Chapter 328
AN ACT
SB 256
Relating to arbitration of motor vehicle liability disputes; creating
new provisions; and amending ORS 742.504, 742.520 and 742.522.
Be It Enacted by the People of
the State of
SECTION 1. Sections 2 and 3 of this 2007 Act are added
to and made a part of ORS chapter 742.
SECTION 2. Unless the parties agree otherwise,
arbitration proceedings under ORS 742.504 shall be conducted as follows:
(1) Parties to an
arbitration proceeding shall submit the dispute to arbitration by a panel of
three arbitrators. The panel shall consist of one arbitrator chosen by each
party and one arbitrator chosen by the two arbitrators previously chosen to sit
on the panel.
(2) An arbitration
proceeding shall be conducted under local court rules in the county where the
arbitration is held.
SECTION 3. (1) Arbitration proceedings under ORS
742.520 shall be conducted under local court rules in the county where the
arbitration is held.
(2) Findings and awards
made in an arbitration proceeding under this section:
(a) Are binding on the
parties to the arbitration proceeding;
(b) Are not binding on
any other party; and
(c) May not be used for
the purpose of collateral estoppel.
SECTION 4. Section 2 of this 2007 Act is repealed on
January 2, 2012.
SECTION 5. ORS 742.504 is amended to read:
742.504. Every policy
required to provide the coverage specified in ORS 742.502 shall provide
uninsured motorist coverage that in each instance is no less favorable in any
respect to the insured or the beneficiary than if the following provisions were
set forth in the policy. However, nothing contained in this section requires
the insurer to reproduce in the policy the particular language of any of the
following provisions:
(1)(a) The insurer will
pay all sums that the insured, the heirs or the legal representative of the
insured is legally entitled to recover as general and special damages from the
owner or operator of an uninsured vehicle because of bodily injury sustained by
the insured caused by accident and arising out of the ownership, maintenance or
use of the uninsured vehicle. Determination as to whether the insured, the
insured’s heirs or the insured’s legal representative is legally entitled to
recover such damages, and if so, the amount thereof, shall be made by agreement
between the insured and the insurer, or, in the event of disagreement, may be
determined by arbitration as provided in subsection (10) of this section.
(b) No judgment against
any person or organization alleged to be legally responsible for bodily injury,
except for proceedings instituted against the insurer as provided in this
policy, shall be conclusive, as between the insured
and the insurer, on the issues of liability of the person or organization or of
the amount of damages to which the insured is legally entitled.
(2) As used in this
policy:
(a) “Bodily injury”
means bodily injury, sickness or disease, including death resulting therefrom.
(b) “Hit-and-run vehicle”
means a vehicle that causes bodily injury to an insured arising out of physical
contact of the vehicle with the insured or with a vehicle the insured is
occupying at the time of the accident, provided:
(A) The identity of
either the operator or the owner of the hit-and-run vehicle cannot be ascertained;
(B) The insured or
someone on behalf of the insured reported the accident within 72 hours to a
police, peace or judicial officer, to the Department of Transportation or to
the equivalent department in the state where the accident occurred, and 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 the accident for damages against a person or persons
whose identities are unascertainable, and setting forth the facts in support
thereof; and
(C) At the insurer’s
request, the insured or the legal representative of the insured makes available
for inspection the vehicle the insured was occupying at the time of the
accident.
(c) “Insured,” when
unqualified and when applied to uninsured motorist coverage, means:
(A) The named insured as
stated in the policy and any person designated as named insured in the schedule
and, while residents of the same household, the spouse of any named insured and
relatives of either, provided that neither the relative nor the spouse is the
owner of a vehicle not described in the policy and that, if the named insured
as stated in the policy is other than an individual or husband and wife who are
residents of the same household, the named insured shall be only a person so
designated in the schedule;
(B) Any child residing
in the household of the named insured if the insured has performed the duties
of a parent to the child by rearing the child as the insured’s own although the
child is not related to the insured by blood, marriage or adoption; and
(C) Any other person
while occupying an insured vehicle, provided the
actual use thereof is with the permission of the named insured.
(d) “Insured vehicle,”
except as provided in paragraph (e) of this provision, means:
(A) The vehicle
described in the policy or a newly acquired or substitute vehicle, as each of
those terms is defined in the public liability coverage of the policy, insured
under the public liability provisions of the policy; or
(B) A nonowned vehicle
operated by the named insured or spouse if a resident of the same household,
provided that the actual use thereof is with the permission of the owner of the
vehicle and the vehicle is not owned by nor furnished for the regular or
frequent use of the insured or any member of the same household.
(e) “Insured vehicle”
does not include a trailer of any type unless the trailer is a described
vehicle in the policy.
