Liberty House.

On appeal, defendant asserts that, in the absence of physical evidence of abuse, the trial court's admission of Rejaian's testimony that A had received a diagnosis of highly concerning for child sexual abuse constituted plain error. Since Southard was decided, we have repeatedly held that the admission of a diagnosis of sexual abuse in the absence of physical evidence is plain error. See, e.g. , State v. Lopez-Cruz , 256 Or. App. 32, 37, 299 P.3d 569 (2013) (admission of a diagnosis of "abusive contact of an adult with a patient, no penetration or genital contact," in the absence of physical evidence, constituted plain error warranting reversal); State v. Volynets-Vasylchenko , 246 Or. App. 632, 639, 267 P.3d 206 (2011) (trial court plainly erred by admitting evidence that a nurse practitioner who evaluated a child had made treatment recommendations including that the child receive therapy from a therapist "skilled in working with children who have been victims of abuse"); State v. Lovern , 234 Or. App. 502, 508-12, 228 P.3d 688 (2010) (it is plain error to admit a diagnosis of child sexual abuse in the absence of physical evidence). And we have so held even in circumstances where the diagnosis was not definitive, but was phrased in terms of being "concerning" or "highly concerning" for sexual abuse. See, e.g. , State v. Feller , 247 Or. App. 416, 418, 269 P.3d 110 (2011) (trial court plainly erred in admitting physician's diagnosis of "concerning" for sexual abuse); State v. Merrimon , 234 Or. App. 515, 517, 228 P.3d 666 (2010) (trial court committed plain error in admitting, in the absence of physical evidence, a diagnosis of "highly concerning of sexual abuse"). As we explained in Merrimon , like "the definitive diagnosis at issue in Southard -indeed, perhaps more so-a diagnosis of 'highly concerning of sexual abuse' without confirming physical evidence has marginal probative value." 234 Or. App. at 520-21, 228 P.3d 666. Furthermore, "such a diagnosis carries with it 'the expert's implicit conclusion that the [alleged] victim's reports of abuse are credible.' " Id. at 521, 228 P.3d 666 (quoting Southard , 347 Or. at 141, 218 P.3d 104 (brackets in Merrimon ) ). The state, however, asserts that the admission of the diagnosis evidence in this case was not plain error for several reasons. First, according to the state, the diagnosis testimony was relevant "not simply as evidence that the victim * * * was abused, but for other reasons also." Specifically, the state asserts that the testimony was relevant to explain "the significant time lag between the victim's initial disclosures of abuse and any attempt by police to arrest defendant for that abuse." In the state's view, the testimony helped to show that, in accordance with their usual practice, police had waited for the Liberty House interview to be completed before they contacted defendant regarding the allegations against him and was relevant to counter any inferences the jury might draw regarding that delay. We are not persuaded. Although it is true that the deputy's testimony about the referral to Liberty House and the attendant delay was relevant on that point, the state has not explained why the testimony regarding the diagnosis contained in the report would help explain the time lag between the disclosure and the arrest. To the contrary, as in the cases cited above, the diagnosis evidence had only marginal probative value, and carried with it the implicit message that the victim's report was credible. See Feller , 247 Or. App. at 420, 269 P.3d 110.

Second, the state contends that the admission of the diagnosis evidence is not plain error because Rejaian's "reference to the Liberty House diagnosis did not identify the person making the diagnosis. It thus was not clear that the diagnosis had been made by a credentialed expert, surrounded with the hallmarks of the scientific method." (Internal quotation marks omitted.) In other words, the state asserts that this case differs from Southard and the cases following it because the diagnosis evidence came in through a police officer. We disagree; in our view, that factual difference does not meaningfully distinguish this case from Southard .

In Southard , the diagnosis at issue had come out of an assessment of an allegedly abused child at a child abuse assessment center similar to the one at issue in this case. See Southard , 347 Or. at 130-32, 218 P.3d 104. The court explained that the probative value of the diagnosis evidence was substantially outweighed by the danger of unfair prejudice in part because diagnosis evidence, in the absence of physical evidence, is based on the abuse assessment center crediting the child's report that he or she has been abused and, therefore, does not "tell the jury anything that it was not equally capable of determining." Id. at 140, 218 P.3d 104. However, the "fact that the diagnosis came from a credentialed expert, surrounded by the hallmarks of the scientific method, created a substantial risk" that the jury would be overly impressed by the evidence and "posed the risk that the jury [would] not make its own credibility determination" but would, instead, defer to the implicit determination contained within the diagnosis that the child's report of abuse was credible. Id. at 140-41, 218 P.3d 104.

Here, Perez, the forensic interviewer from Liberty House, testified that a forensic interviewer has "gone through specialized training in order to be able to talk to a child to obtain reliable information, and to do so in a way that meets that child's specific developmental needs, as well as to minimize any kind of interviewer interference." She detailed her own education, training, and experience, and discussed the guidelines regarding which forensic interviewers in Oregon are trained. Perez also explained that, at Liberty House, in addition to a forensic interview, a physical examination which was a "head-to-toe checkup, including private parts" was conducted by a medical provider. She also explained that there was no physical evidence of sexual abuse and that, in the circumstances presented, no such evidence would be expected. Rejaian then testified that the report she received from Liberty House said "there was a diagnosis of highly concerning for child sexual abuse."

