Required provisions of uninsured motorist coverage
Source:
Section 742.504 — Required provisions of uninsured motorist coverage, https://www.oregonlegislature.gov/bills_laws/ors/ors742.html.
See also annotations under ORS 743.792 in permanent edition.
Notes of Decisions
In general
A tortfeasor whose insurance policy is disclaimed subsequent to an accident for failure to notify his insurer of the accident is an uninsured motorist under this section. General Acc. Fire and Life Assur. Corp., Ltd. v. Shasky, 266 Or 312, 512 P2d 987 (1973)
A tortfeasor is not uninsured because his liability insurance is insufficient in amount to compensate for all injuries. Lund v. Mission Ins. Co., 270 Or 461, 528 P2d 78 (1974)
An endorsement excluding coverage while the insured automobile was operated by a person under 25 years of age did not preclude the passenger injured by the negligence of the uninsured motorist from recovering under the uninsured motorist provisions of the policy even though the driver of the insured vehicle was under the age of 25. Hartford Acc. and Indem. Co. v. Dairyland Ins. Co., 274 Or 145, 545 P2d 113 (1976)
In the absence of a specific agreement, this section does not apply to establish a two-year statute of limitations; if the policy is silent, the normal six-year statute of limitations for contract actions applies. North River Ins. v. Kowaleski, 275 Or 531, 551 P2d 1286 (1976); Kalhar v. Transamerica Ins. Co., 129 Or App 38, 877 P2d 656 (1994), Sup Ct review denied
Where insured brought action against insurance company alleging that insurer, in bad faith, prejudiced his claim for uninsured motorist coverage, this section and insurance contract provided that arbitration was condition precedent to litigation. Mendelson v. State Farm Mutual Auto Ins. Co., 285 Or 269, 590 P2d 726 (1979)
This section authorizes insurer to exclude from uninsured motorist coverage an insured who occupies a vehicle as to which insured has procured liability insurance satisfying financial responsibility law. State Farm Mut. Ins. Co. v. Whitlock, 59 Or App 303, 650 P2d 1042 (1982), Sup Ct review denied
Vehicle fitting any categories of this section is “the insured motor vehicle” for purposes of PIP. Utah Home Fire Ins. Co. v. Colonial Ins. Co., 300 Or 564, 715 P2d 1112 (1986)
Requirement that named insured be person designated in schedule does not mean that principal shareholder of insured corporation is covered by policy that only names corporation. Meyer v. American Economy Ins. Co., 103 Or App 160, 796 P2d 1223 (1990), Sup Ct review denied
Plaintiff’s injuries were not covered when plaintiff was run over by uninsured thief stealing plaintiff’s insured vehicle. Cole v. Farmer Ins. Co., 108 Or App 277, 814 P2d 188 (1991)
Benefits were not payable under uninsured motorist policy until policy limits of other tortfeasors had been exhausted. Stembridge v. West American Ins. Co., 109 Or App 552, 823 P2d 418 (1991); Estate of Salma S. Serang v. Amer. States Ins. Co., 127 Or App 405, 873 P2d 367 (1994)
“Insured vehicle” does not include nonowned vehicle driven by named insured, if one of the passengers owns vehicle. Farmers Ins. Co. v. Paepier, 110 Or App 77, 822 P2d 140 (1991), Sup Ct review denied
Nothing in language “furnished for regular use” requires that vehicle must be totally under insured’s control and available for both personal and business use. North Pacific Ins. Co. v. Anderson, 110 Or App 269, 821 P2d 444 (1991)
Arbitration proceedings described in this section do not violate right to jury trial because claimant or insurer is not required to arbitrate claim and can demand jury trial. Carrier v. Hicks, 316 Or 341, 851 P2d 581 (1993)
Insured satisfies entitlement to recovery by establishing that other motorist was uninsured and is legally liable for damages to insured and amount of damages. Kalhar v. Transamerica Ins. Co., 129 Or App 38, 877 P2d 656 (1994), Sup Ct review denied
“Occupying” is limited to processes that directly cause, continue or terminate physical relationship between person and car. Marcilionis v. Farmers Ins. Co., 318 Or 640, 871 P2d 470 (1994)
Provision making damage determination through mandatory arbitration binding on party not requesting arbitration violated constitutional right to jury. Lind v. Allstate Insurance Co., 134 Or App 395, 895 P2d 327 (1995), modified 136 Or App 532, 902 P2d 603 (1995), Sup Ct review denied