(f) “Occupying” means in
or upon or entering into or alighting from.
(g) “Phantom vehicle”
means a vehicle that causes bodily injury to an insured arising out of a motor
vehicle accident that is caused by a vehicle that has no physical contact with
the insured or the vehicle the insured is occupying at the time of the
accident, provided:
(A) The identity of
either the operator or the owner of the phantom vehicle cannot be ascertained;
(B) The facts of the
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 reported the accident within 72 hours to a
police, peace or judicial officer, to the Department of Transportation or to
the equivalent department in the state where the accident occurred, and 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 the accident for damages against a person or persons
whose identities are unascertainable, and setting forth the facts in support
thereof.
(h) “State” includes the
(i) “Stolen vehicle”
means an insured vehicle that causes bodily injury to the insured arising out
of a motor vehicle accident if:
(A) The vehicle is
operated without the consent of the insured;
(B) The operator of the
vehicle does not have collectible motor vehicle bodily injury liability
insurance;
(C) The insured or
someone on behalf of the insured reported the accident within 72 hours to a
police, peace or judicial officer or to the equivalent department in the state
where the accident occurred; and
(D) The insured or
someone on behalf of the insured cooperates with the appropriate law
enforcement agency in the prosecution of the theft of the vehicle.
(j) “Uninsured vehicle,”
except as provided in paragraph (k) of this provision, means:
(A) A vehicle with
respect to the ownership, maintenance or use of which there is no collectible
motor vehicle bodily injury liability insurance, in at least the amounts or
limits prescribed for bodily injury or death under ORS 806.070 applicable at
the time of the accident with respect to any person or organization legally
responsible for the use of the vehicle, or with respect to which there is
collectible bodily injury liability insurance applicable at the time of the
accident but the insurance company writing the insurance denies coverage or the
company writing the insurance becomes voluntarily or involuntarily declared
bankrupt or for which a receiver is appointed or becomes insolvent. It shall be
a disputable presumption that a vehicle is uninsured in the event the insured
and the insurer, after reasonable efforts, fail to discover within 90 days from
the date of the accident, the existence of a valid and
collectible motor vehicle bodily injury liability insurance applicable at the
time of the accident.
(B) A hit-and-run
vehicle.
(C) A phantom vehicle.
(D) A stolen vehicle.
(k) “Uninsured vehicle”
does not include:
(A) An insured vehicle,
unless the vehicle is a stolen vehicle;
(B) A vehicle that is
owned or operated by a self-insurer within the meaning of any motor vehicle
financial responsibility law, motor carrier law or any similar law;
(C) A vehicle that is
owned by the United States of America, Canada, a state, a political subdivision
of any such government or an agency of any such government;
(D) A land motor vehicle
or trailer, if operated on rails or crawler-treads or while located for use as
a residence or premises and not as a vehicle;
(E) A farm-type tractor
or equipment designed for use principally off public roads, except while
actually upon public roads; or
(F) A vehicle owned by
or furnished for the regular or frequent use of the insured or any member of
the household of the insured.
(L) “Vehicle” means
every device in, upon or by which any person or property is or may be
transported or drawn upon a public highway, but does not include devices moved
by human power or used exclusively upon stationary rails or tracks.
(3) This coverage
applies only to accidents that occur on and after the effective date of the
policy, during the policy period and within the
(4)(a) This coverage
does not apply to bodily injury of an insured with respect to which the insured
or the legal representative of the insured shall, without the written consent
of the insurer, make any settlement with or prosecute to judgment any action
against any person or organization who may be legally liable therefor.
(b) This coverage does
not apply to bodily injury to an insured while occupying a vehicle, other than
an insured vehicle, owned by, or furnished for the regular use of, the named
insured or any relative resident in the same household, or through being struck
by the vehicle.
(c) This coverage does
not apply so as to inure directly or indirectly to the benefit of any workers’
compensation carrier, any person or organization qualifying as a self-insurer
under any workers’ compensation or disability benefits law or any similar law
or the State Accident Insurance Fund Corporation.
(d) This coverage does
not apply with respect to underinsured motorist benefits unless:
(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.
(e) When seeking consent
under paragraph (a) or (d) of this subsection, the insured shall allow the
insurer a reasonable time in which to collect and evaluate information related
to consent to the proposed offer of settlement. The insured shall provide
promptly to the insurer any information that is reasonably requested by the
insurer and that is within the custody and control of the insured. Consent will
be presumed to be given if the insurer does not respond within a reasonable
time. For purposes of this paragraph, a “reasonable time” is no more than 30
days from the insurer’s receipt of a written request for consent, unless the
insured and the insurer agree otherwise.
