NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL KREMERS, No. 23-35209
Plaintiff-Appellant, D.C. No. 3:21-cv-01717-IM
v. MEMORANDUM* HAGERTY INSURANCE AGENCY, LLC; ESSENTIA INSURANCE COMPANY,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding
Submitted October 23, 2024** Portland, Oregon
Before: LEE, VANDYKE, and H.A. THOMAS, Circuit Judges.
Oregon law mandates certain minimum coverage for uninsured motorists in
all motor vehicle liability insurance policies. Oregon Revised Statutes (“ORS”)
742.504(1)–(12). If a policy provides less favorable coverage than the statutory
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). model policy, Oregon courts invalidate the offending exclusion/provision and
require coverage. In our case, there is no dispute that the insurance policy at issue
would not normally provide coverage because it does not cover the vehicle involved
in the accident. The insured, however, still argues that he is entitled to coverage
because a part of an exclusion that is irrelevant to the facts of the case provides less
favorable coverage than the model policy. We disagree and hold that for a claimant
to benefit from Oregon’s minimum coverage scheme under ORS 742.504, the
allegedly less favorable part of the challenged provision must implicate the facts of
the claimant’s case.
Michael Kremers was struck by an uninsured motorist and sought medical
care for his injuries. At the time of the accident, Kremers was insured under a motor
vehicle liability policy for each of his two cars: (1) Travelers Commercial Insurance
Company covered his 2008 Mercedes 350, and (2) Essentia Insurance Company
insured his 1965 Alfa Romeo Spider. Kremers was driving the Mercedes at the time
of the accident. Kremers first sought Uninsured Motorist (“UM”) coverage from
Travelers, which paid his policy’s limits. Kremers then sought UM coverage from
Essentia, which denied his claim because the Essentia policy covered only his Alfa
Romeo Spider and not his Mercedes. Kremers sued, and the district court granted
summary judgment in favor of Essentia. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
2 We review de novo a district court’s order granting summary judgment and
may affirm on any ground supported by the record. Chemehuevi Indian Tribe v.
Newsom, 919 F.3d 1148, 1150–51 (9th Cir. 2019). “Statutory interpretation presents
a question of law, which we also review de novo.” Id. (citations omitted).
The Oregon Supreme Court set forth the overarching framework for analyzing
Oregon’s model UM statute in Vega v. Farmers Insurance Co. of Oregon, 918 P.2d
95 (1996). See Batten v. State Farm Mut. Auto. Ins. Co., 495 P.3d 1222, 1224–25
(Or. 2021) (en banc). As Vega notes, the Oregon legislature has set out “a
comprehensive model” policy of UM coverage at ORS 742.504(1)–(12). 918 P.2d
at 101. The statute requires policies to provide UM “‘coverage that in each instance
is no less favorable in any respect to the insured or the beneficiary than if’ those
model policy terms ‘were set forth in the policy.’” Batten, 495 P.3d at 1224 (quoting
ORS 742.504) (emphasis added).
Kremers does not dispute that the Essentia policy excluded his Mercedes, the
vehicle involved in the accident, under the policy’s “Regular Use Exclusion.”1
Rather, Kremers argues that the Regular Use Exclusion is otherwise broader—and
1 The Regular Use Exclusion states:
“Uninsured Motorist Coverage” does NOT cover “bodily injury” or “property damage” sustained by an “insured” or any person . . . [t]hat occurs while “occupying”, operating or otherwise using any vehicle owned by, or furnished or available for the regular use of you, a “family member” or any other person related to you who resides with you, if that vehicle is not “your covered auto.”
3 thus less favorable—than ORS 742.504 permits. Specifically, Kremers argues that
the Regular Use Exclusion excludes newly acquired and substitute vehicles from
coverage, while the statutory model includes them at ORS 742.504(2)(d)(A).
Therefore, Kremers argues that the Regular Use Exclusion is unenforceable under
ORS 742.504 and he is entitled to coverage—even though the Mercedes was not a
newly acquired or substitute vehicle. Kremers thus argues that the allegedly less
favorable part of the provision he is challenging need not implicate the facts of his
case for the provision to be unenforceable under ORS 742.504.
