Meyer v. American Economy Ins. Co.

• Decision Date: 12 August 1990
• Parties: Richard MEYER, Appellant, v. AMERICAN ECONOMY INSURANCE CO., an Indiana corporation, Respondent. 8
• Court: Oregon Court of Appeals

Page 1223

796 P.2d 1223

103 Or.App. 160

Richard MEYER, Appellant, v. AMERICAN ECONOMY INSURANCE CO., an Indiana corporation, Respondent.

88-12-90; CA A62997.

Court of Appeals of Oregon.

Argued and Submitted July 20, 1990.

Decided Aug. 29, 1990.

Reconsideration Denied Oct. 17, 1990.

Review Denied Nov. 6, 1990.

Ben C. Fetherston, Jr., Salem, argued the cause for appellant. With him on the briefs were Clark, Lindauer, McClinton, Krueger, Fetherston & Edmonds, Salem, and Peter Glazer and Glazer, Curtright & Wagner, P.C., Lake Oswego.

Duane Vergeer, Portland, argued the cause for respondent. On the brief were Norma S. Poitras and Cosgrave, Vergeer & Kester, Portland.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

Plaintiff is an employee and the principal shareholder of a corporation, and defendant is the corporation's motor vehicle insurer. Plaintiff was injured when an uninsured motorist struck him while he was riding his own bicycle on personal business. He brought this action, seeking damages and a declaration that he is entitled to coverage under the uninsured motorist provisions of the insurance policy issued to the corporation by defendant. The trial court denied plaintiff's motion for summary judgment, allowed defendant's and entered judgment for defendant. Plaintiff appeals and assigns error to the rulings on the summary judgment motions. ¹ We affirm.

The insurance policy defines the term "you," for purposes of bodily injury coverage under the uninsured motorist provisions, to mean "the person or organization shown as the named insured in * * * the declaration." The corporation is the only named insured designated in the policy or any schedules. The policy gives the following description of "who is insured":

"1. You or any family member.

"2. Anyone else occupying a covered auto or a temporary substitute for a covered auto. The covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction.

"3. Anyone else occupying an auto you are operating.

"4. Anyone for damages he is entitled to recover because of bodily injury sustained by another insured." (Emphasis in original.)

"Family member" means, as relevant, "a person related to you by blood, marriage or adoption who is a resident of your household."

Plaintiff argues that the coverage for the named insured and family members, which he refers to as "category one coverage," is a nullity under this contract if it is read literally. The corporation cannot suffer bodily injury and cannot have "family members" as the term is defined. Nevertheless, plaintiff asserts, defendant charged a premium for category one coverage. Therefore, some coverage of that kind must be read into the contract, and plaintiff asks us to conclude that he should be treated, in effect, as a "named insured" and allowed to recover for his injuries sustained in the accident. He explains:

"The uninsured motorist coverage provisions of the policy are ambiguous because the language has no apparent meaning. The trial court should have either construed the language against the Defendant in favor of finding coverage or denied summary judgment and allowed Plaintiff's case to proceed to a jury trial."

We do not agree that there is an ambiguity, or at least one under which plaintiff can conceivably be regarded as a named insured, a family member or anyone else who comes within the category one coverage. Even if, as plaintiff contends, there is no category one coverage if the policy is read to mean what it unambiguously says, that does not create an ambiguity. If, as he also argues, defendant has collected premiums for coverage that does not exist, ² that might provide the corporation with some form of remedy against defendant; it does not mean that plaintiff is covered. For similar reasons, plaintiff is not assisted by the host of arguments that he derives from rules of construction and policy-based considerations, e.g., every provision in the policy must be deemed to mean something and the contractual language should be construed against defendant. There is simply nothing that can be construed in the way that he wants.

Plaintiff also argues that he is entitled to coverage because defendant did not comply with ORS 742.504(2)(a)(A), ³ which sets out recommended policy language defining "insured":

"The named insured as stated in the policy and any person designated as named insured in the...