(5)(a) As soon as
practicable, the insured or other person making claim shall give to the insurer
written proof of claim, under oath if required, including full particulars of
the nature and extent of the injuries, treatment and other details entering
into the determination of the amount payable hereunder. The insured and every
other person making claim hereunder shall submit to examinations under oath by
any person named by the insurer and subscribe the same, as often as may
reasonably be required. Proof of claim shall be made upon forms furnished by
the insurer unless the insurer fails to furnish the forms within 15 days after
receiving notice of claim.
(b) Upon reasonable
request of and at the expense of the insurer, the injured person shall submit
to physical examinations by physicians selected by the insurer and shall, upon
each request from the insurer, execute authorization to enable the insurer to
obtain medical reports and copies of records.
(6) If, before the
insurer makes payment of loss hereunder, the insured or the legal
representative of the insured institutes any legal action for bodily injury
against any person or organization legally responsible for the use of a vehicle
involved in the accident, a copy of the summons and complaint or other process
served in connection with the legal action shall be forwarded immediately to
the insurer by the insured or the legal representative of the insured.
(7)(a) The limit of
liability stated in the declarations as applicable to “each person” is the
limit of the insurer’s liability for all damages because of bodily injury
sustained by one person as the result of any one accident and, subject to the
above provision respecting each person, the limit of liability stated in the
declarations as applicable to “each accident” is the total limit of the company’s
liability for all damages because of bodily injury sustained by two or more
persons as the result of any one accident.
(b) Any payment made
under this coverage to or for an insured shall be applied in reduction of any
amount that the insured may be entitled to recover from any person who is an
insured under the bodily injury liability coverage of this policy.
(c) Any amount payable
under the terms of this coverage because of bodily injury sustained in an
accident by a person who is an insured under this coverage shall be reduced by:
(A) All sums paid on
account of the bodily injury by or on behalf of the owner or operator of the
uninsured vehicle and by or on behalf of any other person or organization
jointly or severally liable together with the owner or operator for the bodily
injury, including all sums paid under the bodily injury liability coverage of
the policy; and
(B) The amount paid and
the present value of all amounts payable on account of the bodily injury under
any workers’ compensation law, disability benefits law or any similar law.
(d) Any amount payable
under the terms of this coverage because of bodily injury sustained in an
accident by a person who is an insured under this coverage shall be reduced by
the credit given to the insurer pursuant to subsection (4)(d)(C) or (D) of this
section.
(e) The amount payable
under the terms of this coverage may not be reduced by the amount of liability
proceeds offered, described in subsection (4)(d)(B) or (D) of this section,
that has not been paid to the injured person. If liability proceeds have been
offered and not paid, the amount payable under the terms of the coverage shall
include the amount of liability limits offered but not accepted due to the
insurer’s refusal to consent. The insured shall cooperate so as to permit the
insurer to proceed by subrogation or assignment to prosecute the claim against
the uninsured motorist.
(8) No action shall lie
against the insurer unless, as a condition precedent thereto, the insured or
the legal representative of the insured has fully complied with all the terms
of this policy.
(9)(a) With respect to
bodily injury to an insured:
(A) While occupying a
vehicle owned by a named insured under this coverage, the insurance under this
coverage is primary.
(B) While occupying a
vehicle not owned by a named insured under this coverage, the insurance under
this coverage shall apply only as excess insurance over any primary insurance
available to the occupant that is similar to this coverage, and this excess
insurance shall then apply only in the amount by which the applicable limit of
liability of this excess coverage exceeds the sum of the applicable limits of
liability of all primary insurance available to the occupant.
(b) If an insured is an
insured under other primary or excess insurance available to the insured that
is similar to this coverage, then the insured’s damages are deemed not to
exceed the higher of the applicable limits of liability of the additional
primary or excess insurance available to the insured, and the insurer is not
liable under this coverage for a greater proportion of the insured’s damages
than the applicable limit of liability of this coverage bears to the sum of the
applicable limits of liability of this insurance and other primary or excess
insurance available to the insured.
(c) With respect to
bodily injury to an insured while occupying any motor vehicle used as a public
or livery conveyance, the insurance under this coverage shall apply only as
excess insurance over any other insurance available to the insured that is
similar to this coverage, and this insurance shall then apply only in the
amount by which the applicable limit of liability of this coverage exceeds the
sum of the applicable limits of liability of all other insurance.
