Chapter 782
AN ACT
HB 3086
Relating to motor vehicle liability insurance; creating new provisions;
and amending ORS 742.450, 742.502 and 742.504.
Be It Enacted by the People of
the State of
SECTION 1.
ORS 742.450 is amended to read:
742.450. (1) Every motor
vehicle liability insurance policy issued for delivery in this state shall
state the name and address of the named insured, the coverage afforded by the
policy, the premium charged therefor, the policy period and the limits of
liability.
(2) Every motor vehicle
liability insurance policy issued for delivery in this state shall contain an
agreement or indorsement stating that, as respects bodily injury and death or
property damage, or both, the insurance provides either:
(a) The coverage
described in ORS 806.070 and 806.080; or
(b) The coverage
described in ORS 806.270.
(3) The agreement or
indorsement required by subsection (2) of this section shall also state that
the insurance provided is subject to all the provisions of the Oregon Vehicle
Code relating to financial responsibility requirements as defined in ORS
801.280 or future responsibility filings as defined in ORS 801.290, as
appropriate.
(4) Every motor vehicle
liability insurance policy issued for delivery in this state shall provide
liability coverage to at least the limits specified in ORS 806.070.
(5) Every motor vehicle
liability insurance policy issued for delivery in this state shall provide
liability coverage, up to the limits of coverage under the policy for a vehicle
owned by the named insured, for the operation by the named insured of a motor
vehicle provided to the named insured, without regard to whether the named
insured is charged for the use of the motor vehicle, if:
(a) The motor vehicle is
provided to the named insured by a person engaged in the business of repairing
or servicing motor vehicles; and
(b) The motor vehicle is
provided to the named insured as a temporary replacement vehicle while the
named insured’s vehicle is being repaired or serviced.
(6) A motor vehicle
liability insurance policy issued for delivery in this state may exclude by
name from coverage required by subsection (2)(a) of this section any person
other than the named insured, for any of the reasons stated in subsection (7)
of this section. When an insurer excludes a person as provided by this
subsection, the insurer shall obtain a statement or indorsement, signed by each
of the named insureds, that the policy will not provide any coverage required
by subsection (2)(a) of this section when the motor vehicle is driven by any
named excluded person.
(7) A person may be
excluded from coverage under a motor vehicle liability insurance policy as
provided in subsection (6) of this section:
(a) Because of the
driving record of the person. The Director of the Department of Consumer and
Business Services by rule may establish restrictions on the use of the driving
record in addition to other restrictions established by law.
(b) Because of any
reason or set of criteria established by the director by rule.
(8) Every motor
vehicle liability insurance policy issued for delivery in this state shall
contain a provision that provides liability coverage for each family member of
the insured residing in the same household as the insured in an amount equal to
the amount of liability coverage purchased by the insured.
SECTION 2.
ORS 742.502 is amended to read:
742.502. (1) Every motor
vehicle liability policy insuring against loss suffered by any natural person
resulting from liability imposed by law for bodily injury or death arising out
of the ownership, maintenance or use of a motor vehicle shall provide in the
policy or by indorsement on the policy uninsured motorist coverage when the
policy is either:
(a) Issued for delivery
in this state; or
(b) Issued or delivered
by an insurer doing business in this state with respect to any motor vehicle
then principally used or principally garaged in this state.
(2)(a) A motor vehicle
bodily injury liability policy shall have the same limits for uninsured
motorist coverage as for bodily injury liability coverage unless a named
insured in writing elects lower limits. The insured may not elect limits lower
than the amounts prescribed to meet the requirements of ORS 806.070 for bodily
injury or death. Uninsured motorist coverage shall include underinsurance
coverage for bodily injury or death caused by accident and arising out of the
ownership, maintenance or use of a motor vehicle with motor vehicle liability
insurance that provides recovery in an amount that is less than the insured’s
uninsured motorist coverage. Underinsurance benefits shall be equal to
uninsured motorist coverage benefits less the amount recovered from other motor
vehicle liability insurance policies.
(b) If a named insured
elects lower limits, the named insured shall sign a statement electing lower
limits within 60 days of the time the named insured makes the election. The
statement shall acknowledge that a named insured was offered uninsured motorist
coverage with the limits equal to those for bodily injury liability. The
statement shall contain a brief summary, which may not be construed as part of
the insurance contract, of what uninsured and underinsured motorist coverages
provide and shall state the price for coverage with limits equal to the named
insured’s bodily injury liability limits and the price for coverage with the
lower limits requested by the named insured. The statement shall remain in
force until rescinded in writing by a named insured or until the motor vehicle
bodily injury liability limits are changed. The form of statement used to
comply with this paragraph shall be approved by the Department of Consumer and
Business Services.
(c) A statement electing
lower limits need not be signed when vehicles are either added to or subtracted
from a policy or when the policy is amended, renewed, modified or replaced by
the same company or group of companies under common ownership or control unless
the liability limits of the policy are changed.
(3) The insurer issuing
such policy may offer one or more options of uninsured motorist coverage larger
than the amounts prescribed to meet the requirements of ORS 806.070 and in
excess of the limits provided under the policy for motor vehicle bodily injury
liability insurance. Offers of uninsured motorist coverage shall include
underinsurance coverage for bodily injury or death caused by accident and
arising out of the ownership, maintenance or use of a motor vehicle with motor
vehicle liability insurance that provides recovery in an amount that is less
than the insured’s uninsured motorist coverage. Underinsurance benefits shall
be equal to uninsured motorist coverage benefits less the amount recovered from
other motor vehicle liability insurance policies.
(4) Underinsurance
coverage is subject to ORS 742.504 and 742.542.
(5) Uninsured motorist
coverage and underinsurance coverage shall provide coverage for bodily injury
or death when:
(a) The limits for
uninsured motorist coverage of the insured equal the limits of the liability
policy of the person whose fault caused the bodily injury or death; and
(b) The amount of
liability insurance recovered is less than the limits for uninsured motorist
coverage of the insured.
(6) As used in this
section and except as otherwise provided in this subsection, “amount recovered
from other motor vehicle liability insurance policies” means the proceeds of
liability insurance or the proceeds received from a public body under ORS
30.270 recovered by or on behalf of the injured party. Proceeds recovered
on behalf of the injured party include proceeds received by the injured party’s
insurer as reimbursement for personal injury protection benefits provided to
the injured person, proceeds received by the medical providers of the injured
person and proceeds received as attorney fees on the claim of the injured
person. Where applicable liability insurance policy limits are exhausted upon
payment, settlement or judgment by division among two or more injured persons, “amount
recovered from other motor vehicle liability insurance policies” means the
proceeds that are recovered by or on behalf of the injured person but does not
include any proceeds of that liability policy received by other injured
persons.
SECTION 3.
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) “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” means the amount of damages that:
(A) A claimant could
have recovered in a civil action from the owner or operator at the time of the
injury after determination of fault or comparative fault and resolution of any
applicable defenses;
(B) Are calculated
without regard to the tort claims limitations of ORS 30.260 to 30.300; and
(C) Are no larger than
benefits payable under the terms of the policy as provided in subsection (7) of
this section.
[(j)] (k) “Uninsured vehicle,” except as provided in
paragraph [(k)] (L) 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)] (L) “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)] (m) “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. 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 4. The
amendments to ORS 742.450, 742.502 and 742.504 by sections 1 to 3 of this 2007
Act apply to motor vehicle liability insurance policies issued or renewed on or
after the effective date of this 2007 Act.
Approved by the Governor July 16, 2007
Filed in the office of Secretary of State July 17, 2007
Effective date January 1, 2008
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