ROSSMAN, Presiding Judge.
This action for defense costs and indemnity is brought by third-party plaintiff Kuhl against his insurer, third-party defendant Northwest Farm Bureau Insurance Company (Northwest). Kuhl appeals from a partial summary judgment for Northwest, assigning error to the trial court's holding that Northwest had no duty either to defend him in the underlying action or to indemnify him for the settlement. We affirm.
Northwest issued Kuhl a Home Insurance Policy in which it promised to pay
The policy defines an "occurrence" as
In August, 1990, Ledford filed an action for malicious prosecution against defendants Gutoski and Kuhl. Ledford's amended complaint, filed in September, 1990, alleged, in pertinent part:
"* * * * *
Kuhl tendered his defense of the claim to Northwest. Northwest refused to defend, reasoning that Ledford's complaint alleged intentional acts that fell outside the policy's personal liability coverage.
The parties to the original action reached a settlement agreement on the malicious prosecution claim, which was reduced to a judgment on August 6, 1991, nunc pro tunc July 18, 1991. Kuhl paid Ledford $3,500 under the terms of the agreement.
On October 2, 1991, Kuhl filed this third-party complaint, along with a motion for summary judgment, alleging that Northwest had breached its duty to defend him in the action against Ledford. Northwest filed a cross-motion for partial summary judgment, arguing that it was not obligated to defend Kuhl. The trial court denied Kuhl's motion for summary judgment and granted Northwest's motion on the ground that Ledford's complaint alleged conduct that was not covered under the policy. The court also determined that Northwest had no duty to pay Kuhl for the settlement.
We first address whether Northwest was required to defend Kuhl in the action against Ledford. An insurer's duty to defend is determined by comparing the terms of the insurance policy with the allegations of the complaint in the underlying action. Oakridge Comm. Ambulance v. U.S. Fidelity, 278 Or. 21, 24, 563 P.2d 164 (1977); Falkenstein's Meat Co. v. Maryland Casualty Co., 91 Or.App. 276, 279, 754 P.2d 621 (1988). If the complaint alleges facts which, if true, impose liability for conduct covered by the policy, then the insurer has a duty to defend the insured. Ferguson v. Birmingham Fire Ins., 254 Or. 496, 505, 460 P.2d 342 (1969); Cooper v. Commonwealth Land Title Ins. Co., 73 Or.App. 539, 542, 699 P.2d 1128, rev den
To prevail on a claim for malicious prosecution, a plaintiff must prove:
Rogers v. Hill, 281 Or. 491, 497, 576 P.2d 328 (1978); Fleet v. May Dept. Stores, Inc., 262 Or. 592, 601, 500 P.2d 1054 (1972); Prosser and Keeton, Torts 871, § 119 (5th ed 1984). Kuhl asserts that a claim for malicious prosecution can be maintained without proving that the defendant intended to harm the plaintiff. He points out that malice can be shown by the existence of a primary purpose other than that of bringing the accused to justice and argues that there are several "primary purposes" that qualify as "malicious" but that do not involve an intent to cause harm:
"`Malice' is found when the defendant uses the prosecution for the purpose of obtaining any private advantage, for instance, as a means to extort money, to collect a debt, to recover property, to compel performance of a contract, to `tie up the mouths' of witnesses in another action, or as an experiment to discover who might have committed the crime." Prosser and Keeton, Torts 883, § 119 (5th ed 1984).
Therefore, Kuhl reasons, Northwest had a duty to defend him because Ledford's complaint, without amendment, may have imposed liability on Kuhl without proof that he acted for the specific purpose of causing harm to Ledford.
In deciding whether an insurer has been relieved of its duty to defend based on a complaint which alleges conduct beyond the policy's coverage, the Supreme Court said, in Nielsen v. St. Paul Companies, 283 Or. 277, 281, 583 P.2d 545 (1978):
We have, in certain circumstances, inferred that the cause of action alleged necessarily includes the intentional infliction of harm. In Cunningham & Walsh Inc. v. Atlantic Mutual Ins., supra, 88 Or.App. at 255, 744 P.2d 1317, we interpreted a policy that included the identical definition of "occurrence" at issue here and held that
In Falkenstein's Meat Co. v. Maryland Casualty Co., supra, we held that an insurer was not obligated to defend its insured, an employer who had allegedly engaged in retaliatory and discriminatory conduct in violation of ORS 654.062(5)(a), because injurious intent was necessarily inferred from the employer's alleged misconduct. We wrote:
We believe that instituting a criminal proceeding against another for a purpose other than that of achieving justice is, by its nature, an act from which the intent to do harm must necessarily be inferred. When a person purposefully instigates an unfounded criminal proceeding, the natural and ordinary consequence of that act is to cause the accused to incur the expense of defending against the charge, as well as to endure the mental anguish, inconvenience, embarrassment and humiliation that are likely to accompany the prosecution. Additionally, it is practically certain that the prosecution will inflict injury on the credit, standing and reputation of the accused. See Prosser and Keeton, Torts 871, 887, § 119 (5th ed 1984); 52 Am Jur 2d, "Malicious Prosecution," § 100.
It cannot be said that the resulting harm is unexpected or unforeseen by the person who commences the action. Thus, the fact that Kuhl may not have subjectively intended the specific injuries that Ledford sustained—or any injuries—is immaterial, "because an injurious intent is necessarily inferred from this type of intentional misconduct." Mutual of Enumclaw v. Merrill, supra, 102 Or.App. at 412, 794 P.2d 818. Accordingly, we hold that the intentional conduct involved here is not an "occurrence" covered by the policy. As a result, Northwest had no duty to defend Kuhl.
We next address whether Northwest had a duty to pay the settlement. The duty to pay is independent of the duty to defend and, even when the allegations of the complaint do not reveal an insured claim, the duty may arise if the evidence at trial demonstrates that the judgment was entered on a covered injury. Heider v. Commercial Ins. Co., 248 Or. 564, 566, 436 P.2d 268 (1968); Delta Sand & Gravel Co. v. General Ins. Co., 111 Or.App. 347, 352, 826 P.2d 82, rev den 314 Or. 175, 836 P.2d 1344 (1992); Mutual of Enumclaw Ins. Co. v. Gass, supra, 100 Or.App. at 428, 786 P.2d 749. Here, the case was settled before