184 April 5, 2023 No. 165
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Steven CANTU,
Plaintiff-Respondent,
v.
PROGRESSIVE CLASSIC
INSURANCE COMPANY,
a foreign corporation,
Defendant-Appellant.
Multnomah County Circuit Court
19CV53678; A175784
Bruce C. Hamlin, Judge pro tempore.
Argued and submitted November 3, 2022.
James B. Rich argued the cause for appellant. Also on
the briefs was Harris, Wyatt & Amala, LLC.
Derek Larwick argued the cause for respondent. Also on
the brief was Larwick Law Firm, PC.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Affirmed.
Cite as 325 Or App 184 (2023) 185
PAGÁN, J.
In this civil appeal, defendant, an insurance com-
pany, contests the trial court’s entry of summary judgment
in favor of plaintiff. In one assignment of error, defendant
argues that the trial court misconstrued ORS 742.504 as
requiring defendant to provide underinsured motorist cov-
erage under an automobile policy for plaintiff’s injuries aris-
ing from a crash involving plaintiff’s motorcycle purchased
just eight days prior to the accident. As such, this case deals
with vehicles that were recently acquired by an insured per-
son and have not yet been scheduled in an insurance policy.
The sole question in this insurance coverage case is whether
defendant is required by statute to provide coverage for
“newly acquired vehicles,” such as plaintiff’s motorcycle, not-
withstanding an insurance policy term that excluded trans-
portation devices with less than four wheels. The parties
stipulated to the relevant material facts, and each moved
for summary judgment. The trial court granted plaintiff’s
motion and denied defendant’s motion. We conclude that the
trial court did not err and, therefore, affirm.
The operative facts are undisputed. Plaintiff was
insured by defendant for three automobiles. The policy at
issue did not list any motorcycles on the declaration page.
The policy also included underinsured motorist coverage
and provided that “additional autos” would be covered by
that underinsured motorist coverage for up to 30 days after
acquisition by an insured. About eight days after purchasing
a motorcycle, plaintiff was severely injured when another
driver negligently made a left turn in front of plaintiff. As a
result of the injuries, plaintiff sought damages in excess of
the liability limits of the other driver. Defendant admitted
the motorcycle was “newly acquired,” but denied underin-
sured motorist bodily injury benefits based on specific terms
of the insurance policy that excluded vehicles with less than
four wheels. Plaintiff filed this action, alleging that pur-
suant to various portions of Oregon’s statutory uninsured
motorist (UM) coverages, ORS 742.500 - 742.510, defendant
was required to provide bodily injury coverage on the “newly
acquired vehicle”—viz., the motorcycle purchased eight days
before the collision.
186 Cantu v. Progressive Classic Ins. Co.
Both parties filed motions for summary judgment,
each contending that, as applied to the undisputed facts,
ORS 742.504(2)(d)(A)1 dictates the outcome they each
sought. According to plaintiff, the statutory-minimum cov-
erages prescribed by the UM laws require that defendant
extend the existing UM coverage to newly acquired vehicles,
and the statutory definition of “vehicle” as provided in ORS
742.504(2)(m)2 includes a motorcycle. Defendant argued
that, as written, ORS 742.504(2)(d)(A) does not incorporate
the paragraph (m) definition of vehicle, and thus leaves it to
the contracting parties to define the relevant meaning.
The trial court granted summary judgment to
plaintiff, after concluding that the relevant definitions in
the insurance policy impermissibly provided “underinsured
motorist benefits that [are] less favorable to the insured
than the terms of ORS 742.504 require.” The trial court
denied defendant’s motion for summary judgment on the
same issue.
On appeal, defendant largely reprises the argument
it made below. Specifically, defendant contends that the trial
court erred by construing ORS 742.504(2)(d)(A) as requiring
the newly acquired vehicle provision to include the motor-
cycle, when the policy itself did not cover any motorcycles.
Moreover, defendant argues that by “pluck[ing]” the defini-
tion of “motor vehicle” or “vehicle” from other portions of the
UM statute and using it in the newly acquired vehicle provi-
sion, the trial court committed legal error.
