74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 256
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
CHAPTER ................
AN ACT
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 Oregon:
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 { + Section 2 of this 2007 Act is repealed on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
Enrolled Senate Bill 256 (SB 256-A) Page 1
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
Enrolled Senate Bill 256 (SB 256-A) Page 2
(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 District of Columbia, a territory or
possession of the United States and a province of Canada.
(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,
Enrolled Senate Bill 256 (SB 256-A) Page 3
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 United States of America, its territories or
possessions, or Canada.
(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
Enrolled Senate Bill 256 (SB 256-A) Page 4
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:
Enrolled Senate Bill 256 (SB 256-A) Page 5
(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
Enrolled Senate Bill 256 (SB 256-A) Page 6
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
Enrolled Senate Bill 256 (SB 256-A) Page 7
(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.
Enrolled Senate Bill 256 (SB 256-A) Page 8
(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
Enrolled Senate Bill 256 (SB 256-A) Page 9
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 District of Columbia, a territory or
possession of the United States and a province of Canada.
(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;
Enrolled Senate Bill 256 (SB 256-A) Page 10
(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 United States of America, its territories or
possessions, or Canada.
(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
Enrolled Senate Bill 256 (SB 256-A) Page 11
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
Enrolled Senate Bill 256 (SB 256-A) Page 12
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
Enrolled Senate Bill 256 (SB 256-A) Page 13
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.
Enrolled Senate Bill 256 (SB 256-A) Page 14
(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:
Enrolled Senate Bill 256 (SB 256-A) Page 15
(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. + }
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Passed by Senate March 20, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 21, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 256 (SB 256-A) Page 16
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 256 (SB 256-A) Page 17