(10) If any person
making claim hereunder and the insurer do not agree that the person is legally
entitled to recover damages from the owner or operator of an uninsured vehicle
because of bodily injury to the insured, or do not agree as to the amount of
payment that may be owing under this coverage, then, in the event the insured
and the insurer elect by mutual agreement at the time of the dispute to settle
the matter by arbitration, the arbitration shall take place [under the arbitration laws of the State of
Oregon or, if the parties agree, according to any other procedure] as
described in section 2 of this 2007 Act. Any judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof, provided, however, that the costs to the insured of the arbitration
proceeding do not exceed $100 and that all other costs of arbitration are borne
by the insurer. “Costs” as used in this provision does not include attorney
fees or expenses incurred in the production of evidence or witnesses or the
making of transcripts of the arbitration proceedings. The person and the
insurer each agree to consider themselves bound and to be bound by any award
made by the arbitrators pursuant to this coverage in the event of such
election. At the election of the insured, the arbitration shall be held:
(a) In the county and
state of residence of the insured;
(b) In the county and
state where the insured’s cause of action against the uninsured motorist arose;
or
(c) At any other place
mutually agreed upon by the insured and the insurer.
(11) In the event of
payment to any person under this coverage:
(a) The insurer shall be
entitled to the extent of the payment to the proceeds of any settlement or
judgment that may result from the exercise of any rights of recovery of the
person against any uninsured motorist legally responsible for the bodily injury
because of which payment is made;
(b) The person shall
hold in trust for the benefit of the insurer all rights of recovery that the
person shall have against such other uninsured person or organization because
of the damages that are the subject of claim made under this coverage, but only
to the extent that the claim is made or paid herein;
(c) If the insured is
injured by the joint or concurrent act or acts of two or more persons, one or
more of whom is uninsured, the insured shall have the election to receive from
the insurer any payment to which the insured would be entitled under this
coverage by reason of the act or acts of the uninsured motorist, or the insured
may, with the written consent of the insurer, proceed with legal action against
any or all persons claimed to be liable to the insured for the injuries. If the
insured elects to receive payment from the insurer under this coverage, then
the insured shall hold in trust for the benefit of the insurer all rights of
recovery the insured shall have against any other person, firm or organization
because of the damages that are the subject of claim made under this coverage,
but only to the extent of the actual payment made by the insurer;
(d) The person shall do
whatever is proper to secure and shall do nothing after loss to prejudice such
rights;
(e) If requested in
writing by the insurer, the person shall take, through any representative not
in conflict in interest with the person, designated by the insurer, such action
as may be necessary or appropriate to recover payment as damages from such
other uninsured person or organization, such action to be taken in the name of
the person, but only to the extent of the payment made hereunder. In the event
of a recovery, the insurer shall be reimbursed out of the recovery for
expenses, costs and attorney fees incurred by the insurer in connection
therewith; and
(f) The person shall
execute and deliver to the insurer any instruments and papers as may be
appropriate to secure the rights and obligations of the person and the insurer
established by this provision.
(12)(a) The parties to
this coverage agree that no cause of action shall accrue to the insured under
this coverage unless within two years from the date of the accident:
(A) Agreement as to the
amount due under the policy has been concluded;
(B) The insured or the
insurer has formally instituted arbitration proceedings;
(C) The insured has
filed an action against the insurer; or
(D) Suit for bodily
injury has been filed against the uninsured motorist and, within two years from
the date of settlement or final judgment against the uninsured motorist, the
insured has formally instituted arbitration proceedings or filed an action
against the insurer.
(b) For purposes of this
subsection:
(A) “Date of settlement”
means the date on which a written settlement agreement or release is signed by
an insured or, in the absence of these documents, the date on which the insured
or the attorney for the insured receives payment of any sum required by the
settlement agreement. An advance payment as defined in ORS 31.550 shall not be
deemed a payment of a settlement for purposes of the time limitation in this
subsection.
(B) “Final judgment”
means a judgment that has become final by lapse of time for appeal or by entry
in an appellate court of an appellate judgment.
SECTION 6. ORS 742.504, as amended by section 5 of this
2007 Act, is amended to read:
742.504. Every policy
required to provide the coverage specified in ORS 742.502 shall provide
uninsured motorist coverage that in each instance is no less favorable in any
respect to the insured or the beneficiary than if the following provisions were
set forth in the policy. However, nothing contained in this section requires
the insurer to reproduce in the policy the particular language of any of the
following provisions:
(1)(a) The insurer will
pay all sums that the insured, the heirs or the legal representative of the
insured is legally entitled to recover as general and special damages from the
owner or operator of an uninsured vehicle because of bodily injury sustained by
the insured caused by accident and arising out of the ownership, maintenance or
use of the uninsured vehicle. Determination as to whether the insured, the
insured’s heirs or the insured’s legal representative is legally entitled to
recover such damages, and if so, the amount thereof, shall be made by agreement
between the insured and the insurer, or, in the event of disagreement, may be
determined by arbitration as provided in subsection (10) of this section.
