Pierce v. Allstate Insurance Co.

WARREN, P. J.,

dissenting.

The majority concludes that an insurer must make the offer of UM coverage mandated by ORS 742.502(2) whenever the insurer covers a new risk. It then states that that event is determined by consulting the language of the policy. Because the legislature did not intend that insurers control when insureds are to be informed about the availability of UM coverage, and because the majority’s rule would not promote the purpose of the notice requirement, I dissent.

The purpose of the offer mandated by ORS 742.502(2) is to apprise an insured of the right to choose UM limits equivalent to the insured’s liability limits. Wood v. State Farm Mutual Ins. Co., 100 Or App 576, 580, 787 P2d 504 (1990). To further that objective, ORS 742.502(2) requires insurers to make the mandated offer whenever an insured selects liability limits that are higher than the policy’s UM limits. That, essentially, was the basis of our decision in Blizzard v. State Farm Automobile Ins. Co., 86 Or App 56, 61, 738 P2d 983, rev den 304 Or 149 (1987).

In Blizzard, the plaintiffs insured three vehicles with the defendant insurer. After the legislature enacted ORS 742.502(2), the insurer offered UM limits equivalent to the liability limits for two of the plaintiffs’ vehicles. However, it did not make that offer for the third vehicle, because, at the time, the plaintiffs carried no liability insurance on that vehicle. Subsequently, the plaintiffs added liability insurance on the third vehicle. However, the insurer did not offer UM limits equivalent to the liability limits. After that vehicle was struck by an uninsured motorist, the plaintiffs sought a *537declaration that the policy contained the higher UM limits. The trial court reformed the policy as requested, and we affirmed, stating that

“defendant did not present a specific offer which plaintiffs could accept or reject on the insurance for the [third vehicle]. As a result, it did not comply with the statute as to that [vehicle].” 86 Or App at 61.

When the insureds in Blizzard added liability coverage, they selected an amount in excess of the amount that they had selected for UM coverage. By holding that the insurer was required to make the offer mandated by ORS 742.502(2) at that time, our decision supports the rule that insurers must make that offer whenever an insured selects liability limits that are higher than the policy’s existing UM limits.

The majority cites Blizzard for the proposition that insurer must make the offer mandated by ORS 742.502(2) whenever it covers a new risk. Because that event is determined by consulting the insurer’s policy, each insurer would determine when, or if, a re-offer of UM insurance is required by defining what constitutes acceptance of a new risk in its policy. Accordingly, under the majority’s rule, some insureds will receive offers when certain events occur or circumstances change, while others insured with a different carrier may not, simply because different insurers use different policy forms. Because that result would be inconsistent with the concept of mandated coverage, the majority’s rule could not have formed any part of the basis of our decision in Blizzard.

Mandated coverage is intended to insure that, at some minimum level, all insureds are equal with respect to all aspects of a particular form of coverage. Under the majority’s rule, all insureds will not be treated equally with respect to offers of UM coverage, unless all insurers use the same policy form. Because the legislature made UM coverage compulsory, ORS 742.502(1), we should not employ a strained interpretation of the statutes to impute to it an intent to permit insurers to determine when insureds are entitled to certain statutory benefits.

When the insurer offered plaintiff UM limits equal to her liability limits the last time that she selected higher *538liability limits, it satisfied its duty under ORS 742.502(2) and was not required to make that offer again. Accordingly, plaintiff was not entitled to the higher limits, and the trial court properly granted the summary judgment.

I dissent.