dissenting.
I dissent.
The majority draws upon a definition from the uninsured motorist statutes in support of the conclusion that the ORS 743.800 term “the insured motor vehicle” includes a temporary substitute vehicle. I am convinced that none of the definitions contained in the uninsured motorist statutes, ORS 743.786 - 743.795, are statutorily made a part of the liability or *577PIP coverage of every motor vehicle liability policy. The majority errs in drawing upon the definitions in ORS 743.792 in support of the conclusion that Andrews’ car, while operated by Barron, was a temporary substitute automobile under ORS 743.792(2)(b), and therefore was “the insured motor vehicle” under ORS 743.800.
Oregon’s present comprehensive uninsured motorist law was enacted in 1967. The minutes of a Senate hearing on House Bill 1506 contain this opening comment concerning the purpose of the law:
“Senator Burns opened the discussion on Engrossed HB 1506. This bill is a guide to clarify and expand upon the definition in the insurance laws that relate to uninsured motorist coverage.” Minutes, Senate Committee on Highways, May 23,1967.
HB 1506 was enacted and became Chapter 482,1967 Or Laws. Section 3(2) provided in part:
“(2) As used in this policy:
“(a) ‘Insured,’ when unqualified, means when applied to uninsured motorist coverage:
“(A) * * *
“(B) * * *
“(b) ‘Insured vehicle,’ except as provided in paragraph (c) of this provision, means:
“(A) * * *
“(B) * * *.” (Emphasis added.)
The majority notes that the italicized language of subsection (2) (a) does not appear in subsection (2)(b), and concludes that the definitions of subsection (2)(b) therefore are part of the liability and PIP coverage of every motor vehicle liability policy issued in Oregon.
I am convinced that the provisions of ORS 743.786 - 743.795 are limited to the mandatory uninsured motorist coverage plan the legislature had in mind in enacting HB 1506. The absence of the italicized words “when applied to uninsured motorist coverage” in subsection (2)(b) of section 3 of HB 1506 does not invalidate my conclusion.
The permeating premise underlying HB 1506 was the *578enactment of a comprehensive plan of uninsured motorist coverage. The PIP law had not yet been enacted. It was first enacted in 1971.
There is not a slab of concrete evidence that the legislature, in enacting HB 1506 in 1967, had in mind the creation of a mandatory statutory definition of the term “insured vehicle” that applied to all motor vehicle insurance coverages - liability, uninsured motorist, medical payments, or collision. I rely upon the following legislative history.
Two years earlier, in 1965, the Legislative Assembly enacted an uninsured motorist law, HB 1041. It was vetoed. On April 1, 1965, the Senate Financial Affairs Committee considered HB 1041. At that time, section 3 (2) (a) provided in part: “(a) ‘Insured,’ when unqualified, means: * * *.” Section 3(2)(b) provided in part: “(b) ‘Insured vehicle,’ except as provided in paragraph (c) of this provision, means: * *
The minutes of the Senate Financial Affairs Committee for April 1,1985, contain this entry:
“HB 1041 Relating to insurance - requires minimum policy provisions for uninsured motorist endorsement on automobile insurance policies.
“Mr. John Steelhammer appeared before the committee and stated that he had some amendments which he wished to propose. He stated that he represented the American Reciprocal Ins. Ass’n. of Kansas City and his company wanted it clearly defined in HB 1041 that this refers only to uninsured motorist insurance and not liability insurance. His amendments would spell this out very clearly.” (Emphasis added.)
The amendment sought by Mr. Steelhammer (and which was made) added the words “when applied to uninsured motorist coverage” now found in subsection (2)(a). Steelhammer suggested no similar definition of “insured vehicle” in subsection 2(b), or in any other definition in section 3.
The failure to make a similar change in subsection 2(b) was simply a legislative oversight. As stated earlier, there is no suggestion in the entire legislative history of the uninsured motorist legislation, in 1965 or 1967, that the legislature intended that the definition of “insured vehicle” in subsection (2) (b) apply to all coverages in every motor vehicle liability *579policy, much less that the definition apply to PIP coverage, which was not enacted until 1971.
