75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1452
A-Engrossed
Senate Bill 311
Ordered by the Senate February 13
Including Senate Amendments dated February 13
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 for Oregon Tort Claims Act Interim Task Force)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Increases amounts recoverable in tort actions against public
bodies. Provides different limits for tort actions against state
and for tort actions against other public bodies. Provides for
future increases in limits based on Consumer Price Index.
Provides for direct review by Supreme Court to determine
whether application of limitations is constitutional under facts
of specific case.
Creates Task Force on Oregon Tort Claims Act. Provides that
task force becomes operative January 1, 2014. Sunsets task force
March 1, 2015.
Declares emergency, effective July 1, 2009.
A BILL FOR AN ACT
Relating to Oregon Tort Claims Act; creating new provisions;
amending ORS 30.260, 30.261, 30.275, 30.282, 30.285, 30.287,
144.600, 353.100, 742.502 and 742.504; repealing ORS 30.270;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 6 of this 2009 Act are added to
and made a part of ORS 30.260 to 30.300. + }
SECTION 2. { + Limitations on awards under Oregon Tort Claims
Act generally. (1) Punitive damages may not be awarded on any
claim subject to ORS 30.260 to 30.300.
(2) Claims subject to ORS 30.260 to 30.300 are not subject to
the limitation imposed by ORS 31.710.
(3) A court may not apply the limitations imposed on recovery
under sections 3, 4 and 5 of this 2009 Act until after the entry
of a verdict or a stipulation by the parties to the amount of the
damages.
(4) The limitations imposed on recovery by a single claimant
under sections 3 (2) and 4 (2) of this 2009 Act include the
amount of any damages arising out of the same accident or
occurrence that are claimed by another person for loss of
services provided by the claimant or loss of support provided by
the claimant.
(5) If two or more claimants recover on a claim that arises out
of a single accident or occurrence, and the recovery is subject
to a limitation imposed by section 3 (3), 4 (3) or 5 (2)(b) of
this 2009 Act, any party to the action in which the claim is made
may apply to the court to apportion to each claimant the proper
share of the amount allowed by section 3 (3), 4 (3) or 5 (2)(b)
of this 2009 Act. The share apportioned to each claimant shall be
in the proportion that the ratio of the award or settlement made
to the claimant bears to the aggregate awards and settlements for
all claims arising out of the accident or occurrence.
(6) Liability of any public body and one or more of its
officers, employees or agents, or two or more officers, employees
or agents of a public body, on claims arising out of a single
accident or occurrence, may not exceed in the aggregate the
amounts allowed by sections 3, 4 and 5 of this 2009 Act.
(7) Sections 3, 4 and 5 of this 2009 Act do not apply to a
claim arising in connection with a nuclear incident covered by an
insurance or indemnity agreement under 42 U.S.C. 2210. + }
SECTION 3. { + Limitations on liability of state for personal
injury and death. (1) The limitations imposed by this section
apply to claims that:
(a) Are subject to ORS 30.260 to 30.300;
(b) Are made against the state, or against an officer, employee
or agent of the state acting within the person's scope of
employment or duties;
(c) Arise out of a single accident or occurrence; and
(d) Are not claims for damage to or destruction of property.
(2) The liability of the state, and the liability of the
state's officers, employees and agents acting within the scope of
their employment or duties, to any single claimant for claims
described in subsection (1) of this section may not exceed:
(a) $1.5 million, for causes of action arising on or after
December 28, 2007, and before July 1, 2010.
(b) $1.6 million, for causes of action arising on or after July
1, 2010, and before July 1, 2011.
(c) $1.7 million, for causes of action arising on or after July
1, 2011, and before July 1, 2012.
(d) $1.8 million, for causes of action arising on or after July
1, 2012, and before July 1, 2013.
(e) $1.9 million, for causes of action arising on or after July
1, 2013, and before July 1, 2014.
(f) $2 million, for causes of action arising on or after July
1, 2014, and before July 1, 2015.
(g) The adjusted limitation provided by subsection (4) of this
section, for causes of action arising on or after July 1, 2015.
(3) The liability of the state, and the liability of the
state's officers, employees and agents acting within the scope of
their employment or duties, to all claimants for claims described
in subsection (1) of this section may not exceed:
(a) $3 million, for causes of action arising on or after
December 28, 2007, and before July 1, 2010.
(b) $3.2 million, for causes of action arising on or after July
1, 2010, and before July 1, 2011.
(c) $3.4 million, for causes of action arising on or after July
1, 2011, and before July 1, 2012.
(d) $3.6 million, for causes of action arising on or after July
1, 2012, and before July 1, 2013.
(e) $3.8 million, for causes of action arising on or after July
1, 2013, and before July 1, 2014.
(f) $4 million, for causes of action arising on or after July
1, 2014, and before July 1, 2015.
(g) The adjusted limitation provided by subsection (4) of this
section, for causes of action arising on or after July 1, 2015.
(4) Beginning in 2015, and every year thereafter, the State
Court Administrator shall determine the percentage increase or
decrease in the cost of living for the previous calendar year,
based on changes in the Portland-Salem, OR-WA Consumer Price
Index for All Urban Consumers for All Items as published by the
Bureau of Labor Statistics of the United States Department of
Labor. On or before July 1 of the year in which the State Court
Administrator makes the determination required by this
subsection, the State Court Administrator shall adjust the
limitations imposed under subsections (2) and (3) of this section
for the following calendar year by multiplying the limitation
amounts applicable to the calendar year in which the adjustment
is made by the percentage amount determined under this
subsection. The adjustment may not exceed three percent for any
year. The State Court Administrator shall round the adjusted
limitation amount to the nearest $100, but the unrounded amount
shall be used to calculate the adjustments to the limitations in
subsequent calendar years. The adjusted limitation becomes
effective on July 1 of the year in which the adjustment is made,
and applies to all causes of action arising on or after July 1 of
that year and before July 1 of the subsequent year. + }
SECTION 3a. { + Section 3 of this 2009 Act applies only to
causes of action arising on or after December 28, 2007. Any cause
of action that arose before December 28, 2007, shall continue to
be governed by ORS 30.270, as that statute was in effect
immediately before the effective date of this 2009 Act. + }
SECTION 4. { + Limitations on liability of local public bodies
for personal injury and death. (1) The limitations imposed by
this section apply to claims that:
(a) Are subject to ORS 30.260 to 30.300;
(b) Are made against a local public body, or against an
officer, employee or agent of a local public body acting within
the person's scope of employment or duties;
(c) Arise out of a single accident or occurrence; and
(d) Are not claims for damage to or destruction of property.
(2) The liability of a local public body, and the liability of
the public body's officers, employees and agents acting within
the scope of their employment or duties, to any single claimant
for claims described in subsection (1) of this section may not
exceed:
(a) $500,000, for causes of action arising on or after July 1,
2009, and before July 1, 2010.
(b) $533,300, for causes of action arising on or after July 1,
2010, and before July 1, 2011.
(c) $566,700, for causes of action arising on or after July 1,
2011, and before July 1, 2012.
(d) $600,000, for causes of action arising on or after July 1,
2012, and before July 1, 2013.
(e) $633,300, for causes of action arising on or after July 1,
2013, and before July 1, 2014.
(f) $666,700, for causes of action arising on or after July 1,
2014, and before July 1, 2015.
(g) The adjusted limitation provided by subsection (4) of this
section, for causes of action arising on or after July 1, 2015.
(3) The liability of a local public body, and the liability of
the public body's officers, employees and agents acting within
the scope of their employment or duties, to all claimants for
claims described in subsection (1) of this section may not
exceed:
(a) $1 million, for causes of action arising on or after July
1, 2009, and before July 1, 2010.
(b) $1,066,700, for causes of action arising on or after July
1, 2010, and before July 1, 2011.
(c) $1,133,300, for causes of action arising on or after July
1, 2011, and before July 1, 2012.
(d) $1,200,000, for causes of action arising on or after July
1, 2012, and before July 1, 2013.
(e) $1,266,700, for causes of action arising on or after July
1, 2013, and before July 1, 2014.
(f) $1,333,300, for causes of action arising on or after July
1, 2014, and before July 1, 2015.