In our view, that testimony falls directly within the prohibition of Southard and the cases that follow it. As in Southard , in the absence of physical evidence, the diagnosis was necessarily based on the professionals at Liberty House having credited the child's account of having been inappropriately touched. And, although the diagnosis testimony itself came from a law enforcement officer, it is clear from the context that, like in Southard , it had the aura of expert testimony surrounding it. There was no question that the "diagnosis" came from Liberty House's report, and that report arose from an examination by both a medical provider along with a forensic examination by an expert interviewer whose methods had been detailed to the jury. Thus, in our view, the evidence in question is indistinguishable from the diagnosis evidence in those cases in which we have repeatedly concluded that admission of diagnoses of child sexual abuse in the absence of physical evidence is plain error.

Finally, the state contends that the admission of the diagnosis evidence in this case was not plain error because the record is susceptible to competing inferences about why defendant failed to object to the evidence, and one plausible inference is that defendant made a strategic decision not to do so. The state proposes that because the diagnosis did "not definitively state that the victim had been subjected to sexual abuse," but, instead, was only "highly concerning" for sexual abuse, counsel could have "concluded that the diagnosis would help defendant persuade jurors that reasonable doubt about defendant's guilt existed." The state also suggests that the fact that Southard was decided long before the trial in this case supports its assertion that counsel may have had strategic reasons for not objecting to the admission of the diagnosis evidence. That contention is unavailing. As we have explained, "competing inferences, for purposes of plain error analysis, must be plausible." Lovern , 234 Or. App. at 512, 228 P.3d 688 (internal quotation marks omitted). And, in light of the record in this case, we are unpersuaded that the inference that the state proposes-that defendant did not object to the evidence because he viewed it as helpful to his case-is plausible. The case came down to whether the jury believed A's report of abuse or whether it believed defendant's assertion that he never touched A inappropriately. Defendant never suggested to the jury that the diagnosis evidence supported his theory of the case, which was that A's mother pushed her to fabricate the allegations against defendant as revenge for their breakup. And we do not see how that evidence would help defendant's efforts to convince the jury to doubt A. Instead, as discussed in Merrimon , the diagnosis carried with it the implicit conclusion that the professionals at Liberty House found A's reports credible. See Merrimon , 234 Or. App. at 521, 228 P.3d 666 ; see also Lopez-Cruz , 256 Or. App. at 37-38, 299 P.3d 569 ("[T]he record does not reflect any plausible tactical reason why counsel would have chosen not to object to [the] diagnosis testimony under Southard , and we can conceive of no strategic purpose in not objecting to that testimony."). Accordingly, as we have in "dozens of [other] cases involving unpreserved claims of error under Southard ," we conclude that the admission of the diagnosis evidence in this case was plain error. Volynets-Vasylchenko , 246 Or. App. at 638, 267 P.3d 206.

We turn, finally, to the question whether we should exercise our discretion to consider and correct the plain error in this case. See Ailes , 312 Or. at 382, 823 P.2d 956 (even if an error meets the requisites for plain error, appellate court "must exercise its discretion to consider or not to consider the error, and if the court chooses to consider the error, the court must articulate its reasons for doing so"). Among other things, when determining whether to exercise our discretion, we may consider "the competing interests of the parties; the nature of the case; the gravity of the error; [and] the ends of justice in the particular case." Id. at 382 n. 6, 823 P.2d 956. Here, the state has not argued that any error in admitting the diagnosis evidence was harmless, and we conclude that it was not, given the evidentiary record described above. For the reasons set forth in Lovern and Merrimon , and, in particular, in light of the gravity of the error and the ends of justice in this case, we conclude that is appropriate to exercise our discretion to consider and correct the error. See Merrimon , 234 Or. App. at 520-22, 228 P.3d 666 ; Lovern , 234 Or. App. at 512-14, 228 P.3d 688.

Reversed and remanded on Counts 1, 2, and 3; otherwise affirmed.

      Defendant also had been charged with one count of first-degree sodomy and one count of fourth-degree assault. The judgment reflects that those counts were dismissed.

      Pursuant to ORAP 5.45(1), "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * * provided that the appellate court may, in its discretion, consider a plain error."

