Safeco Ins. v. AMERICAN HARDWARE MUT. INS.

9 P.3d 749, 169 Or. App. 405
CourtCourt of Appeals of Oregon
DecidedAugust 30, 2000
Docket97-4286-E1 CA A105111
StatusPublished

This text of 9 P.3d 749 (Safeco Ins. v. AMERICAN HARDWARE MUT. INS.) 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
Safeco Ins. v. AMERICAN HARDWARE MUT. INS., 9 P.3d 749, 169 Or. App. 405 (Or. Ct. App. 2000).

Opinion

9 P.3d 749 (2000)
169 Or. App. 405

SAFECO INSURANCE COMPANY OF AMERICA, a Washington corporation, Appellant,
v.
AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, an Ohio corporation, Respondent.

(97-4286-E1; CA A105111)

Court of Appeals of Oregon.

Argued and Submitted January 7, 2000.
Decided August 30, 2000.

*750 Garrison F. Turner, Ashland, argued the cause and filed the briefs for appellant.

Andrew C. Balyeat, Bend, argued the cause for respondent. With him on the brief was Merrill O'Sullivan, LLP.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

EDMONDS, P.J.

Plaintiff appeals from a declaratory judgment, ORS 28.010, that awarded defendant summary judgment. ORCP 47. The judgment declares that a permissive user of a vehicle of defendant's insured was not "an insured" under defendant's insured's policy and that the policy did not violate Oregon's Financial Responsibility Law (FRL).[1] We reverse.

For purposes of summary judgment, the following facts are not in dispute. Butler Ford is an automobile dealership that was insured by American Hardware under a garage liability policy. On November 2, 1995, Joshua Zander, a customer of Butler Ford, was given permission to test drive a vehicle from Butler's car lot. During the test drive, Zander was involved in an automobile accident with Ignacia Ariza. Ariza sued Zander for personal injuries arising out of the accident. Zander was an insured under a policy issued by Safeco. Safeco defended Zander in the litigation and eventually settled with Ariza, paying an amount within Zander's policy limits and apparently an amount in excess of the minimum payment required by the FRL.

Safeco then filed the complaint for declaratory relief against American Hardware in this case. It requested, in part:

"a declaration that American Hardware Mutual Insurance Company's insurance Policy No. 5-2327097 violates the financial responsibility law, [that it] provides coverage for the above-referenced auto accident to Joshua Zander, and that it is required to participate on a pro-rata basis with Safeco Insurance company in defending him and indemnifying him for all damages [that] he is legally obligated to pay to Ignacia Ariza in the above referenced law suit, or otherwise."

Thereafter, the parties filed cross-motions for summary judgment.[2]

The trial court granted American Hardware's motion and denied Safeco's motion. The trial court reasoned:

"The purpose of the [FRL] is to protect victims who are injured or damaged as a result of motor vehicle accidents. In this case, two insurance companies are arguing over who should pay and[,] if both, how much each should pay. Under both policies, the `victim' is covered in the required amount. Safeco contends that American Hardware cannot shift its statutory obligation to Safeco. If the goal is to create equality between all types of insurance policies that cover automobile accidents, then Safeco's position is well taken. However, the appropriate goal is the one set by the Oregon legislature. That goal is to protect victims of accidents. American Hardware's policy does this. It limits its coverage to tortfeasors driving its named insureds' vehicles that do not have adequate *751 insurance and limits the total coverage to the minimums required by law. It is clear that the Oregon legislature did not intend to make equality between insurance carriers its goal. ORS 806.080(2) indicates that the financial responsibility law requirements may be fulfilled by policies of one or more carriers when taken together. It is clear that the goal is to require the tortfeasor to maintain adequate insurance to fulfill the requirements of the law and protect the victim. American Hardware's policy excludes from its definition of an insured the tortfeasor in this case. That exclusion does not violate the requirements of the [FRL] nor does it violate the Oregon Insurance Code."

Accordingly, the trial court ruled that Zander was not an insured under American Hardware's policy and that the policy did not violate the FRL.

On appeal, Safeco's first assignment of error reasserts its argument that American Hardware's policy violates the FRL. Specifically, Safeco argues that the FRL requires that all motor vehicle liability policies cover all permissive users unless ORS 742.450 authorizes an exception and that ORS 742.450 does not authorize the exclusion of permissive users who have other available insurance. American Hardware's policy provides that a customer of Butler Ford, who is using a vehicle of Butler's with its permission, is not an insured unless the customer has "no other available insurance" or "[h]as other available insurance * * * less than the compulsory or financial responsibility law limits * * *." It follows, according to Safeco, that American Hardware has excluded permissive users in violation of the FRL, and its policy must be read to include coverage for Zander.

American Hardware counters:

"The subject American Hardware policy is not violative of Oregon's Financial Responsibility Law for three reasons. First, ORS 806.080(2) specifically provides that financial responsibility requirements may be fulfilled by the policies of one or more insurance carriers which policies together meet such requirements. Second, the American Hardware policy satisfies the objective of Oregon's Financial Responsibility Law in that it ensures that motor vehicle drivers can respond in damages for liability. Finally, American Hardware's policy does not attempt to limit liability insurance, but rather, establishes priorities of coverage of different policies consistent with general underwriting principles."

When reviewing a summary judgment on appeal,

"[w]e review to ascertain whether the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. In so doing, we view the record in the light most favorable to the party opposing the summary judgment." Quillen v. Roseburg Forest Products, Inc., 159 Or.App. 6, 9, 976 P.2d 91 (1999). See also ORCP 47 C.

To resolve the issue raised by Safeco's argument, we must examine the pertinent policy language and interpret the relevant statutes. Because American Hardware relies on ORS 806.080(2), our task is to discern the legislature's intent by examining the text of that statute within the context of the FRL and other pertinent statutes. "As a part of context, [a] court considers, among other things, other provisions of the same statute, other related statutes, prior versions of the statute, and this court's decisions interpreting the statute." Jones v. General Motors Corp., 325 Or.

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Bluebook (online)
9 P.3d 749, 169 Or. App. 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/safeco-ins-v-american-hardware-mut-ins-orctapp-2000.