Harlan v. Valley Insurance

875 P.2d 471, 128 Or. App. 128, 1994 Ore. App. LEXIS 796
CourtCourt of Appeals of Oregon
DecidedMay 25, 1994
Docket92-2116-L-3; CA A78046
StatusPublished
Cited by8 cases

This text of 875 P.2d 471 (Harlan v. Valley 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
Harlan v. Valley Insurance, 875 P.2d 471, 128 Or. App. 128, 1994 Ore. App. LEXIS 796 (Or. Ct. App. 1994).

Opinions

[130]*130DEITS, J.

Plaintiffs appeal from a summary judgment for defendant insurer. We affirm.

In 1989, defendant Valley Insurance Company issued an automobile insurance policy to Erik and Linda Jorgensen, as the named insureds. On the morning of August 23, 1989, their 15-year-old daughter, Erika, acquired a driver’s learning permit. Later that day, Erika drove the family car without her parents’ permission and collided with plaintiffs’ car, injuring the occupants. Notice of the accident was given to defendant. However, defendant refused to defend or to pay damages for plaintiffs’ injuries. Plaintiffs brought this action under ORS 742.031, which permits injured parties to sue a tortfeasor’s insurer directly. Cross-motions for summary judgment were filed, and the trial court granted summary judgment in favor of defendant on the ground that Erika was not covered because she used the car without permission.

The pertinent provision of the insurance policy at issue here states that defendant

“will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.”

A “covered person” is defined to include, as relevant:

“1. [The named insureds] or any family member for the ownership, maintenance or use of any auto or trailer.
“2. Any person using [the] covered auto.”

Erika is a “family member” and, therefore, a “covered person.”

The policy lists a number of exclusions. The one in dispute here provides:

‘ ‘A. We do not provide liability coverage for any person:
<<‡ * * * *
“8. Using a vehicle without a reasonable belief that that person is entitled to do so.”

The parties agree that Erika was using the vehicle without her parents’ permission at the time of the accident. They disagree, however, about whether, notwithstanding that fact, [131]*131the Financial Responsibility Law (FRL) requires coverage up to the minimum amounts specified in ORS 806.070.

At the time that the policy was purchased, ORS 743.776 provided:

“(1) Every motor vehicle liability insurance policy issued for delivery in this state shall state the name and address of the named insured, the coverage afforded by the policy * * * and shall contain an agreement or indorsement which provides that the insurance provided thereunder in accordance with the coverage described under ORS 806.070, 806.080 and 806.270 as respects bodily injury and death or property damage, or both, and is subject to all provisions of the Oregon Vehicle Code relating to financial responsibility requirements as defined in ORS 801.280 and future responsibility filings as defined under ORS 801.290.”

ORS 743.778 provided that the following liabilities need not be covered:

“The motor vehicle liability insurance policy required by ORS 806.010, 806.060, 806.080, 806.240 or 806.240 or 806.270 need not insure any liability under any workers’ compensation law; nor any liability on account of bodily injury to or death of an employe of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of a vehicle; nor any liability for damage to property owned by, rented to, in charge of, or transported by the insured.”

ORS 806.080 required that every insurance policy meet the following requirements:

“(1) It must be a policy or part of a policy designating, by explicit description or by appropriate reference, all motor vehicles for which coverage is provided by the policy and insuring the named insured and all other persons insured under the terms of the policy against loss from the liabilities imposed by law for damages arising out of the ownership, operation, use or maintenance of those motor vehicles.”

Under these statutes, an insurer who undertakes to provide motor vehicle liability insurance must provide its named insured, all persons insured under the terms of the policy, and those who have the consent of the named insured,1 [132]*132with the mandatory minimum limits of coverage. Here, Erika is not a “named insured”2 and the trial court found that she drove the car without a reasonable belief that her parents had given her permission to do so. Therefore, the mandates of ORS 806.080(1) do not apply unless Erika is a “personQ insured under the terms of the policy.” (Emphasis supplied.)

To resolve this case, we must interpret the terms of the insurance policy. ORS 742.016. Although Erika is a “covered person” under the policy,3 that conclusion does not end the inquiry regarding the applicability of the FRL. The FRL requires minimum coverage for a person “insured under the terms of the policy.” Therefore, it is necessary to determine if daughter is insured under the terms of the policy. Here, Erika is expressly excluded from coverage under the policy, because she did not have a reasonable belief that she [133]*133had permission to use her parents’ car. That fact is not challenged on appeal. It follows that Erika is not insured under the terms of the policy. Accordingly, the FRL does not require that Insurer provide liability coverage for Erika under these circumstances.

The dissent reasons that because Erika falls within the definition of a “covered person” that ends the inquiry, and she is insured under the terms of the policy. The dissent’s reasoning, however, ignores the other terms of the insurance policy — the exclusions. Under the dissent’s reasoning, Insurer would have to provide coverage to the limits of the FRL to a thief who had stolen the Jorgensens’ car and wrecked it, because the definition of a “covered person” includes “any person using the covered auto.” The dissent’s refusal to consider the exclusions as “terms of the insurance policy” leads to this absurd result. An insurance policy, just as any contract, must be read as a whole. Hoffman Construction Co. v. Fred S. James & Co., 313 Or 464, 477, 836 P2d 703 (1992).

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Harlan v. Valley Insurance
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Cite This Page — Counsel Stack

Bluebook (online)
875 P.2d 471, 128 Or. App. 128, 1994 Ore. App. LEXIS 796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harlan-v-valley-insurance-orctapp-1994.