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Ajir v. Buell

Court of Appeals of Oregon

April 22, 2015

Ali AJIR, Plaintiff-Appellant,
v.
Evan A. BUELL, Defendant, and CLACKAMAS COUNTY, a governmental entity, Defendant-Respondent

Argued and submitted June 6, 2014.

CV11070111. Clackamas County Circuit Court. Henry C. Breithaupt, Judge pro tempore.

Helen C. Tompkins argued the cause and filed the briefs for appellant.

Kathleen J. Rastetter, Senior County Counsel, argued the cause for respondent. With her on the brief was Stephen L. Madkour, Clackamas County Counsel.

Before Duncan, Presiding Judge, and Lagesen, Judge,and Flynn, Judge.[*]

OPINION

Page 321

[270 Or.App. 577] FLYNN, J.

This appeal arises out of plaintiff's action for a declaration that Clackamas County is self-insured for $500,000 in Uninsured/Underinsured Motorist (UM/UIM)[1] coverage and should be directed to arbitrate plaintiff's claim for UIM benefits under that coverage. The dispute turns on the intersection between ORS 278.215(2), which obligates Clackamas County as a self-insured public body to provide the UM/UIM coverage " required under ORS 742.500 to 742.504," and ORS 742.502(2), which requires every " motor vehicle bodily injury liability policy" to provide UM/UIM coverage to the " same limits" as the liability coverage absent a signed, written election of lower limits that contains specific statutory formalities. The county, which admittedly set its limits for motor vehicle liability coverage at $500,000, contends that some of the election formalities are inapplicable to a self-insured public body and that it validly elected to limit its UM/UIM coverage to only $25,000 through an unsigned electronic document created by the county's risk manager.

The parties filed cross-motions for summary judgment, which the trial court resolved by granting the county's motion and denying plaintiff's motion. On appeal, plaintiff assigns error to both rulings. We hold that the county's admitted failure to comply with elements that the legislature has unambiguously required for all valid elections of lower UM/UIM coverage limits entitles plaintiff to the declaration he seeks. Accordingly, we reverse both the grant of summary judgment to the county and the denial of summary judgment to plaintiff.

Summary judgment is appropriate only when there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. When reviewing rulings on cross-motions for summary judgment, " [w]e review the record for each motion in the [270 Or.App. 578] light most favorable to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." See Dial Temporary Help Service v. DLF Int'l Seeds, 252 Or.App. 376, 377 n 1, 287 P.3d 1202 (2012), adh'd to on recons, 255 Or.App. 609, 298 P.3d 1234 (2013). Because we ultimately conclude that plaintiff was entitled to prevail on his motion for summary judgment, we describe the evidence in the light most favorable to the county, which opposed plaintiff's motion.

In June 2010, while on duty as a Clackamas County deputy sheriff, plaintiff was injured in a collision between the county vehicle he was driving and a car driven by Evan Buell. Buell had purchased a policy of motor vehicle liability insurance providing coverage up to only $25,000. The county was self-

Page 322

insured for $500,000 in motor vehicle liability insurance and self-insured for UM/UIM coverage, the limit of which is in dispute. Plaintiff sued Buell for negligence and ultimately collected through settlement the $25,000 limits of Buell's liability insurance. Plaintiff's amended complaint also included a claim against Clackamas County, seeking a declaration that the county had $500,000 in UM/UIM coverage available to compensate plaintiff for damages in excess of those covered by Buell's liability policy.

In opposing plaintiff's claim, the county relied on a document created by its Risk Manager, Dwayne Kroening, and maintained on his computer. The electronic document contains the heading " UNINSURED MOTORIST COVERAGE," below which appears a list ...


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