Grange Ins. Ass'n v. Beleke

Decision Date03 June 1988
PartiesGRANGE INSURANCE ASSOCIATION, Respondent, v. Harold W. BELEKE, Sandra M. Beleke, Lesa Beleke, Larry Haynie, Defendants, Robert D. Dumas and Farmers Insurance Group, Appellants. 16-84-07998; CA A40169. Court of Appeals of Oregon, In Banc *
CourtOregon Court of Appeals

Frank E. Bocci, Eugene, argued the cause and filed the brief, for appellants.

Bruce L. Mowery, Portland, argued the cause and filed the brief, for respondent.

BUTTLER, Judge.

Defendants Dumas and Farmers Insurance Group appeal from a judgment granting declaratory relief to plaintiff, Grange Insurance Association, determining that plaintiff's automobile liability insurance policy does not cover any claims by appellants arising out of an automobile accident. We affirm.

Plaintiff was the insurer of several automobiles owned and driven by defendants Harold, Sandra and Lesa Beleke. On April 26, 1982, plaintiff added to the Belekes' policy, at Sandra's request, a 1966 Ford Mustang that apparently had been owned previously by defendant Haynie. Haynie had transferred ownership of the car to the Belekes in order to reduce his insurance premiums. On October 9, 1982, Haynie was driving the Mustang when, as a result of his negligence, an accident occurred with a vehicle being driven by Dumas, who was insured under a policy issued by Farmers.

Plaintiff brought this declaratory judgment action, alleging that its policy with the Belekes did not cover Haynie's accident, because the policy was issued as a result of misrepresentations made by the policyholders regarding the ownership and use of the vehicle. An order of default was entered against the Belekes and Haynie for want of an answer, followed by a judgment that disposed only of the claims against the insureds. After a trial consisting only of arguments presented by counsel, the court entered a final judgment declaring that plaintiff is not responsible under its policy with the Belekes for Dumas' injuries incurred in the accident with Haynie.

On appeal, Dumas and Farmers contend first that the trial court erred in holding that former ORS 486.551 does not apply to plaintiff's policy. It provided:

"The liability of an insurance carrier with respect to the insurance policy required by this chapter to prove future responsibility shall become absolute whenever injury or damage covered by the vehicle liability policy occurs. The policy may not be canceled or annulled as to such liability by any agreement between the insurance carrier and the insured after the occurrence of the injury or damage. No statement made by the insured or on his behalf and in violation of the policy shall defeat or void the policy. The provisions of this section are not applicable to policies of vehicle liability insurance other than those required in connection with proof of future responsibility." (Emphasis supplied.)

That statute clearly distinguishes between policies of vehicle liability insurance required in connection with proof of future responsibility and other such policies not required for that purpose. Former ORS 486.075 prohibited a person from driving a motor vehicle registered in this state unless the person was insured under a motor vehicle liability insurance policy or provided the division other satisfactory proof of financial responsibility. See former ORS 486.011(7).

If a driver had an automobile accident that resulted in property damage of more than $400 or injury or death to any person, former ORS 486.021 required the driver and the owner of the vehicle involved to file within 30 days "and thereafter maintain for a period of three years proof of future responsibility," unless the vehicle was insured as required by law. If a person failed to file "proof of future responsibility when such proof is required," the division was required to revoke the person's license. Former ORS 486.211. If the person complied with the requirement of proving future responsibility, the proof was returned to the person, and the requirement of the filing was waived if

"[a]t any time after three years from the date such proof was required when, during the one-year period preceding the request, the division has not received record of a conviction which would require or permit the suspension or revocation of the license or registration of the person by or for whom such proof was furnished." Former ORS 486.431(1)(d).

Accordingly, even though there existed a mandatory financial responsibility law under which all vehicles were required to carry a minimum amount of insurance, the requirement that proof of future responsibility be filed under certain circumstances was maintained, and the distinction between "future responsibility" and "financial responsibility" remained in former ORS 486.011(7), although the minimum amounts required for each were the same.