      We are likewise unpersuaded by the state's attempts to distinguish the "highly concerning" diagnosis from similar diagnoses addressed in other cases. See Feller , 247 Or. App. at 418, 269 P.3d 110 ; Merrimon , 234 Or. App. at 517, 228 P.3d 666.


source: Caselaw Access Project

author: SHORR, J.

license: Public Domain

text:
    BIGHORN LOGGING CORPORATION, an Oregon Corporation, Plaintiff-Respondent, v. TRUCK INSURANCE EXCHANGE, a Reciprocal Inter-Insurance Exchange, Defendant-Appellant, and Farmers Insurance Exchange, a Reciprocal Inter-Insurance Exchange, Defendant.
    A163054
    Court of Appeals of Oregon.
    Argued and submitted April 13, 2018. January 30, 2019
    Lindsey H. Hughes, Portland, argued the cause for appellant. Also on the briefs were Hillary A. Taylor and Keating Jones Hughes, P.C.
    Seth H. Row, Portland, argued the cause for respondent. Also on the brief were Iván Resendiz Gutierrez, Miller Nash Graham & Dunn LLP, Rima L. Ghandour, and Ghandour Law, LLC.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

This appeal arises from an action for defense costs and indemnity brought by Bighorn Logging Corporation (Bighorn) against Truck Insurance Exchange (Truck). Bighorn was the defendant in a timber trespass lawsuit filed by Paul Ater. In April 2012, Bighorn had approached Ater requesting a limited license to use up to three Douglas fir trees on Ater's property (the Ater property) as "tail hold trees" that would be used to secure "yarder lines" in connection with a logging operation on an adjacent property owned by Dr. Edney (the Edney property). Bighorn explained to Ater that it would use only two or three trees and take specific precautions to ensure that there was no or minimal damage to Ater's trees. Under those proposed conditions, Ater granted Bighorn a limited license to use the indicated trees.

In his complaint, Ater alleged that, contrary to its representations, Bighorn failed to effectively employ methods designed to minimize damage to Ater's trees. Instead, Bighorn used a chainsaw to "girdle" the trees and create wedge-shaped cuts to keep the steel yarder lines in place. In total, Bighorn cut down or severely damaged 18 Douglas fir and alder trees as well as numerous shrubs and small trees on Ater's property. The Ater lawsuit went to trial, and Bighorn was found liable by a jury for "intentionally or recklessly" damaging Ater's trees.

Bighorn tendered defense of Ater's claim to Truck pursuant to a commercial general liability (CGL) insurance policy that Bighorn had purchased from Truck. Truck concluded that it was not obligated to defend or indemnify Bighorn because, in its view, Ater's complaint alleged conduct for which the policy did not provide coverage and, in the event that there was coverage, Bighorn's alleged conduct was subject to exclusions in the insurance policy.

After Truck refused to defend or indemnify Bighorn, Bighorn brought a breach of contract action against Truck. The trial court entered summary judgment for Bighorn and denied Truck's cross-motion for summary judgment. On appeal, Truck assigns error to those rulings and reprises its arguments that it was not obligated under the insurance policy to defend Bighorn against Ater's timber trespass claim or to indemnify Bighorn against the liability that resulted from that claim. For the reasons explained below, we affirm.

I. BACKGROUND

Before discussing Truck's duty to defend and indemnify Bighorn in the Ater case, we turn to a more detailed explanation of the factual and procedural background leading to this appeal. The following material facts are undisputed.

A. Insurance Policy Provisions

The insurance policy that Truck sold to Bighorn provided that Truck would defend and indemnify Bighorn in certain lawsuits. Regarding those duties, the policy provided, in relevant part, that

"[Truck] will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies. [Truck] will have the right and duty to defend the insured against any 'suit' seeking those damages."

The policy applies to "property damage" only if the damage was "caused by an 'occurrence' that takes place in the 'coverage territory' " and "during the 'policy period.' "

The policy contains several exclusions, three of which are relevant to this appeal. Exclusion 2(a) excludes coverage for property damage "expected or intended" by the insured. Exclusion 2(j)(5) excludes coverage for "property damage" to "that particular part of real property on which you *** are performing operations, if the 'property damage' arises out of those operations." Exclusion 2(j)(6) excludes coverage for "property damage" to "that particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it."

The policy also defines several terms. The term "occurrence" as used to describe the kind of property damage covered by the policy means "an accident, including continuous or repeated exposure to substantially the same general harmful conditions"; the policy does not further define the term "accident." "Property damage" means "physical injury to tangible property, including all resulting loss of use of that property." "Your work" as used in exclusion 2(j)(6) means "work or operations performed by [Bighorn]." The policy does not further define the term "operations" as used in exclusion 2(j)(5) and the definitional language in exclusion 2(j)(6) or what it means for property damage to be "expected or intended" as used in exclusion 2(a).

B. Ater's Complaint Against Bighorn

In 2013, Ater filed a timber trespass action against Bighorn. In the original complaint, Ater alleged that Bighorn had "willfully" and "intentionally" trespassed on Ater's property, resulting in timber damage. In the first amended complaint, Ater specifically alleged both "intentional" and "negligent" timber trespass, ORS 105.810 ; ORS 105.815. Ater relied on the same factual allegations to support both claims, namely, Ater alleged that Bighorn had exceeded the limited license granted by Ater when it used a chainsaw to cut and girdle numerous trees on Ater's property in lieu of using the promised methods designed to minimize tree damage. With respect to the intentional trespass claim, Ater alleged that Bighorn had "blatantly violated the limited license granted by plaintiff and willfully, intentionally and without plaintiff's consent trespassed on plaintiff's property." With respect to the negligent trespass claim, Ater alleged only that Bighorn had "negligently" damaged the trees.

