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TRUS JOIST MacMILLAN v. JOHN DEERE INS. CO.

(97 12 173; CA A104636)

15 P.3d 995 (2000)

171 Or. App. 476

TRUS JOIST MacMILLAN, an Idaho corporation, and Trus Joist MacMillan, a Limited Partnership, Appellants, v. JOHN DEERE INSURANCE COMPANY, Respondent, and Newton & Sons, Inc.; Dallas Wayne Newton; and Jo Jean Shew, Personal Representative of the Estate of Earl Eugene Shew, Deceased, Defendants.

Court of Appeals of Oregon, En Banc.

Resubmitted November 9, 2000.

Decided December 20, 2000.

Attorney(s) appearing for the Case

Scott L. Garland argued the cause for appellants. With him on the briefs were E. Joseph Dean and Stoel Rives LLP.

I. Franklin Hunsaker, Portland, argued the cause for respondent. With him on the brief were Ronald E. Bailey, Beth R. Skillern, and Bullivant Houser Bailey.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges.

Resubmitted En Banc November 9, 2000.

LANDAU, J.

At issue in this case is whether defendant John Deere Insurance Company (John Deere) has a duty to defend plaintiff Trus Joist MacMillan (Trus Joist),1 whose employee assisted in the loading of a truck that John Deere insured. The trial court held that, under Oregon law, the duty to defend applies only to persons who "used" the insured's...

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