Viking Ins. of Wisconsin v. Popken

• Decision Date: 03 October 1990
• Citation: 102 Or.App. 660,795 P.2d 1091
• Parties: VIKING INSURANCE OF WISCONSIN, a foreign corporation, Appellant, v. Donna May POPKEN, Personal Representative of the Estate of James Leonard Popken; Nicholas H. Coleman; and Adam John Coleman, Respondents. 88-329 CV; CA A62122.
• Court: Oregon Court of Appeals

Page 1091

795 P.2d 1091

102 Or.App. 660

VIKING INSURANCE OF WISCONSIN, a foreign corporation, Appellant, v. Donna May POPKEN, Personal Representative of the Estate of James Leonard Popken; Nicholas H. Coleman; and Adam John Coleman, Respondents.

88-329 CV; CA A62122.

Court of Appeals of Oregon.

Argued and Submitted May 11, 1990.

Decided Aug. 1, 1990.

Reconsideration Denied Oct. 3, 1990.

Joel S. DeVore, Eugene, argued the cause for appellant. With him on the briefs was Luvaas, Cobb, Richards & Fraser, P.C., Eugene.

Blair M. Henderson, Klamath Falls, argued the cause for respondents. With him on the brief was Henderson, Molatore & Klein, Klamath Falls.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Viking Insurance of Wisconsin (plaintiff) brought this action for declaratory relief, seeking a determination of its maximum liability under its insurance contract with Nicholas Coleman. The insurance contract provides for bodily injury liability limits of $25,000 for each person and $50,000 per occurrence. Coleman was a driver in a car accident in which James Popken was killed. ¹ Defendant Donna May Popken brought an action against Coleman on behalf of her husband's estate and on behalf of herself and her two minor children for lost income and loss of consortium. In this action, plaintiff contends that the Popkens' recovery against it is limited to the $25,000 per person maximum, because all of their claims arise out of the injury to Mr. Popken. The trial court held that the Popkens were limited by the $50,000 per occurrence maximum. Plaintiff appeals, and we reverse.

In the insurance contract, plaintiff promises to pay damages for bodily injury or property damage for which the insured is held liable. In a section entitled "Bodily Injury Covered By This Insurance," the contract states:

"This insurance covers bodily injury, including loss of services, sickness, disease or death which results from the injury, caused by a car accident and suffered by any person."

In a section entitled "Limits Of Liability," the contract explains:

"The limit for 'each person' is the limit for all claims by all persons for damages from bodily injury to one person. The limit for 'each occurrence' is the total limit for all claims for damages from bodily injury to two or more people in any one car accident."

The trial court reasoned that, under the contract, loss of services to James Popken's survivors is a bodily injury, so the "each occurrence" maximum applies.

To support the trial court's reasoning, defendants rely on Allstate Ins. Co. v. Handegard, 70 Or.App. 262, 688 P.2d 1387, rev. den. 298 Or. 704, 695 P.2d 1371 (1984), in which the insurance contract defined "bodily injury" to include loss of services. The policy provided:

" 'Allstate will pay for all damages a person insured is legally obligated to pay--because of bodily injury * * * meaning:

" '(1) Bodily injury, sickness, disease or death to any person, including loss of services; * * *. (Emphasis supplied.)' " 70 Or.App. at 264, 688 P.2d 1387.

We said:

"When a policy of insurance defines terms in a manner which differs from the ordinary understanding of those terms, the policy definition controls. * * * This policy does just that when it defines loss of services as a form of bodily injury." 70 Or.App. at 266, 688 P.2d 1387. (Citations omitted.)

Contrary to defendants'...