Timber trespass includes cutting down, girdling, or otherwise injuring any "tree, timber, or shrub on the land of another person." ORS 105.810(1). Under ORS 105.815(1), "judgment shall be given for double damages" for timber trespass if, among other things, it "appears that the trespass was casual or involuntary." Proof of "casual or involuntary" trespass does not require a showing of negligence, as "that disjunctive statutory language encompasses non-negligent, non-volitional trespass." Wyatt v. Sweitz , 146 Or. App. 723, 728, 934 P.2d 544 (1997). By contrast, damages are trebled if the acts listed in ORS 105.810(1) were committed "willfully, intentionally and without plaintiff's consent."

ORS 105.810(1). Under ORS 105.810(1), "upon plaintiff's proof of ownership of the premises and the commission by the defendant of any of the acts mentioned in this section[, including cutting down and girdling trees], it is prima facie evidence that the acts were committed by the defendant willfully, intentionally, and without plaintiff's consent." Put differently, a plaintiff need not prove that the defendant maliciously or purposely damaged the plaintiff's trees to prevail on an intentional timber trespass claim. Evidence that the plaintiff owns the premises and that the "defendants' conduct was such that they knew the tree would be injured as a result of their acts"-regardless of whether the defendant acted with "such a narrow focus"-is sufficient. Brown v. Johnston , 258 Or. 284, 289, 482 P.2d 712 (1971).

C. Bighorn Tenders Defense and Indemnity to Truck

After Ater served Bighorn with his complaint, Bighorn invoked Truck's duty to defend and indemnify Bighorn in the Ater case. Truck refused. It explained to Bighorn that, based on the allegations in Ater's complaint, the damage to Ater's property was the result of Bighorn's intentional conduct, not an "occurrence" (i.e. , an "accident") as required by the insurance policy to trigger Truck's duty to defend or indemnify. Truck also informed Bighorn that the underlying factual allegations-that Bighorn had used a chainsaw to cut and girdle Ater's trees rather than using methods designed to avoid damage to the trees as it promised to do to secure a limited license from Ater-fell within exclusion 2(a) for "expected or intended" property damage, exclusion 2(j)(5) for property damage to the "particular part" of the property on which Bighorn was performing "operations," and exclusion 2(j)(6) for property damage caused by Bighorn "incorrectly" performing its "work."

D. Result of the Ater Case

Ater's case against Bighorn was tried to a jury. The jury returned a verdict for Ater with a number of special findings. The jury answered "No" to the question, "Were any of the trees on plaintiff's property harvested or damaged by defendant subject to the April 2012 License Agreement?" The jury answered "Yes" to the question, "Did [Bighorn]

intentionally or recklessly girdle, injure or sever any trees on [Ater's] property without probable cause to believe that the trees were located on Dr. Edney's property?" Finally, the jury found that "[Ater's] damages resulting from [Bighorn's] intentional or reckless conduct" totaled $21,557.

After the jury returned its verdict, the trial court entered a general judgment and money award. The court adjudged that Ater "shall have judgment in his favor and against [Bighorn] on his intentional timber trespass [claim] under ORS 105.810 for $82,878.51, which is the jury's assessed damages of $21,557 plus prejudgment interest of $10,794.72 trebled to $97,055.16 less defendant's pretrial mitigation payment of $14,176.65."

E. Bighorn's Action Against Truck

Following the conclusion of the Ater case, Bighorn filed its own action against Truck. Bighorn asserted two claims for breach of contract: one for Truck's refusal to defend Bighorn and one for its failure to indemnify Bighorn for the liability imposed as a result of the Ater case. The parties filed cross-motions for summary judgment on both claims. Bighorn argued that Truck had a duty to defend and indemnify in the Ater case as a matter of law because Ater's complaint alleged, in part, that Bighorn had committed negligent timber trespass when it cut and girdled Ater's trees, and Bighorn was ultimately found liable for "reckless" trespass, which was within the insurance policy's scope of coverage. Truck responded that it was not obligated to defend or indemnify Bighorn because exclusions 2(j)(5) and 2(j)(6) unambiguously applied to the allegations in Ater's complaint. Truck also argued that it was not obligated to indemnify Bighorn because the trial court's judgment held Bighorn liable for "intentional" trespass, which necessarily meant either that Bighorn was responsible for property damage that fell outside the scope of the policy or that Bighorn was found liable for property damage that it "intended" to occur.

The trial court granted Bighorn's motion for summary judgment and denied Truck's cross-motion. The court acknowledged that "coverage does not exist for intentional actions" but explained that an "intentional" act in the insurance context is one where "the action was intended and a purpose of damaging a person or property was also intended." Ater had alleged that Bighorn had intentionally or negligently cut and girdled Ater's trees but had not alleged that it had done so with the purpose of damaging or killing the trees. The court also determined that whether exclusions 2(j)(5) and 2(j)(6) applied to the allegations in Ater's complaint was ambiguous. Because ambiguities are construed against the insurer, the court concluded that Truck had not proved that those exclusions terminated its duty to defend Bighorn.