(b) No judgment against
any person or organization alleged to be legally responsible for bodily injury,
except for proceedings instituted against the insurer as provided in this
policy, shall be conclusive, as between the insured and the insurer, on the
issues of liability of the person or organization or of the amount of damages
to which the insured is legally entitled.
(2) As used in this
policy:
(a) “Bodily injury”
means bodily injury, sickness or disease, including death resulting therefrom.
(b) “Hit-and-run vehicle”
means a vehicle that causes bodily injury to an insured arising out of physical
contact of the vehicle with the insured or with a vehicle the insured is
occupying at the time of the accident, provided:
(A) The identity of
either the operator or the owner of the hit-and-run vehicle cannot be
ascertained;
(B) The insured or
someone on behalf of the insured reported the accident within 72 hours to a
police, peace or judicial officer, to the Department of Transportation or to
the equivalent department in the state where the accident occurred, and 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 the accident for damages against a person or persons
whose identities are unascertainable, and setting forth the facts in support
thereof; and
(C) At the insurer’s
request, the insured or the legal representative of the insured makes available
for inspection the vehicle the insured was occupying at the time of the
accident.
(c) “Insured,” when
unqualified and when applied to uninsured motorist coverage, means:
(A) The named insured as
stated in the policy and any person designated as named insured in the schedule
and, while residents of the same household, the spouse of any named insured and
relatives of either, provided that neither the relative nor the spouse is the
owner of a vehicle not described in the policy and that, if the named insured
as stated in the policy is other than an individual or husband and wife who are
residents of the same household, the named insured shall be only a person so
designated in the schedule;
(B) Any child residing
in the household of the named insured if the insured has performed the duties
of a parent to the child by rearing the child as the insured’s own although the
child is not related to the insured by blood, marriage or adoption; and
(C) Any other person
while occupying an insured vehicle, provided the
actual use thereof is with the permission of the named insured.
(d) “Insured vehicle,”
except as provided in paragraph (e) of this provision, means:
(A) The vehicle
described in the policy or a newly acquired or substitute vehicle, as each of
those terms is defined in the public liability coverage of the policy, insured
under the public liability provisions of the policy; or
(B) A nonowned vehicle
operated by the named insured or spouse if a resident of the same household,
provided that the actual use thereof is with the permission of the owner of the
vehicle and the vehicle is not owned by nor furnished for the regular or
frequent use of the insured or any member of the same household.
(e) “Insured vehicle”
does not include a trailer of any type unless the trailer is a described
vehicle in the policy.
(f) “Occupying” means in
or upon or entering into or alighting from.
(g) “Phantom vehicle”
means a vehicle that causes bodily injury to an insured arising out of a motor
vehicle accident that is caused by a vehicle that has no physical contact with
the insured or the vehicle the insured is occupying at the time of the
accident, provided:
(A) The identity of
either the operator or the owner of the phantom vehicle cannot be ascertained;
(B) The facts of the
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 reported the accident within 72 hours to a
police, peace or judicial officer, to the Department of Transportation or to
the equivalent department in the state where the accident occurred, and 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 the accident for damages against a person or persons
whose identities are unascertainable, and setting forth the facts in support
thereof.
(h) “State” includes the
(i) “Stolen vehicle”
means an insured vehicle that causes bodily injury to the insured arising out
of a motor vehicle accident if:
(A) The vehicle is
operated without the consent of the insured;
(B) The operator of the
vehicle does not have collectible motor vehicle bodily injury liability
insurance;
(C) The insured or
someone on behalf of the insured reported the accident within 72 hours to a
police, peace or judicial officer or to the equivalent department in the state
where the accident occurred; and
(D) The insured or
someone on behalf of the insured cooperates with the appropriate law
enforcement agency in the prosecution of the theft of the vehicle.
(j) “Uninsured vehicle,”
except as provided in paragraph (k) of this provision, means:
(A) A vehicle with
respect to the ownership, maintenance or use of which there is no collectible
motor vehicle bodily injury liability insurance, in at least the amounts or
limits prescribed for bodily injury or death under ORS 806.070 applicable at
the time of the accident with respect to any person or organization legally
responsible for the use of the vehicle, or with respect to which there is
collectible bodily injury liability insurance applicable at the time of the
accident but the insurance company writing the insurance denies coverage or the
company writing the insurance becomes voluntarily or involuntarily declared
bankrupt or for which a receiver is appointed or becomes insolvent. It shall be
a disputable presumption that a vehicle is uninsured in the event the insured
and the insurer, after reasonable efforts, fail to discover within 90 days from
the date of the accident, the existence of a valid and
collectible motor vehicle bodily injury liability insurance applicable at the
time of the accident.
(B) A hit-and-run
vehicle.
(C) A phantom vehicle.
(D) A stolen vehicle.