(g) The adjusted limitation provided by subsection (4) of this
section, for causes of action arising on or after July 1, 2015.
(4) Beginning in 2015, and every year thereafter, the State
Court Administrator shall determine the percentage increase or
decrease in the cost of living for the previous calendar year,
based on changes in the Portland-Salem, OR-WA Consumer Price
Index for All Urban Consumers for All Items as published by the
Bureau of Labor Statistics of the United States Department of
Labor. On or before July 1 of the year in which the State Court
Administrator makes the determination required by this
subsection, the State Court Administrator shall adjust the
limitations imposed under subsections (2) and (3) of this section
for the following calendar year by multiplying the limitation
amounts applicable to the calendar year in which the adjustment
is made by the percentage amount determined under this
subsection. The adjustment may not exceed three percent for any
year. The State Court Administrator shall round the adjusted
limitation amount to the nearest $100, but the unrounded amount
shall be used to calculate the adjustments to the limitations in
subsequent calendar years. The adjusted limitation becomes
effective on July 1 of the year in which the adjustment is made,
and applies to all causes of action arising on or after July 1 of
that year and before July 1 of the subsequent year. + }
SECTION 4a. { + Section 4 of this 2009 Act applies only to
causes of action arising on or after July 1, 2009. Any cause of
action that arose before July 1, 2009, shall continue to be
governed by ORS 30.270, as that statute was in effect immediately
before the effective date of this 2009 Act. + }
SECTION 5. { + Limitations on liability of public bodies for
property damage or destruction. (1) + } { + The limitations
imposed by this section apply to claims that:
(a) Are subject to ORS 30.260 to 30.300;
(b) Are made against a public body, or against a public body's
officers, employees and agents acting within the scope of their
employment or duties;
(c) Arise out of a single accident or occurrence; and
(d) Are claims for damage to or destruction of property,
including consequential damages.
(2) The liability of a public body, and the liability of the
public body's officers, employees and agents acting within the
scope of their employment or duties, for claims described in
subsection (1) of this section may not exceed:
(a) $100,000, or the adjusted limitation provided by subsection
(3) of this section, to any single claimant.
(b) $500,000, or the adjusted limitation provided by subsection
(3) of this section, to all claimants.
(3) Beginning in 2010, and every year thereafter, the State
Court Administrator shall determine the percentage increase or
decrease in the cost of living for the previous calendar year,
based on changes in the Portland-Salem, OR-WA Consumer Price
Index for All Urban Consumers for All Items as published by the
Bureau of Labor Statistics of the United States Department of
Labor. On or before July 1 of the year in which the State Court
Administrator makes the determination required by this
subsection, the State Court Administrator shall adjust the
limitations imposed under subsection (2) of this section for the
following calendar year by multiplying the limitation amounts
applicable to the calendar year in which the adjustment is made
by the percentage amount determined under this subsection. The
adjustment may not exceed three percent for any year. The State
Court Administrator shall round the adjusted limitation amount to
the nearest $100, but the unrounded amount shall be used to
calculate the adjustments to the limitations in subsequent
calendar years. The adjusted limitation becomes effective on July
1 of the year in which the adjustment is made, and applies to all
causes of action arising on or after July 1 of that year and
before July 1 of the subsequent year. + }
SECTION 5a. { + Section 5 of this 2009 Act applies only to
causes of action arising on or after July 1, 2009. Any cause of
action that arose before July 1, 2009, shall continue to be
governed by ORS 30.270, as that statute was in effect immediately
before the effective date of this 2009 Act. + }
SECTION 6. { + Direct appeal of constitutionality of
limitations. (1) At the request of any party to an action under
ORS 30.260 to 30.300, the court shall enter a limited judgment
that is limited to the issue of the application of the
limitations imposed by section 3, 4 or 5 of this 2009 Act. A
limited judgment may be entered under this section only after:
(a) The parties have stipulated to the total damages in the
action; or
(b) The finder of fact has decided the total damages in the
action.
(2) If a limited judgment is entered under this section, the
court may not enter a general judgment until an appellate
judgment on any appeal of the limited judgment has been entered.
(3) A limited judgment entered under this section may be
appealed only by filing a notice of appeal directly with the
Supreme Court within the time and in the manner specified in ORS
chapter 19 for civil appeals to the Court of Appeals. Any party
filing a notice of appeal under this subsection must note in the
notice of appeal that the case is subject to this subsection.
(4) An appeal filed under this section may not raise any issue
relating to the case other than the application of a limitation
imposed under section 3, 4 or 5 of this 2009 Act.
(5) If a limited judgment is not requested under this section,
a party may seek judicial review of the imposition of any of the
limitations under section 3, 4 or 5 of this 2009 Act in an appeal
from the general judgment in the action. + }
SECTION 7. { + Task Force on Oregon Tort Claims Act. + }
{ + (1) There is created the Task Force on the Oregon Tort
Claims Act, consisting of four members appointed as follows:
(a) The President of the Senate shall appoint two members from
among members of the Senate.
(b) The Speaker of the House of Representatives shall appoint
two members from among members of the House of Representatives.
(2) The task force shall:
(a) Study the impact of sections 2 to 6 of this 2009 Act and
the operation of other laws governing the tort liability of
public bodies; and
(b) Prepare a report for submission to the Legislative Assembly
that contains the task force's findings and recommendations
relating to the tort liability of public bodies.
(3) A majority of the members of the task force constitutes a
quorum for the transaction of business.
(4) Official action by the task force requires the approval of
a majority of the members of the task force.
(5) The task force shall elect one of its members to serve as
chairperson.
(6) If there is a vacancy for any cause, the appointing
authority shall make an appointment to become immediately
effective.
(7) The task force shall meet at times and places specified by
the call of the chairperson or of a majority of the members of
the task force.
(8) The task force may adopt rules necessary for the operation
of the task force.
(9) The task force may presession file legislation in the
manner provided in ORS 171.130 for interim committees. All
legislation recommended by official action of the task force must
indicate that it is introduced at the request of the task force.
(10) The task force shall report to the Legislative Assembly in
the manner provided in ORS 192.245 at any time within 30 days
after its final meeting or at such later time as the President
and Speaker may designate.
(11) The Legislative Administrator may employ persons necessary
for the performance of the functions of the task force. The
Legislative Administrator shall fix the duties and amounts of
compensation of these employees. The task force shall use the
services of permanent legislative staff to the greatest extent
practicable.
(12) All agencies of state government, as defined in ORS
174.111, are directed to assist the task force in the performance
of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the
members of the task force consider necessary to perform their
duties. + }
SECTION 8. { + (1) Section 7 of this 2009 Act becomes
operative on January 1, 2014.
(2) Section 7 of this 2009 Act is repealed on March 1,
2015. + }
SECTION 9. ORS 30.260 is amended to read:
30.260. As used in ORS 30.260 to 30.300, unless the context
requires otherwise:
(1) 'Department' means the Oregon Department of Administrative
Services.
(2) 'Director' means the Director of the Oregon Department of
Administrative Services.
(3) 'Governing body' means the group or officer in which the
controlling authority of any public body is vested.
{ - (4) 'Public body' means: - }
{ - (a) The state and any department, agency, board or
commission of the state; - }
{ - (b) Any city, county, school district or other political
subdivision or municipal or public corporation and any
instrumentality thereof; - }
{ - (c) Any intergovernmental agency, department, council,
joint board of control created under ORS 190.125 or other like
entity which is created under ORS 190.003 to 190.130, and which
does not act under the direction and control of any single member
government; - }
{ - (d) Any nonprofit corporation that is organized and
existing under ORS chapter 65 and that has only political
subdivisions or municipal, quasi-municipal or public corporations
in this state as members; - }
{ - (e) A private child-caring agency, as defined in ORS
418.205, that meets the criteria specified in ORS 278.322 (1)(a)
and that receives more than 50 percent of its funding from the
state for the purpose of providing residential treatment to
children who have been placed in the care and custody of the
state or that provides residential treatment to children more
than half of whom have been placed in the care and custody of the
state; or - }
{ - (f) A private, nonprofit organization that provides
public transportation services if more than 50 percent of the
organization's funding for the purpose of providing public
transportation services is received from governmental bodies. - }
{ + (4) 'Public body' means:
(a) A public body as defined in ORS 174.109;
(b) Any nonprofit corporation that is organized and existing
under ORS chapter 65 and that has only political subdivisions or
municipal, quasi-municipal or public corporations in this state
as members;
(c) A private child-caring agency, as defined in ORS 418.205,
that meets the criteria specified in ORS 278.322 (1)(a) and that
receives more than 50 percent of its funding from the state for
the purpose of providing residential treatment to children who
have been placed in the care and custody of the state or that
provides residential treatment to children more than half of whom
have been placed in the care and custody of the state; or
(d) A private, nonprofit organization that provides public
transportation services if more than 50 percent of the
organization's funding for the purpose of providing public
transportation services is received from governmental bodies. + }
(5) 'State' means { - the state or any branch, department,
agency, board or commission of the state - } { + :
(a) State government as defined in ORS 174.111; and
(b) Oregon Health and Science University + }.
