Country Mutual Insurance v. White

157 P.3d 1212, 212 Or. App. 323, 2007 Ore. App. LEXIS 614
CourtCourt of Appeals of Oregon
DecidedMay 2, 2007
Docket02CV0397MA; A128279
StatusPublished
Cited by1 cases

This text of 157 P.3d 1212 (Country Mutual Insurance v. White) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Country Mutual Insurance v. White, 157 P.3d 1212, 212 Or. App. 323, 2007 Ore. App. LEXIS 614 (Or. Ct. App. 2007).

Opinion

BREWER, C. J.

On appeal, defendant insurer challenges a limited judgment in which the trial court declared that defendant’s insured, White, was entitled to “stack” the underinsured motorist (UIM) coverage of two motor vehicle insurance policies, one issued by plaintiff, Country Mutual Insurance Co., and the other issued by defendant.1 Defendant also appeals from a supplemental award of attorney fees in favor of White on the ground that the allocation of White’s attorney fees between plaintiff and defendant was erroneous as a matter of law. We affirm.

In December 2001, a vehicle operated by Wiebe collided with a vehicle that was being operated by Walter; Wiebe’s vehicle was uninsured. Walter died of injuries suffered in the accident, and his passenger, White, was seriously injured. Plaintiff insured Walter’s vehicle. Plaintiffs policy provided UIM coverage for White’s injuries. White also was insured by defendant under a personal motor vehicle insurance policy that provides UIM coverage. White submitted UIM benefit claims to both plaintiff and defendant.

Plaintiff conceded that White’s claim triggered the UIM coverage in Walter’s policy, but asserted that the coverage was subject to a $100,000 limit. White countered that plaintiffs UIM coverage limit was $1 million. Defendant admitted that White’s claim triggered its coverage but asserted that plaintiffs coverage was primary and that the $100,000 limit of defendant’s UIM coverage did not prorate with, or stack above, plaintiffs UIM coverage.

Plaintiff brought this action for a declaratory judgment that its policy provided only $100,000 in UIM coverage for White and that defendant owed White $100,000 in UIM coverage on a pro rata basis. White filed a counterclaim, seeking $1 million in UIM coverage under plaintiffs policy. Plaintiff then filed a motion for partial summary judgment, seeking a declaration that its UIM coverage limit for White’s [326]*326claim was $100,000. White filed a cross-motion for summary judgment, seeking a declaration that plaintiffs UIM coverage was subject to a $1 million limit. The trial court granted White’s cross-motion for partial summary judgment, declaring that plaintiffs applicable UIM limit was $1 million.

White then filed a cross-claim against defendant seeking $100,000 in UIM benefits. Defendant denied coverage based on the following “OTHER INSURANCE” provision in its policy:

“If there is other similar insurance on a loss covered by this SECTION, we will pay our proportionate share as our limits of liability bear to the total limits of all applicable similar insurance. If this policy and any other policy affording similar insurance apply to the same accident, the maximum limits of liability under all the policies are the highest limits of liability under any one policy. But any insurance we provide with respect to a vehicle you do not own is excess over any other collectible insurance.”

White filed a motion for partial summary judgment, seeking a declaration that the $100,000 limit of defendant’s UIM coverage stacked2 above the $1 million limit of UIM coverage in plaintiffs policy. Defendant filed a cross-motion for summary judgment, seeking a declaration that its UIM limits did not stack and that it therefore owed no benefits to White. The trial court granted White’s motion for partial summary judgment and denied defendant’s cross-motion.

Thereafter, defendant admitted that White’s damages would exceed $1.5 million. Based on that admission, and the trial court’s summary judgment rulings, White filed a motion for summary judgment on her cross-claim against defendant for $100,000 in UIM benefits. The trial court granted that motion and entered a limited judgment against defendant for $100,000. Plaintiff later agreed to pay [327]*327$900,000 to White in full satisfaction of its obligation to White under its policy. In exchange for that payment, White agreed not to seek attorney fees from plaintiff.

White then filed a statement for attorney fees and costs against defendant under ORS 742.061. Defendant objected, asserting that its liability for attorney fees could not exceed its proportionate share of liability to White for UIM benefits. The trial court overruled defendant’s objection and awarded White 50 percent of her claimed attorney fees.

Defendant makes two assignments of error on appeal. It first argues that the trial court erred in granting White’s motion for partial summary judgment and in denying defendant’s cross-motion for summary judgment. In its second assignment of error, defendant argues that the trial court erred in awarding attorney fees to White in an amount that was disproportionate to defendant’s share of liability to White for UIM benefits. We consider those assignments of error in the order made.

Because the material facts are undisputed, we review the trial court’s summary judgment ruling for errors of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). ORS 742.504 requires insurers to include in their policies UIM coverage that “in each instance is no less favorable in any respect to the insured or the beneficiary” than if the statutory coverage provision were reproduced in the policy. ORS 742.504(9)(a) (2003), amended by Or Laws 2005, ch 236, § 1,3 provides:

“Except as provided in paragraph (c) of this subsection, with respect to bodily injury to an insured while occupying a vehicle not owned by a named insured under this coverage, the insurance under this coverage shall apply only as excess insurance over any other insurance available to such occupant which is similar to this coverage, and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.”

[328]*328Under that provision, a UIM policy can, with respect to bodily injuries suffered by an insured while occupying a nonowned vehicle, provide that its coverage is excess, but only over the combined applicable limits of liability of all other similar insurance coverage. That is, UIM coverage can include both an excess provision and an antistacking clause.

Defendant asserts that, consistently with ORS 742.504(9)(a) (2003), the “other insurance” provision of its policy made plaintiffs UIM coverage primary, because White was injured while occupying a nonowned vehicle. In addition, defendant asserts that the “other insurance” provision limits the maximum amount of UIM coverage to the highest UIM limit of all applicable policies, in this case plaintiffs $1 million coverage limit. It follows, defendant reasons, that because “the limit on the [UIM] coverage for the non-owned vehicle exceeds the limit of [defendant’s] policy,” it does not owe UIM benefits to White.

White reads the “other insurance” provision of defendant’s policy differently, in part, by separately analyzing its three constituent sentences.

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Cite This Page — Counsel Stack

Bluebook (online)
157 P.3d 1212, 212 Or. App. 323, 2007 Ore. App. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/country-mutual-insurance-v-white-orctapp-2007.