Kremers is mistaken for several reasons. First, the plain language of ORS
742.504 indicates that we must look at the specific facts of a case—not the policy in
the abstract—to determine whether a policy is “less favorable” than the statutory
model. This is because the statute mandates UM coverage that “in each instance is
no less favorable in any respect” than the statutory model policy’s coverage. ORS
742.504 (emphasis added); see Vega, 918 P.2d at 100–01. An “instance” means an
“example or occurrence,” Black’s Law Dictionary (12th ed. 2024), or “an individual
illustrative of a category,” Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/instance (last visited Oct. 15, 2024). Thus, in the insurance
context, an “instance” of coverage means a specific instance or case in which
4 coverage attaches.2
Next, the statute itself confirms this reading of ORS 742.504 through its use
of the word “insured.” ORS 742.504(2)(c)(A) defines “insured” as “[t]he named
insured as stated in the policy.” In other words, “the insured” in the statute refers to
an actual claimant in an actual claim, not to any potential person in a potential claim.
And a policy must provide UM coverage which is not less favorable to that claimant
than the statutory minimum, judging by if the statutory model provisions were set
forth in that claimant’s policy. Here, Kremers’ coverage is the same whether under
his policy or the statutory model policy.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL KREMERS, No. 23-35209
Plaintiff-Appellant, D.C. No. 3:21-cv-01717-IM
v. MEMORANDUM* HAGERTY INSURANCE AGENCY, LLC; ESSENTIA INSURANCE COMPANY,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding
Submitted October 23, 2024** Portland, Oregon
Before: LEE, VANDYKE, and H.A. THOMAS, Circuit Judges.
Oregon law mandates certain minimum coverage for uninsured motorists in
all motor vehicle liability insurance policies. Oregon Revised Statutes (“ORS”)
742.504(1)–(12). If a policy provides less favorable coverage than the statutory
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). model policy, Oregon courts invalidate the offending exclusion/provision and
require coverage. In our case, there is no dispute that the insurance policy at issue
would not normally provide coverage because it does not cover the vehicle involved
in the accident. The insured, however, still argues that he is entitled to coverage
because a part of an exclusion that is irrelevant to the facts of the case provides less
favorable coverage than the model policy. We disagree and hold that for a claimant
to benefit from Oregon’s minimum coverage scheme under ORS 742.504, the
allegedly less favorable part of the challenged provision must implicate the facts of
the claimant’s case.
Michael Kremers was struck by an uninsured motorist and sought medical
care for his injuries. At the time of the accident, Kremers was insured under a motor
vehicle liability policy for each of his two cars: (1) Travelers Commercial Insurance
Company covered his 2008 Mercedes 350, and (2) Essentia Insurance Company
insured his 1965 Alfa Romeo Spider. Kremers was driving the Mercedes at the time
of the accident. Kremers first sought Uninsured Motorist (“UM”) coverage from
Travelers, which paid his policy’s limits. Kremers then sought UM coverage from
Essentia, which denied his claim because the Essentia policy covered only his Alfa
Romeo Spider and not his Mercedes. Kremers sued, and the district court granted
summary judgment in favor of Essentia. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
2 We review de novo a district court’s order granting summary judgment and
may affirm on any ground supported by the record. Chemehuevi Indian Tribe v.
Newsom, 919 F.3d 1148, 1150–51 (9th Cir. 2019). “Statutory interpretation presents
a question of law, which we also review de novo.” Id. (citations omitted).
The Oregon Supreme Court set forth the overarching framework for analyzing
Oregon’s model UM statute in Vega v. Farmers Insurance Co. of Oregon, 918 P.2d
95 (1996). See Batten v. State Farm Mut. Auto. Ins. Co., 495 P.3d 1222, 1224–25
(Or. 2021) (en banc). As Vega notes, the Oregon legislature has set out “a
comprehensive model” policy of UM coverage at ORS 742.504(1)–(12). 918 P.2d
at 101. The statute requires policies to provide UM “‘coverage that in each instance
is no less favorable in any respect to the insured or the beneficiary than if’ those
model policy terms ‘were set forth in the policy.’” Batten, 495 P.3d at 1224 (quoting
ORS 742.504) (emphasis added).
