IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JACKSON COUNTY ) ) BETTY CHRISTY, ) ) ) )

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1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JACKSON COUNTY BETTY CHRISTY, Plaintiff, vs. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant. Case No: 0-0-L ORDER ON PLAINTIFF S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff filed an Amended Complaint against Defendant for personal injuries/breach of contract on February, 0. Defendant filed an Answer on March, 0. Plaintiff filed a Motion for Partial Summary Judgment with this court on April, 0. Defendant filed a Response to Plaintiff s Motion on June 1, 0. Plaintiff filed a Reply to Defendant s Response on June, 0. Having now reviewed the submissions of the parties, considered points made in oral argument, reviewed applicable authorities and otherwise being familiar with the issues presented, this court enters the following order: The essential and undisputed facts are as follows: Plaintiff was injured in a vehicle collision with an underinsured driver on March, 0. The most Plaintiff could recover from the underinsured tortfeasor was $,000. Defendant submitted a claim for UM/UIM benefits to her own insurer, Defendant. On July 1, 0, Defendant offered its policy limit of $0,000 in UM/UIM benefits to Plaintiff, and Plaintiff rejected the offer on July, 0. ORDER PAGE 1

2 Under ORCP C, the court shall grant a motion for summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to prevail as a matter of law. In this case, Plaintiff s Motion raises three issues: first, whether the policy s exhaustion provision is enforceable; second, whether Plaintiff has an obligation to exhaust; and third, whether tendering payment is an affirmative defense under offset or reduction. As to the first issue, the law regarding exhaustion provisions was stated by the Oregon Supreme Court in Erickson v. Farmers Insurance Company, 1 Or 1, 1 P.d 0 (01: Id. at. We begin with the statutory requirements. ORS.0(1 to (1 sets out a comprehensive model UM/UIM policy of insurance. Vega v. Farmers Insurance, Ore. 1, 0, P.d (. Any UM provisions that are less favorable to an insured than those required under ORS.0(1 to (1 are unenforceable against an insured in Oregon. However, an insurer may add terms to an Oregon policy that are neutral or more favorable to the insured than those required by the statutes. Id. This court must measure so called "escape clauses" that deny or limit the amount of UM/UIM coverage available to an insured for compliance with the relevant provisions of ORS.0(1 to (1. Id. The exhaustion clause at issue in the Hartford Policy states: I. Part C Uninsured Motorists Coverage With respect to section. of the definition of uninsured motor vehicle, we will pay under this coverage only if 1. or. below applies: 1. The limit of liability under any bodily injury liability policies appliable (sic to the uninsured motor vehicle have been exhausted by payment of judgments or settlement; or. A tentative settlement has been made between an insured and the insurer of the insurer of the uninsured motor vehicle and we: a. Have been given prompt written notice of such tentative settlement; and ORDER PAGE

3 b. Advance payment to the insured in an amount equal to the tentative settlement within 0 days after receipt of notification. Hartford Policy, Endorsement A-00-0, p. 1. Defendant claims that the endorsement adds the following amended general provisions to the exhaustion clause: 1 II. Part F General Provisions OUR RIGHT TO RECOVER PAYMENT Our rights do not apply under Paragraph A. with respect to Section. of the definition of uninsured motor vehicle, if we: 1. Have been given prompt written notice of a tentative settlement between an insured and the insurer of an uninsured motor vehicle; and. Fail to advance payment to the insured in an amount equal to the tentative settlement within 0 days after receipt of notification. If we advance payment to the insured in an amount equal to the tentative settlement within 0 days after receipt of notification: 1. That payment will be separate from any amount the insured is entitled to recover under the provisions of Uninsured Motorists Coverage; and. We also have a right to recover the advanced payment. Hartford Policy, Endorsement A-00-0, p.. as follows: Meanwhile, the statutory exhaustion clauses are set forth in ORS.0((d This coverage does not apply with respect to underinsured motorist benefits unless: 1 Part F differs from Part C in two relevant ways. First, Part F applies to the insurer s right to recover payment (subrogation right while Part C applies to the insurer s obligation to pay the insured. This difference is relevant because the provisions in Part F do not trigger the insurer s obligation to pay the insured. Second, Part F states that the insurer loses its right to recover payment if it fails to advance payment to the insured in an amount equal to the tentative settlement within 0 days after receipt of notification. Part C, meanwhile, triggers the insurer s obligation to pay when the insurer advances payment to the insured in an amount equal to the tentative settlement within 0 days after receipt of notification. Again, the difference is relevant because the failure to advance payment applies only to the insurer s subrogation right, not to the insured s right to be paid. Therefore, Part F is not truly an exhaustion provision. ORDER PAGE