Validity of policy provision is based on comparison between coverage under policy and coverage under hypothetical policy consisting totally of statutory model provisions. Vega v. Farmers Ins. Co., 323 Or 291, 918 P2d 95 (1996)
Only permissible variation from model statutory provisions is to exclude or soften provisions favorable to insurer or to add extraneous terms that are neutral or favorable to insured. Vega v. Farmers Ins. Co., 323 Or 291, 918 P2d 95 (1996)
Total underinsured motorist coverage benefits are calculated by deducting amount recovered from other automobile liability policies from base amount of uninsured motorist coverage. Pitchford v. State Farm Mutual Auto. Ins. Co., 147 Or App 9, 934 P2d 616 (1997), Sup Ct review denied
Filing action that is subject to court-mandated arbitration is not election to settle matter by arbitration. Douglass v. Allstate Ins. Co., 152 Or App 216, 953 P2d 770 (1998), Sup Ct review denied
Because recovery of damages against government is limited by [former] ORS 30.270, injured party is not “legally entitled to recover” excess damages through uninsured motorist insurance claim. Surface v. American Spirit Insurance Cos., 154 Or App 696, 962 P2d 717 (1998), aff’d 335 Or 356, 67 P3d 938 (2003)
Offset of paid-out workers’ compensation benefits against amount due from underinsured motorist insurance applies regardless of whether workers’ compensation beneficiaries and insurance beneficiaries are identical. Estate of Linda Greenslitt v. Farmers Insurance Co., 156 Or App 75, 964 P2d 1129 (1998)
Where action is victim’s claim against insurer under policy issued to victim, whether injury was intentional is viewed from perspective of victim, not person inflicting harm. Fox v. Country Mutual Insurance Co., 327 Or 500, 964 P2d 997 (1998)
Injury is “caused by accident” if injury itself was not intentionally inflicted, even though caused by intentional act. Fox v. Country Mutual Insurance Co., 327 Or 500, 964 P2d 997 (1998)
Defendant’s successful assertion of contributory negligence defense does not make plaintiff insured “person or organization alleged to be legally responsible for bodily injury.” Safeco Insurance Co. v. Laskey, 162 Or App 1, 985 P2d 878 (1999)
For single-limit policy, amount recoverable by insured as underinsured or uninsured motorist benefit is subject to offset only by those amounts paid by other sources on account of injury to that individual insured. Grijalva v. Safeco Ins. Co., 329 Or 36, 985 P2d 784 (1999)
Insured’s acceptance of settlement offer from tortfeasor’s liability insurer precludes recovering uninsured motorist benefits based on liability insurer’s earlier denial of coverage. Fox v. Country Mutual Insurance Co., 169 Or App 54, 7 P3d 677 (2000), Sup Ct review denied
Requirement that suit against uninsured motorist be “filed” within specified time does not incorporate requirement for service of process. Lindsey v. Farmers Insurance Co., 170 Or App 458, 12 P3d 571 (2000)
“This coverage” refers to underinsured motorist coverage provided by individual policy, not aggregate coverage under multiple policies issued by same insurer. VanWormer v. Farmers Insurance Co., 171 Or App 450, 15 P3d 612 (2000)
Relevant factors for determining whether person using uninsured vehicle is member of household of insured are: 1) whether parties live under one roof; 2) length of time parties have lived together; 3) whether residence is intended to be permanent or temporary; and 4) whether parties are financially independent. State Farm Mutual Automobile Insurance Co. v. McCormick, 171 Or App 657, 17 P3d 1083 (2000), Sup Ct review denied
“Amount paid” under workers’ compensation law means net amount that insured received after any recoupment by workers’ compensation insurer. Harlow v. Allstate Insurance Co., 177 Or App 122, 33 P3d 363 (2001)
For purposes of deducting payments from other sources, amount payable under terms of “this coverage” is amount insured would be legally entitled to recover from owner or operator of uninsured or underinsured vehicle on account of bodily injury, not policy limit on insurer liability. Bergmann v. Hutton, 337 Or 596, 101 P3d 353 (2004)
Person is “severally liable together with” underinsured motorist if person is independently liable to insured for same injuries caused by underinsured motorist. Kerry v. Quicehuatl, 213 Or App 589, 162 P3d 1033 (2007), Sup Ct review denied
