*1 7G April 16,
Argued March affirmed AMERICAN MOTORISTS INSURANCE COM- Appellant, THOMPSON, v.
PANY,
Respondent.
453 P2d argued Bemis, Richard G. the cause for Portland, appellant. Whipple, him on brief Seitz, With Bemis & Portland. Breathouwer, Bradley, argued F. Hillsboro,
Carrell the cause for *2 respondent. him on With the brief were Schwenn, W. C. Redding, Bradley Robert Schwenn, W. and & Batch elor, Hillsboro.
Before Perry, Justice, Chief and McAllister, Sloan, O’Connell, Denecke Goodwin, and Holman, Justices.
HOLMAN, J. appeals judgment dismissing from
Plaintiff a his complaint to it after demurrer had been sustained ground on the that it did not state a of cause action. company, policy an Plaintiff, insurance issued a liability employer Insurance to defendant’s which in- protection cluded uninsured motorist for defendant. The defendant was when involved in a colli- sion with two other vehicles. The of one of the vehicles was insured and the was not. Plain- paid tiff to defendant the sum of $5,050,the maximum benefits, under provision the uninsured motorist of its policy. policy provided The pay- in the event of ment provision, under the plaintiff uninsured motorist payment, entitled, to the extent of pro- its to ceeds of settlement that resulted from the exer- any right recovery by cise of defendant “any yerson organisation” or responsible for defend- injuries. receiving payment ant’s After plain- tiff, defendant seittled with the insured motorist for $30,000. sum of brought Plaintiff present then pursuant policy provision, to action, to recover paid it had sum defendant.
Despite defendant, which contentions certain unnecessary that under the discuss, it is clear to policy plaintiff be provisions would entitled the sums action maintain question is whether the in the case defendant. contrary statutory policy provisions authorizing defining provisions uninsured motor- and coverage unenforceable. ist and therefore inwas effect
At the time of the accident there OES coverage relating to motorist 736.317 following language: , contained the * * * “(2) cover- provi- age sions supplemental under thereto, or therein approved Insurance Commis- the State for insured there- sioner, entitled recover under who are from owners operators of uninsured motor ve- bodily because of trailers or semitrailers hicles, *3 including injury, death result- sickness or disease, * * *” ing therefrom. statutory language in was construed Peterson v. This (1964). P2d 106, Farm Ins. 238 Or State by action an insured his an Peterson involved coverage. motorist insurer to recover under uninsured Compensation The insured had received Workmen’s injuries in of the received the acci benefits because These benefits were in excess amount dent. coverage provision. motorist under the uninsured any policy provided payable sums The that under by any Compensation were to reduced be Workmen’s paid to insured. held that it benefits We was the language require intent the statute that policies motorist same uninsured extend the age that would have had been available the uninsured liability coverage provided had the motorist minimum policy provision Therefore, law. held the did not we comply void with the statute and was and we allowed recovery. following language: We used the
“* * *
legislative pur-
words,
In other
pose
creating compulsory
motorist
coverage
injured
policyholder
towas
the same
he would
been in if
tort-
have
liability
feasor had had
insurance.” 238
at 112,
Or
concerning recovery. presume double must de injuries fendant’s $35,000 worth more. In the issue, of such absence an we believe Peterson to be determinative of the It case. would be diffi put cult other construction than that of Peter * * * language: policy son on pro “The * * * coverage persons vide for the * * * who are entitled to recover * * * operators of uninsured motor vehicles, * * give No other construction would coverage to entitled to recover from unin- Giving policy provi- sured motorists. effect to sions coverage would defendant with no if he is entitled to recover at least $5,000 for his in- juries from someone else. There is no such limitation coverage provided by the statute. The fact that recovery other sources of available party is irrelevant in the absence of a double recov- ery. language of the statute not does lend itself legislature’s to the construction that it was the inten- injured person recovery tion assure an $5,000 *4 only, regardless of its source. The statute’s intention party was in the same as if the uninsured motorist had been insured. We, policy provision therefore, hold the void and unen- 80 contrary intent of it to the
forceable because statute. may question form in fact that approved the Insurance Commissioner
have been
validity
gives
with the
in conflict
statute.
it
when
no
page
supra,
115,
Plaintiff cites a number them in turn. Remsen position. will discuss v. Midway Liquors, App2d NE2d 132, 30 174 7 Inc., Ill Kisling (1961); Co., v. MFA Mutual Insurance 399 (Mo. 1966); Employ v. American LaBove 245 SW2d (La. 1966), Insurance 189 So2d 315 er’s Mutual they inapplicable no all because involved statute specifying uninsured motorist the extent age. there was no conflict between the Therefore, stat provisions utory language policy. and the Mills Exchange, Rptr 41 124, Cal Farmers Ins. CA2d v. applicable (1964) a stat is not because involved upon provided payment to the insured, ute which rights company subrogated to the the insurance person causing injury. against of the insured “person” plural was construed to include the The word subrogation rights against included therefore both and well as the uninsured insured as motorist. McGee App (1965), 271, Div 2d Horvat, 23 NYS2d 345 v. plaintiff’s uphold appears, face, its on contention. ‹ Oregon 1967, p ch 1165. Laws
81 (McKinney’s 619(a) § Ins Law N Y when the However, 1966) is not men- consulted, c. Laws, Consol that the insurer had will he seen it case, in the tioned any right secured from statutory sums an offset of to a injured party any person had whom the action. a cause of judgment court is affirmed. of the trial dissenting. J.,
O’CONNELL, reasoning opinion the that in am now I Ins. Farm Or P2d Peterson v. State majority upon opinion, (1964), relied reasoning in in Peterson and the ma erroneous. The jority opinion case is that 736.317 in ORS injured party place in to was intended same position would have been had the as he nothing insured. There is motorist been the statute generalization. this broad which warrants The stat merely purpose a to a $5,000 ute states age for of who en from an titled uninsured motor that ist. Thus is clear the statute was intended to injured person the same as if purpose was insured the tortfeasor assur for recovery ing injured person up $5,000. nothing legisla in the statute to There is indicate a injured person intent to assure tive of all the ad vantages toould accrue him the if tortfeasor simply The statute type insured. describes a designed to cover the insured when a tort is uninsured. The statute is feasor silent as to the subrogation. majority opinion insurer’s interprets the statute as if it read “and the insurer subrogation any entitled to not be as sums by person paid jointly severally or on behalf .82 uninspired
liable with the tortfeasor.” This addition compelled by any language to the statute is not con- compelled by any tained in statute. Nór is it social policy. In after fact, we misconstrued the statute in legislature by expressly pro- amendment subrogation vided for as “All sums on ac- bodily injury by count of such or on behalf of the owner or of the uninsured vehicle and *6 person organization or on behalf of jointly severally together dr liable with such owner or bodily injury including for such all sums bodily injury liability coverage under the policy.” (7) (c) (A). OES 743.792 The amendment . merely subrogation states the usual rule of in insur- applied eases. should ance have that rule in the case. Since we erred in the Peterson' case permit plaintiff we overrule it and should subrogation. case to assert its