F. Truck Appeals

On appeal, Truck assigns error to the trial court's rulings on the cross-motions for summary judgment. Truck reiterates its argument that, as a matter of law, it was not obligated under the insurance policy to defend Bighorn against Ater's timber trespass claims or to indemnify Bighorn against the liability for damages that resulted from those claims. For summary judgment to be appropriate on the duty to defend or the duty to indemnify, there must be no genuine dispute of material fact and the moving party must be entitled to judgment as a matter of law. Ledford v. Gutoski , 319 Or. 397, 403, 877 P.2d 80 (1994).

II. ANALYSIS

Our resolution of this appeal turns on our interpretation of the insurance policy that Truck sold to Bighorn, which presents a question of law. Hunters Ridge Condo. Assn. v. Sherwood Crossing , 285 Or. App. 416, 422, 395 P.3d 892 (2017). Therefore, we first set out the legal principles that govern the duty to defend and the duty to indemnify in the liability insurance context. We then turn to the specific issues presented on appeal.

A. Overview of Duty to Defend and Duty to Indemnify

Typically, when an insured purchases an insurance policy that protects against liability, the insurer assumes multiple duties to the insured. One duty commonly found in CGL policies is the duty to defend, which arises from an agreement that the insurer will defend the insured in legal actions involving claims that could impose liability for conduct covered by the policy. FountainCourt Homeowners' v. FountainCourt Develop. , 360 Or. 341, 354, 380 P.3d 916 (2016). Another common duty is the duty to indemnify, which arises where the insurer agrees to repay the insured for any liability covered by the policy that is at or below the policy limit. Bresee Homes, Inc. v. Farmers Ins. Exchange , 353 Or. 112, 126, 293 P.3d 1036 (2012).

The duty to defend and the duty to indemnify are independent of one another and must be analyzed separately. Id . at 114, 293 P.3d 1036. There may be circumstances where one duty exists but the other does not. ZRZ Realty v. Beneficial Fire and Casualty Ins. , 349 Or. 117, 150, 241 P.3d 710 (2010). Accordingly, we describe the circumstances that give rise to each duty below.

1. Duty to defend

An insurer's duty to defend an insured is determined by comparing the "four corners" of the complaint to the "four corners" of the insurance policy. West Hills Development Co. v. Chartis Claims , 360 Or. 650, 652-53, 385 P.3d 1053 (2016). Under that so-called four- or eight-corners rule, one compares the allegations in the complaint to the terms of the insurance policy to determine whether the insurer must defend the alleged conduct of the insured. If the allegations in the complaint assert a claim covered by the policy-even if it does so alongside claims that are not covered or does so ambiguously-the insurer has a duty to defend. Id. at 653, 385 P.3d 1053 ; see also Bresee Homes, Inc. , 353 Or. at 117, 293 P.3d 1036 ("The inclusion in the complaint of other allegations describing claims that fall outside the policy's coverage is immaterial. Any ambiguity concerning potential coverage is resolved in favor of the insured." (Citation omitted.)). Put differently, "the insurer has a duty to defend if the complaint provides any basis for which the insurer provides coverage," i.e. , if the facts in the complaint "may reasonably be interpreted to include conduct within the coverage of [the insurance] policy." Ledford , 319 Or. at 400, 877 P.2d 80 (emphasis in original). The insured bears the initial burden of proving that the allegations in the complaint assert a claim covered by the policy. FountainCourt Homeowners , 360 Or. at 360, 380 P.3d 916.

The allegations in the complaint may fail to describe a claim covered by the insurance policy either because the allegations do not involve insured conduct or because one or more coverage exclusions in the policy absolve the insurer of its duty to defend. If the insured proves that the allegations in the complaint trigger the insurer's duty to defend, the insurer may still avoid liability by meeting its burden to show that one or more exclusions in the insurance policy absolve it of that duty. Id .

2. Duty to indemnify

An insurer's duty to indemnify is determined by whether the insured is found to be liable for harm or injury that is covered by the insurance policy. Ledford , 319 Or. at 405, 877 P.2d 80. Unlike the duty to defend, which is triggered based entirely on a comparison of the allegations in the complaint with the terms of the insurance policy, the duty to indemnify is triggered when the findings made by the trier of fact as to what actually occurred fall within the scope of coverage and are not subject to any exclusion in the policy.

As with the duty to defend, the insured bears the burden of proving that the insurer has a duty to indemnify. FountainCourt Homeowners , 360 Or. at 360, 380 P.3d 916. The insurer bears the burden to show that one or more exclusions apply to all or some of the judgment against the insured. Id .

B. Truck's Duty to Defend

Truck argues on appeal that it was not obligated to defend Bighorn in the Ater case because exclusions 2(j)(5) and 2(j)(6) in the insurance policy apply to the allegations raised in Ater's complaint. To resolve whether the trial court erred when it granted summary judgment to Bighorn on that issue, we must decide whether those exclusions apply.