(6) 'Local public body' means any public body other than the
state.
(7) 'Nuclear incident' has the meaning given that term in 42
U.S.C. 2014(q).
(8) 'Tort' means the breach of a legal duty that is imposed by
law, other than a duty arising from contract or quasi-contract,
the breach of which results in injury to a specific person or
persons for which the law provides a civil right of action for
damages or for a protective remedy.
{ + NOTE: + } Section 10 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 11. ORS 30.285 is amended to read:
30.285. (1) The governing body of any public body shall defend,
save harmless and indemnify any of its officers, employees and
agents, whether elective or appointive, against any tort claim or
demand, whether groundless or otherwise, arising out of an
alleged act or omission occurring in the performance of duty.
(2) The provisions of subsection (1) of this section do not
apply in case of malfeasance in office or willful or wanton
neglect of duty.
(3) If any civil action, suit or proceeding is brought against
any state officer, employee or agent which on its face falls
within the provisions of subsection (1) of this section, or which
the state officer, employee or agent asserts to be based in fact
upon an alleged act or omission in the performance of duty, the
state officer, employee or agent may, after consulting with the
Oregon Department of Administrative Services file a written
request for counsel with the Attorney General. The Attorney
General shall thereupon appear and defend the officer, employee
or agent unless after investigation the Attorney General finds
that the claim or demand does not arise out of an alleged act or
omission occurring in the performance of duty, or that the act or
omission complained of amounted to malfeasance in office or
willful or wanton neglect of duty, in which case the Attorney
General shall reject defense of the claim.
(4) Any officer, employee or agent of the state against whom a
claim within the scope of this section is made shall cooperate
fully with the Attorney General and the department in the defense
of such claim. If the Attorney General after consulting with the
department determines that such officer, employee or agent has
not so cooperated or has otherwise acted to prejudice defense of
the claim, the Attorney General may at any time reject the
defense of the claim.
(5) If the Attorney General rejects defense of a claim under
subsection (3) of this section or this subsection, no public
funds shall be paid in settlement of said claim or in payment of
any judgment against such officer, employee or agent. Such action
by the Attorney General shall not prejudice the right of the
officer, employee or agent to assert and establish an appropriate
proceedings that the claim or demand in fact arose out of an
alleged act or omission occurring in the performance of duty, or
that the act or omission complained of did not amount to
malfeasance in office or willful or wanton neglect of duty, in
which case the officer, employee or agent shall be indemnified
against liability and reasonable costs of defending the claim,
cost of such indemnification to be a charge against the Insurance
Fund established by ORS 278.425.
(6) Nothing in subsection (3), (4) or (5) of this section shall
be deemed to increase the limits of liability of any public
officer, agent or employee under ORS { - 30.270 - } { +
30.260 to 30.300 + }, or obviate the necessity of compliance with
ORS 30.275 by any claimant, nor to affect the liability of the
state itself or of any other public officer, agent or employee on
any claim arising out of the same accident or occurrence.
(7) As used in this section, 'state officer, employee or agent'
includes district attorneys and deputy district attorneys,
special prosecutors and law clerks of the office of district
attorney who act in a prosecutorial capacity, but does not
include any other employee of the office of district attorney or
any employee of the justice or circuit courts whose salary is
paid wholly or in part by the county.
SECTION 12. ORS 30.287 is amended to read:
30.287. (1) If any civil action, suit or proceeding is brought
against any officer, employee or agent of a local public body
{ - other than the state - } which on its face falls within the
provisions of ORS 30.285 (1), or which the officer, employee or
agent asserts to be based in fact upon an alleged act or omission
in the performance of duty, the officer, employee or agent may
file a written request for counsel with the governing body of the
public body. The governing body shall thereupon engage counsel to
appear and defend the officer, employee or agent unless after
investigation it is determined that the claim or demand does not
arise out of an alleged act or omission occurring in the
performance of duty, or that the act or omission complained of
amounted to malfeasance in office or willful or wanton neglect of
duty, in which case the governing body shall reject defense of
the claim.
(2) Any officer, employee or agent of a local public body
against whom a claim within the scope of this section is made
shall cooperate fully with the governing body and counsel in the
defense of such claim. If the counsel determines and certifies to
the governing body that such officer, employee or agent has not
so cooperated or has otherwise acted in prejudice of the defense
of the claim, the governing body may at any time reject the
defense of the claim.
(3) If the governing body rejects defense of a claim under
subsection (1) of this section, no public funds shall be paid in
settlement of the claim or in payment of any judgment against
such officer, employee or agent. Such action by the governing
body shall not prejudice the right of the officer, employee or
agent to assert and establish in an appropriate proceedings that
the claim or demand in fact arose out of an alleged act or
omission occurring in the performance of duty, or that the act or
omission complained of did not amount to malfeasance in office or
willful or wanton neglect of duty, in which case the officer,
employee or agent shall be indemnified by the public body against
liability and reasonable costs of defending the claim.
(4) Nothing in subsection (1), (2) or (3) of this section shall
be deemed to increase the limits of liability of any public
officer, agent or employee under ORS { - 30.270 - } { +
30.260 to 30.300 + }, or relieve any claimant of the necessity of
compliance with ORS 30.275, nor to affect the liability of the
local public body itself or of any other public officer, agent or
employee on any claim arising out of the same accident or
occurrence.
(5) The provisions of this section may be superseded to the
extent that the claim against the public officer, employee or
agent may be defended by any insurer, or may be subject under ORS
30.282 to agreement with the Oregon Department of Administrative
Services, in which case the provisions of the policy of insurance
or other agreement are applicable.
SECTION 13. ORS 144.600 is amended to read:
144.600. The Legislative Assembly hereby approves and the
Governor is authorized to enter into a compact on behalf of this
state with any other state or states legally joining therein in
the form substantially as follows:
_________________________________________________________________
ARTICLE I
PURPOSE
(a) The compacting states to this interstate compact recognize
that each state is responsible for the supervision of adult
offenders in the community who are authorized pursuant to the
bylaws and rules of this compact to travel across state lines
both to and from each compacting state in such a manner as to
track the location of offenders, transfer supervision authority
in an orderly and efficient manner and, when necessary, return
offenders to the originating jurisdictions. The compacting states
also recognize that the United States Congress, by enacting 4
U.S.C. 112, has authorized and encouraged compacts for
cooperative efforts and mutual assistance in the prevention of
crime.
(b) It is the purpose of this compact and the Interstate
Commission created under this compact, through means of joint and
cooperative action among the compacting states: To provide the
framework for the promotion of public safety and protect the
rights of victims through the control and regulation of the
interstate movement of offenders in the community; to provide for
the effective tracking, supervision and rehabilitation of these
offenders by the sending and receiving states; and to equitably
distribute the costs, benefits and obligations of the compact
among the compacting states.