Granted, the limiting clause of subsection 2(a) is absent from 2(b). Had the legislature intended such a far-reaching effect, the legislative history would show it. Keep in mind that section 3 of the 1967 legislation begins: “Every policy required to provide the coverage specified in section 2 of this 1967 Act shall provide uninsured motorist coverage * * (Emphasis added.) Subsection 2 of section 3 contains detailed provisions relating to definitions of “insured,” “insured vehicle,” “uninsured vehicle,” “hit-and-run vehicle,” “phantom vehicle,” “bodily injury,” “occupying,” and “vehicle.” The most logical conclusion is that Mr. Steelhammer, in suggesting the change, intended the change to clarify that the entire legislation concerned only the uninsured motorist scheme. This would have been accomplished by adding the words “when applied to uninsured motorist coverage” in the first sentence of subsection (2) of section 3, so that the first clause would read: “As used in this policy, when applied to uninsured motorist coverage':” We should not perpetuate the error.
How, then, should this case be decided? In a nutshell, my view of the PIP statutes is this: As used in ORS 743.800, the term “the person insured” means “the named insured.” The term “the insured motor vehicle” means the vehicle listed in the declarations, whether designated by express description or by class. The construction of the PIP statutes set forth below gives meaning and coherence to the entire PIP scheme, with the result that each and every PIP statute is applied according to its clear and intended terms.1
The PIP statutes, ORS 743.800 to 743.835, are part of a comprehensive motor vehicle insurance plan. The plan is based in part upon the requirement that every person operating a vehicle be “insured * * * under a motor vehicle liability insurance policy.” ORS 486.075(1).
Oregon requires that every motor vehicle liability policy have these coverages:
1. Liability coverage with specified minimum limits *580and specified terms. Former ORS chapter 486, repealed by Or Laws 1985, ch 16, and Or Laws 1983, ch 338. See present ORS 743.776 to 743.785; ORS chapter 806.
2. Uninsured motorist coverage. ORS 743.786-743.795.
3. PIP coverage. ORS 743.800-743.835.
The PIP scheme contemplates that every person injured while riding in a vehicle and pedestrians struck by any motor vehicle would be entitled to PIP benefits from some insurer, without regard to fault. The legislature knew that situations would arise in which an injured person would be entitled to benefits under more than one policy. It enacted ORS 743.810 to specify which policy would be “primary.”
It is worth noting that this is not a situation in which a policy is to be construed against the insurer who writes it. We are construing a statute. I turn to a discussion of the specific meaning of the ORS 743.800 terms “the insured person” and “the insured motor vehicle.”
ORS 743.800 requires that every motor vehicle liability policy issued for delivery in this state provide PIP benefits to four classes of injured persons:
Class 1: “the person insured thereunder:
Class 2: “members of that person’s family residing in the same household”
Class 3: “passengers occupying the insured motor vehicle”
Class 4: “pedestrians struck by the insured motor vehicle. ” (Emphasis added.)
The liability coverages of most automobile liability policies contain broad coverage that extends liability protection to persons other than the named insured while using the described vehicle. The liability coverages also normally extend liability coverage to the use, by the named insured, of vehicles other than the auto described in the declarations section. For example, the Colonial policy extends liability coverage to the named insured if he operates a car owned by someone else “if such use is with the permission of the owner.” The liability *581coverage of the Colonial policy also extends liability coverage to additional unnamed insureds - “any other person” - while using the car described in the declarations.
ORS 743.800 was designed to provide this PIP protection:
1. Protection for the insured - the person(s) buying the policy. In this case, under the Colonial policy, that is Barron. ORS 743.800(1) uses the term “the person insured thereunder,” not “any person insured thereunder.”
2. Protection for “members of the insured’s family Residing in the same household.” The legislature did not say ‘any insured’s family.”
3. Protection for “passengers occupying the insured motor vehicle.” Here, the reference to “the insured motor vehicle” most likely refers to the car with relation to which the insurance is purchased, usually the vehicle named in the declarations. As far as Barron is concerned, that means not Andrews’ car, but Barron’s 1968 Plymouth.
4. Protection for “pedestrians struck by the insured motor vehicle.” Here again, I believe that the virtually inescapable conclusion is that the legislature was referring to the automobile described in the declarations, in this case, the insured’s (Barron’s) private passenger motor vehicle.