Whether an exclusion in an insurance policy relieves an insurer of its duty to defend the insured will depend on the meaning of the exclusion and whether, properly construed, it encompasses all of the allegations made in the complaint that would otherwise give rise to that duty. We interpret the terms of the policy from the perspective of an "ordinary purchaser of insurance."

Hunters RidgeCondo. Assn. , 285 Or. App. at 422, 395 P.3d 892 (citing Congdon v. Berg , 256 Or. App. 73, 87, 299 P.3d 588 (2013) ). When a particular word or phrase is not defined in an insurance policy, we first ask whether the word or phrase has a plain meaning-i.e. , whether it is susceptible to only one plausible interpretation. Id. (citing Holloway v. Republic Indemnity Co. of America , 341 Or. 642, 650, 147 P.3d 329 (2006) ). An interpretation is plausible if it is "sensible and reasonable" under the circumstances. Laird v. Allstate Ins. Co. , 232 Or. App. 162, 171, 221 P.3d 780 (2009). If there is more than one plausible interpretation, we examine the word or phrase in the context in which it is used in the policy and the broader context of the policy as a whole. Hunters Ridge Condo. Assn. , 285 Or. App. at 422-23, 395 P.3d 892. If the ambiguity persists at that point-that is, if two or more plausible interpretations remain-any reasonable doubt as to the meaning of the word or phrase will be resolved in favor of the insured and against the insurer. Id. at 423, 395 P.3d 892.

Ater's complaint includes allegations that Bighorn committed either intentional or negligent timber trespass when it used a chainsaw to cut and girdle trees on Ater's property. Ater alleged that, whether intentional or negligent, Bighorn's actions exceeded the scope of the limited license that Ater had granted to Bighorn to use a finite number of trees as tail holds to facilitate Bighorn's logging operations on the adjacent Edney property and to do so in a manner that would minimize harm to the trees.

The parties do not dispute that Bighorn's primary operation was the logging project on the Edney property adjacent to the Ater property. But Bighorn and Truck disagree on whether exclusion 2(j)(5) or 2(j)(6) applies to the ancillary work done on Ater's property, including work that went beyond the scope of the limited license granted by Ater that resulted in damage to Ater's trees. Truck argues that both exclusions unambiguously encompass and thereby exclude work performed by the insured on a third party's property, such as Ater's, that is tangential to the primary project covered by the policy. Bighorn responds that both exclusions must be construed narrowly and apply only to exclude coverage for property damage resulting from the work that Bighorn specifically was under contract to perform in the areas that Bighorn specifically was under contract to be-namely, its logging operations on the Edney property but not its ancillary work on Ater's property, and certainly not work that it was not licensed to perform on that property.

We first consider the plain meaning of both exclusions and conclude that each is susceptible to multiple, plausible interpretations, including the interpretations advanced by both parties at summary judgment and on appeal. As recited above, exclusion 2(j)(5) applies to exclude coverage for property damage to "[t]hat particular part of real property on which you *** are performing operations, if the property damage arises out of those operations." The terms "particular part of real property" and "operations" are not defined in the policy.

Read together, the "particular part" of the property where the insured is performing its "operations" could plausibly refer to any piece of property where the insured is performing any work at all related to the contracted project (i.e. , the Edney logging operation in this case) whether authorized or not. Under that broad reading, exclusion 2(j)(5) would apply to Bighorn's work on the Ater property because that work was related to Bighorn's primary operations on the Edney property. But the "particular part" of property where Bighorn is performing "operations" is also susceptible to a narrower reading and could refer only to the specific parts of the property where the insured is under contract to work and the specific project that the insured is under contract to perform on that property. Under that reading, exclusion 2(j)(5) would not apply to Bighorn's work on Ater's property; Bighorn was under contract to perform logging operations on a particular portion of the Edney property and was only incidentally working on the Ater property. Cf. Thommes v. Milwaukee Insurance Co. , 641 N.W.2d 877, 883-84 (Minn. 2002) (concluding that an insurance policy with the same exclusion 2(j)(5) was ambiguous with respect to its applicability to damage to the property of third parties); Pekin Ins. Co. v. Miller , 367 Ill. App. 3d 263, 270, 305 Ill.Dec. 101, 854 N.E.2d 693 (2006) (same).

Even if we assume that exclusion 2(j)(5) unambiguously extends to those specific, licensed activities on a third-party's property that are connected to the insured's contracted work, Ater alleged that Bighorn had damaged his trees when it exceeded the scope of its limited license to use his property. It is ambiguous whether exclusion 2(j)(5) applies under those circumstances because, as described, it is at least plausible that the terms "operations" and "particular part of real property" encompass only those activities that Bighorn was permitted to undertake within the scope of a contract or license and only on the parts of the property where Bighorn was authorized to carry out that work.

Exclusion 2(j)(6) is similarly susceptible to multiple meanings. That exclusion applies to exclude coverage for "property damage" to "that particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it." Under the policy, "your work" means "work or operations" performed by Bighorn. Neither "work" nor "operations" are further defined by the policy. Indeed, nowhere does the policy indicate whether "your work" is confined to the work Bighorn was specifically under contract to perform or authorized to perform under a limited license from a third party. Thus, the exclusion is ambiguous for the same reason that exclusion 2(j)(5) is ambiguous; it is unclear whether the terms "work" or "operations" refer only to the insured's primary, contracted operation on the "particular part" of the property under contract or also encompasses derivative or ancillary activities on an adjacent third-party's property, including activities beyond the scope of any limited license that the insured might have to work on that property.