(k) “Uninsured vehicle”
does not include:
(A) An insured vehicle,
unless the vehicle is a stolen vehicle;
(B) A vehicle that is
owned or operated by a self-insurer within the meaning of any motor vehicle
financial responsibility law, motor carrier law or any similar law;
(C) A vehicle that is
owned by the United States of America, Canada, a state, a political subdivision
of any such government or an agency of any such government;
(D) A land motor vehicle
or trailer, if operated on rails or crawler-treads or while located for use as
a residence or premises and not as a vehicle;
(E) A farm-type tractor
or equipment designed for use principally off public roads, except while
actually upon public roads; or
(F) A vehicle owned by
or furnished for the regular or frequent use of the insured or any member of
the household of the insured.
(L) “Vehicle” means
every device in, upon or by which any person or property is or may be
transported or drawn upon a public highway, but does not include devices moved
by human power or used exclusively upon stationary rails or tracks.
(3) This coverage
applies only to accidents that occur on and after the effective date of the
policy, during the policy period and within the
(4)(a) This coverage
does not apply to bodily injury of an insured with respect to which the insured
or the legal representative of the insured shall, without the written consent
of the insurer, make any settlement with or prosecute to judgment any action
against any person or organization who may be legally liable therefor.
(b) This coverage does
not apply to bodily injury to an insured while occupying a vehicle, other than
an insured vehicle, owned by, or furnished for the regular use of, the named
insured or any relative resident in the same household, or through being struck
by the vehicle.
(c) This coverage does
not apply so as to inure directly or indirectly to the benefit of any workers’
compensation carrier, any person or organization qualifying as a self-insurer
under any workers’ compensation or disability benefits law or any similar law
or the State Accident Insurance Fund Corporation.
(d) This coverage does
not apply with respect to underinsured motorist benefits unless:
(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.
(e) When seeking consent
under paragraph (a) or (d) of this subsection, the insured shall allow the
insurer a reasonable time in which to collect and evaluate information related
to consent to the proposed offer of settlement. The insured shall provide promptly
to the insurer any information that is reasonably requested by the insurer and
that is within the custody and control of the insured. Consent will be presumed
to be given if the insurer does not respond within a reasonable time. For
purposes of this paragraph, a “reasonable time” is no more than 30 days from
the insurer’s receipt of a written request for consent, unless the insured and
the insurer agree otherwise.
(5)(a) As soon as
practicable, the insured or other person making claim shall give to the insurer
written proof of claim, under oath if required, including full particulars of
the nature and extent of the injuries, treatment and other details entering
into the determination of the amount payable hereunder. The insured and every
other person making claim hereunder shall submit to examinations under oath by
any person named by the insurer and subscribe the same, as often as may
reasonably be required. Proof of claim shall be made upon forms furnished by
the insurer unless the insurer fails to furnish the forms within 15 days after
receiving notice of claim.
(b) Upon reasonable
request of and at the expense of the insurer, the injured person shall submit
to physical examinations by physicians selected by the insurer and shall, upon
each request from the insurer, execute authorization to enable the insurer to
obtain medical reports and copies of records.
(6) If, before the
insurer makes payment of loss hereunder, the insured or the legal
representative of the insured institutes any legal action for bodily injury
against any person or organization legally responsible for the use of a vehicle
involved in the accident, a copy of the summons and complaint or other process
served in connection with the legal action shall be forwarded immediately to
the insurer by the insured or the legal representative of the insured.
(7)(a) The limit of
liability stated in the declarations as applicable to “each person” is the
limit of the insurer’s liability for all damages because of bodily injury
sustained by one person as the result of any one accident and, subject to the
above provision respecting each person, the limit of liability stated in the
declarations as applicable to “each accident” is the total limit of the company’s
liability for all damages because of bodily injury sustained by two or more
persons as the result of any one accident.
(b) Any payment made
under this coverage to or for an insured shall be applied in reduction of any
amount that the insured may be entitled to recover from any person who is an insured
under the bodily injury liability coverage of this policy.
(c) Any amount payable
under the terms of this coverage because of bodily injury sustained in an
accident by a person who is an insured under this coverage shall be reduced by:
(A) All sums paid on
account of the bodily injury by or on behalf of the owner or operator of the
uninsured vehicle and by or on behalf of any other person or organization
jointly or severally liable together with the owner or operator for the bodily
injury, including all sums paid under the bodily injury liability coverage of
the policy; and
(B) The amount paid and
the present value of all amounts payable on account of the bodily injury under
any workers’ compensation law, disability benefits law or any similar law.
(d) Any amount payable
under the terms of this coverage because of bodily injury sustained in an
accident by a person who is an insured under this coverage shall be reduced by
the credit given to the insurer pursuant to subsection (4)(d)(C) or (D) of this
section.