This conclusion is borne out by the language of current ORS 743.800(2)(a).2 It provides PIP protection for *582“the person insured under the policy and members of that person’s family residing in the same household” if injury results from the use or maintenance of “any motor vehicle.” Broad coverage. Passengers’ PIP benefits are limited to passengers “occupying * * * the insured motor vehicle.” Pedestrians’ benefits are limited to pedestrians “struck by the insured motor vehicle. The legislature intended to limit benefits of pedestrians and passengers other than members of the insured’s family to injuries sustained from or in connection with the use of “the insured vehicle.” But family members of the insured are entitled to benefits if injured from using “any motor vehicle.” The legislature had in mind the difference between “any insured vehicle” and “the insured vehicle.” f
The final PIP statute I cite to support my conclusion is ORS 743.810(l)(a) and (d). It reads:
“(1) The personal injury protection benefits with respect to:
“(a) The insured and members of his family residing in the same household injured while occupying the insured motor vehicle shall be primary.
:f: :fe ;f: ‡
“(d) The insured and members of his family residing in the same household injured while occupying a motor vehicle not insured under the policy shall be excess.”
The legislature obviously had in mind two classes of “insured vehicles.” One class is “the insured motor vehicle,” which I maintain is the vehicle described in the declarations. The second class is a vehicle with respect to the use of which another insurance policy provides PIP benefits to a person. ORS 743.810(l)(d).
ORS 743.810(1) aims to define which policy is primary when two or more policies concurrently provide PIP benefits to a person. If the named insured or members of his family are injured while riding in the car described in the declarations, the PIP insurance on that car is primary.
But persons regularly ride in and sometimes drive other persons’ cars. A common example is when a named insured who owns an automobile described in Policy . A is riding as a passenger in a car owned by another person and described in policy B. The named insured would be entitled to *583PIP benefits under his policy, policy A, because he was riding in “any motor vehicle.” Present ORS 743.800(2)(a). He likely also would be entitled to benefits under policy B because of his status as “a passenger occupying * * * the insured motor vehicle.” Under policy B, the host car would be “the insured motor vehicle.”
Under those facts, ORS 743.810(1) (d) provides that policy B would be primary. That is the clear intent of the legislature.
I attribute some discrimination to the legislature. In using the words “the insured motor vehicle,” the legislature likely meant the vehicle described in the declarations section of the policy. In using the term “any motor vehicle” they included both “the insured motor vehicle” and any other motor vehicle.
The legislature had in mind a comprehensive insurance scheme under which (1) all drivers would have liability coverage, and (2) all drivers and passengers, and all pedestrians struck by any motor vehicle would be entitled to PIP benefits. The legislature contemplated but one recovery when more than one policy applied, and in ORS 743.810 directed which insurer would pay if more than one policy applied.
The Court of Appeals in effect held that the term “the insured motor vehicle” means any motor vehicle the operation of which is covered by the liability coverage of the policy. While this analysis has a fetching simplicity, it in part renders ORS 743.810 meaningless.
For example, under that analysis, if Andrews’ car were designated in the declarations section of her policy and extended liability coverage to permissive users such as Barron, and Barron were injured while driving her car, under ORS 743.810(1) (a) Andrews’ car would be “the insured motor vehicle” under both her policy and Barron’s policy. Both policies would be “primary” under ORS 743.810(l)(a).
In a sense, that was the result of the Court of Appeals’ analysis. It held:
“Both Utah’s and Colonial’s limitations on PIP coverage being invalid, Andrews is properly viewed as ‘[t]he insured * * * injured while occupying the insured motor vehicle * * *584therefore, under ORS 743.810(1)(a), the Utah policy is primary. However, Andrews was also a ‘[p]assenger injured while occupying the insured motor vehicle * * *’ under the Colonial policy, and her coverage is therefore also primary under the Colonial policy. ORS 743.810(l)(b). Having concluded that both policies are primary with respect to Andrews’ injuries, we think it appropriate to apply the rule of Lamb-Weston v. Ore. Auto Ins. Co., 219 Or 110,341 P2d 110,346 P2d 643 (1959). In that case, the court required the insurance companies to prorate the loss in accordance with the ratio of the loss to their applicable policy limits. * * *” Utah Home Fire Ins. v. Colonial Ins., 64 Or App 617, 622-23, 669 P2d 381, 384 (1983).
