Totten v. New York Life Insurance

ROSSMAN, J.,

dissenting.

I am dismayed but not surprised by the resolution of this case. It is becoming a habit of this court to ignore the well-established and time-honored rule of law that insurance contracts are to be construed liberally in favor of the insured. See Mortgage Bancorp. v. New Hampshire Ins. Co., 67 Or App 261, 677 P2d 726 (1984). I dissent here for the same reason that I dissented there.

Succinctly stated, the rule we should be applying is:

“ ‘The language used in a contract of insurance is entitled to a construction as favorable to the insured as in good conscience will be permitted, and every reasonable intendment will be allowed to support a view that will protect the insured and prevent forfeiture. [Citations omitted.]’ Schweigert v. Beneficial Life Ins. Co., 204 Or 294, 301, 282 P2d 621 (1955).” O’Neill v. Standard Insurance, 276 Or 357, 361, 554 P2d 997 (1976).

In other words, if a term is susceptible to more than one meaning, every reasonable doubt will be resolved in favor of extending coverage. Western Fire Insurance Co. v. Wallis, 289 Or 303, 308, 613 P2d 36 (1980); Allen v. Continental Casualty Co., 280 Or 631, 633, 572 P2d 617 (1977). The rule is especially applicable in cases involving exclusionary clauses, such as we have in this case. See Stanford v. American Guaranty Life Ins. Co., 280 Or 525, 527, 571 P2d 909 (1977); United Pac. Ins. v. Truck Ins. Exch., 273 Or 283, 293, 541 P2d 448 (1975).

Because I believe that the construction being advanced here by plaintiff is a reasonable one, I would follow *259the clear Oregon authority and construe the insurance contract in favor of coverage and against the insurer.

Therefore, I respectfully dissent.