Although this appeal reaches us following the grant
of summary judgment in favor of plaintiff, the question in
this case reduces to the meaning of the statute, and thus is
1
ORS 742.504(2) provides, in part:
“(d) ‘Insured vehicle,’ except as provided in paragraph (e) of this provi-
sion, means:
“(A) The vehicle described in the policy or a newly acquired or substitute
vehicle, as each of those terms is defined in the public liability coverage of the
policy, insured under the public liability provisions of the policy[.]”
2
ORS 742.504(2)(m) provides:
“ ‘Vehicle’ means every device in, upon or by which any person or prop-
erty is or may be transported or drawn upon a public highway, but does not
include devices moved by human power or used exclusively upon stationary
rails or tracks.”
Cite as 325 Or App 184 (2023) 187
one of statutory construction. See Bialostosky v. Cummings,
319 Or App 352, 356, 511 P3d 31 (2022) (stating approach
to review where material facts uncontested and outcome
turned on meaning of statute). Our goal in interpreting a
statute is to discern the intent of the legislature in enacting
the statute. See ORS 174.020(1)(a) (“In the construction of a
statute, a court shall pursue the intention of the legislature
if possible.”). “[T]here is no more persuasive evidence of the
intent of the legislature than the words by which the legis-
lature undertook to give expression to its wishes.” State v.
Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (citations and
internal quotation marks omitted). We examine the text of
the statute in its context. See Stevens v. Czerniak, 336 Or
392, 401, 84 P3d 140 (2004) (“[T]ext should not be read in
isolation but must be considered in context,” which “includes
other provisions of the same statute, the session laws, and
related statutes.”). We may consult legislative history in
addition to text and context, “where that legislative history
appears useful to the court’s analysis.” Gaines, 346 Or at
172.
In Oregon, minimum UM coverages are prescribed
by statute. See ORS 742.500 - 742.510. Insurance policy pro-
visions in the written contract that are “less favorable in
any respect to the insured or the beneficiary” are “unen-
forceable.” ORS 742.504; see also Vega v. Farmers Ins. Co. of
Oregon, 323 Or 291, 302-03, 918 P2d 95 (1996) (so stating).
A policy may exclude or soften “an authorized term that
disfavors insureds” or add a term that is “neutral or favors
insureds” without violating ORS 742.504. Vega, 323 Or at
302. Thus, we must determine whether the trial court com-
mitted legal error by concluding that the statutory defini-
tion of “vehicle” applied in this instance because defendant’s
policy provision provided benefits “less favorable” than
required by statute.
When assessing the meaning of a statutory insur-
ance term, our focus is on the intention of the legislature,
discerned through the words selected by the legislature—
not the parties contracting for insurance. Trus Joist
MacMillan v. John Deere Ins. Co., 171 Or App 476, 483, 15
P3d 995 (2000), rev den, 332 Or 305 (2001). We do not look
to the insurance policy when determining the meaning of
188 Cantu v. Progressive Classic Ins. Co.
statutory insurance terms, we look first to the terms as they
are defined by the legislature, and in the absence of defini-
tion, those terms are presumed to carry a “natural, plain,
and ordinary meaning.” Id.; see also DCBS v. Muliro, 359 Or
736, 745-46, 380 P3d 270 (2016) (“When the legislature has
not defined a word or a phrase, we assume, at least initially,
that the word or phrase has its plain, natural, and ordinary
meaning.”).
ORS 742.504(2)(d), which contains an exception to
the definition of “insured vehicle,” indicates that when the
legislature wants to specifically exclude something from a
definition, it has the express tools to do so. It did so in this
instance by excluding trailers from the definition of insured
vehicle. ORS 742.504(2)(e). A trailer, under common mean-
ings of the word, is generally a “vehicle” under the defini-
tion in paragraph (m) because a trailer is a “device” that
“in, upon, or by which” “property” “may be transported or
drawn upon a public highway,” and is not generally “moved
by human power.” That point lends some credence to plain-
tiff’s contention that the paragraph (m) definition of “vehi-
cle” is applicable to the provision at issue in this case. In
other words, the text suggests that the legislature under-
stood that the broad definition of “vehicle” applied to para-
graph (d) and decided to exclude trailers from the mandated
UM coverage. The corollary of that broad definition and
exception formula is that the legislature likely intended the
paragraph (m) definition of vehicle to be applicable within
the definition of “insured vehicle.”
