Mid-Century Insurance v. Utah Home Fire Insurance

648 P.2d 68, 58 Or. App. 210, 1982 Ore. App. LEXIS 3100

• Court: Court of Appeals of Oregon
• Decided: July 14, 1982
• Docket: No. 203-430, CA A21912
• Status: Published

Opinion

VAN HOOMISSEN, J.

Defendant Utah Home Fire Insurance Company (Utah) appeals from a trial court order granting plaintiff Mid-Century Insurance Company’s (Mid-Century) motion for summary judgment. The issue is whether Mid-Century’s insured was covered by the personal injury protection (PIP) provisions of a motor vehicle liability policy issued by Utah. We conclude that he was not and therefore reverse and remand.

The evidence shows that Utah issued a motor] vehicle liability policy to its insured, Torland. The policy] contained a “named-operator” endorsement, which limited! liability coverage only to Torland while she was operating any vehicle. No specific vehicle was described in the policy,| but Torland owned only one vehicle. The policy providec that if no specific vehicle was described in the policy, ther it was understood and agreed that the insured had but ond vehicle. The policy contained an endorsement excluding from its coverage “automobiles while driven by any othei person * * *.” It also contained a PIP endorsement pursuan] to former ORS 743.800 (amended by Or Laws 1981, ch 41j § 1) -743.835. Former ORS 743.800 then provided:

“Every motor vehicle liability policy issued for delivery in this state that covers any private passenger motor vehicle other than a moped or motorcycle shall provide to the person insured thereunder and members of that person’s family residing in the same household injured in a motor vehicle accident, passengers injured while occupying the insured motor vehicle and pedestrians struck by the insured motor vehicle, the following hospital, medical, disability and funeral benefits for each accident * *

Gutschow, Mid-Century’s insured, was injurd while driving Torland’s vehicle. Mid-Century paid PI benefits under Gutschow’s policy and sought reimburseme] from Utah under Torland’s policy. When Utah deni] liability, Mid-Century brought this action. ORS 743.11 Both parties moved for summary judgment. The coi granted Mid-Century’s motion.

Utah first contends that its “named-insured” polj only protected Torland and then only when she was oper] ing a vehicle. Therefore, it argues, Gutschow was covered by the PIP provisions of Torland’s policy, because Torland was not the driver of the vehicle when Gutschow was injured. Utah next contends that even if . Torland’s vehicle was covered for PIP benefits when that vehicle was being driven by someone other than Torland, Gutschow could not recover under the policy because he was not a “passenger injured while occupying the insured motor vehicle.” We need not decide the first contention, because the latter is decisive.

Gutschow was not a passenger in the vehicle; he was the driver. By the provisions of Utah’s policy, he was not included in its PIP protection.¹ The court therefore erred when it granted summary judgment for Mid-Century.

The trial court also granted Mid-Century’s motion or summary judgment on its claim for attorney fees. That Iso was error.

Reversed and remanded.

1 When the PIP statute was originally enacted, ORS 743.800 extended coverage “guest passengers” (Or Laws 1971, ch 523, § 2); the word “guest” was eliminated 1975. Or Laws 1975, ch 784, § 1.