Before: Alex Kozinski and William A. Fletcher, Circuit
Judges, and John R. Tunheim, [*] Chief District Judge.
CERTIFYING QUESTIONS TO THE SUPREME COURT OF OREGON
to Supreme Court of Oregon The panel certified the following
questions of state law to the Oregon Supreme Court:
1. If the Director of the Department of Consumer and Business
Services approves a contractual limitations provision in an
insurance policy under Oregon Revised Statutes §
742.021, does the language of the policy always control or do
the standard provisions of the Oregon Insurance Code apply if
the standard provisions are more favorable than the approved
insurance policy provision?
2. If the Oregon standard provisions do apply, when does
"the period for which the insurer was liable" under
Oregon Revised Statutes § 743.429 end?
Kozinski, Circuit Judge
law requires insurance policies to conform with the standard
provisions of the Oregon Insurance Code. Or. Rev. Stat.
§ 742.021. Under the standard provisions, insureds who
suffer from continuing loss have three years and ninety days
"after the termination of the period for which the
insurer is liable" to file suit. Or. Rev. Stat.
§§ 743.429, .441. Oregon law permits insurers to
issue policies with alternatively worded provisions, but only
when those alternatively worded provisions are approved by
the Director of the Department of Consumer and Business
Services. Or. Rev. Stat. § 742.021. Those policies must
be "in each instance not less favorable in any respect
to the insured or the beneficiary." Id.
present case, we are asked to apply an insurance policy that
may not conform with the standard limitations period required
under Oregon law. The insurer contends that the policy terms
must control because the policy has been approved by the
Director of the Department of Consumer and Business Services.
If the policy terms control, the claims of Plaintiff, the
insured, are time-barred. But if we are permitted to apply
the State's standard provisions despite the
Director's approval of the policy, Plaintiff's suit
may go forward if 1) we determine that the standard
limitation provision is more favorable than the corresponding
provision in her policy, and 2) we determine under the
standard provisions that her claim is not time-barred. To
determine whether Plaintiff's claim is time-barred under
the standard provisions, we must interpret the phrase,
"period for which the insurer is liable." Neither
the meaning of this phrase, nor a court's authority to
apply standard provisions to a Director-approved policy, has
been directly addressed by Oregon courts.
timeliness of Plaintiff's suit therefore depends on two
important and unresolved issues of Oregon law that are
dispositive in this case. We respectfully certify both
questions to the Oregon Supreme Court so that we, as well as
the Oregon bar, might benefit from an authoritative decision
on these issues. We offer first "[a] statement of all
facts relevant to the questions certified, " before
turning to "[t]he questions of law to be answered."
Or. Rev. Stat. §§ 28.210(1), (2).
Factual and Procedural History
December 2002 to March 2008, Cynthia Raynor worked as a real
estate agent for RE/MAX in Washington State. RE/MAX held, on
Raynor's behalf, a long-term disability ("LTD")
policy ("Policy") offered by United of Omaha Life
Insurance Company ("Omaha"). The Policy was issued
in Oregon and is subject to Oregon law. On March 5, 2008,
Raynor left RE/MAX for medical reasons. ...