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Moore v. Allstate Insurance Co.

Court of Appeals of Oregon

September 6, 2018

Yasmine MOORE, Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY, Defendant-Respondent. ALLSTATE INSURANCE COMPANY, Third-Party Plaintiff,
v.
Kristopher PENN, Third-Party Defendant.

          Argued and submitted August 29, 2017

          Multnomah County Circuit Court 15CV28210; Thomas M. Christ, Judge pro tempore.

          Willard E. Merkel argued the cause for appellant.

          Also on the briefs was Merkel & Associates. Ryan J. Hall argued the cause for respondent.

          Also on the brief was Cole Wathen Leid Hall, P.C.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Plaintiff appeals a limited judgment entered in favor of defendant, Allstate Fire and Casualty Insurance Company (Allstate), assigning error to the trial court's grant of Allstate's motion for summary judgment. Plaintiff fled an action to recover personal injury protection (PIP) benefits, and Allstate moved for summary judgment arguing that, as a matter of law, it was not required to pay PIP benefits until plaintiff submitted to an examination under oath (EUO). On appeal, plaintiff asserts that, because Allstate failed to pay or deny the PIP benefits within 60 days of receiving her medical bills as required by ORS 742.524(1)(a), she was excused from attending the EUO. Held: Under the terms of the policy, Allstate was allowed to require any person making a PIP claim to submit to examinations under oath-which plaintiff does not dispute- and, as the trial court correctly concluded, plaintiff had no grounds under the policy or ORS 742.524(1) to decline to submit to the EUO. Therefore, because the [293 Or.App. 691] record would not permit a reasonable factfinder to find that plaintiff was excused from submitting to the EUO, the trial court did not err in granting Allstate's motion for summary judgment.

         Affirmed.

         [293 Or.App. 692] ORTEGA, P. J.

         Plaintiff appeals a limited judgment entered in favor of defendant, Allstate Fire and Casualty Insurance Company Allstate), assigning error to the trial court's grant of Allstate's motion for summary judgment. Plaintiff filed an action to recover personal injury protection (PIP) benefits, and Allstate moved for summary judgment arguing that, as a matter of law, it was not required to pay PIP benefits until plaintiff submitted to an examination under oath (EUO). However, plaintiff asserted that, because Allstate failed to pay or deny the PIP benefits within 60 days of receiving her medical bills as required by ORS 742.524(1)(a), [1] she was not required to attend the EUO. The trial court granted Allstate's motion on the grounds that plaintiff's refusal to submit to the EUO was not excused because Allstate did not materially breach the insurance policy by failing to pay PIP benefits within 60 days. For the reasons stated below, we conclude that the trial court did not err in granting Allstate's motion for summary judgment and, therefore, we affirm.

         In reviewing the trial court's summary judgment ruling, we view the evidence in the light most favorable to plaintiff (the nonmoving party) to determine whether there are genuine issues of material fact that preclude summary judgment and whether defendant was entitled to judgment as a matter of law. ORCP 47 C; Hinchman v. UC Market, LLC, 270 Or.App. 561, 566, 348 P.3d 328 (2015). We state the facts consistently with that standard and, because most of the facts relating to plaintiffs motor vehicle liability insurance with Allstate are intertwined with PIP liability coverage under ORS 742.520 and ORS 742.524, we discuss the facts and the statute together.

         Through a liability insurance policy, Allstate provided plaintiff with PIP benefits coverage and promised to [293 Or.App. 693] pay, among other things, medical and hospital expenses if the injury was caused by a motor vehicle accident. While driving, plaintiff was in a car accident on January 16, 2015, in which the other driver accepted fault. Under ORS 742.520(4), an insurer is required to pay all PIP benefits "promptly after proof of loss has been submitted to the insurer," and plaintiff submitted a notice of loss to Allstate on January 21. Because plaintiff informed Allstate that there was a passenger in the car, Allstate sent letters to both plaintiff and her passenger, with PIP applications attached, to obtain the necessary documentation to process their claims.

         Plaintiff submitted some of her medical bills on August 3, and Allstate acknowledged receipt of them but stated that payment was "pended for further investigation while outstanding issues [were] resolved." Plaintiff, through her attorney, submitted a letter dated August 26, listing the total amount of medical expenses, and she attached a signed PIP application along with copies of the medical bills she had submitted previously. Allstate suspected that plaintiff was actually alone in her car at the time of the accident and, on October 1, requested that plaintiff submit to an EUO to allow for further investigation of her claims, a request that was consistent with the provision in plaintiff's policy stating that Allstate "may also require any person making [a PIP] claim to submit to examinations under oath." Plaintiff refused that request. In a letter to Allstate, plaintiff contended that Allstate had breached its duty to pay the PIP benefits promptly as required by ORS 742.520(4) and ORS 742.524(1)(a) and, therefore, she was not obligated to submit to the EUO. She then filed this action for breach of the insurance contract on October 19. In response, Allstate filed a motion for summary judgment on the grounds that plaintiff could not assert a claim for breach because, by refusing to submit to an EUO, plaintiff was not in "full compliance with all the terms of the policy."

         Under ORS 742.524(1)(a), medical bills are "presumed to be reasonable and necessary unless the provider is given notice of denial of the charges not more than 60 calendar days after the insurer receives from the provider notice of the claim for the services." Thus, the statute creates a [293 Or.App. 694] rebuttable presumption for PIP claims, which the ...


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