Finally, drilling down to subparagraph (A), we
consider the text and structure of that provision. The first
clause, “[t]he vehicle described in the policy,” suggests that
the contracting parties are empowered to negotiate which
vehicles will be included in the UM policy. As used in this
statute, “the” serves to limit the noun “vehicle” to those
described in the policy. However, that does not imply that
the statutory definition of the noun “vehicle” is inapplicable.
The second clause, “or a newly acquired or substitute vehi-
cle, as each of those terms is defined in the public liability
coverage of the policy” suggests that the contracting par-
ties are free to define what “newly acquired or substitute
Cite as 325 Or App 184 (2023) 189
vehicle” means for the UM policy. The notion that the par-
ties are free to decide which vehicles are covered, or whether
they are “newly acquired” or “substitute” does not compel
the conclusion that it is left to the parties to decide whether
or not a transportation device is a vehicle, however.
The remainder of the definitional provisions in ORS
742.504(2) use the term “vehicle” in a way that is consistent
with the way the term is used in paragraph (d). “Although,
in the abstract, there is nothing that precludes the legisla-
ture from defining the same terms to mean different things
in the same or related statutes, in the absence of evidence to
the contrary, we ordinarily assume that the legislature uses
terms in related statutes consistently.” State v. Cloutier,
351 Or 68, 99, 261 P3d 1234 (2011); see also Village at Main
Street Phase II v. Dept. of Rev., 356 Or 164, 175, 339 P3d 428
(2014) (applying assumption of consistent meaning at tex-
tual analysis step of statutory construction). There is no evi-
dence that suggests that the legislature intended a different
meaning for the word “vehicle” when defining “insured vehi-
cle” than it did when defining “hit-and-run vehicle,” “phan-
tom vehicle,” “stolen vehicle,” or “uninsured vehicle.” ORS
742.504(2)(b)-(l). Absent evidence of that intention, there is
no reason to discount the ordinary assumption that para-
graph (m)’s definition of “vehicle” applies equally to all of the
ORS 742.504(2) definitions that use that word.
The construction of ORS 742.504(2)(d)(A) in a man-
ner that permits the contracting parties to define the partic-
ulars of when a statutorily defined vehicle is “newly acquired”
or “substitute” also aligns with the legislative mandate to
“ascertain and declare, what is, in terms or in substance,
contained therein, not to insert what has been omitted, or
to omit what has been inserted.” ORS 174.010. Construing
the provision at issue to allow the parties to ignore the stat-
utory definition of “vehicle” requires us to either read in a
term like “except as provided” or “notwithstanding,” or to
omit the legislatively provided definition. Neither construc-
tion comports with the approach to statutory construction in
Oregon.
Turning to the context of the statutory provision at
issue and beginning with the required performance of an
190 Cantu v. Progressive Classic Ins. Co.
insurer, ORS 742.504(1)(a),3 it is clear that when the legis-
lature perceives a conflict between the UM laws and other
applicable laws, it possesses the textual tools to resolve
those conflicts. For example, the phrase “[n]otwithstanding
ORS 30.260 to ORS 30.300, the insurer will pay all sums,”
means that the legislature intended for the UM laws to
apply even in instances where the tortfeasor was a public
body, and specifically noted that intention through express
language. ORS 742.504(1)(a). It follows that had the legisla-
ture intended for the paragraph (m) definition of vehicle to
be inapplicable to the definition of “insured vehicle,” the leg-
islature could have signaled that intention by using words
such as “notwithstanding paragraph (m), ‘insured vehicle,’
means”:4 The legislature did not.
