Medyanikov v. Continental Insurance

31 P.3d 495, 176 Or. App. 297, 2001 Ore. App. LEXIS 1255, 2001 WL 985093
CourtCourt of Appeals of Oregon
DecidedAugust 29, 2001
Docket99C-10979; A108444
StatusPublished
Cited by1 cases

This text of 31 P.3d 495 (Medyanikov v. Continental 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
Medyanikov v. Continental Insurance, 31 P.3d 495, 176 Or. App. 297, 2001 Ore. App. LEXIS 1255, 2001 WL 985093 (Or. Ct. App. 2001).

Opinion

EDMONDS, P. J.

Plaintiffs are insureds under an automobile insurance policy issued by defendant. They appeal from summary judgment dismissing their claims on their policy. ORCP 47 C. The trial court held that there was no coverage under the policy. We affirm in part and reverse in part.

In November 1997, defendant issued an automobile insurance policy to plaintiffs Mikail and Lyubov Medyanikov. The policy listed three covered vehicles and provided $100,000 in liability coverage, $100,000 in uninsured/ underinsured motorist coverage, and $10,000 in personal injury protection coverage. In August 1998, Lyubov bought another car (a Honda), but did not immediately notify defendant of that acquisition. On September 8, 1998, plaintiff Ivan, the 16-year-old son of Mikail and Lyubov, drove the Honda off the road while his younger brother Dimitry was a passenger. Dimitry was seriously injured. Ivan and Dimitry also are insureds under the policy.

Plaintiffs submitted three claims to defendant, a claim for personal injury protection (PIP) benefits for Dimitry, a claim for underinsured motorist (UIM) benefits for Dimitry, and a claim for full liability coverage for Ivan. Defendant tendered no PIP benefits, and only $25,000 in liability coverage to Ivan because of specific exclusions in the policy. Plaintiffs filed this action in the trial court, seeking a declaration of coverage under the PIP, UIM, and liability provisions of the policy. Defendants filed two counterclaims, essentially requesting declarations of noncoverage beyond the monies tendered and also seeking summary judgment on plaintiffs’ claims. The trial court granted defendant’s motion for summary judgment, and plaintiffs appeal.

In their first assignment of error, plaintiffs argue that the trial court erred when it ruled that, although Dimitry is an insured1 under the PIP coverage that provides [300]*300benefits to any insured who sustains bodily injury in an auto accident, that coverage is subject to an exclusion in the policy. Exclusion #5 provides that there is no PIP coverage for bodily injury:

“Sustained by the named insured or any family member while occupying any motor vehicle * * * which is:
“a. Owned by or furnished for the regular use of the named insured; and
“b. Not insured for this coverage.” (Boldface in original.)

Plaintiffs argue that because the Honda was owned by Lyubov, an insured, and was purchased within 30 days of the accident, the Honda should be considered a covered vehicle as a newly acquired vehicle. They point to the liability coverage provisions in the policy in support of their argument, which provide for coverage for newly acquired vehicles.2 According to plaintiffs, when the coverage provided for in the liability provisions of the policy is compared with the omission of PIP coverage for newly acquired vehicles, the policy becomes ambiguous, thereby requiring that the ambiguity be construed in favor of the insureds. Defendant argues that no PIP benefits are owed under the policy because the Honda was not a covered vehicle.

We perceive nothing ambiguous about the exclusion for PIP coverage in plaintiffs’ policy. While the liability coverage in the policy plainly provides coverage for recently acquired vehicles, the PIP coverage provisions plainly do not. Moreover, we are not aware of any statute, nor do plaintiffs cite one, that requires PIP coverage for newly acquired vehicles. Instead, ORS 742.520(2)(a)(A) expressly authorizes a [301]*301PIP coverage exclusion for “a motor vehicle, including a motorcycle or moped, that is owned or furnished or available for regular use by any [member of the insured’s family] and that is not described in the policy.” Accordingly, we reject plaintiffs’ first assignment of error.

We address plaintiff s third assignment of error next, because the resolution of the second assignment could depend on our conclusion as to the third assignment.3 In their third assignment, plaintiffs assign error to the court’s declaration that the policy provides only $25,000 in liability coverage for Ivan. The policy on its declarations page provides $100,000 in liability coverage. However, exclusion #8 in the policy purports to limit the available liability coverage to $25,000 for injuries to members of the named insureds’ family. The family member exclusion in the policy provides:

“8. [We do not provide coverage for] Bodily Injury to you or any family member to the extent that the limits of liability for this coverage exceed the limits of liability required by the Oregon Financial Responsibility Law.” (Boldface in original.)

Initially, defendant argues that plaintiffs’ third assignment of error was not preserved below. ORAP 5.45. Plaintiffs argued to the trial court that “[defendant should be required to provide liability coverage up to $100,000 that is the policy limit” in their written argument to the court. They also said, in part:

“In Collins v. Farmers Insurance Co., 312 Or 227[, 822 P2d 1146] (1991), the court ruled that the family member exclusion excluding a family member from the liability coverage was valid, however, Oregon Financial Liability Law requires that the insurer pays $25,000.00 in liability coverage. Three judges of the court vehemently disagreed stating that majority interpretation was contrary to the public policy. Recently, the Oregon Supreme Court decided to revisit the issue and granted certiorari in Wright v. State [302]*302Farm Mutual Auto Ins. Co., 152 Or App 101 [, 952 P2d 73] (1998).
“The Defendant’s policy in the present case violates ORS 742.450 requiring that ‘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, the premium charged therefor, the policy period, and the limits of liability.’ The Defendant’s policy must conform to this statutory mandate which uses the terms ‘shall state the policy limit.’ Defendant’s policy states a limit of $100,000 in liability coverage. Plaintiff paid and expected $100,000 in liability coverage regardless whether an injured person is a family member. Plaintiffs contracted and paid for the coverage well before they received a policy that excluded liability coverage of the family member. Defendant should not be allowed to sell the coverage and subsequently deliver a policy limiting coverage for a family member.” (Emphasis in original.)

They further stated:

“Defendant denies a coverage base[d] on the exclusion in its policy that excludes from the coverage motor vehicle owned by or furnished or available for the regular use of a ‘named insured.’ Ex. B, p. 34. The court should disregard this exclusion as conflicting with ORS 742.502. ORS 742.502

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Bluebook (online)
31 P.3d 495, 176 Or. App. 297, 2001 Ore. App. LEXIS 1255, 2001 WL 985093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medyanikov-v-continental-insurance-orctapp-2001.