(c) In addition, this compact is intended to: Create an
Interstate Commission that will establish uniform procedures to
manage the movement between states of offenders placed under
community supervision and released to the community under the
jurisdiction of courts, paroling authorities or corrections or
other criminal justice agencies that will promulgate rules to
achieve the purpose of this compact; ensure an opportunity for
input and timely notice to victims and to jurisdictions where
offenders are authorized to travel or to relocate across state
lines; establish a system of uniform data collection, access to
information on active cases by authorized criminal justice
officials and regular reporting of compact activities to the
heads of State Councils, the state executive, judicial and
legislative branches and the criminal justice administrators;
monitor compliance with rules governing interstate movement of
offenders and initiate interventions to address and correct
noncompliance; and coordinate training and education on the
regulation of interstate movement of offenders for officials
involved in such activity.
(d) The compacting states recognize that there is no right of
any offender to live in another state and that duly accredited
officers of a sending state may at all times enter a receiving
state and there apprehend and retake any offender under
supervision, subject to the provisions of this compact and the
bylaws and rules promulgated under this compact. It is the policy
of the compacting states that the activities conducted by the
Interstate Commission are intended to formulate public policy and
are therefore public business.
ARTICLE II
DEFINITIONS
As used in this compact, unless the context clearly requires a
different construction:
(a) 'Adult' means a person who is 18 years of age or older or a
person under 18 years of age who is legally classified, either by
statute or court order, as an adult.
(b) 'Bylaws' means those bylaws established by the Interstate
Commission for its governance or for directing or controlling the
Interstate Commission's actions or conduct.
(c) 'Compact Administrator' means the individual in each
compacting state appointed pursuant to the terms of this compact
responsible for the administration and management of the state's
supervision and transfer of offenders subject to the terms of
this compact, the rules adopted by the Interstate Commission and
policies adopted by the State Council under this compact.
(d) 'Compacting state' means any state which has enacted the
enabling legislation for this compact.
(e) 'Commissioner' means the voting representative of each
compacting state appointed pursuant to Article III of this
compact.
(f) 'Interstate Commission' means the Interstate Commission for
Adult Offender Supervision created by Article III of this
compact.
(g) 'Member' means the commissioner of a compacting state or
the commissioner's designee, who shall be an individual
officially connected with the commissioner.
(h) 'Noncompacting state' means any state that has not enacted
the enabling legislation for this compact.
(i) 'Offender' means an adult placed under or subject to
supervision as the result of the commission of a criminal offense
and released to the community under the jurisdiction of courts,
paroling authorities or corrections or other criminal justice
agencies.
(j) 'Person' means any individual, corporation, business
enterprise or other legal entity, either public or private.
(k) 'Rules' means acts of the Interstate Commission, duly
promulgated pursuant to Article VIII of this compact and
substantially affecting interested parties in addition to the
Interstate Commission, that have the force and effect of law in
the compacting states.
(L) 'State' means a state of the United States, the District of
Columbia or any territorial possession of the United States.
(m) 'State Council' means the resident members of the State
Council for Interstate Adult Offender Supervision created by each
state under Article IV of this compact.
ARTICLE III
THE INTERSTATE COMMISSION
FOR ADULT OFFENDER SUPERVISION
(a) The compacting states hereby create the Interstate
Commission for Adult Offender Supervision. The Interstate
Commission shall be a body corporate and joint agency of the
compacting states. The Interstate Commission shall have all the
responsibilities, powers and duties set forth in this compact,
including the power to sue and be sued and such additional powers
as may be conferred upon it by subsequent action of the
respective legislatures of the compacting states in accordance
with the terms of this compact.
(b) The Interstate Commission shall consist of commissioners
selected and appointed by each state. In addition to the
commissioners who are the voting representatives of each state,
the Interstate Commission shall include individuals who are not
commissioners but who are members of interested organizations.
Such noncommissioner members must include a member of the
national organizations of governors, legislators, state chief
justices, attorneys general and crime victims. All
noncommissioner members of the Interstate Commission shall be
nonvoting members. The Interstate Commission may provide in its
bylaws for such additional nonvoting members as it deems
necessary.
(c) Each compacting state represented at any meeting of the
Interstate Commission is entitled to one vote. A majority of the
compacting states shall constitute a quorum for the transaction
of business, unless a larger quorum is required by the bylaws of
the Interstate Commission.
(d) The Interstate Commission shall meet at least once each
calendar year. The chairperson may call additional meetings and,
upon the request of 27 or more compacting states, shall call
additional meetings. Public notice shall be given of all meetings
and meetings shall be open to the public, except as provided in
Article VII of this compact.
(e) The Interstate Commission shall establish an executive
committee that shall include commission officers, members and
others as shall be determined by the bylaws. The executive
committee shall have the power to act on behalf of the Interstate
Commission during periods when the Interstate Commission is not
in session, with the exception of rulemaking or amendment to the
compact. The executive committee oversees the day-to-day
activities managed by the executive director and Interstate
Commission staff, administers enforcement and compliance with the
provisions of the compact, its bylaws and rules and as directed
by the Interstate Commission and performs other duties as
directed by the Interstate Commission or as set forth in the
bylaws and rules.
ARTICLE IV
THE COMPACT ADMINISTRATOR AND STATE COUNCIL
(a) The Director of the Department of Corrections, or the
director's designee, shall serve as the Compact Administrator for
the State of Oregon and as Oregon's commissioner to the
Interstate Commission.
(b) The Oregon State Council for Interstate Adult Offender
Supervision is established, consisting of seven members. The
Director of the Department of Corrections, or the director's
designee, is a member of the State Council and serves as
chairperson of the State Council. Of the remaining members of the
State Council:
(1) The Governor shall appoint three members, one of whom must
represent a crime victims' organization; and
(2) The Chief Justice of the Supreme Court, the President of
the Senate and the Speaker of the House of Representatives shall
each appoint one member.
(c) The term of office of a member is four years.
(d) The State Council shall meet at least once each calendar
year.
(e) The State Council may advise the Compact Administrator on
participation in the Interstate Commission activities and
administration of the compact.
(f) Members of the State Council are entitled to expenses as
provided in ORS 292.495. Any legislative members are entitled to
payment of compensation and expense reimbursement under ORS
171.072, payable from funds appropriated to the Legislative
Assembly.
(g) The State Council is subject to the provisions of ORS
291.201 to 291.222 and 291.232 to 291.260.
(h) The Department of Corrections shall provide staff support
for the State Council.
ARTICLE V
POWERS AND DUTIES
OF THE INTERSTATE COMMISSION
The Interstate Commission shall have the following powers:
(a) To adopt a seal and suitable bylaws governing the
management and operation of the Interstate Commission.
(b) To promulgate rules which shall have the force and effect
of statutory law and shall be binding in the compacting states to
the extent and in the manner provided in this compact.
(c) To oversee, supervise and coordinate the interstate
movement of offenders subject to the terms of this compact and
any bylaws adopted and rules promulgated by the Interstate
Commission.
(d) To enforce compliance with the compact and the rules and
bylaws of the Interstate Commission, using all necessary and
proper means, including, but not limited to, the use of judicial
process.
(e) To establish and maintain offices.
(f) To purchase and maintain insurance and bonds.
(g) To borrow, accept or contract for the services of
personnel, including, but not limited to, members and their
staffs.
(h) To establish and appoint committees and hire staff that it
deems necessary to carry out its functions, including, but not
limited to, an executive committee as required by Article III of
this compact, which shall have the power to act on behalf of the
Interstate Commission in carrying out its powers and duties under
this compact.
(i) To elect or appoint officers, attorneys, employees, agents
or consultants, and to fix their compensation, define their
duties and determine their qualifications, and to establish the
Interstate Commission's personnel policies and programs relating
to, among other things, conflicts of interest, rates of
compensation and qualifications of personnel.
(j) To accept any and all donations and grants of money,
equipment, supplies, materials and services, and to receive,
utilize and dispose of same.
(k) To lease, purchase, accept contributions or donations of
any property, or otherwise to own, hold, improve or use any
property, whether real, personal or mixed.
(L) To sell, convey, mortgage, pledge, lease, exchange, abandon
or otherwise dispose of any property, whether real, personal or
mixed.
(m) To establish a budget and make expenditures and levy dues
as provided in Article X of this compact.
(n) To sue and be sued.
(o) To provide for dispute resolution among compacting states.
(p) To perform such functions as may be necessary or
appropriate to achieve the purposes of this compact.
