Teply v. Ballard, L-1
| Decision Date | 21 August 1996 |
| Docket Number | L-1 |
| Citation | 922 P.2d 1236,142 Or.App. 574 |
| Parties | Matthew C. TEPLY, Plaintiff, v. Edye BALLARD, Personal Representative of the Estate of Elmo C. Viar, Deceased, Defendant. Marvin L. TEPLY, Appellant, v. Edye BALLARD, Personal Representative of the Estate of Elmo C. Viar, Deceased, Respondent. 93-3321-; CA A89961. |
| Court | Oregon Court of Appeals |
Matthew Sutton, Medford, argued the cause for appellant. With him on the brief were Douglas J. Richmond and Kellington, Krack, Richmond & Blackhurst.
Thomas W. Brown, Portland, argued the cause for respondent. With him on the brief were Wendy M. Margolis and Cosgrave, Vergeer & Kester, L.L.P.
Before RIGGS, P.J., and LANDAU and LEESON, JJ.
Plaintiff 1 brought this action for personal injuries sustained in an automobile accident and for loss of consortium resulting from injury to plaintiff's wife in that accident. After plaintiff and defendant settled the personal injury claim, they submitted plaintiff's loss of consortium claim to the trial court on stipulated facts. Plaintiff appeals from the court's judgment for defendant, and we affirm.
On September 28, 1991, plaintiff, his wife and his son were injured while traveling north on Interstate 5 when the car in which they were riding collided head-on with a car driven by Elmo Viar (decedent) that was traveling south in the northbound lanes of that highway. Decedent had an insurance policy with liability limits of $25,000 per person and $50,000 per accident. Plaintiff's wife settled her claim for personal injuries with decedent's insurer for $25,000. Plaintiff and his son brought an action against decedent's personal representative for their personal injuries and for plaintiff's loss of consortium resulting from the injuries to his wife. The amended complaint sought recovery only within the limits of liability of decedent's insurance policy. Before trial, plaintiff and his son settled their personal injury claims for $7,415. Plaintiff sought $17,585, the remainder of the per accident liability limit, for his loss of consortium. Insurer denied coverage on the ground that plaintiff's "loss of consortium claim was subsumed under the bodily injury settlement" with wife. The parties stipulated that all factual issues had been settled and, by motion, requested a hearing to determine plaintiff's legal entitlement to recover for loss of consortium. The trial court entered judgment for defendant, holding that plaintiff was not entitled to payment under the insurance policy and that the policy does not violate Oregon's Financial Responsibility Law, ORS 806.010 et seq.
Plaintiff first assigns error to the trial court's ruling that insurer's payment of $25,000, the per person policy limit, to plaintiff's wife on her bodily injury claim "exhausts the coverage resource leaving nothing" to cover his loss of consortium claim. According to plaintiff, his claim for loss of consortium is independent of his wife's bodily injury claim and is therefore subject to the policy's $50,000 per accident liability limit. Defendant replies that the policy "only covers plaintiff's loss of consortium claim through the 'each person' limits applicable to his wife's bodily injury claim."
The insurance policy provides, in relevant part:
In plaintiff's view, the "Limit of Liability" section of the policy conflicts with the "Insuring Agreement" section, because the former expressly covers "types of damages that do not fall within the policy definition of bodily injury," while the latter "implies that the insurer will pay only for 'bodily injury.' " Both sections, he contends, "contradict the policy definition of 'bodily injury.' " Consequently, he reasons, the policy is ambiguous with respect to its coverage for loss of services and must be construed against defendant. See Totten v. New York Life Ins. Co., 298 Or. 765, 771, 696 P.2d 1082 (1985) (). Defendant does not dispute plaintiff's assertion that the insurance policy covers damages for loss of services but responds that the policy is unambiguous with respect to the applicable liability limit. According to defendant, the sole issue is whether plaintiff's loss of consortium claim describes a loss arising out of the bodily injury sustained by plaintiff's wife so that the per person liability limit applies or whether plaintiff's claim constitutes a bodily injury to him so that the per accident liability limit applies. We agree with defendant's characterization of the issue and its contention that the policy is unambiguous.
We construe the meaning of an insurance policy as a matter of law, giving effect to the intention of the parties as expressed by the terms and provisions of the policy as a whole. Hoffman Construction Co. v. Fred S. James & Co., 313 Or. 464, 469-70, 836 P.2d 703 (1992). Terms that are not defined are given their plain and ordinary meaning. Id. at 474, 836 P.2d 703.
The "Insuring Agreement" section states that the insurer will pay "damages for 'bodily injury' " for which its insured is legally responsible. The "Limit of Liability" section specifies that the maximum amount that the insurer will pay for "all damages, including damages for * * * loss of services * * * arising out of 'bodily injury' sustained by any one person" is the per person liability limit in the policy. "Bodily injury" is defined as "bodily harm, sickness or disease, including death that results." Read together, those policy provisions describe the scope of coverage for bodily injury to one person as encompassing all legal damages that arise out of that bodily injury, including loss by others of the injured person's services. The policy language also limits the insurer's liability for those damages to the per person liability limit.
An insurer may, as it has done here, define the scope of its coverage for bodily injury to include other harms that result from one person's bodily injury, without defining those other harms as bodily injury to a second person who has suffered the consequences. Viking Insurance of Wisconsin v. Popken, 102 Or.App. 660, 663, 795 P.2d 1091, rev. den. 310 Or. 547, 800 P.2d 789 (1990); cf. Allstate Ins. v. Handegard, 70 Or.App. 262, 267, 688 P.2d 1387 (1984), rev. den. 298 Or. 704, 695 P.2d 1371 (1985) (). Plaintiff's loss of consortium claim is therefore subject to the per person liability limit of $25,000 stated in the policy. Because plaintiff's wife settled her bodily injury claim for the full $25,000, the trial court did not err in concluding that coverage under the policy had been exhausted.
Plaintiff also assigns error to the trial court's ruling that defendant's insurance policy does not violate Oregon's Financial Responsibility Law (FRL), ORS 806.010 et seq. He argues that the FRL, which requires certain minimum levels of liability coverage in all automobile insurance policies issued in Oregon, makes clear that "loss of consortium is a liability that must be covered" and that, consequently, defendant's policy must be construed to include coverage of his claim. See ORS 742.038 (); State Farm Fire and Casualty Co. v. Jones, 306 Or. 415, 417-18, 759 P.2d 271 (1988) (). Plaintiff goes to great lengths to explain why a loss of consortium claim falls within the ambit of ORS 806.080(1)(b), which requires policy terms that provide coverage "against loss from the liabilities imposed by law for damages arising out of" ownership or use of a motor vehicle. (Emphasis plaintiff's.) Defendant agrees that a policy that complies with the FRL must include coverage for loss of consortium as an insured liability. However, he disputes plaintiff's contention that the FRL requires a minimum limit of coverage for plaintiff's loss of consortium claim...
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1998 -NMCA- 108, Nollen v. Reynolds
...would be included in that limit unless financial responsibility law of state required different treatment); Teply v. Ballard, 142 Or.App. 574, 922 P.2d 1236, 1238 (1996) (policy language limits insurer's liability for loss of consortium to "per person" liability ¶8 In an attempt to avoid th......