Clackamas County Circuit Court CV14010108; Henry C.
Breithaupt, Judge pro tempore.
and submitted April 11, 2016
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.
Armstrong, Presiding Judge, and Hadlock, Judge, and Shorr,
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.
Or.App. 791] ARMSTRONG, P. J.
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.
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.
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.
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."
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
"1. An amount equal to the applicable limits of
insurance of any other insurance collectible by the ...