(q) To report annually to the legislatures, governors,
judiciary and State Councils of the compacting states concerning
the activities of the Interstate Commission during the preceding
year. Such reports shall also include any recommendations that
may have been adopted by the Interstate Commission.
(r) To coordinate education, training and public awareness
regarding the interstate movement of offenders for officials
involved in such activity.
(s) To establish uniform standards for the reporting,
collecting and exchanging of data.
ARTICLE VI
ORGANIZATION AND OPERATION
OF THE INTERSTATE COMMISSION
(a) The Interstate Commission shall, by a majority of the
members, within 12 months of the first Interstate Commission
meeting, adopt bylaws to govern its conduct as may be necessary
or appropriate to carry out the purposes of the compact,
including, but not limited to:
(1) Establishing the fiscal year of the Interstate Commission.
(2) Establishing an Executive Committee and such other
committees as may be necessary.
(3) Providing reasonable standards and procedures:
(i) For the establishment of committees; and
(ii) Governing any general or specific delegation of any
authority or function of the Interstate Commission.
(4) Providing reasonable procedures for calling and conducting
meetings of the Interstate Commission, and ensuring reasonable
notice of each meeting.
(5) Establishing the titles and responsibilities of the
officers of the Interstate Commission.
(6) Providing reasonable standards and procedures for the
establishment of the personnel policies and programs of the
Interstate Commission. Notwithstanding any civil service laws or
other similar laws of any compacting state, the bylaws shall
exclusively govern the personnel policies and programs of the
Interstate Commission.
(7) Providing a mechanism for winding up the operations of the
Interstate Commission and the equitable return of any surplus
funds that may exist upon the termination of the compact after
the payment or reserving of all of the Interstate Commission's
debts and obligations.
(8) Providing transition rules for start-up administration of
the compact.
(9) Establishing standards and procedures for compliance and
technical assistance in carrying out the compact.
(b)(1) The Interstate Commission shall, by a majority of the
members, elect from among its members a chairperson and a vice
chairperson, each of whom shall have such authorities and duties
as may be specified in the bylaws. The chairperson, or in the
chairperson's absence or disability, the vice chairperson, shall
preside at all meetings of the Interstate Commission. The
officers so elected shall serve without compensation or
remuneration from the Interstate Commission, provided that,
subject to the availability of budgeted funds, the officers shall
be reimbursed for any actual and necessary costs and expenses
incurred by them in the performance of their duties and
responsibilities as officers of the Interstate Commission.
(2) The Interstate Commission shall, through its executive
committee, appoint or retain an executive director for such
period, upon such terms and conditions and for such compensation
as the Interstate Commission may deem appropriate. The executive
director shall serve as secretary to the Interstate Commission
and shall hire and supervise other staff as may be authorized by
the Interstate Commission, but shall not be a member of the
Interstate Commission.
(c) The Interstate Commission shall maintain its corporate
books and records in accordance with the bylaws.
(d)(1) The liability of any member, officer, executive
director, employee or agent of the Interstate Commission acting
within the scope of the person's employment or duties for acts,
errors or omissions occurring within Oregon may not exceed the
limits set forth in ORS { - 30.270 - } { + 30.260 to
30.300 + }. Nothing in this subsection shall be construed to
protect any such person from suit or liability for any damage,
loss, injury or liability caused by the intentional or willful
and wanton misconduct of any such person.
(2) Subject to approval by the Attorney General under ORS
chapter 180, the Interstate Commission shall defend the
commissioner of a compacting state, the commissioner's
representatives or employees or the Interstate Commission's
representatives or employees in any civil action seeking to
impose liability arising out of any actual or alleged act, error
or omission that occurred within the scope of Interstate
Commission employment, duties or responsibilities, or that the
defendant had a reasonable basis for believing occurred within
the scope of Interstate Commission employment, duties or
responsibilities, provided that the actual or alleged act, error
or omission did not result from intentional wrongdoing on the
part of such person.
(3) The Interstate Commission shall indemnify and hold the
commissioner of a compacting state, the appointed representatives
or employees, or the Interstate Commission's representatives or
employees, harmless in the amount of any settlement or judgment
obtained against such persons arising out of any actual or
alleged act, error or omission that occurred within the scope of
Interstate Commission employment, duties or responsibilities, or
that such persons had a reasonable basis for believing occurred
within the scope of Interstate Commission employment, duties or
responsibilities, provided that the actual or alleged act, error
or omission did not result from intentional wrongdoing on the
part of such persons.
ARTICLE VII
ACTIVITIES OF
THE INTERSTATE COMMISSION
(a) The Interstate Commission shall meet and take such actions
as are consistent with the provisions of this compact.
(b) Except as otherwise provided in this compact and unless a
greater percentage is required under the bylaws, in order to
constitute an act of the Interstate Commission, such act shall
have been taken at a meeting of the Interstate Commission and
shall have received an affirmative vote of a majority of the
members present.
(c) Each member of the Interstate Commission shall have the
right and power to cast a vote to which that compacting state is
entitled and to participate in the business and affairs of the
Interstate Commission. A member shall vote in person on behalf of
the compacting state and shall not delegate a vote to another
compacting state. However, the Director of the Department of
Corrections may designate another individual, in the absence of
the director, to cast a vote on behalf of the director at a
specified meeting. The bylaws may provide for members'
participation in meetings by telephone or other means of
telecommunication or electronic communication. Any voting
conducted by telephone or other means of telecommunication or
electronic communication shall be subject to the same quorum
requirements of meetings where members are present in person.
(d) The Interstate Commission shall meet at least once during
each calendar year. The chairperson of the Interstate Commission
may call additional meetings at any time and, upon the request of
a majority of the members, shall call additional meetings.
(e) The Interstate Commission's bylaws shall establish
conditions and procedures under which the Interstate Commission
shall make its information and official records available to the
public for inspection or copying. The Interstate Commission may
exempt from disclosure any information or official records to the
extent the information or records would adversely affect personal
privacy rights or proprietary interests. In promulgating such
rules, the Interstate Commission may make available to law
enforcement agencies records and information otherwise exempt
from disclosure, and may enter into agreements with law
enforcement agencies to receive or exchange information or
records subject to nondisclosure and confidentiality provisions.
(f) Public notice shall be given of all meetings, and all
meetings shall be open to the public, except as set forth in the
rules or as otherwise provided in the compact. The Interstate
Commission shall promulgate rules consistent with the principles
contained in the Government in the Sunshine Act, 5 U.S.C. 552, as
amended. The Interstate Commission and any of its committees may
close a meeting to the public when the Interstate Commission
determines by two-thirds vote that an open meeting would be
likely to:
(1) Relate solely to the Interstate Commission's internal
personnel practices and procedures;
(2) Disclose matters specifically exempted from disclosure by
statute;
(3) Disclose trade secrets or commercial or financial
information that is privileged or confidential;
(4) Involve accusing any person of a crime or formally
censuring any person;
(5) Disclose information of a personal nature when such
disclosure would constitute a clearly unwarranted invasion of
personal privacy;
(6) Disclose investigatory records compiled for law enforcement
purposes;
(7) Disclose information contained in or related to
examination, operating or condition reports prepared by, or on
behalf of or for the use of, the Interstate Commission with
respect to a regulated entity for the purpose of regulation or
supervision of such entity;
(8) Disclose information when such premature disclosure would
significantly endanger the life of a person or the stability of a
regulated entity; or
(9) Specifically relate to the Interstate Commission's issuance
of a subpoena or its participation in a civil action or
proceeding.
(g) For every meeting closed pursuant to subsection (f) of this
Article, the Interstate Commission's chief legal officer shall
publicly certify that, in the officer's opinion, the meeting may
be closed to the public and shall make reference to each relevant
provision authorizing closure of the meeting. The Interstate
Commission shall keep minutes that fully and clearly describe all
matters discussed in any meeting and shall provide a full and
accurate summary of any action taken, and the reasons therefor,
including a description of each of the views expressed on any
item and the record of any roll call vote (reflected in the vote
of each member on the question). All documents considered in
connection with any action shall be identified in such minutes.
(h) The Interstate Commission shall collect standardized data
concerning the interstate movement of offenders as directed
through its bylaws and rules that specify the data to be
collected, the means of collection and data exchange and
reporting requirements.