4 (A The limits of liability under any bodily injury liability insurance applicable at the time of the accident regarding the injured person have been exhausted by payment of judgments or settlements to the injured person or other injured persons; (B The described limits have been offered in settlement, the insurer has refused consent under paragraph (a of this subsection and the insured protects the insurer's right of subrogation to the claim against the tortfeasor; (C The insured gives credit to the insurer for the unrealized portion of the described liability limits as if the full limits had been received if less than the described limits have been offered in settlement, and the insurer has consented under paragraph (a of this subsection; or (D The insured gives credit to the insurer for the unrealized portion of the described liability limits as if the full limits had been received if less than the described limits have been offered in settlement and, if the insurer has refused consent under paragraph (a of this subsection, the insured protects the insurer's right of subrogation to the claim against the tortfeasor. ORS.0((d. In measuring the Hartford exhaustion clause against compliance with the relevant statutory exhaustion clause, we ask: is the Hartford exhaustion clause less favorable to the insured than the statutory exhaustion clause? Upon a plain reading and comparison of the clauses, the court finds that the Hartford exhaustion clause is less favorable to the insured than the statutory exhaustion clause. First, Plaintiff claims that the Hartford policy does not permit her to settle short with the tortfeasor for less than the available policy limits and then give credit to Plaintiff as if she had received the full limits, and that the statute does. Defendant claims that the provision allowing advance payment in the amount of tentative settlement does permit her to settle short. The court agrees with Defendant. Under the Hartford policy, the insured can settle with the tortfeasor for less than the available policy limits when the tentative settlement amount is less than the available policy limits. The insured can then give credit to the ORDER PAGE

5 insurer as if the full limits had been received. Under the statute, the insured can likewise settle short and give the insurer credit for the unrealized portion. Hartford s advanced payment provision has the same effect as the statute s credit provision. Therefore, the Hartford provision is not less favorable than the statutory provision with respect to settling short. Second, Plaintiff claims that the Hartford policy does not permit her to settle without Hartford s consent, and that the statute does. Defendant claims that the insurer s failure to make an advance payment within 0 days of prompt written notice of the tentative settlement may be the equivalent of failing to consent. The court finds that the Hartford policy is less favorable than the statute on the issue of consent. Under the Hartford policy, the consent issue is uncertain, as the definition of prompt notice is vague. Also, the Hartford provision imposes a 0-day waiting period for the advance payment and fails to require a definitive consent or refusal to consent. Ultimately, the insured is left wondering whether the insurer has refused to consent or merely failed to consent. Under the statute s subsections (B, (C, and (D, the consent issue is more certain. The statute s provisions do not impose any arbitrary waiting-period and require a consent or refusal to consent. Refusing consent and failing to consent are distinct actions, and the insurer s failure to consent is less favorable to the insured than the insurer s refusal to consent. Therefore, the Hartford provision is less favorable than the statutory provision with respect to consent. As a matter of law, the Hartford policy is less favorable to the insured than the statute, and the Hartford exhaustion clause is unenforceable. As to the second issue, Plaintiff s obligation to exhaust, the court denies Plaintiff s motion to the extent that it asks the court to give an advisory opinion. Where the remaining policy terms provide coverage, there is no need to replace the unenforceable provisions. Erickson, 1 Or at. In this case, the remaining terms provide coverage. ORDER PAGE

6 As to the third issue, Defendant s offset or reduction defense, both the Hartford policy and the statute state that UIM benefits shall be reduced by all sums paid; neither refers to amounts tendered. As a matter of law, Defendant s second affirmative defense fails with regards to amounts tendered but not paid. Based on these findings, Plaintiff is entitled to Partial Summary Judgment that the exhaustion provision of the Defendant s policy is not enforceable and that the Defendant s second affirmative defense fails with regards to amounts tendered but not paid. Dated this day of July, cc: Michael Brian Flavio A. Ortiz Daniel L. Harris Circuit Court Judge ORDER PAGE

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