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Oregon Mutual Insurance Co. v. Those Certain Underwriters at Lloyd's London

Court of Appeals of Oregon

January 30, 2019

OREGON MUTUAL INSURANCE COMPANY, Plaintiff-Appellant,
v.
THOSE CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER OROAKG2-CNE, Defendant-Respondent.

          Clackamas County Circuit Court CV14010108; Henry C. Breithaupt, Judge pro tempore.

          Argued and submitted April 11, 2016

          Todd S. Baran argued the cause for appellant. Also on the briefs was Todd S. Baran, PC.

          Christopher T. Carson argued the cause for respondent. Also on the brief were Candice R. Broock and Kilmer, Voorhees & Laurick, P.C.; Samuel B. Rainey and McCullough, Campbell & Lane LLP.

          Before Armstrong, Presiding Judge, and Hadlock, Judge, and Shorr, Judge.

         Case Summary:

         Plaintiff appeals a judgment entered for defendant on its claim for contribution. Plaintiff asserts that defendant was responsible for paying a pro-rata share of the total amount paid to settle an automobile accident as a co-insurer. The trial court concluded that defendant was not responsible to pay a pro-rata share because defendant's policy was an excess liability policy. Held: Defendant's policy was an excess liability policy and, hence, the trial court did not err.

         Affirmed.

         [295 Or.App. 791] ARMSTRONG, P. J.

         Plaintiff Oregon Mutual Insurance Company (Oregon Mutual) brought this contribution action against defendant Those Certain Underwriters at Lloyd's London Subscribing to Policy Number OROAKG2-CNE (Lloyd's), asserting that Lloyd's was responsible as a co-insurer to pay a pro-rata share of the total amount paid to settle an automobile accident. On cross-motions for summary judgment, the trial court granted summary judgment to Lloyd's, and Oregon Mutual appeals. The question presented on appeal is whether the policy sold by Lloyd's is an excess liability policy under ORS 742.468(2), which provides an exemption for such policies from the Financial Responsibility Law (FRL), ORS 806.010 to 806.300. We conclude that the Lloyd's policy was an excess liability policy and, hence, the trial court did not err. Accordingly, we affirm.

         The facts relevant to the appeal are undisputed. RSVP-SCP of Clackamas County (RSVP) is a nonprofit organization that, among other things, coordinates the work of volunteers to transport people to medical appointments. Schabert, a "registered volunteer" for RSVP, was acting in that capacity for RSVP when she arrived in her own vehicle at Saint's home to transport Saint to a medical appointment. As Saint was getting into Schabert's car, Saint slipped, fell, and fractured her leg. Saint released her claims against Schabert for a payment of $180, 000.

         Oregon Mutual, which provided a primary automobile insurance policy to Schabert, paid the first $100, 000 of the settlement, which was the whole of the per-occurrence limit in Schabert's policy. Lloyd's, which provided a "volunteer excess auto liability" insurance policy for RSVP's "registered volunteers," paid the remaining $80, 000 of the settlement.

         The Lloyd's policy provided two types of "volunteer excess liability" coverage to registered volunteers of RSVP, who were the "insured" under the policy. RSVP, itself, was not an insured under the policy. Because only the "volunteer excess auto liability" coverage is at issue in this case, we recite only the portions of the policy relevant to that coverage. That coverage provided:

[295 Or.App. 792] "Volunteer Excess Auto Liability. We will pay all sums in excess of the 'retained limit' that the insured becomes legally obligated to pay as damages because of 'Bodily injury', 'property damage' or 'personal injury' to which this insurance applies. The amount we will pay is limited as described in SECTION III-LIMITS OF INSURANCE."

         The excess auto liability coverage had a $500, 000 per accident limit and applied to "bodily injury," "property damage," or "personal injury" arising out of "the insured's volunteer service on behalf of [RSVP]" and caused by an "accident under the volunteer excess auto liability." The policy defined "retained limit" as

         "the greater of:

"1. An amount equal to the applicable limits of insurance of any other insurance collectible by the ...

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