Where policy fails to clearly notify insured of requirement imposed on insured by statute, policy language is less favorable to insured than statutory language. Wilson v. Tri-County Metropolitan Transportation District of Oregon, 343 Or 1, 161 P3d 933 (2007)
Under 2001 version of statute, “operator” of uninsured vehicle means person who exercises actual physical control over vehicle. Rogozhnikov v. Essex Insurance Co., 222 Or App 565, 195 P3d 400 (2008)
Period during which insured is disabled does not toll time limitation for accrual of cause of action. Wright v. State Farm Mutual Automobile Ins. Co., 223 Or App 357, 196 P3d 1000 (2008)
Where matter concerns employer and worker, and where neither party has requested order from Workers’ Compensation Board, trial court has subject matter jurisdiction over issue of reimbursement of underinsured motorist benefits. Longstreet v. Liberty Northwest Insurance Corporation, 238 Or App 396, 245 P3d 656 (2010)
Insurance contract that contains mutual agreement to arbitrate dispute is not required to institute formal arbitration proceedings. Bonds v. Farmers Insurance Co., 349 Or 152, 240 P3d 1086 (2010)
To formally institute arbitration proceedings, insured or insurer must expressly communicate to other party that initiating party is beginning process of arbitrating dispute. Bonds v. Farmers Insurance Co., 349 Or 152, 240 P3d 1086 (2010)
Party does not formally institute arbitration proceedings when party has consented to arbitrate upon occurrence of certain event and, upon occurrence of that event, does not expressly advise or acknowledge to other party that event has occurred. Bonds v. Farmers Insurance Co., 349 Or 152, 240 P3d 1086 (2010). But see Paton v. American Family Mutual Insurance Co., 256 Or App 607, 302 P3d 1204 (2013), Sup Ct review denied
Express consent to arbitration suffices to formally institute arbitration proceedings. Paton v. American Family Mutual Insurance Co., 256 Or App 607, 302 P3d 1204 (2013), Sup Ct review denied
Where plaintiff, while driving, was victim of drive-by shooting and as insured under auto policy, victim sought uninsured motorist benefits under this section against defendant, granting of summary judgment on basis that plaintiff’s injury did not “arise of the use of [an] uninsured vehicle” under this section, was improper. De Zafra v. Farmers Ins. Co., 270 Or App 77, 346 P3d 652 (2015)
Where insured was passenger in vehicle involved in two accidents, and underlying liability of negligent drivers and amount each driver could be required to pay were no longer at issue, determination of underinsured motorist policy limits depended on whether insured’s injuries were caused by one or both accidents. Wright v. Turner, 368 Or 207, 489 P3d 102 (2021)
Where insured is covered under multiple policies containing uninsured/underinsured motorist coverage issued by insurer, policy term limiting insurer’s liability to amount specified in policy providing highest limit of liability that results in coverage less favorable to insured than coverage under statutory comprehensive model policy term is unenforceable. Batten v. State Farm Mutual Automobile Ins. Co., 368 Or 538, 495 P3d 1222 (2021)
Phantom vehicle
Corroboration, as used in phantom vehicle provision, means evidence that supplements, strengthens and confirms testimony of injured claimant; it does not mean that claimant’s prima faciecase rests solely on corroborating evidence. Farmers Ins. Exch. v. Colton, 264 Or 210, 504 P2d 1041 (1972)
Where insured acted with reasonable diligence and under circumstances of case, he was excused from strict compliance with notice requirements of this section. Farmers Ins. Exch. v. Colton, 264 Or 210, 504 P2d 1041 (1972)
The requirement of corroborative “facts of an accident” means observation, with corroborated testimony thereof, of facts from which inferences may be drawn that accident was caused by phantom vehicle. Farmers Ins. Exch. v. Colton, 264 Or 210, 504 P2d 1041 (1972)
Even though individual’s policy does not contain phantom vehicle coverage, this section requires that policy be construed as though it contained phantom vehicle coverage required by statute. Farmers Ins. Exch. v. Colton, 264 Or 210, 504 P2d 1041 (1972)
Testimony of witness who released right to claim against insurer prior to testifying was not legally insufficient as corroborative evidence. To v. State Farm Mutual Ins., 319 Or 93, 873 P2d 1072 (1994)
Law Review Citations
54 OLR 328 (1975); 31 WLR 737 (1995); 34 WLR 327 (1998); 44 WLR 253 (2007)
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