A8708-05074; CA A49807 | Or. Ct. App. | Aug 30, 1989
Plaintiff, defendant’s automobile insurer, brought this action for a declaratory judgment that defendant is not entitled to the underinsured motorist coverage benefits that she claims. The trial court agreed with plaintiff and entered a judgment from which defendant appeals. We affirm.
Defendant is a Washington resident, and plaintiff issued the policy to her in Washington. Defendant was injured in an automobile accident that occurred in Oregon in 1982. She brought an Oregon action against the driver of the other vehicle, who the parties agree was underinsured. However, that action was barred by the Statute of Limitations and was dismissed. A Washington statute, RCW 48.22.030, with which plaintiffs policy comports, requires automobile insurance policies to provide underinsured motorist coverage for insureds “who are legally entitled to recover damages from owners or operators of underinsured motor vehicles.” Defendant contends that she is entitled to benefits for the injuries that she sustained in the 1982 accident.
The parties agree that defendant would not be entitled to the benefits under ORS 743.792(12),
Plaintiff contends that, under Washington law, defendant’s claim does not come within the underinsured motorist coverage of the policy, because her action against the underinsured tortfeasor is barred, and she is therefore not “legally entitled to recover damages” from an underinsured
Defendant relies on Safeco Insurance Co. v. Barcom, 49 Wash App 903, 746 P.2d 1226" court="Wash. Ct. App." date_filed="1987-12-15" href="https://app.midpage.ai/document/safeco-insurance-co-v-barcom-1384992?utm_source=webapp" opinion_id="1384992">746 P2d 1226 (1987), which the Washington Supreme Court affirmed while this appeal was pending. 112 Wash 2d 575, 773 P.2d 56" court="Wash." date_filed="1989-05-18" href="https://app.midpage.ai/document/safeco-insurance-co-v-barcom-1301356?utm_source=webapp" opinion_id="1301356">773 P2d 56 (1989). Plaintiff contends that that case is inapposite, because the issue in it was whether the limitation period for a contract action or the tort Statute of Limitations applied to the action by an insured for uninsured motorist coverage benefits. The case under review, according to plaintiff, presents the very different question of whether RCW 48.22.030 requires, or the policy provides, coverage and not what is the appropriate time period for bringing an action for underinsured benefits. Plaintiff argues that Sayan v. Automobile Association, supra, controls our decision of the question in this case. We agree.
Defendant contends that Sayan is not dispositive, because the insured’s inability to proceed against the tortfeasor in that case resulted from a “substantive bar,” while defendant’s right of action against the tortfeasor here was defeated by a “personal defense.” Sayan left open the question of whether its holding would extend to cases involving a personal defénse of the tortfeasor. However, the language of RCW 48.22.030 and the logic of the opinion leave no room for distinctions based on why an insured is not legally entitled to recover damages from a tortfeasor. Defendant is not entitled to underinsured motorist coverage benefits under Washington law or Oregon law.
Affirmed.
ORS 743.792(12) provides:
“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) Suit for bodily injury has been filed against the uninsured motorist, in a court of competent jurisdiction;
“(b) Agreement as to the amount due under the policy has been concluded; or
“(c) The insured or the insurer has formally instituted arbitration proceedings.”