NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RICHARD BURRIGHT, No. 23-35357
Plaintiff-counter- D.C. No. 3:22-cv-00667-MK defendant-Appellee,
v. MEMORANDUM*
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation,
Defendant-counter-claimant- Appellant.
Appeal from the United States District Court for the District of Oregon Mustafa T. Kasubhai, Magistrate 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”)
* 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). 742.504(1)–(12). If a policy provides less favorable coverage than the statutory
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.
Richard Burright was injured in a vehicular accident by an uninsured motorist.
At the time of the accident, Burright was insured under a motorcycle liability policy
issued by State Farm Mutual Automobile Insurance Company for each of his four
motorcycles: (1) a policy for his 2012 Harley Davidson, (2) a policy for his 2012
Suzuki, (3) a policy for his 2016 Honda, and (4) a policy for his 2014 Harley
Davidson. Burright occupied the 2012 Harley Davidson at the time of the accident,
after which he sought Uninsured Motorist (“UM”) benefits under all four State Farm
policies. State Farm paid the limit for the 2012 Harley Davidson policy but denied
UM benefits under each of the other three policies, because those policies did not
cover the 2012 Harley Davidson. Burright filed suit, and the district court granted
2 summary judgment in his favor. We have jurisdiction under 28 U.S.C. § 1291 and
reverse.
We review de novo a district court’s order granting summary judgment, as
well as questions of statutory interpretation. Chemehuevi Indian Tribe v. Newsom,
919 F.3d 1148, 1150–51 (9th Cir. 2019) (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).
Burright does not dispute that his 2012 Harley Davidson was excluded under
the policies for his 2012 Suzuki, 2016 Honda, and 2014 Harley Davidson, under
each policy’s Regular Use Exclusion.1 Rather, Burright argues that the Regular Use
1 The Regular Use Exclusion states:
Exclusions [ . . . ] (2) . . . THERE IS NO COVERAGE FOR AN INSURED WHO SUSTAINS BODILY INJURY:
3 Exclusion is otherwise broader—and thus less favorable—than ORS 742.504
permits. Specifically, Burright argues that the Regular Use Exclusion excludes four-
wheeled vehicles and substitute vehicles from coverage, while the statutory model
includes them at ORS 742.504(2)(m) and 742.504(2)(d)(A), respectively.
Therefore, Burright argues that the Regular Use Exclusion is unenforceable under
ORS 742.504 and he is entitled to coverage—even though the 2012 Harley Davidson
was not a four-wheeled vehicle or substitute vehicle. Burright 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.
Burright 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
a. WHILE OCCUPYING A MOTOR VEHICLE OWNED BY OR FURNISHED FOR THE REGULAR USE OF YOU IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR.
4 context, an “instance” of coverage means a specific instance or case in which
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.
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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
RICHARD BURRIGHT, No. 23-35357
Plaintiff-counter- D.C. No. 3:22-cv-00667-MK defendant-Appellee,
v. MEMORANDUM*
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation,
Defendant-counter-claimant- Appellant.
Appeal from the United States District Court for the District of Oregon Mustafa T. Kasubhai, Magistrate 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”)
* 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). 742.504(1)–(12). If a policy provides less favorable coverage than the statutory
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.
Richard Burright was injured in a vehicular accident by an uninsured motorist.
At the time of the accident, Burright was insured under a motorcycle liability policy
issued by State Farm Mutual Automobile Insurance Company for each of his four
motorcycles: (1) a policy for his 2012 Harley Davidson, (2) a policy for his 2012
Suzuki, (3) a policy for his 2016 Honda, and (4) a policy for his 2014 Harley
Davidson. Burright occupied the 2012 Harley Davidson at the time of the accident,
after which he sought Uninsured Motorist (“UM”) benefits under all four State Farm
policies. State Farm paid the limit for the 2012 Harley Davidson policy but denied
UM benefits under each of the other three policies, because those policies did not
cover the 2012 Harley Davidson. Burright filed suit, and the district court granted
2 summary judgment in his favor. We have jurisdiction under 28 U.S.C. § 1291 and
reverse.
We review de novo a district court’s order granting summary judgment, as
well as questions of statutory interpretation. Chemehuevi Indian Tribe v. Newsom,
919 F.3d 1148, 1150–51 (9th Cir. 2019) (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).
Burright does not dispute that his 2012 Harley Davidson was excluded under
the policies for his 2012 Suzuki, 2016 Honda, and 2014 Harley Davidson, under
each policy’s Regular Use Exclusion.1 Rather, Burright argues that the Regular Use
1 The Regular Use Exclusion states:
Exclusions [ . . . ] (2) . . . THERE IS NO COVERAGE FOR AN INSURED WHO SUSTAINS BODILY INJURY:
3 Exclusion is otherwise broader—and thus less favorable—than ORS 742.504
permits. Specifically, Burright argues that the Regular Use Exclusion excludes four-
wheeled vehicles and substitute vehicles from coverage, while the statutory model
includes them at ORS 742.504(2)(m) and 742.504(2)(d)(A), respectively.
Therefore, Burright argues that the Regular Use Exclusion is unenforceable under
ORS 742.504 and he is entitled to coverage—even though the 2012 Harley Davidson
was not a four-wheeled vehicle or substitute vehicle. Burright 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.
Burright 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
a. WHILE OCCUPYING A MOTOR VEHICLE OWNED BY OR FURNISHED FOR THE REGULAR USE OF YOU IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR.
4 context, an “instance” of coverage means a specific instance or case in which
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, Burright’s coverage is the same whether under
his policies 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
2 The alternative that Burright 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 of a UM provision that does not implicate the facts of the case cannot, logically
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 Burright did not receive “less
favorable” coverage under his motorcycle liability policies than ORS 742.504
permits. Even if those policies had contained the statutory model provisions,
Burright would not have been covered here because he was not driving a
four-wheeled vehicle or substitute vehicle at the time of the accident. Accordingly,
State Farm was entitled to deny UM benefits under the Regular Use Exclusions of
the 2012 Suzuki, 2016 Honda, and 2014 Harley Davidson policies.
We therefore REVERSE the district court’s judgment and REMAND for
further proceedings consistent with this disposition.