(e) The amount payable
under the terms of this coverage may not be reduced by the amount of liability
proceeds offered, described in subsection (4)(d)(B) or (D) of this section,
that has not been paid to the injured person. If liability proceeds have been
offered and not paid, the amount payable under the terms of the coverage shall
include the amount of liability limits offered but not accepted due to the
insurer’s refusal to consent. The insured shall cooperate so as to permit the
insurer to proceed by subrogation or assignment to prosecute the claim against
the uninsured motorist.
(8) No action shall lie
against the insurer unless, as a condition precedent thereto, the insured or
the legal representative of the insured has fully complied with all the terms
of this policy.
(9)(a) With respect to
bodily injury to an insured:
(A) While occupying a
vehicle owned by a named insured under this coverage, the insurance under this
coverage is primary.
(B) While occupying a
vehicle not owned by a named insured under this coverage, the insurance under
this coverage shall apply only as excess insurance over any primary insurance
available to the occupant that is similar to this coverage, and this excess
insurance shall then apply only in the amount by which the applicable limit of
liability of this excess coverage exceeds the sum of the applicable limits of
liability of all primary insurance available to the occupant.
(b) If an insured is an
insured under other primary or excess insurance available to the insured that
is similar to this coverage, then the insured’s damages are deemed not to
exceed the higher of the applicable limits of liability of the additional
primary or excess insurance available to the insured, and the insurer is not
liable under this coverage for a greater proportion of the insured’s damages
than the applicable limit of liability of this coverage bears to the sum of the
applicable limits of liability of this insurance and other primary or excess
insurance available to the insured.
(c) With respect to
bodily injury to an insured while occupying any motor vehicle used as a public
or livery conveyance, the insurance under this coverage shall apply only as
excess insurance over any other insurance available to the insured that is similar
to this coverage, and this insurance shall then apply only in the amount by
which the applicable limit of liability of this coverage exceeds the sum of the
applicable limits of liability of all other insurance.
(10) If any person
making claim hereunder and the insurer do not agree that the person is legally
entitled to recover damages from the owner or operator of an uninsured vehicle
because of bodily injury to the insured, or do not agree as to the amount of
payment that may be owing under this coverage, then, in the event the insured
and the insurer elect by mutual agreement at the time of the dispute to settle
the matter by arbitration, the arbitration shall take place [as described in section 2 of this 2007 Act]
under the arbitration laws of the State of Oregon or, if the parties agree,
according to any other procedure. Any judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof,
provided, however, that the costs to the insured of the arbitration proceeding
do not exceed $100 and that all other costs of arbitration are borne by the
insurer. “Costs” as used in this provision does not include attorney fees or
expenses incurred in the production of evidence or witnesses or the making of
transcripts of the arbitration proceedings. The person and the insurer each
agree to consider themselves bound and to be bound by any award made by the
arbitrators pursuant to this coverage in the event of such election. At the
election of the insured, the arbitration shall be held:
(a) In the county and
state of residence of the insured;
(b) In the county and
state where the insured’s cause of action against the uninsured motorist arose;
or
(c) At any other place
mutually agreed upon by the insured and the insurer.
(11) In the event of
payment to any person under this coverage:
(a) The insurer shall be
entitled to the extent of the payment to the proceeds of any settlement or
judgment that may result from the exercise of any rights of recovery of the
person against any uninsured motorist legally responsible for the bodily injury
because of which payment is made;
(b) The person shall
hold in trust for the benefit of the insurer all rights of recovery that the
person shall have against such other uninsured person or organization because
of the damages that are the subject of claim made under this coverage, but only
to the extent that the claim is made or paid herein;
(c) If the insured is
injured by the joint or concurrent act or acts of two or more persons, one or
more of whom is uninsured, the insured shall have the election to receive from
the insurer any payment to which the insured would be entitled under this
coverage by reason of the act or acts of the uninsured motorist, or the insured
may, with the written consent of the insurer, proceed with legal action against
any or all persons claimed to be liable to the insured for the injuries. If the
insured elects to receive payment from the insurer under this coverage, then
the insured shall hold in trust for the benefit of the insurer all rights of
recovery the insured shall have against any other person, firm or organization
because of the damages that are the subject of claim made under this coverage,
but only to the extent of the actual payment made by the insurer;
(d) The person shall do
whatever is proper to secure and shall do nothing after loss to prejudice such
rights;
(e) If requested in
writing by the insurer, the person shall take, through any representative not
in conflict in interest with the person, designated by the insurer, such action
as may be necessary or appropriate to recover payment as damages from such
other uninsured person or organization, such action to be taken in the name of
the person, but only to the extent of the payment made hereunder. In the event
of a recovery, the insurer shall be reimbursed out of the recovery for
expenses, costs and attorney fees incurred by the insurer in connection
therewith; and
(f) The person shall
execute and deliver to the insurer any instruments and papers as may be
appropriate to secure the rights and obligations of the person and the insurer
established by this provision.
