To v. State Farm Mut. Ins.

• Decision Date: 26 May 1994
• Citation: 873 P.2d 1072,319 Or. 93
• Parties: Kiem TO and Chuc Nguyen, Respondents on Review, and Cung Nguyen, Plaintiff, v. STATE FARM MUTUAL INSURANCE, a foreign corporation, Petitioner on Review, and John Doe, an uninsured motorist, Defendant. CC 9012-08224; CA A72878; SC S40747.
• Court: Oregon Supreme Court

Page 1072

873 P.2d 1072

319 Or. 93

Kiem TO and Chuc Nguyen, Respondents on Review and Cung Nguyen, Plaintiff, v. STATE FARM MUTUAL INSURANCE, a foreign corporation Petitioner on Review and John Doe, an uninsured motorist, Defendant.

CC 9012-08224; CA A72878; SC S40747.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 6, 1994.

Decided May 26, 1994.

Billy M. Sime, of Parks, Bauer & Sime, Salem, argued the cause and filed the petition for petitioner on review. With him on the petition was J. Philip Parks.

Michael H. Bloom, Portland, argued the cause and filed the response for respondents on review.

GILLETTE, Justice.

This declaratory judgment action involves the statutorily required uninsured motorist coverage provided in a motor vehicle liability policy issued by defendant State Farm Mutual Insurance. Three persons asserted claims under that coverage for injuries sustained in an accident allegedly caused by a "phantom vehicle." After defendant denied coverage because of the lack of evidence corroborating the claimants' version of the accident, one of the claimants released his uninsured motorist claim against defendant. The remaining claimants then argued that the testimony of the releasing claimant could be used to corroborate their version of the accident, thereby establishing coverage. The trial court disagreed and granted judgment in defendant's favor. The Court of Appeals reversed and remanded. To v. State Farm Mutual Ins., 123 Or.App. 404, 860 P.2d 294 (1993). We allowed review and now affirm in part and reverse in part the decision of the Court of Appeals.

In January 1989, Chuc Nguyen and Cung Nguyen were passengers in an automobile being driven eastbound on Highway 22 by Kiem To, Chuc Nguyen's husband. According to the three adult occupants of the automobile, ¹ a large truck traveling westbound crossed the centerline in front of them, causing Kiem To to swerve in order to avoid a head-on collision. Kiem To lost control of the automobile, which then went over an embankment, injuring all three adults.

At the time of the accident, the automobile was insured by a motor vehicle liability policy issued to Kiem To and Chuc Nguyen by defendant. That policy provided that defendant would "pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle." (Emphasis deleted.) The policy further provided:

"Uninsured Motor Vehicle--means:

" * * * * *

"3. a 'phantom motor vehicle' which is a land motor vehicle:

"a. whose owner or driver remains unknown;

"b. that causes bodily injury to the insured; and

"c. that does not strike either the insured or the vehicle the insured is occupying.

"There must be proof of the facts of the accident other than the testimony of the insured or any other person who has a claim under this coverage."

(Emphasis supplied and deleted.) The parties agree that the foregoing policy provision is equivalent to the statutory "phantom vehicle" provision in ORS 742.504(2)(g), set out infra. ²

After the accident, all three adults made claims against defendant under the uninsured motorist coverage described above. Defendant denied coverage, and the three adults commenced the present action seeking a declaration that coverage exists. Defendant moved for summary judgment, arguing that plaintiffs could not provide the necessary corroborating evidence of the accident required by the policy and ORS 742.504(2)(g)(B). Subsequently, plaintiff Cung Nguyen sought an order of dismissal with prejudice. The trial court entered a judgment dismissing him from the action with prejudice. Cung Nguyen then testified in a deposition that he released all rights to any claim against defendant for injuries resulting from the accident. Cung also testified that the accident had been caused by the "phantom" truck. The two remaining plaintiffs, Kiem To and Chuc Nguyen, then opposed defendant's motion for summary judgment and moved for summary judgment themselves on the ground that Cung Nguyen's testimony could be used to corroborate their claims. ³ The trial court disagreed with plaintiffs and entered judgment for defendant.

