concurring in part; dissenting in part.
I agree with the majority’s disposition of every issue except the question of Reliance’s duty to defend plaintiffs in Ballinger’s and Sutfin’s state court actions. For the reasons that follow, I conclude that Reliance had a duty to defend plaintiffs in those actions.
The majority concludes that the only possible reading of Ballinger’s and Sutfin’s state court complaints leads to an inevitable conclusion that the harms alleged fell within the “employer’s liability” exclusion contained in the insurance policy. 151 Or App at 414-17. The majority concludes that Ballinger’s and Sutfin’s alleged injuries must have involved “bodily injury to an employee of the insured arising out of and in the course of employment by the insured,” primarily because Ballinger and Sutfin alleged that plaintiffs were liable for the actions of Pearce and Mahoney under the theory of respondeat superior, “which applies only if the tortious conduct occurred during the course of employment.” Id. at 415. “Respondeat superior — literally, ‘let the superior reply’— is a legal theory by which an employer is held liable for the tortious conduct of an employee committed in the scope of employment.” Lourim v. Swensen, 147 Or App 425, 431, 936 P2d 1011 (1997). Respondeat superior has to do with the relationship between one tortfeasor and another, but has nothing to do with the relationship between a tortfeasor and a victim. The allegations in Ballinger’s and Sutfin’s complaints that plaintiffs were vicariously liable for the actions of Pearce and Mahoney under the theory of respondeat superior at most can be read as allegations that Pearce and Mahoney committed the acts in question within the scope of their employment. It simply does not follow that Ballinger and Sutfin were likewise within the scope of their employment just because Pearce and Mahoney were.
*421The majority claims that “there was no mention of tortious conduct occurring other than on the job.” 151 Or App at 415. While it is true that the complaints did not specify whether any tortious conduct occurred “off the job,” it must also be noted that the complaints did not specify whether the tortious conduct occurred “on the job.” It is entirely possible, given the language of the complaints, that Ballinger and Sutfin could have introduced evidence of tortious conduct that occurred while Pearce and Mahoney were within the scope of their employment with plaintiff, but Ballinger and Sutfin were not within the scope of their employment with plaintiff. If that were the case, the “employers liability” exclusion would not have applied.
If a claim stated in a complaint could, without amendment, impose liability for conduct covered by the insurance policy, an insurer has a duty to defend that claim. Ledford v. Gutoski, 319 Or 397,400, 877 P2d 80 (1994). If the allegations are ambiguous or unclear but may reasonably be interpreted to include incidents within the coverage of the policy, the insurer has a duty to defend the claim. Cooper v. Commonwealth Land Title Ins. Co., 73 Or App 539, 542, 699 P2d 1128, rev den 299 Or 583 (1985). Any ambiguities in this regard must be resolved against the insurer. Ledford, 319 Or at 400. Ballinger’s and Sutfin’s state court complaints, without amendment, could have permitted introduction of evidence of tortious conduct that did not occur within the scope of Ballinger’s and Sutfin’s employment with plaintiffs. Reliance therefore had a duty to defend plaintiffs in Ballinger’s and Sutfin’s state court actions.
I respectfully dissent.
Deits, C. J., and Leeson and Armstrong, JJ., join in this concurring and dissenting opinion.