*1 179 25, Argued September and submitted reversed and with remanded instructions 11, 1991, 19, February petition December reconsideration denied for review (313 209) April allowed 1992 Or SANDERS, Randall E.

Respondent, v. OREGON PACIFIC STATES COMPANY,

INSURANCE Appellant. CA A65627) (89-08-32835; 821 P2d 1119 Hunsaker, Portland, Franklin the cause for argued I. Martin, him Lori Chrys With on the briefs were A. appellant. Hoff- Bullivant, Houser, Bailey, & Pendergrass R. Metz and man, Portland. Johnson, argued

Roland the cause Enterprise, W. & With him on brief was Johnson Kirby, respondent. Chrisman, Enterprise. Portland,

Jeffrey Carey, Company, Standard Insurance Stano, Leifer, Barnsback, M. Phillip Richard E. David E. Insurance, D.C., filed a Washington, Life American Council of amici curiae. *2 brief Chief Richardson,

Before and Presiding Judge, Joseph, Deits, Judge, Judge.

RICHARDSON, P. J. J., dissenting.

Joseph,

181 RICHARDSON, P. J. Sanders, of Shannon who

Plaintiff is the beneficiary issued by a insurance policy was an insured under group a term life benefit insurer. The contained policy defendant acciden- a schedule for $10,000 and, separate loss of it also insured death, sight, tal dismemberment death. $10,000 Shannon for an additional case of accidental ceased to be 1,1989, jobs eligible On she April changed 743.339, inclusion in the Under ORS 743.333 and ORS group. had to exercise the to convert days right she which If were to die policy. from the to an individual she group would be avail- 31-day within the the same period, her conversion On rights. able as if she had exercised fully killed had she was 31-day period expired, before the April in an accident. for both the term life benefit

Plaintiff made claims allowed the for- and the accidental death benefit. Defendant that the conversion latter, rights mer but denied the asserting include the acciden- under the statutes and the did not this action to recover brought tal death benefit. Plaintiff then *3 in his favor. benefit, judgment that and the trial court entered close, and the arguments The is appeals. question Defendant We the ably by parties. for both answers have been presented for nor the policy provide conclude that neither the statutes we and coverage, the conversion of the accidental death therefore reverse. 731.170 provides:

ORS “(1) lives insurance on human ‘Life insurance’ means and includes the every appertaining and insurance thereto benefits, in event additional benefits granting of endowment means, accident or accidental by of death or dismemberment premium in event of the insured’s or additional benefits pro- of disability of settlement payor’s optional modes annuity payable benefits including life ceeds of insurance not ‘Life insurance’ does provision. a settlement under such coverages. compensation include workers’ “(2) in convenience, the reference to ‘lifeinsurance’ For in subsec- fife insurance as defined Insurance Code includes (1) defined in ORS and annuities as tion of this section is obviously of 731.154, if inclusion annuities except the inapplicable or if or requires, the context the Insurance Code provides, otherwise.” provides,

ORS 743.333 as material: life group policy provision “A insurance shall contain a insurance, it, any portion that if the or of a person on covered policy under the ceases of termination of employ- because in membership eligible ment or of the class or classes under to coverage policy, person the such shall be entitled insurer, have by issued the evidence insurability, without of an life policy disability individual of insurance without or benefits, other for the supplementary provided application made, individual shall be and the first policy premium paid * * insurer, the days within 31 after such termination *.” person rights Under if a dies 743.339, ORS with conversion during 31-day period has the and before a conversion pay of insur- issued, been the insurer must the “amount life person have ance which the would have been entitled to policy.” issued under such individual argues, concluded, that Plaintiff the trial court accidental death “insurance on human benefits constitute meaning as and, such, lives” the of 731.170 are ORS rights subject in ORS to the conversion delineated 743.333 argues death and ORS 743.339. Defendant coverage that accidental among “supplementary that ORS provides 743.333 need not be included a converted individ- responds, policy. life inter that alia, ual insurance Plaintiff expressly disability coverage ORS excludes the 743.333 rights; group policies that, conversion life from an insured’s disability cover- because death as well as accidental species age insurance, life are mentioned in ORS 731.170 as excluding express been ORS 743.333 would also have legislature’s coverage if that had been intent; cannot be under- that accidental death “supplementary of a context be a benefit” stood to against pertains human the loss of to insurance statute that against human life. the loss of life, because it is insurance *4 legislative history points party that on or to Neither relies resolving question. might in the assist logical argument emphasizes connec- the Plaintiffs purpose death accidental the of tion between nature However, “life label insurance.” benefits and the definitional logical compartmen- as Code is not as the Insurance —or example, disability plaintiffs argument is. For talized—as as cover- are included ORS 731.170 and dismemberment ages policies, may in “life that be included insurance” form “health accidental death is a of insurance” 731.162, as a form life insurance under under well as of ORS ORS 731.170. See also ORS 731.150. argues recognizes ORS facts, those but that

Plaintiff distinguishes on lives” “insurance human 731.170 between “every appertaining He that and any insurance thereto.” reasons directly death of the

insurance that covers human is disability may former that be kind and and other benefits that “appertaining” policies are included in life insurance the statute’s meaning. plaintiff Therefore, maintains, when light ORS read in of ORS 743.333 is the 731.170 defini- phrase disability supplementary tion, the “without or other only benefits” excludes non-death benefits that are covered policies. argument life that insurance Plaintiff bolsters generis: by principle ejusdem resort to the of Because disabil- ity coverage supple- benefit, not a is death the words “other mentary that it statute also benefits” follow must contemplate coverages directly do not loss of that relate life. agree plaintiff

We with that ORS 731.170 and ORS together. However, read we do read the 743.333 must be not 731.170(1) lumps he or two statutes as does. ORS death by disability together means dismemberment accidental policies may life as “additional benefits” that insurance contrary significance it First, The that is twofold: is cover. plaintiff sharp that for to the line draws between eventualities; second, it means that and, death and other supplementary that ORS 743.333 the “other coverages along “disability” refer to the excludes with must “disability” coverage along with that ORS 731.170 includes death It follows that accidental as “additional benefits.” coverage “supplementary not be benefit” that need ais policies. Plain- life individual insurance included converted tiff not by mention that ORS 743.333 does the fact assisted expressly disability coverage not mention itself and does supplementary phrase coverage. The “other *5 the statute must mean and the something, legis- lature’s intent include benefits phrase discernible when ORS 743.333 and ORS 731.170 are read together.

Plaintiff also argues that the conversion provisions of the are and should be construed group policy ambiguous his favor. We find no ambiguity. to enter

Reversed and remanded with instructions for defendant. judgment

JOSEPH, J., dissenting. As the “The is close and majority says, question have been [positions] presented by both arguments ably ’’ 110 Or at 181. The reason for the App question’s parties. read close is that and the statutes so being plaintiff’s as to ambiguity plaintiffs rights. have created together wins. Shadbolt concerned, I am Therefore, plaintiff so far as 411, 557 P2d 478 Exch., (1976). v. Farmers Insur. 275 Or The trial court should be affirmed.