ORS 743.810(1)(d) was intended to apply to such a situation. Under the last hypothetical set forth above, under ORS 743.810(1)(d), Barron would be occupying a vehicle the operation of which would be covered under both the Colonial and Utah policies, and PIP benefits would extend to Barron under both policies. Under my construction of the PIP statutes, under ORS 743.810(1)(d), even though both the Utah policy and the Colonial would extend liability and PIP coverage to Barron, the Colonial policy would be excess because Barron is occupying a vehicle not named in the declarations of the Colonial policy.
The Utah “broad form named operator” form states that the policy provides liability coverage “only [to] the named insured * * * while driving any * * * automobile * * That ORS 486.411 and ORS 486.506 permit,3 and that Utah’s policy *585may have been written to provide liability coverage to its insured while driving any car is not inconsistent with the analysis. The vehicle described in the declarations section of the Utah policy is the vehicle required by ORS 486.411(1) to be described either “by explicit description or appropriate reference” (ORS 486.411(l)(a)) or “any motor vehicle” used by the insured (ORS 486.411(1)(b)). The term “the insured vehicle” in ORS 743.800 embraces the statutory definition of ORS 486.411(1) to include any car used by the named insured, who is, under the Utah policy, Andrews.
Therefore:
1. Andrews was the named insured under her Utah policy. As such, she was entitled to PIP benefits under the Utah policy because she was the named insured and because she was “injured in a motor vehicle accident.” ORS 743.800.
2. Andrews was not entitled to benefits under the Colonial policy because she was not riding in “the insured motor vehicle” under the Colonial policy. Under the Colonial policy “the insured vehicle” is the vehicle named in the declarations, Barron’s 1968 Plymouth.
3. Andrews’ insurer, Utah, is not entitled to recover any part of the amounts paid to Andrews under the Utah PIP coverage because Andrews is not entitled to benefits under the Colonial policy.
The majority errs in looking at the uninsured motorist definitions of ORS 743.792 to determine whether the Colonial policy applies under the PIP statute. In deciding this case, we should look only at the facts of the accident and the PIP statutes. Once the decision is made that the Colonial PIP coverage is statutorily deficient, then we should look only at the PIP statutes for guidance.
I would reverse the Court of Appeals and affirm the trial court.
*586Linde, J. joins in this opinion.All references in the opinion, unless otherwise indicated, are to statutes in effect in 1980.
ORS 743.800(2) currently reads:
“(2) Personal injury protection benefits apply to a person’s injury or death resulting:
“(a) In the case of the person insured under the policy and members of that person’s family residing in the same household, from the use or maintenance of any motor vehicle, except the following vehicles:
“(b) In the case of a passenger occupying or a pedestrian struck by the insured motor vehicle, from the use or maintenance of the vehicle.
I do not believe that I am disingenuous in relying on the “any motor vehicle” language currently in ORS 743.800(2)(a). Former ORS 743.800 used the phrase “injured in a motor vehicle accident.” (“* * * shall provide to the person insured thereunder and members of that person’s family injured in a motor vehicle accident * * *). Insofar as this case is concerned, I read the term “injured in a motor vehicle accident” to mean essentially the same as “injury * * * resulting * * * from the use or maintenance of any motor vehicle.”
ORS 486.411(1) provides:
“Proof of future responsibililty may be given by filing with the division for the benefit of the person required to fiirnish such proof:
“(1) A certificate of insurance issued by an insurance carrier doing business in this state, showing that the insured has procured and that there is in effect a motor vehicle liability policy for the limits of future responsibility either:
“(a) Designating by explicit description or by appropriate reference all motor vehicles with respect to which coverage is granted thereby and insuring the named insured and all other persons using any such motor vehicle with the insured’s consent against loss from the liabilities imposed by law for damages arising out of the ownership, operation, use or maintenance of any such motor vehicle; or
“(b) Insuring such person against such loss arising out of the use by the person of any motor vehicle not owned by the person.”
ORS 486.506(1) provides:
*585“(1) Every certificate of insurance shall:
“(a) Be dated as of the date of the motor vehicle policy for which it is given.
“(b) Contain the policy number.
“(c) Describe all vehicles covered by the policy, unless such policy is issued with respect to all vehicles operated by the assured.”