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Carla D. Morgan v. Amex Assurance Company

September 14, 2012

CARLA D. MORGAN, PETITIONER ON REVIEW,
v.
AMEX ASSURANCE COMPANY, RESPONDENT ON REVIEW.



CC 0710-11736; CA A141913; On review from the Court of Appeals.*fn1

The opinion of the court was delivered by: Kistler, J.

Argued and submitted March 9, 2012.

Before Balmer, Chief Justice, and Durham, De Muniz, Kistler, Walters, and Linder, Justices.*fn2

The decision of the Court of Appeals is reversed. The supplemental judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

KISTLER, J.

ORS 742.061 authorizes an award of attorney fees to an insured who prevails in "an action * * * in any court of this state upon any policy of insurance of any kind or nature * * *." A later enacted statute, ORS 742.001, provides that ORS chapter 742 "appl[ies] to all insurance policies delivered or issued for delivery in this state * * *." The question in this case is whether ORS 742.001 precludes awarding attorney fees to an insured who prevails in an action in an Oregon court on an insurance policy that was issued for delivery and delivered in the State of Washington. The trial court concluded that it did and entered a supplemental judgment to that effect. The Court of Appeals affirmed. Morgan v. Amex Assurance Co., 242 Or App 665, 259 P3d 39 (2011). We allowed plaintiff's petition for review and now reverse the Court of Appeals decision and the trial court's supplemental judgment and remand for further proceedings.

While plaintiff was living in Vancouver, Washington, she applied for and received an automobile insurance policy from defendant. Defendant issued the policy for delivery in Washington and delivered it to plaintiff there. One morning, plaintiff was driving her car south on the Glenn Jackson Bridge over the Columbia River when another driver hit her car. The other driver had no insurance; however, the policy that defendant had issued plaintiff provided uninsured motorist coverage. Plaintiff filed a claim under her policy, which defendant denied on the ground that the circumstances of the accident came within an exclusion to the uninsured motorist coverage.

Plaintiff then filed this action to recover on her policy.*fn3 After the trial court denied defendant's motion for summary judgment, defendant offered to pay plaintiff "$85,000 * * * exclusive of any costs, disbursements, and attorney fees, if any, that may be recoverable." Plaintiff accepted that offer and petitioned for attorney fees pursuant to ORS 742.061. That statute provides, in part, "[I]f settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiff's recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon."
ORS 742.061(1). Defendant objected to plaintiff's attorney fee request. It argued that, as a result of ORS 742.001,*fn4 ORS 742.061 applies "only * * * to policies of insurance delivered or issued for delivery in Oregon." Because the policy on which plaintiff brought her action had not been "delivered or issued for delivery" in this state, defendant reasoned that ORS 742.001 barred plaintiff from recovering attorney fees under ORS 742.061.

The trial court agreed with defendant and entered a supplemental judgment awarding plaintiff costs but no fees. On appeal, the Court of Appeals noted that the legislature enacted ORS 742.001 after it had enacted ORS 742.061. The court concluded that, in enacting ORS 742.001, the legislature intended to limit the scope of ORS 742.061. The court reasoned,

"[B]y its terms and from its inception, ORS 742.001 was intended to circumscribe the application of ORS 742.061. There is nothing to suggest that the legislature was somehow unaware of that effect or intended to exempt the attorney fees provision from the scope limitation in what is now ORS 742.001. The unavoidable conclusion is that ORS 742.061 applies only to insurance policies issued or delivered in Oregon."

Morgan, 242 Or App at 670-71. We allowed plaintiff's petition for review to consider whether the Court of Appeals correctly interpreted the relationship between ORS 742.001 and ORS 742.061.

As the Court of Appeals recognized, the issue in this case turns on whether the legislature intended to limit the scope of ORS 742.061 when it enacted ORS 742.001. In resolving that issue, we begin by discussing briefly the backdrop against which the 1919 legislature enacted the statute that is now codified as ORS 742.061, the enactment of that statute, its codification, and its interpretation before the adoption of ORS 742.001 in 1967. We then address whether, in enacting ORS 742.001, the 1967 legislature intended to limit awards of attorney fees under ORS 742.061 to actions on insurance policies issued for delivery or delivered in Oregon.

Oregon has regulated the business of insurance for over 120 years. In 1887, the legislature first prescribed the terms on which domestic and foreign insurers could engage in the business of ...


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