Plaintiffs appealed, arguing that the trial court erred in granting defendant's motion for summary judgment and in denying their motion. The Court of Appeals first noted that the resolution of defendant's motion for summary judgment depended on the proper interpretation of ORS 742.504(2)(g). The court then held that, because "[t]he statute uses the present tense, 'having a claim,' not the past perfect, 'having had a claim,' * * * only the testimony of someone 'having a claim' at the time the testimony is offered is insufficient to corroborate the facts of a phantom vehicle accident." To v. State Farm Mutual Ins., supra, 123 Or.App. at 408, 860 P.2d 294. It followed, the court ruled, that the trial court erred in granting summary judgment to defendant. The Court of Appeals further held, however, that the trial court did not err in denying plaintiffs' motion for summary judgment, because "[a] reasonable factfinder could infer from [information in Cung Nguyen's deposition] that Cung Nguyen was a biased witness." Id. at 411, 860 P.2d 294. Accordingly, the Court of Appeals reversed the judgment in favor of defendant and remanded the case to the trial court. We allowed defendant's petition for review in order to consider the proper interpretation of ORS 742.504(2)(g).

At the outset, we note that, technically, this case involves the interpretation of the "phantom motor vehicle" provision contained in the motor vehicle liability policy issued to plaintiffs by defendant. As previously noted, however, the parties agree that the policy provision is equivalent to the statutory "phantom vehicle" provision in ORS 742.504(2)(g). Accordingly, for the purpose of our analysis, the resolution of this case depends on the proper interpretation of that statute. Cf. Moore v. Mutual of Enumclaw, 317 Or. 235, 244-45, 855 P.2d 626 (1993) (where a provision in an insurance contract is required by the legislature, the intent of the legislature, rather than the intent of the parties, controls).

ORS 742.502 requires motor vehicle liability policies issued in Oregon to include uninsured motorist coverage. Under the statutory coverage provisions set out in ORS 742.504, the insurer promises to compensate the insured for injuries resulting from an accident caused by an "uninsured vehicle." ORS 742.504(1)(a). For purposes of the statutory uninsured motorist coverage, a "phantom vehicle" is an "uninsured vehicle." ORS 742.504(2)(d)(C). To qualify as a "phantom vehicle," a vehicle must meet several requirements, which are set out in ORS 742.504(2)(g). That statute provides:

" 'Phantom vehicle' means a vehicle which causes bodily injury to an insured arising out of a motor vehicle accident which is caused by an automobile which has no physical contact with the insured or the vehicle which the insured is occupying at the time of the accident, provided:

"(A) There cannot be ascertained the identity of either the operator or the owner of such phantom vehicle;

"(B) The facts of such accident can be corroborated by competent evidence other than the testimony of the insured or any person having an uninsured motorist claim resulting from the accident; and

"(C) The insured or someone on behalf of the insured shall have reported the accident within 72 hours to a police, peace or judicial officer, to the Department of Transportation of the State of Oregon or to the equivalent department in the state where the accident occurred, and shall have filed with the insurer within 30 days thereafter a statement under oath that the insured or the legal representative of the insured has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof."

(Emphasis supplied.)

The corroboration requirement in ORS 742.504(2)(g)(B) is the source of the issue in this case. Plaintiffs argue that the phrase "any person having an uninsured motorist claim" refers to a person who, at the time that corroborating testimony is given, still has a claim that could be maintained against the insurer. Under plaintiffs' construction of the statute, Cung Nguyen's testimony is legally sufficient to corroborate their version of the accident and to establish coverage of their claims, because Cung Nguyen is no longer a "person having an uninsured motorist claim resulting from the accident," due to his abandonment of his right to make a claim against defendant. Defendant argues, on the other hand, that the phrase "any person having an uninsured motorist claim" refers to a person who has such a claim at the time of the accident. Under defendant's construction of ORS 742.504(2)(g)(B), Cung Nguyen's testimony is not legally sufficient corroborating evidence because, at the time of the accident, Cung Nguyen was a person "having an uninsured motorist claim resulting from the accident."

In interpreting a statute, this court's task is to determine the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). We begin with the text and context of the statute in question. Id. at 610-11, 859 P.2d 1143. Context includes "other provisions of the same statute and other related statutes." Id. at 611, 859 P.2d 1143.

When read in isolation, the phrase "any person having an uninsured motorist claim" is susceptible to both of the interpretations offered by the parties in this case, because the phrase is not modified by any express temporal qualification. When read in the context of ORS 742.504(2)(g)(B) as a whole, however, the operative phrase is most reasonably read as referring to a person who has an uninsured motorist claim at the time that the applicability of uninsured motorist coverage to the accident in question is being...