Having concluded that exclusions 2(j)(5) and 2(j)(6) are subject to more than one plausible interpretation and apply to the allegations in the Ater complaint, we must determine whether Bighorn's construction remains plausible when examined in context. See Holloway , 341 Or. at 650, 147 P.3d 329. Neither the immediate context in which the exclusions appear nor the broader context of the policy as a whole point to a single plausible understanding of either exception with respect to their applicability to the allegations in Ater's complaint. See Hunters Ridge Condo. Assn. , 285 Or. App. at 427, 395 P.3d 892 (explaining that we examine a disputed exclusion in its immediate context and the broader context of the policy as a whole). The immediate context is not illuminating because the policy leaves several key terms undefined. The policy also contains numerous other exclusions but none that more specifically describes the scope of the policy in a way that clarifies the scope of the exclusions at issue here.

As to the broader context, nowhere does the policy expressly or impliedly address whether any exclusions are intended to include or exclude property damage resulting from ancillary work performed by the insured on the property of third parties. The policy also does not provide any relevant statements of purpose or other evidence of the parties' intent when they agreed to the exclusions. See id. at 422, 395 P.3d 892 (explaining that the goal in construing an insurance policy is to "ascertain the intention of the parties" (citing Dewsnup v. Farmers Ins. Co. , 349 Or. 33, 39-40, 239 P.3d 493 (2010) ) ).

In sum, both Bighorn and Truck offered plausible interpretations of the language of exclusions 2(j)(5) and 2(j)(6) to the trial court at summary judgment. Because ambiguities concerning potential insurance coverage are resolved in favor of the insured, Bresee Homes, Inc. , 353 Or. at 117, 293 P.3d 1036, the trial court did not err when it granted Bighorn's motion for summary judgment on Truck's duty to defend and denied Truck's cross-motion on the same issue.

C. Truck's Duty to Indemnify

As described, an insurer's duty to indemnify is determined by whether the insured is found to be liable for damages that are covered by the insurance policy. Ledford , 319 Or. at 405, 877 P.2d 80. To resolve whether the trial court erred when it granted summary judgment to Bighorn on that issue, we must decide whether Bighorn was found liable for conduct that was within the scope of coverage identified by the CGL policy as a matter of law and that that conduct was not subject to the exclusions that Truck invoked at summary judgment.

1. Trigger of coverage and the exclusion for "intended" injury

Truck's argument that it owed no duty to indemnify Bighorn is twofold: First, Bighorn could never prove under the circumstances that Truck's obligation to indemnify was triggered because, Truck contends, the trial court's judgment in the Ater case held Bighorn liable for "intentional timber trespass under ORS 105.810," while the insurance policy only covers property damage that results from an "occurrence," i.e. , an "accident"; and, second, that same judgment triggered policy exclusion 2(a), which applies when the insured is found liable for property damage that it "intended" to occur.

"Accident" is not defined in the policy. We have explained that "accident" in the insurance context usually means actions that are "unforeseen, unexpected, unintended, or the like," or, put another way, the question is "whether the insured specifically intended to cause the injury that gives rise to coverage." Minnis v. Oregon Mutual Ins. Co. , 162 Or. App. 198, 210, 986 P.2d 77 (1999), rev'd in part on other grounds , 334 Or. 191, 48 P.3d 137 (2002) ; see also Allstate Ins. Co. v. Stone , 319 Or. 275, 278-79, 876 P.2d 313 (1994) (rejecting the objective "natural and ordinary consequences" approach and explaining that "the exclusion from coverage for intentional acts [in the insurance context] depends on the subjective intent of the insured").

Here, the jury's verdict and the ultimate trial court judgment in the Ater case are not in complete agreement. The jury made the factual finding that Bighorn "intentionally or recklessly" injured trees that were not "subject" to the limited license agreement and that Bighorn did so "without probable cause to believe that the trees were located on [the Edney] property." The Ater court entered a judgment holding Bighorn liable only for "intentional timber trespass under ORS 105.810." Unlike the verdict, the judgment makes no reference to recklessness. Truck argued to the trial court at summary judgment that the Ater court's description of Bighorn's trespass as "intentional" overrides the jury's finding that Bighorn may have acted "recklessly" and indisputably demonstrates that Bighorn was found liable for nonaccidental property damage.

Even if we were to accept for the purpose of this appeal Truck's argument that the Ater court's judgment-to the exclusion of the jury's verdict-is the ultimate statement of Bighorn's liability, it does not follow that the trial court erred in granting Bighorn's motion for summary judgment and denying Truck's cross-motion. Neither the jury nor the court in the Ater case found that Bighorn subjectively intended to damage Ater's trees. Instead, both found, at most, that Bighorn had committed intentional timber trespass. As explained, intentional timber trespass, ORS 105.810, may be proved without evidence that the defendant acted with the purpose of damaging the plaintiff's property. Brown , 258 Or. at 289, 482 P.2d 712. Thus, a plaintiff like Ater may prevail on an intentional timber trespass claim without ever asserting-much less presenting any evidence-that the defendant acted with the purpose of causing the alleged damage.

