Fox v. Country Mut. Ins. Co.

• Decision Date: 11 September 1998
• Citation: 964 P.2d 997,327 Or. 500
• Parties: Steve FOX, Representative of the Estate of William Daryl Fox, Deceased, Petitioner on Review, v. COUNTRY MUTUAL INSURANCE CO. and Northwest Farm Bureau Insurance Company, Respondents on Review. CC 92CV1057, 93CV1076; CA A81951 (Control) A83125; SC S42097.
• Court: Oregon Supreme Court

Page 997

964 P.2d 997

327 Or. 500

Steve FOX, Representative of the Estate of William Daryl Fox, Deceased, Petitioner on Review, v. COUNTRY MUTUAL INSURANCE CO. and Northwest Farm Bureau Insurance Company, Respondents on Review.

CC 92CV1057, 93CV1076; CA A81951 (Control) A83125; SC S42097.

Supreme Court of Oregon.

Argued and Submitted May 9, 1995.

Decided Sept. 11, 1998.

Margaret H. Leek Leiberan, of Leiberan & Gazeley, Portland, argued the cause for Petitioner on review. With her on the petition and brief was Manuel C. Hernandez, Bandon.

Bernard S. Moore, Medford, argued the cause and filed the response and brief for Respondents on review.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN and DURHAM, JJ. ^**

DURHAM, Justice.

These consolidated actions arise from an automobile collision that resulted in the death of William Fox (Fox). Plaintiff, who is the personal representative of Fox's estate, asserts that defendants are obligated to pay benefits to the estate under the uninsured and underinsured motorist (UM) coverage in defendants' automobile insurance policy. ¹ The Court of Appeals held that defendants had no such obligation, because the collision that killed Fox was not "caused by an accident" within the meaning of defendants' policy. ² As a consequence, the Court of Appeals affirmed the trial court's summary judgment for defendants. We reverse the decision of the Court of Appeals.

On appellate review of a summary judgment, we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the party that opposes the motion for summary judgment. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997).

In 1990, Vincent, a high school student, decided to wreck his pickup truck intentionally in order to collect the insurance proceeds. Fox, who was Vincent's friend and classmate, agreed to be present during the event, but the record reflects a discrepancy concerning Fox's potential involvement in Vincent's scheme. Fox told a witness shortly before the collision that he would act merely as a lookout while Vincent wrecked the truck. Vincent testified, in contrast, that Fox changed his mind before the wreck and chose to remain in the truck, and believed that his seat belt would save him from injury during the crash. The parties disagree about whether Vincent had a motive to lie, and did lie, in giving that testimony. According to plaintiff, the record supports an inference that Vincent refused to stop the truck so that Fox could get out before the crash.

We do not resolve whether the foregoing factual disputes would preclude summary judgment, because it is unnecessary to do so. The evidence is uncontradicted with respect to one fact that unquestionably is material and dispositive: Vincent intended to crash the truck, but Fox did not intend to cause any injury to himself in the crash.

On the night of August 27, 1990, Vincent drove his truck off Seven Devils Road near Bandon. Fox was a passenger, not a lookout. Vincent survived, but Fox died. At the time, defendants provided automobile liability insurance to Fox's family, including Fox.

In 1992, plaintiff brought an action against Vincent for the wrongful death of Fox, and later settled the action. Plaintiff then filed these actions against defendants seeking, among other things, a declaration of defendants' liability for UM coverage for the fatal injury to Fox.

ORS 742.504 provides, in part:

"Every policy required to provide the coverage specified in ORS 742.502 shall provide uninsured motorist coverage which in each instance is no less favorable in any respect to the insured or the beneficiary than if the following provisions were set forth in the policy. However, nothing contained in this section shall require the insurer to reproduce in such policy the particular language of any of the following provisions:

"(1)(a) The insurer will pay all sums which the insured, the heirs or the legal representative of the insured shall be legally entitled to recover as general and special damages from the owner or operator of an uninsured vehicle because of bodily injury sustained by the insured caused by accident and arising out of the ownership, maintenance or use of such uninsured vehicle. * * *." (Emphasis added.)

That statute obligates defendants to provide UM coverage to plaintiff under the statute's terms whether or not UM coverage appears in defendants' policy. ³

The trial court granted a summary judgment in favor of defendants, although it did not explain its reason for that action. The Court of Appeals affirmed, reasoning that Fox's death was not caused by an accident under the policy's UM coverage. As a consequence, the Court of Appeals did not address the parties' other arguments regarding summary judgment.

