Joseph v. Utah Home Fire Insurance

809 P.2d 112, 106 Or. App. 505, 1991 Ore. App. LEXIS 553

• Court: Court of Appeals of Oregon
• Decided: April 10, 1991
• Docket: 88-12-06794; CA A61888
• Status: Published

Opinions

BUTTLER, J.

Plaintiff sought a declaratory judgment that a member of his household is entitled to coverage under his automobile insurance policy. He appeals from a judgment declaring that there is no coverage. We affirm.

Plaintiff is the guardian ad litem for eight-year-old Tanisha Nash who, while riding her tricycle at the age of six, was hit by an uninsured motorist. She suffered extensive injuries and incurred substantial medical expenses. Tanisha is the daughter of Sheila Nash. Sheila and plaintiff, who is not Tanisha’s father, have lived together as a family unit, although unmarried, since Tanisha was five months old. They also have a younger daughter of their own.

Plaintiff is the named insured under an automobile policy issued by defendant. The policy provides uninsured motorist (UM) coverage for the named insured and “family members,” and Personal Injury Protection (PIP) coverage for the named insured and “relatives.” On cross-motions for summary judgment, the trial court ruled that Tanisha does not come within the policy definition of insured and, therefore, is not entitled to coverage.

Plaintiff contends that both the Oregon Insurance Code and the policy’s UM and PIP provisions afford coverage to Tanisha. We consider the Insurance Code first, because Oregon law requires that all automobile insurance policies provide both uninsured motorist (UM), ORS 742.504 (formerly ORS 743.792) and personal injury protection, ORS 742.520 (formerly ORS 743.800), and the policy may not provide less protection than that provided by statute. If the statute provides protection, it matters not whether the policy does.

Under ORS 742.504(2)(a)(A) (formerly ORS 743.792(2)(a)(A)), relating to UM protection, “insured” means:

“The named insured * * * and any person designated as named insured * * * and, while residents of the same household, the spouse of any such named insured and relatives of either; * * * if the named insured as stated in the policy is other than an individual or husband and wife who are residents of the same household, the named insured shall be only a person so designated in the schedule * * *.”

Because the named insured and Sheila, Tanisha’s mother, are not husband and wife, the statute requires that Sheila be designated as a named insured in the policy schedule in order for Tanisha to be covered, unless Tanisha is a “relative” of the insured. “Relative” must be given its common meaning: related by blood or affinity, that is by marriage. Webster’s Third New International Dictionary 1916 (unabridged 1971). The apparent purpose of that requirement is to avoid the kind of situation presented here. If the various persons living in the same household are not related by blood or affinity, the person for whom coverage is sought (or parent of that person) must be specifically named in the schedule in order to be covered. Neither Sheila nor Tanisha was designated a named insured in the policy; Sheila is not the insured’s spouse, and, although Tanisha is a relative of Sheila, she is not a relative of the insured. Accordingly, neither of them is covered by the statute.¹

The question then becomes whether the policy provides greater coverage than the statute mandates, although plaintiff does not contend that it does. The policy provides UM coverage to a “covered person,” defined as “you or any family member.” (Emphasis in original.) As used in the policy, “you” and “your” refer to the named insured shown in the declarations and a spouse, if a resident of the same household. As noted, neither Tanisha nor Sheila is a named insured, and Sheila is not the insured’s spouse. The policy also provides:

“ ‘Family member’ means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.”

Plaintiff does not claim that Sheila, as the insured’s domestic associate, is covered,² yet he contends that her daughter is covered, because she is his “ward or foster child” because he considers her to be his daughter and feels responsible for her care; therefore, the apparent claim is, she is his de facto ward or foster child. The insured’s feelings about Tanisha cannot change the meaning of the policy or the statute.

If plaintiffs analysis is correct, there would be no reason why Tanisha is not related to the insured by de facto adoption or why Sheila is not the insured’s de facto spouse, in either of which cases Tanisha would be covered. Yet, neither plaintiff nor the dissent suggests that the policy goes that far. The obvious reason is that, in order to be a “family member” or a “relative,” one must be related to the named insured by consanguinity or by a legal relationship, such as marriage or adoption, including that of guardian and ward or foster parent and foster child. All of the categories mentioned involve one or the other relationship. There is nothing ambiguous about the policy; it draws the same lines as the statute does.

Plaintiff makes the same arguments with respect to PIP coverage. ORS 742.520(1) (formerly ORS 743.800) mandates PIP protection in every automobile insurance policy to provide benefits to, among others, the insured and to “members of that person’s family residing in the same household.” The policy provides PIP coverage for any “injured person,” defined as:

“The named insured or any relative who sustains bodily injury * * * while a pedestrian, through being struck by a motor vehicle;

“ ‘Relative’ means a spouse and any other person related to the named insured by blood, marriage or adoption (including a ward or foster child) who is a resident of the same household as the named insured.”

Plaintiff does not contend that the policy provides less PIP coverage than the statute requires. He argues that Tanisha is covered if she qualifies as “a ward or foster child,” and concludes that, because she is a de facto ward or foster child under the UM provisions, she is also covered by the PIP indorsement. We hold that there is no PIP coverage for the same reasons that we conclude that there is no UM coverage.

The dissent agrees with plaintiff that the policy is ambiguous,³ because it does not define “ward” or “foster child.” However, neither does it define “marriage” or “adoption,” but there can be no contention that those terms are ambiguous. There is no ambiguity in the use of any of the terms; they are to be given their common meaning in the context in which they are used: Marriage and adoption require a legal relationship, and being a ward or foster child also requires a legal relationship. Plaintiffs approach, adopted by the dissent, would result in a fact question to determine coverage whenever a person claims to be a ward or foster child of a named insured or a member of the insured’s “family.” Neither plaintiff nor the dissent provides any guidance to resolve that question or state whether it is a question for the court or a jury. For how long must the person have lived with the insured? Is it enough for the insured to consider the injured person to be his child or at least his ward or foster child and to feel responsible for the child’s care, as plaintiff suggests?

Both the statutes and this insurance policy have drawn the lines clearly to avoid that kind of uncertainty: The injured person must bear a specific legal relationship to the insured or be related by blood, unless the person or the person’s parent is specifically named as an insured.

Affirmed.

1 Understandably, the dissent does not even mention the statute, which does not provide coverage here. To have recognized that fact would render irrelevant most of the dissent’s sociological interpretation of insurance contracts. Coverage for Tanisha was readily available by the simple act of naming her mother as an insured; it was not even necessary that Bruce Joseph and Sheila be married, although marriage would have solved the problem also and does not, as the dissent suggests, require “a judicial proclamation,” 106 Or App at 510, a “formal stroke of a judge’s pen” or “judicial ordainment.” 106 Or App at 512. Neither plaintiff nor the dissent contends that the policy provides more coverage than does the statute.

2 Under the dissent’s approach, Sheila would also be covered, although it is clear under both the statute and the policy that she is not.

3 The dissent, quite properly, does not expressly attempt to invoke the principle of construction that any ambiguity in an insurance policy is construed in favor of the insured. That principle does not apply when the question is whether a person qualifies as an insured under the policy. McBroome-Bennett Plumbing, Inc. v. Villa France, Inc., 515 SW2d 32 (Tex Civ App 1974); 44 CJS, “Insurance,” 1226, § 308. However, the dissent seems to be saying that, because of the claimed ambiguity, the result should be that Tanisha comes within the term “ward.” A rose by any other name would smell as sweet.