Gage v. All Nations Insurance

816 P.2d 682, 108 Or. App. 534
CourtCourt of Appeals of Oregon
DecidedAugust 28, 1991
Docket87C-641804; CA A62062
StatusPublished
Cited by2 cases

This text of 816 P.2d 682 (Gage v. All Nations Insurance) 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
Gage v. All Nations Insurance, 816 P.2d 682, 108 Or. App. 534 (Or. Ct. App. 1991).

Opinion

DEITS, J.

Plaintiff brought this action against defendant All Nations, seeking to require All Nations to pay a judgment that plaintiff obtained against Weitz, All Nations’ insured. Plaintiff assigns error to the trial court’s denial of his motion for summary judgment and to its granting of summary judgment in defendant’s favor. We affirm.

In August, 1985, plaintiff took his pickup to Professional Auto Trim to be detailed. He authorized the employees of the business to drive the pickup and to let others do so. An employee of the company decided to use the pickup for return transportation after delivering another vehicle to its owner. He asked Weitz, who boarded horses on the business’ property, to follow him in plaintiffs pickup. Weitz’s own pickup was being used to feed her horses, which were eating hay out of its bed. During the trip, Weitz rear-ended the vehicle that she was following. All Nations paid for the damage to the vehicle that Weitz ran into, but refused to pay for the damage to plaintiffs pickup, contending that it was not covered under Weitz’s policy. Plaintiff sued Weitz and obtained judgment against her. When All Nations refused to pay the judgment, plaintiff brought this action.

All Nations moved for summary judgment, asserting that the policy unambiguously excluded coverage for the loss. While the motion was pending, the case was transferred to mandatory arbitration. The arbitrator heard argument on the summary judgment motion. He concluded that the policy language was ambiguous and denied the motion. Following an arbitration hearing, judgment was awarded in plaintiffs favor. Pursuant to ORS 36.425,1 All Nations then requested a trial de novo. The parties filed cross-motions for summary judgment in the trial court. The court granted All Nations’ motion, and plaintiff appeals.

Plaintiff first argues that the trial court erred by granting the summary judgment, because the arbitrator’s denial of the motion on the basis that the policy language was ambiguous is “the law of the case” and binds the trial court. [537]*537The effect of a request for a trial de novo, under ORS 36.425 and UTCR 13.250,2 is explained in UTCR 13.040(3):

“Once a case is referred to arbitration, all motions against the pleadings, all motions for discovery, and all similar pretrial motions not then resolved will be filed with the arbitrator only and determined by the arbitrator. The arbitrator’s determination, however, will apply only during the arbitration proceeding. If a request for trial de novo is filed, such matters may be raised again. If the arbitrator’s decision on a pretrial motion will prejudice a party on trial de novo, that party may file an appropriate motion with the presiding judge.” (Emphasis supplied.)

Plaintiff argues that the last sentence of that rule required defendant to file a motion with the presiding judge at the time that the arbitrator denied the first motion for summary judgment or be precluded from raising the issue later. That interpretation of the rule is contrary to its plain language. The last sentence is permissive and applies to those situations in which, despite the fact that issues may be raised again on trial de novo, a party would be prejudiced at the later trial by an arbitrator’s decision. It was not error for the trial court to decide defendant’s motion anew.

Plaintiff next contends that it was error for the trial court to grant, on its merits, defendant’s motion for summary judgment and to deny his own motion for summary judgment. In reviewing the summary judgment, we view the record in the light most favorable to plaintiff to decide whether there are any disputed issues of material fact and, if not, whether defendant was entitled to judgment as a matter of law. Soursby v. Hawkins, 307 Or 79, 81, 763 P2d 725 (1988).

[538]*538Plaintiff argues that the policy language unambiguously provides coverage here and that he is entitled to judgment as a matter of law. Alternatively, he contends that the language of the policy is at least ambiguous and that, therefore, the construction of the contract is an issue of fact for the jury, and so All Nations’ motion for summary judgment should not have been granted. Plaintiff first relies on language in the definitions section of the policy that describes “Cars We Insure.” That provision pleads:

“We insure any car described on the declarations page * * *
if* * if; * *
“We insure a substitute car when any car described on the declarations page, or any replacement or addition, can’t be used because it’s being serviced or repaired, or it has been stolen or destroyed. * * * ,
“We insure other cars you use with the permission of the owner or of a person in lawful possession of the car, if that person has the right to give such permission, and provided the use is within the scope of the permission given.” (Emphasis omitted.)

All Nations acknowledges that, read by itself, the language of the policy does indicate that the damage to plaintiffs vehicle would be covered, because the car was used with permission. It contends, however, that other specific provisions of the policy exclude coverage. We agree. As we concluded in State Farm Fire and Casualty Co. v. Jones, 86 Or App 584, 588, 739 P2d 1090 (1987), rev’d on other grounds, 306 Or 415, 759 P2d 271 (1988):

“The fact that an insurance policy both provides coverage and excludes coverage under specified circumstances does not make the policy ambiguous. Exclusions are intended to be unambiguous exceptions to the operation of coverage provisions, and the exclusion here succeeds in expressing that intent.”

After reviewing the policy provisions specifically defining liability and collision coverage, we agree that the circumstances of this case come within the exclusions from coverage.

In the liability section of the policy, All Nations agrees to pay for

[539]*539“damages for bodily injuiy or property damage, up to the limits of liability shown on the declarations page, for which the law holds you responsible because of a car accident involving a car we insure.” (Emphasis omitted.)

The policy then provides an exclusion from liability under that section:

“This insurance doesn’t cover any property damage to any property you rent, own, have charge of or are transporting.” (Emphasis omitted.)

The trial court concluded, and we agree, that that language is unambiguous3 and that the exclusion applies here, because Weitz had “charge of’ plaintiffs truck at the time of the accident. Plaintiff argues that, as used in the policy, the phrase “in charge of’ requires that a person must have more than possession and control of a vehicle and that the vehicle must be bailed to the person in control of it. He asserts that Weitz only had physical control of the pickup and thát it was not bailed to her. Accordingly, he asserts that she did not have “charge of’ it for purposes of the exclusion.

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Related

Treverton v. Arnold
847 P.2d 914 (Court of Appeals of Oregon, 1993)
Gage v. All Nations Insurance
842 P.2d 784 (Oregon Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
816 P.2d 682, 108 Or. App. 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gage-v-all-nations-insurance-orctapp-1991.