The lynchpin of the Court of Appeals' opinion is its conclusion that, in applying the policy's UM provision, the central issue was whether Fox intended or expected to occupy the truck while Vincent drove it off the road, not whether Fox intended to cause a bodily injury to himself. The court stated that plaintiff's reliance on the "intended injury" test, as described in Allstate Ins. Co. v. Stone, 319 Or. 275, 876 P.2d 313 (1994), ⁴ was "misplaced because that test improperly views the event from Vincent's, not Fox's perspective." 132 Or.App. at 344, 888 P.2d 111. The court held that, viewing the event here from the perspective of Fox, the insured, the facts would compel any reasonable trier of fact to conclude that Fox intended or expected to ride off the road in the truck. Id. at 347, 888 P.2d 111. According to the court, Fox expected the injury-producing event--the crash--even though he did not expect to cause the injury that gives rise to this coverage claim. In this court, defendants advance the analysis adopted by the Court of Appeals.

Plaintiff argues that the reasoning of the Court of Appeals contradicts the rule, discussed by this court in several cases, that a policy requirement that a personal injury be caused by an accident will preclude coverage only if the insured intended to cause both the event that produced the harm and the resulting injury or harm itself. Among other cases, plaintiff relies on Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80 (1994), Allstate, and Snyder v. Nelson/Leatherby Ins., 278 Or. 409, 564 P.2d 681 (1977).

At the outset, we note our agreement with one premise expressed by the Court of Appeals--that in analyzing this case, the court must view the event from the perspective of Fox, not Vincent. This is a first-party claim for recovery of damages for personal injury to Fox under a policy that his parents purchased from defendants. This is not a claim for coverage to protect Fox against liability claims asserted against him by a third party. See Davis v. State Farm Mut. Auto. Ins., 264 Or. 547, 551, 507 P.2d 9 (1973), stating that

"[t]he purpose of the [UM] coverage is not protection from liability. This portion of the policy, therefore, resembles an accident policy for the victim of the uninsured motorist."

In Davis, the question was whether UM coverage was applicable to an injury intentionally inflicted on the plaintiff by a third party who, by virtue of the intentionality of his act, was uninsured. The UM insurer argued that the plaintiff's injury was not subject to UM coverage because it was not caused by accident. This court rejected that view, stating:

"Whether the occurrence is accidental depends entirely upon the point from which the question is viewed. If the occurrence is looked at from the point of view of the person who inflicts the harm or of his liability insurer, it is intentional. On the other hand, if it is looked at from the victim's standpoint, it is unforeseen, unintended, unexpected, and has every aspect of an accident as long as the occurrence was not provoked. Therefore, it is necessary to decide which point of view is the proper one from which to solve the present question.

"The third party who inflicted the harm and his insurer are not parties to the policy upon which this action is brought. The money which will reimburse the plaintiff (if he is successful here) will not come from them. Defendant, if required to pay plaintiff, will be subrogated to any rights plaintiff has against the third party. The liability of the third party will be unaffected by the outcome of this case and no public policy will be offended because he will receive no protection from the consequences of his unlawful act. Certainly, there is no reason to consider the matter from the viewpoint of the third party and of his insurer. They are unconcerned and unaffected by the present litigation. The proper points of view are those of plaintiff and defendant. The occurrence was accidental as far as plaintiff is concerned. Defendant points to no qualifying definition of 'accident' and any ambiguity is construed against defendant."

Davis, 264 Or. at 550, 507 P.2d 9. ⁵ Following Davis, we analyze this event from the viewpoint of Fox.

ORS 742.504 requires defendants to include in their policy UM coverage that "in each instance is no less favorable in any respect to the insured or the beneficiary" than if the statutory coverage provision were reproduced in the policy. Because defendants must satisfy that statutory coverage obligation, the answer to the issue that the parties raise turns on the proper interpretation of ORS 742.504(1)(a). Consequently, we attempt to determine the legislature's intention in enacting that statute rather than the parties' contractual intention in entering into the insurance contract. See Vega v. Farmers Ins. Co., 323 Or. 291, 299-300, 918 P.2d 95 (1996) (where statutory UM coverage provision controls, court resolves coverage dispute by applying methodology for statutory interpretation); To v. State Farm Mutual Ins., 319 Or. 93, 97, 873 P.2d 1072 (1994) (where contractual and statutory provisions are equivalent,...