ARTICLE VIII
RULEMAKING FUNCTIONS
OF THE INTERSTATE COMMISSION
(a) The Interstate Commission shall promulgate rules in order
to effectively and efficiently achieve the purposes of the
compact, including transition rules governing administration of
the compact during the period in which it is being considered and
enacted by the states.
(b) Rulemaking shall occur pursuant to the criteria set forth
in this Article and the bylaws and rules adopted pursuant
thereto. Such rulemaking shall substantially conform to the
principles of the federal Administrative Procedure Act, 5 U.S.C.
551 et seq., and the Federal Advisory Committee Act, 5 U.S.C.
Appendix 2, section 1 et seq., as amended. All rules and
amendments shall become binding as of the date specified in each
rule or amendment.
(c) If a majority of the legislatures of the compacting states
rejects a rule, by enactment of a statute or resolution in the
same manner used to adopt the compact, then such rule shall have
no further force and effect in any compacting state.
(d) When promulgating a rule, the Interstate Commission shall:
(1) Publish the proposed rule, stating with particularity the
text of the rule that is proposed and the reason for the proposed
rule;
(2) Allow persons to submit written data, facts, opinions and
arguments, which information shall be publicly available;
(3) Provide an opportunity for an informal hearing; and
(4) Promulgate a final rule and its effective date, if
appropriate, based on the rulemaking record. Not later than 60
days after a rule is promulgated, any interested person may file
a petition in the United States District Court for the District
of Columbia or in the federal district court where the Interstate
Commission's principal office is located for judicial review of
the rule. If the court finds that the Interstate Commission's
action is not supported by substantial evidence in the rulemaking
record, the court shall hold the rule unlawful and set it aside.
For purposes of this subsection, evidence is substantial if it
would be considered substantial evidence under the federal
Administrative Procedure Act, 5 U.S.C. 551 et seq., and the
Federal Advisory Committee Act, 5 U.S.C. Appendix 2, section 1 et
seq., as amended.
(e) Rules related to the following subjects must be addressed
within 12 months after the first meeting of the Interstate
Commission:
(1) Notice to victims and opportunity to be heard;
(2) Offender registration and compliance;
(3) Violations and returns;
(4) Transfer procedures and forms;
(5) Eligibility for transfer;
(6) Collection of restitution and fees from offenders;
(7) Data collection and reporting;
(8) The level of supervision to be provided by the receiving
state;
(9) Transition rules governing the operation of the compact and
the Interstate Commission during all or part of the period
between the effective date of the compact and the date on which
the last eligible state adopts the compact; and
(10) Mediation, arbitration and dispute resolution.
(f) The existing rules governing the operation of the previous
compact superseded by this compact shall be null and void 12
months after the first meeting of the Interstate Commission
created under this compact.
(g) Upon determination by the Interstate Commission that an
emergency exists, the Interstate Commission may promulgate an
emergency rule which shall become effective immediately upon
adoption, provided that the usual rulemaking procedures provided
in this Article shall be retroactively applied to said rule as
soon as reasonably possible, but no later than 90 days after the
effective date of the rule.
ARTICLE IX
OVERSIGHT, ENFORCEMENT AND
DISPUTE RESOLUTION
BY THE INTERSTATE COMMISSION
(a)(1) The Interstate Commission shall oversee the Interstate
movement of adult offenders in the compacting states and shall
monitor such activities being administered in noncompacting
states that may significantly affect compacting states.
(2) The courts and executive agencies in each compacting state
shall enforce this compact and shall take all actions necessary
and appropriate to effectuate the compact's purposes and intent.
In any judicial or administrative proceeding in a compacting
state pertaining to the subject matter of this compact that may
affect the powers, responsibilities or actions of the Interstate
Commission, the Interstate Commission shall be entitled to
receive all service of process in any such proceeding and shall
have standing to intervene in the proceeding for all purposes.
(b)(1) The compacting states shall report to the Interstate
Commission on issues or activities of concern to them and
cooperate with and support the Interstate Commission in the
discharge of its duties and responsibilities.
(2) The Interstate Commission shall attempt to resolve any
disputes or other issues that are subject to the compact and that
may arise among compacting states and noncompacting states. The
Interstate Commission shall enact a bylaw or promulgate a rule
providing for both mediation and binding dispute resolution for
disputes among the compacting states.
(c) The Interstate Commission, in the reasonable exercise of
its discretion, shall enforce the provisions of this compact
using any or all means set forth in Article XII (b) of this
compact.
ARTICLE X
FINANCE
(a) The Interstate Commission shall pay or provide for the
payment of the reasonable expenses of its establishment,
organization and ongoing activities.
(b) The Interstate Commission shall levy on and collect an
annual assessment from each compacting state to cover the cost of
the internal operations and activities of the Interstate
Commission and its staff, which must be in a total amount
sufficient to cover the Interstate Commission's annual budget as
approved each year. The aggregate annual assessment amount shall
be allocated based upon a formula to be determined by the
Interstate Commission, taking into consideration the population
of the state and the volume of interstate movement of offenders
in each compacting state. The Interstate Commission shall
promulgate a rule binding upon all compacting states that governs
said assessment.
(c) The Interstate Commission shall not incur any obligations
of any kind prior to securing the funds adequate to meet the
same, nor shall the Interstate Commission pledge the credit of
any of the compacting states, except by and with the authority of
the compacting state.
(d) The Interstate Commission shall keep accurate accounts of
all receipts and disbursements. The receipts and disbursements of
the Interstate Commission shall be subject to the audit and
accounting procedures established under its bylaws. However, all
receipts and disbursements of funds handled by the Interstate
Commission shall be audited yearly by a certified or licensed
public accountant and the report of the audit shall be included
in and become part of the annual report of the Interstate
Commission.
(e)(1) The Interstate Compact for Adult Offender Supervision
Fund is established, separate and distinct from the General Fund.
All moneys in the fund are continuously appropriated to the
Department of Corrections to be used for the purposes of meeting
financial obligations imposed on the State of Oregon as a result
of the state's participation in this compact.
(2) An assessment levied or any other financial obligation
imposed under this compact is effective against the State of
Oregon only to the extent that moneys to pay the assessment or
meet the financial obligation have been appropriated and
deposited in the fund established in paragraph (1) of this
subsection.
ARTICLE XI
COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT
(a) Any state, as defined in Article II of this compact, is
eligible to become a compacting state.
(b) The compact shall become effective and binding upon
legislative enactment of the compact into law by no fewer than 35
of the states. The initial effective date shall be the later of
July 1, 2001, or upon enactment into law by the 35th
jurisdiction. Thereafter, the compact shall become effective and
binding, as to any other compacting state, upon enactment of the
compact into law by that state. The governors of noncompacting
states or their designees may be invited to participate in
Interstate Commission activities on a non-voting basis prior to
adoption of the compact by all states.
(c) Amendments to the compact may be proposed by the Interstate
Commission for enactment by the compacting states. No amendment
shall become effective and binding upon the Interstate Commission
and the compacting states unless and until it is enacted into law
by unanimous consent of the compacting states.
ARTICLE XII
WITHDRAWAL, DEFAULT,
TERMINATION AND
JUDICIAL ENFORCEMENT
(a)(1) Once effective, the compact shall continue in force and
remain binding upon each and every compacting state, provided
that a compacting state may withdraw from the compact by
specifically repealing the statute that enacted the compact into
law.
(2) The effective date of withdrawal is the effective date of
the repeal of the statute that enacted the compact into law.
(3) The withdrawing state shall immediately notify the
chairperson of the Interstate Commission in writing upon the
introduction of legislation repealing this compact in the
withdrawing state. The Interstate Commission shall notify the
other compacting states of the withdrawing state's intent to
withdraw within 60 days of its receipt thereof.
(4) The withdrawing state is responsible for all assessments,
obligations and liabilities incurred through the effective date
of withdrawal, including any obligations, the performance of
which extend beyond the effective date of withdrawal.
(5) Reinstatement following withdrawal of any compacting state
shall occur upon the withdrawing state reenacting the compact or
upon such later date as determined by the Interstate Commission.
