Appeal from Circuit Court, Jackson County. James M. Main, Judge.
Hugh B. Collins, Medford, argued the cause for appellant. With him on the briefs were Collins, Ferris & Velure, Medford.
Robert H. Grant, Medford, argued the cause for respondent. With him on the brief were Grant & Ferguson, Medford.
Holman, Justice. O'Connell, Chief Justice, and Denecke, Howell, and Bryson,*fn* Justices. McAllister, Justice, dissents.
The plaintiff, General Accident Fire and Life Assurance Corporation, Ltd. (General), brought a declaratory judgment proceeding requesting that a policy issued by it to defendant (the insured) be declared not to afford uninsured motorist coverage under the circumstances of this case. The case was tried to the court without a jury and General appeals from an adjudication that the insured was afforded such coverage.
General's liability policy to the insured contained uninsured motorist coverage. At a time during the life of the policy, when the insured was riding his bicycle down the street and passing a parked pickup truck, Herring, the operator of the truck, opened the door without warning, hitting the insured. The insured was thrown to the pavement and suffered a broken hip. Herring was the holder of a liability insurance policy issued by Government Employees Insurance Co. (GEICO). Herring failed to report the accident to GEICO and, as a result, GEICO voided its coverage of Herring. Government Employees Ins. v. Herring, 257 Or 201, 477 P2d 903 (1970).
A declaratory judgment proceeding brought for the purpose of construing the coverage afforded by an insurance policy is legal in nature. Factual determinations by the trier of the facts which are supported by evidence are final. Therefore, the evidence will be viewed in a manner as favorable to the insured as the testimony will permit. Truck Ins. Exchange v. Olinger Mercury, 262 Or 8, 495 P2d 1201 (1972).
General first contends that its policy did not afford the insured uninsured motorist protection under
the circumstances of this case because Herring was not an uninsured motorist at the time of the accident. The policy provided that an uninsured automobile was one which did not have liability insurance "applicable at the time of the accident." Because Herring's policy with GEICO was in force at the time of the accident and the coverage was subsequently lost by Herring's failure to report his accident to GEICO, General argues that Herring had liability insurance which was "applicable at the time of the accident."
The accident in question occurred in 1965 and ORS 736.317 (2), which was then in effect, provided as follows:
"(2) The policy * * * shall provide coverage * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * because of bodily injury * * *."
The statute included no definition of "uninsured motor vehicles." Subsequent to the accident, ORS 736.317 was replaced by ORS 743.792 (Chapter 482, section 3, ...