(12)(a) The parties to
this coverage agree that no cause of action shall accrue to the insured under
this coverage unless within two years from the date of the accident:
(A) Agreement as to the
amount due under the policy has been concluded;
(B) The insured or the
insurer has formally instituted arbitration proceedings;
(C) The insured has
filed an action against the insurer; or
(D) Suit for bodily
injury has been filed against the uninsured motorist and, within two years from
the date of settlement or final judgment against the uninsured motorist, the
insured has formally instituted arbitration proceedings or filed an action
against the insurer.
(b) For purposes of this
subsection:
(A) “Date of settlement”
means the date on which a written settlement agreement or release is signed by
an insured or, in the absence of these documents, the date on which the insured
or the attorney for the insured receives payment of any sum required by the
settlement agreement. An advance payment as defined in ORS 31.550 shall not be
deemed a payment of a settlement for purposes of the time limitation in this
subsection.
(B) “Final judgment”
means a judgment that has become final by lapse of time for appeal or by entry
in an appellate court of an appellate judgment.
SECTION 7. The amendments to ORS 742.504 by section 6
of this 2007 Act become operative on January 2, 2012.
SECTION 8. ORS 742.520 is amended to read:
742.520. (1) Every motor
vehicle liability policy issued for delivery in this state that covers any
private passenger motor vehicle shall provide personal injury protection
benefits to the person insured thereunder, members of that person’s family
residing in the same household, children not related to the insured by blood,
marriage or adoption who are residing in the same household as the insured and
being reared as the insured’s own, passengers occupying the insured motor
vehicle and pedestrians struck by the insured motor vehicle.
(2) Personal injury
protection benefits apply to a person’s injury or death resulting:
(a) In the case of the
person insured under the policy and members of that person’s family residing in
the same household, from the use, occupancy or maintenance of any motor
vehicle, except the following vehicles:
(A) A motor vehicle,
including a motorcycle or moped, that is owned or furnished or available for
regular use by any of such persons and that is not described in the policy;
(B) A motorcycle or
moped which is not owned by any of such persons, but this exclusion applies
only when the injury or death results from such person’s operating or riding
upon the motorcycle or moped; and
(C) A motor vehicle not
included in subparagraph (A) or (B) of this paragraph and not a private
passenger motor vehicle. However, this exclusion applies only when the injury
or death results from such person’s operating or occupying the motor vehicle.
(b) In the case of a
passenger occupying or a pedestrian struck by the insured motor vehicle, from
the use, occupancy or maintenance of the vehicle.
(3) Personal injury
protection benefits consist of payments for expenses, loss of income and loss
of essential services as provided in ORS 742.524.
(4) An insurer shall pay
all personal injury protection benefits promptly after proof of loss has been
submitted to the insurer.
(5) The potential
existence of a cause of action in tort does not relieve an insurer from the
duty to pay personal injury protection benefits.
(6) Disputes between
insurers and beneficiaries about the amount of personal injury protection
benefits, or about the denial of personal injury protection benefits, shall be
decided by arbitration if mutually agreed to at the time of the dispute. Arbitration
under this subsection shall take place as described in section 3 of this 2007
Act.
(7) An insurer:
(a) May not enter into
or renew any contract that provides, or has the effect of providing, managed
care services to beneficiaries.
(b) May enter into or
renew any contract that provides evaluation services for beneficiaries.
SECTION 9. ORS 742.522 is amended to read:
742.522. [(1) Arbitration under ORS 742.520 (6) is
binding on the parties to the arbitration.]
[(2)] (1) Costs to the insured of the arbitration proceeding under
ORS 742.520 (6) shall not exceed $100 and all other costs of arbitration
shall be borne by the insurer.
(2) As used in
this [subsection] section, “costs”
does not include attorney fees or expenses incurred in the production of
evidence or witnesses or the making of transcripts of the arbitration
proceedings.
SECTION 10. Sections 2 and 3 of this 2007 Act and the
amendments to ORS 742.504, 742.520 and 742.522 by sections 5, 8 and 9 of this
2007 Act apply to motor vehicle liability policies issued or renewed on or
after the effective date of this 2007 Act.
SECTION 11. The amendments to ORS 742.504 by section 6
of this 2007 Act apply to motor vehicle liability policies issued or renewed on
or after January 2, 2012.
Approved by the Governor June 11, 2007
Filed in the office of Secretary of State June 13, 2007
Effective date January 1, 2008
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