To reiterate, "injuries resulting from intentional acts are excluded from insurance coverage when the insured intended to cause the particular injury or harm, as opposed to merely intending the act." Ledford , 319 Or. at 401, 877 P.2d 80. That Bighorn was found liable for intentional timber trespass establishes, pursuant to ORS 105.810, only that Bighorn intended to cut and girdle Ater's trees when it did not have permission to do so under its limited license. That did not, as Truck contends, "preclude" Truck's duty to indemnify under the policy, because it did not establish as a matter of law that Bighorn acted with the purpose of damaging Ater's property. See FountainCourt Homeowners , 360 Or. at 358, 380 P.3d 916 ("[W]hat the insured had become obligated to pay as damages and whether the insurer ultimately was liable under its policy presented questions of law for the court.").

For similar reasons, the trial court did not err when it concluded that Truck had failed to prove that exclusion 2(a) for "expected or intended" injury applied. The Supreme Court has explained that "the exclusion from coverage for intentional acts [in the insurance context] depends on the subjective intent of the insured." Allstate Ins. Co. , 319 Or. at 279, 876 P.2d 313. In other words, "the acts must have been committed for the purpose of inflicting the injury and harm before *** a policy provision excluding intentional harm [attaches]." Id . at 278, 876 P.2d 313. A court should infer a subjective intent to cause harm as a matter of law only when that is the "only reasonable inference that may be drawn from the insured's conduct." Id . at 279, 876 P.2d 313. As described, intentional timber trespass under ORS 105.810 has no such intent requirement and allows for liability even where the defendant did not act with the purpose of damaging the plaintiff's property.

Here, the jury found Bighorn liable for "intentionally or recklessly" trespassing on Ater's property by exceeding the scope of its limited license and cutting and girdling trees in a way that damaged or killed several of them. Truck's only evidence that Bighorn "intended" for that property damage to occur is the reference to "intentional timber trespass" in the Ater judgment. Truck did not present evidence at summary judgment that Bighorn was held liable based on a finding that it acted for the purpose of damaging Ater's trees. The trial court did not err in granting summary judgment because, contrary to Truck's arguments, Bighorn's liability to Ater for intentional trespass did not establish that Bighorn acted with the purpose of damaging Ater's trees.

2. Exclusions 2(j)(5) and 2(j)(6)

Truck's final argument with respect to its duty to indemnify is that exclusions 2(j)(5) and 2(j)(6) apply in this case because, again, the Ater court's judgment held Bighorn liable for "intentional timber trespass." As discussed, both exclusions are ambiguous as to whether they apply when the insured is alleged to have exceeded the scope of a limited license and damaged the property of a third party in the course of performing work tangentially related to its contracted operations on different property. The fact that Bighorn ultimately was found liable for such damage does not clarify that ambiguity. The trial court did not err when it determined that Truck had failed to carry its burden of proving that those exclusions apply with respect to its duty to indemnify Bighorn.

The trial court did not err when it granted Bighorn's motion for summary judgment on Truck's duty to defend and indemnify Bighorn in the Ater case and denied Truck's cross-motion on the same issues.

Affirmed.

      Dr. Edney is referred to throughout the record simply as "Dr. Edney."

      Truck does not argue that Bighorn's work on the Ater property was somehow essential to the success of the Edney logging operation or otherwise integral to the Edney operation.

      We have previously looked to foreign jurisdictions when construing other commonly used insurance policy exclusions. See, e.g. , Epps v. Farmers Ins. Exchange , 295 Or. App. 385, 392-93, 434 P.3d 496 (2018) (relying, in part, on "numerous cases" from other states' courts as persuasive authority to ascertain the meaning and purpose of a particular liability insurance provision); Hunters Ridge Condo. Assn. , 285 Or. App. at 426, 395 P.3d 892 (finding that a policy exclusion was ambiguous in part because the plaintiff's construction of the exclusion was supported by New York case law); Fred Shearer & Sons Inc. v. Gemini Ins. Co. , 237 Or. App. 468, 481-82, 240 P.3d 67 (2010), rev. den. , 349 Or. 602, 249 P.3d 123 (2011) (relying on cases from other jurisdictions to support conclusion that policy exclusion was ambiguous). While not essential to our conclusion that exclusions 2(j)(5) and 2(j)(6) are ambiguous, the fact that other courts have not come to a consensus on the applicability of those exclusions in similar cases buttresses our own conclusion regarding that ambiguity.

      We note that, in FountainCourt Homeowners , the Oregon Supreme Court stated that indemnity is determined "by reference to (a) the contract and (b) the judgment and record in the underlying proceeding." 360 Or. at 358, 380 P.3d 916 (emphasis added).