(b)(1) If the Interstate Commission determines that any
compacting state has at any time defaulted in the performance of
any of its obligations or responsibilities under this compact or
the bylaws or rules of the Interstate Commission, the Interstate
Commission may impose any or all of the following penalties:
(i) Fines, fees and costs in such amounts as are deemed to be
reasonable as fixed by the Interstate Commission;
(ii) Remedial training and technical assistance as directed by
the Interstate Commission;
(iii) Suspension and termination of membership in the compact.
Suspension shall be imposed only after all other reasonable means
of securing compliance under the bylaws and rules have been
exhausted. Immediate notice of suspension shall be given by the
Interstate Commission to the governor, the chief justice or chief
judicial officer of the defaulting state; the majority and
minority leaders of the defaulting state's legislature, and the
state council.
(2) The grounds for default include, but are not limited to,
failure of a compacting state to perform obligations or
responsibilities imposed upon it by this compact or the
Interstate Commission bylaws or rules. The Interstate Commission
shall immediately notify the defaulting state in writing of the
penalty imposed by the Interstate Commission on the defaulting
state pending a cure of the default. The Interstate Commission
shall stipulate the conditions and the time period within which
the defaulting state must cure its default. If the defaulting
state fails to cure the default within the time period specified
by the Interstate Commission, in addition to any other penalties
imposed, the defaulting state may be terminated from the compact
upon an affirmative vote of a majority of the compacting states
and all rights, privileges and benefits conferred by this compact
shall be terminated from the effective date of suspension. Within
60 days of the effective date of termination of a defaulting
state, the Interstate Commission shall notify the governor, the
chief justice or chief judicial officer of the defaulting state,
the majority and minority leaders of the defaulting state's
legislature and the State Council of such termination.
(3) The defaulting state is responsible for all assessments,
obligations and liabilities incurred through the effective date
of termination, including any obligations, the performance of
which extend beyond the effective date of termination.
(4) The Interstate Commission shall not bear any costs relating
to the defaulting state unless otherwise mutually agreed upon
between the Interstate Commission and the defaulting state.
Reinstatement following termination of any compacting state
requires both a reenactment of the compact by the defaulting
state and the approval of the Interstate Commission pursuant to
the rules.
(c) The Interstate Commission may, by majority vote of the
members, initiate legal action in the United States District
Court for the District of Columbia or, at the discretion of the
Interstate Commission, in the federal district court where the
Interstate Commission has its principal office to enforce
compliance with the provisions of the compact, its rules or
bylaws against any compacting state in default. In the event
judicial enforcement is necessary, the prevailing party shall be
awarded all costs of such litigation, including reasonable
attorney fees.
(d)(1) The compact dissolves effective upon the date of the
withdrawal or default of the compacting state that reduces
membership in the compact to one compacting state.
(2) Upon the dissolution of this compact, the compact becomes
null and void and shall be of no further force or effect, and the
business and affairs of the Interstate Commission shall be wound
up and any surplus funds shall be distributed in accordance with
the bylaws.
ARTICLE XIII
SEVERABILITY AND CONSTRUCTION
(a) The provisions of this compact shall be severable, and if
any phrase, clause, sentence or provision is deemed
unenforceable, the remaining provisions of the compact shall be
enforceable.
(b) The provisions of this compact shall be liberally construed
to effectuate its purposes.
ARTICLE XIV
BINDING EFFECT OF COMPACT
AND OTHER LAWS
(a)(1) Nothing in this compact prevents the enforcement of any
other law of a compacting state that is not inconsistent with
this compact.
(2) The laws of the State of Oregon, other than the Oregon
Constitution, that conflict with this compact are superseded to
the extent of the conflict.
(b)(1) All lawful actions of the Interstate Commission,
including all rules and bylaws promulgated by the Interstate
Commission, are binding upon the State of Oregon unless contrary
to the Oregon Constitution.
(2) All agreements between the Interstate Commission and the
compacting states are binding in accordance with their terms.
(3) Upon the request of a party to a conflict over meaning or
interpretation of Interstate Commission actions, and upon a
majority vote of the compacting states, the Interstate Commission
may issue advisory opinions regarding such meaning or
interpretation.
(4) In the event any provision of this compact exceeds the
constitutional limits imposed on the legislature of any
compacting state, the obligations, duties, powers or jurisdiction
sought to be conferred by such provision upon the Interstate
Commission shall be ineffective and such obligations, duties,
powers or jurisdiction shall remain in the compacting state and
shall be exercised by the agency thereof to which such
obligations, duties, powers or jurisdiction are delegated by law
in effect at the time this compact becomes effective.
(c) The State of Oregon is bound by the bylaws and rules
promulgated under this compact only to the extent that the
operation of the bylaws and rules does not impose an obligation
exceeding any limitation on state power or authority contained in
the Oregon Constitution as interpreted by the state courts of
Oregon.
_________________________________________________________________
SECTION 14. 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 coverage
shall be equal to uninsured motorist coverage 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 the 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 coverage
shall be equal to uninsured motorist coverage 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) Uninsured motorist coverage and underinsurance coverage
shall provide coverage for bodily injury or death if the amount
recovered from a self-insurer is less than the limits for
uninsured motorist coverage of the insured.
(7) 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 - } { + 30.260 to 30.300 + } 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 15. 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) Notwithstanding ORS { - 30.270 - } { + 30.260 to
30.300 + }, 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 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) '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.
(k) 'Uninsured vehicle,' except as provided in paragraph (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.
(E) A vehicle that is owned or operated by a self-insurer:
(i) That is not in compliance with ORS 806.130 (1)(c); or
(ii) That provides recovery to an insured in an amount that is
less than the limits for uninsured motorist coverage of the
insured.
(L) 'Uninsured vehicle' does not include:
(A) An insured vehicle, unless the vehicle is a stolen vehicle;
(B) Except as provided in paragraph (k)(E) of this subsection,
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.
(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 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
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 this insurance or
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, chapter
328, Oregon Laws 2007. 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 16. ORS 742.504, as amended by section 6, chapter 328,
Oregon Laws 2007, 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) Notwithstanding ORS { - 30.270 - } { + 30.260 to
30.300 + }, 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 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) '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.
(k) 'Uninsured vehicle,' except as provided in paragraph (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.
(E) A vehicle that is owned or operated by a self-insurer:
(i) That is not in compliance with ORS 806.130 (1)(c); or
(ii) That provides recovery to an insured in an amount that is
less than the limits for uninsured motorist coverage of the
insured.
(L) 'Uninsured vehicle' does not include:
(A) An insured vehicle, unless the vehicle is a stolen vehicle;
(B) Except as provided in paragraph (k)(E) of this subsection,
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.
(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 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
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 this insurance or
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 17. ORS 30.261 is amended to read:
30.261. A private, nonprofit organization described under ORS
30.260 { - (4)(f) - } { + (4)(d) + } is subject to ORS 30.260
to 30.300 only for the purposes of providing public
transportation services.
SECTION 18. ORS 30.275 is amended to read:
30.275. (1) No action arising from any act or omission of a
public body or an officer, employee or agent of a public body
within the scope of ORS 30.260 to 30.300 shall be maintained
unless notice of claim is given as required by this section.
(2) Notice of claim shall be given within the following
applicable period of time, not including the period, not
exceeding 90 days, during which the person injured is unable to
give the notice because of the injury or because of minority,
incompetency or other incapacity:
(a) For wrongful death, within one year after the alleged loss
or injury.
(b) For all other claims, within 180 days after the alleged
loss or injury.
(3) Notice of claim required by this section is satisfied by:
(a) Formal notice of claim as provided in subsections (4) and
(5) of this section;
(b) Actual notice of claim as provided in subsection (6) of
this section;
(c) Commencement of an action on the claim by or on behalf of
the claimant within the applicable period of time provided in
subsection (2) of this section; or
(d) Payment of all or any part of the claim by or on behalf of
the public body at any time.
(4) Formal notice of claim is a written communication from a
claimant or representative of a claimant containing:
(a) A statement that a claim for damages is or will be asserted
against the public body or an officer, employee or agent of the
public body;
(b) A description of the time, place and circumstances giving
rise to the claim, so far as known to the claimant; and
(c) The name of the claimant and the mailing address to which
correspondence concerning the claim may be sent.