Because former ORS 486.551 and former ORS 486.021 concern the same subject and use the same language, proof of future responsibility, they should be given the same meaning. Davis v. Wasco IED, 286 Or. 261, 593 P.2d 1152 (1979). It is clear that, under former ORS 486.551, the insurer's liability is absolute after injury or damage with respect to policies issued as proof of future responsibility. Rowley v. Dairyland Ins. Co., 44 Or.App. 333, 605 P.2d 1356 (1980). It is equally clear that, giving former ORS 486.551 its plain meaning, that statute does not apply to vehicle liability insurance policies other than those required as proof of future responsibility. The insurance policy in question here is not such a policy. Accordingly, we hold that plaintiff is not precluded by former ORS 486.551 from asserting that the insured made material misrepresentations in their application for insurance.

Next, appellants contend that the trial court erred in holding that their ability to recover from plaintiff depends on the ability of the Belekes and Haynie to do so. In Allegretto v. Or. Auto Ins. Co., 140 Or. 538, 13 P.2d 647 (1932), Allegretto had obtained a judgment against Harris, the insured of Oregon Auto, as a result of an accident caused by Harris' negligence. Because Harris was unable to satisfy the judgment, Allegretto brought an action against Oregon Auto, which raised as a defense that the insured had made false statements to it during the initial defense of the claim and, therefore, had breached the policy by failing to cooperate with the insurer. The court recognized that Allegretto's right to recover against Oregon Auto depended on whether Harris could recover under the policy:

"The overwhelming weight of authority establishes that the plaintiff's rights are subrogated to those of the insured. The action is predicated on a contract of insurance and it seems obvious that, if one of the parties thereto has forfeited his rights therein, the plaintiff, who has only a beneficial interest, has no foundation for his action. We test the rights of the plaintiff by whether or not Harris, upon satisfaction of the judgment against him, could have recovered upon the policy." 140 Or. at 544, 13 P.2d 1647.

Although Allegretto was overruled on another point in Bailey v. Universal Underwriters Ins., 258 Or. 201, 219, 474 P.2d 746, 482 P.2d 158 (1970), its holding on the question at issue here remains valid. State Farm Fire & Cas. v. Reuter, 299 Or. 155, 166, 700 P.2d 236 (1985). State Farm Fire v. Sevier, 272 Or. 278, 537 P.2d 88 (1975), relied on by appellants, is not to the contrary. Accordingly, appellants' right to recover against plaintiff depends on the ability of the Belekes and Haynie to do so.

Finally, appellants assign error to the trial court's ruling that the default judgment against the Belekes and Haynie was an admission of the alleged misrepresentations. They contend that, because that judgment did not adjudicate the rights of all of the parties and did not comply with ORCP 67 B, it was not final and the action was not terminated. 1 Accordingly, they argue that plaintiff must prove the misrepresentation allegation in the trial against them.

A primary purpose of ORCP 67 B is to allow appeals under certain conditions when an action involves multiple parties or multiple claims or both. State ex rel Zidell v. Jones, 301 Or. 79, 95, 720 P.2d 350 (1986). Because the default judgment was entered for want of an answer, the defaulted parties did not have a right to appeal, even if the judgment complied with ORCP 67 B, unless the relief was not in accordance with the relief demanded in the complaint, ORS 19.020, 2 or the trial court did not have jurisdiction to enter the judgment. Rajneesh Foundation v. McGreer, 303 Or. 139, 734 P.2d 871, aff'd 303 Or. 371, 737 P.2d 593 (1987). No such claim is made here. In McGreer, the trial court had entered an order of default, but not a judgment, as a sanction for a discovery violation, before the defaulted party filed a motion to dismiss for failure to state ultimate facts sufficient to constitute a claim. ORCP 21 A(8). The Supreme Court held that the trial court could entertain such a motion, with the limitation that, "[o]nce the [default] judgment has been entered and the time for appeal has expired, the defaulting party has no recourse unless the trial court lacked jurisdiction to enter the judgment." 303 Or. at 144 n. 3, 734 P.2d 871.

Here, there is no claim that the complaint fails to state sufficient facts to constitute a claim, and none of the parties filed a motion under ORCP 21 A(8) at any time, assuming that any of them could have done so after the default judgment was entered. Neither have any of the parties moved to set aside the judgment pursuant to ORCP 71 B and C. Although the default judgment was subject to revision at any time before the entry of a final judgment, ORCP 67 B, it was not revised, and none of the parties made any effort to have it revised. Unless and until the default...

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