Kremers does not dispute that the Essentia policy excluded his Mercedes, the
vehicle involved in the accident, under the policy’s “Regular Use Exclusion.”1
Rather, Kremers argues that the Regular Use Exclusion is otherwise broader—and
1 The Regular Use Exclusion states:
“Uninsured Motorist Coverage” does NOT cover “bodily injury” or “property damage” sustained by an “insured” or any person . . . [t]hat occurs while “occupying”, operating or otherwise using any vehicle owned by, or furnished or available for the regular use of you, a “family member” or any other person related to you who resides with you, if that vehicle is not “your covered auto.”
3 thus less favorable—than ORS 742.504 permits. Specifically, Kremers argues that
the Regular Use Exclusion excludes newly acquired and substitute vehicles from
coverage, while the statutory model includes them at ORS 742.504(2)(d)(A).
Therefore, Kremers argues that the Regular Use Exclusion is unenforceable under
ORS 742.504 and he is entitled to coverage—even though the Mercedes was not a
newly acquired or substitute vehicle. Kremers thus argues that the allegedly less
favorable part of the provision he is challenging need not implicate the facts of his
case for the provision to be unenforceable under ORS 742.504.
Kremers is mistaken for several reasons. First, the plain language of ORS
742.504 indicates that we must look at the specific facts of a case—not the policy in
the abstract—to determine whether a policy is “less favorable” than the statutory
model. This is because the statute mandates UM coverage that “in each instance is
no less favorable in any respect” than the statutory model policy’s coverage. ORS
742.504 (emphasis added); see Vega, 918 P.2d at 100–01. An “instance” means an
“example or occurrence,” Black’s Law Dictionary (12th ed. 2024), or “an individual
illustrative of a category,” Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/instance (last visited Oct. 15, 2024). Thus, in the insurance
context, an “instance” of coverage means a specific instance or case in which
4 coverage attaches.2
Next, the statute itself confirms this reading of ORS 742.504 through its use
of the word “insured.” ORS 742.504(2)(c)(A) defines “insured” as “[t]he named
insured as stated in the policy.” In other words, “the insured” in the statute refers to
an actual claimant in an actual claim, not to any potential person in a potential claim.
And a policy must provide UM coverage which is not less favorable to that claimant
than the statutory minimum, judging by if the statutory model provisions were set
forth in that claimant’s policy. Here, Kremers’ coverage is the same whether under
his policy or the statutory model policy.
Finally, a close reading of Vega also confirms this approach. Vega held that
in construing ORS 742.504, “the intent of the legislature . . . controls.” 918 P.2d at
102 (citations omitted). The legislature’s intent was to “protect[] . . . automobile
insurance policyholder[s] against the risk of inadequate compensation” and to “place
the injured policyholder in the same position he would have been in if the tortfeasor
had had liability insurance.” Id. at 103 (citations omitted). Yet the challenged part
of a UM provision that does not implicate the facts of the case cannot, logically
2 The alternative that Kremers suggests would read the phrase “in each instance” out of the statute, because “in any respect” already captures the requirement that a UM policy may not be less favorable than the statutory model generally, in the abstract. “If the legislature desires to restrict the scope of coverage that the statute contemplates, it does not lack the linguistic tools necessary to achieve that outcome.” Carrigan v. State Farm, 949 P.2d 705, 708 (Or. 1997).
5 speaking, impact the policyholder’s “position.” See id. at 103 n.13. Rather than
preventing “inadequate compensation,” knocking out an exclusion on this sort of
abstract basis would provide the insured windfall coverage for which the parties
never contracted.
Together, these principles confirm that Kremers did not receive “less
favorable” coverage under the Essentia policy than ORS 742.504 permits. Even if
the policy had contained the statutory model provisions, Kremers would not have
been covered here because he was not driving a newly acquired or substitute vehicle
at the time of the accident. Accordingly, Essentia was entitled to deny UM benefits
under the policy’s Regular Use Exclusion, and the judgment of the district court
should be
AFFIRMED.