(5) Formal notice of claim shall be given by mail or personal
delivery:
(a) If the claim is against the state or an officer, employee
or agent thereof, to the office of the Director of the Oregon
Department of Administrative Services.
(b) If the claim is against a local public body or an officer,
employee or agent thereof, to the public body at its principal
administrative office, to any member of the governing body of the
public body, or to an attorney designated by the governing body
as its general counsel.
(6) Actual notice of claim is any communication by which any
individual to whom notice may be given as provided in subsection
(5) of this section or any person responsible for administering
tort claims on behalf of the public body acquires actual
knowledge of the time, place and circumstances giving rise to the
claim, where the communication is such that a reasonable person
would conclude that a particular person intends to assert a claim
against the public body or an officer, employee or agent of the
public body. A person responsible for administering tort claims
on behalf of a public body is a person who, acting within the
scope of the person's responsibility, as an officer, employee or
agent of a public body or as an employee or agent of an insurance
carrier insuring the public body for risks within the scope of
ORS 30.260 to 30.300, engages in investigation, negotiation,
adjustment or defense of claims within the scope of ORS 30.260 to
30.300, or in furnishing or accepting forms for claimants to
provide claim information, or in supervising any of those
activities.
(7) In an action arising from any act or omission of a public
body or an officer, employee or agent of a public body within the
scope of ORS 30.260 to 30.300, the plaintiff has the burden of
proving that notice of claim was given as required by this
section.
(8) The requirement that a notice of claim be given under
subsections (1) to (7) of this section does not apply if:
(a)(A) The claimant was under the age of 18 years when the acts
or omissions giving rise to a claim occurred;
(B) The claim is against the Department of Human Services or
the Oregon Youth Authority; and
(C) The claimant was in the custody of the Department of Human
Services pursuant to an order of a juvenile court under ORS
419B.150, 419B.185, 419B.337 or 419B.527, or was in the custody
of the Oregon Youth Authority under the provisions of ORS
419C.478, 420.011 or 420A.040, when the acts or omissions giving
rise to a claim occurred.
(b) The claim is against a private, nonprofit organization that
provides public transportation services described under ORS
30.260 { - (4)(f) - } { + (4)(d) + }.
(9) Except as provided in ORS 12.120, 12.135 and 659A.875, but
notwithstanding any other provision of ORS chapter 12 or other
statute providing a limitation on the commencement of an action,
an action arising from any act or omission of a public body or an
officer, employee or agent of a public body within the scope of
ORS 30.260 to 30.300 shall be commenced within two years after
the alleged loss or injury.
SECTION 19. ORS 30.282 is amended to read:
30.282. (1) The governing body of any local public body may
procure insurance against:
(a) Tort liability of the public body and its officers,
employees and agents acting within the scope of their employment
or duties; or
(b) Property damage.
(2) In addition to, or in lieu of procuring insurance, the
governing body may establish a self-insurance program against the
tort liability of the public body and its officers, employees and
agents or against property damage. If the public body has
authority to levy taxes, it may include in its levy an amount
sufficient to establish and maintain a self-insurance program on
an actuarially sound basis.
(3) Notwithstanding any other provision of law, two or more
local public bodies may jointly provide by intergovernmental
agreement for anything that subsections (1) and (2) of this
section authorize individually.
(4) As an alternative or in addition to establishment of a
self-insurance program or purchase of insurance or both, the
governing body of any local public body and the Oregon Department
of Administrative Services may contract for payment by the public
body to the department of assessments determined by the
department to be sufficient, on an actuarially sound basis, to
cover the potential liability of the public body and its
officers, employees or agents acting within the scope of their
employment or duties under ORS 30.260 to 30.300, and costs of
administration, or to cover any portion of potential liability,
and for payment by the department of valid claims against the
public body and its officers, employees and agents acting within
the scope of their employment or duties. The department may
provide the public body evidence of insurance by issuance of a
certificate or policy.
(5) Assessments paid to the department under subsection (4) of
this section shall be paid into the Insurance Fund created under
ORS 278.425, and claims paid and administrative costs incurred
under subsection (4) of this section shall be paid out of the
Insurance Fund, and moneys in the Insurance Fund are continuously
appropriated for those purposes. When notice of any claim is
furnished as provided in the agreement, the claim shall be
handled and paid, if appropriate, in the same manner as a claim
against a state agency, officer, employee or agent, without
regard to the amount the local public body has been assessed.
(6) A self-insurance program established by three or more
public bodies under subsections (2) and (3) of this section is
subject to the following requirements:
(a) The annual contributions to the program must amount in the
aggregate to at least $1 million.
(b) The program must provide documentation that defines program
benefits and administration.
(c) Program contributions and reserves must be held in separate
accounts and used for the exclusive benefit of the program.
(d) The program must maintain adequate reserves. Reserve
adequacy shall be calculated annually with proper actuarial
calculations including the following:
(A) Known claims, paid and outstanding;
(B) Estimate of incurred but not reported claims;
(C) Claims handling expenses;
(D) Unearned contributions; and
(E) A claims trend factor.
(e) The program must maintain an unallocated reserve account
equal to 25 percent of annual contributions, or $250,000,
whichever is greater. As used in this paragraph, 'unallocated
reserves' means the amount of funds determined by a licensed
independent actuary to be greater than what is required to fund
outstanding claim liabilities, including an estimate of claims
incurred but not reported.
(f) The program must make an annual independently audited
financial statement available to the participants of the program.
(g) The program must maintain adequate excess or reinsurance
against the risk of economic loss.
(h) The program, a third party administrator or an owner of a
third party administrator may not collect commissions or fees
from an insurer.
(7) A program operated under subsection (6) of this section
that fails to meet any of the listed requirements for a period
longer than 30 consecutive days shall be dissolved and any
unallocated reserves returned in proportional amounts based on
the contributions of the public body to the public bodies that
established the program within 90 days of the failure.
(8) A { + local + } public body { - as defined in ORS 30.260
(4)(b), (c) or (d) - } may bring an action against a program
operated under subsection (6) of this section if the program
fails to comply with the requirements listed in subsection (6) of
this section.
SECTION 20. ORS 353.100, as amended by section 33, chapter 100,
Oregon Laws 2007, is amended to read:
353.100. (1) The provisions of ORS chapters 35, 190, 192, 244
and 295 and ORS { - 30.260 to 30.460, - } 200.005 to 200.025,
200.045 to 200.090, 236.605 to 236.640, 243.650 to 243.782,
297.040, 307.090 and 307.112 apply to Oregon Health and Science
University under the same terms as they apply to public bodies
other than the state.
{ + (2) The provisions of ORS 30.260 to 30.460 apply to
Oregon Health and Science University under the same terms as they
apply to the state. + }
{ - (2) - } { + (3) + } Except as otherwise provided by
law, the provisions of ORS chapters 182, 183, 240, 270, 273, 276,
279A, 279B, 279C, 283, 291, 292, 293, 294 and 297 and ORS 35.550
to 35.575, 180.060, 180.210 to 180.235, 183.710 to 183.725,
183.745, 183.750, 184.305 to 184.345, 190.430, 190.480, 190.490,
192.105, 200.035, 243.105 to 243.585, 243.696, 278.011 to
278.120, 278.315 to 278.415, 279.835 to 279.855, 282.010 to
282.150, 357.805 to 357.895 and 656.017 (2) do not apply to the
university or any not-for-profit organization or other entity if
the equity of the entity is owned exclusively by the university
and if the organization or entity is created by the university to
advance any of the university's statutory missions.
{ - (3) - } { + (4) + } The university, as a distinct
governmental entity, or any organization or entity described in
subsection { - (2) - } { + (3) + } of this section is not
subject to any provision of law enacted after January 1, 1995,
with respect to any governmental entity, unless the provision
specifically provides that it applies to the university or to the
organization or entity.
SECTION 21. { + ORS 30.270 is repealed. + }
SECTION 22. { + The section captions used in this 2009 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2009 Act. + }
SECTION 23. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect
July 1, 2009. + }
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