The broader purpose manifest in the UM law is to
“place the injured policyholder in the same position as if the
tortfeasor had had liability insurance.” Vogelin v. American
Family Mutual Ins. Co., 346 Or 490, 501, 213 P3d 1216
(2009). That is reflected in part by the statutory default for
symmetrical UM and bodily injury liability coverages. ORS
742.502(2)(a). Unless a “named insured” elects in writing to
lower limits, the limits of UM coverage and bodily injury
liability coverage must be the same. Id. That contextual
clue helps shed light on the probable legislative intention
underpinning the phrase “newly acquired or substitute
vehicle, as each of those terms is defined in the public liabil-
ity coverage of the policy,” by indicating that the legislature
desired to maintain symmetrical coverage between UM and
bodily injury liability when an insured acquires a vehicle
or replaces a scheduled vehicle. That implies that “newly
3
ORS 742.504(1)(a) provides, in part:
“Notwithstanding ORS 30.260 to 30.300, the insurer will pay all sums that
the insured or the heirs or legal representative of the insured is legally enti-
tled to recover as damages from the owner or operator of an uninsured vehi-
cle because of bodily injury sustained by the insured caused by accident and
arising out of the ownership, maintenance or use of the uninsured vehicle.”
4
Moreover, several definitional provisions in the broader Oregon Revised
Statutes preface the meanings assigned by stating “unless context requires
otherwise.” See ORS 72A.1030(1); ORS 133.005; ORS 419A.004; ORS 656.003.
Although such practice is by no means universal, nor is the absence of such a
phrase dispositive, it does provide a contextual clue that the definitions specifi-
cally supplied by the legislature for the UM laws were intended to be the applica-
ble definitions.
Cite as 325 Or App 184 (2023) 191
acquired” or “substitute” refers to a question of when, and
for how long, a different owned vehicle is covered by UM and
bodily injury liability coverages, not necessarily a question
of what kind of transportation device constitutes a vehicle. It
is perfectly logical for the legislature to permit the contract-
ing parties to determine when a “vehicle” qualifies as “newly
acquired” or “substitute,” how long that status persists, and
other neutral considerations in that vein, without also ced-
ing the definition of vehicle to the parties.
We are unconvinced that the legislative directive to
define “newly acquired” or “substitute” in the policy extends
as far as also defining “vehicle” in a way that is inconsis-
tent with paragraph (m). When the text of paragraph (d) is
considered in the contextual setting amongst ORS 742.504,
the remainder of the UM statutes, and related statutes, it is
apparent that the legislature intended the term “vehicle” to
carry the definition the legislature provided in paragraph
(m).5 The trial court did not err by concluding that the para-
graph (m) definition of vehicle was the applicable definition
of that word.
Notwithstanding our conclusion that the statutory
definition in paragraph (m) is applicable to the definition of
“insured vehicle,” the UM statutes do not require any partic-
ular language in the insurance contract. See ORS 742.504
(“However, nothing contained in this section requires the
insurer to reproduce in the policy the particular language
of any of the following provisions.”). That is, parties such
as plaintiff and defendant may draft an insurance contract
with their own language so long as the result is not “less
favorable in any respect to the insured or the beneficiary”
than is required by statute. Id.
The insurance policy provisions at issue here
provide:
“1. ‘Additional auto’ means an auto you become the owner
of during the policy period that does not permanently
replace an auto shown on the declarations page if:
5
We have reviewed the legislative history associated with Oregon’s enact-
ment of UM laws; however, we have not found any pertinent discussion regarding
the scope of UM coverage or a meaning of vehicle different than provided in ORS
742.504(m).
192 Cantu v. Progressive Classic Ins. Co.
“a. we insure all other autos you own;
“b. the additional auto is not covered by any other insur-
ance policy;
“c. you notify us within 30 days of becoming the owner of
the additional auto; and
“d. you pay any additional premium due.
“An additional auto will have the broadest coverage we
provide for any auto shown on the declarations page. If you
ask us to insure an additional auto more than 30 days after
you become the owner, any coverage we provide will begin
at the time you request coverage.
“2. ‘Auto’ means a land motor vehicle:
“a. of the private passenger, pickup body, or cargo van
type;
“b. designed for operation principally upon public roads;
“c. with at least four wheels; and
“d. with a gross vehicle weight rating of 12,000 pounds or
less, according to the manufacturer’s specifications.
“However, ‘auto’ does not include step-vans, parcel delivery
vans, or cargo cutaway vans or other vans with cabs sepa-
rate from the cargo area.
“* * * * *
“5. ‘Covered auto’ means:
“a. any auto or trailer shown on the declarations page for
the coverages applicable to that auto or trailer;
“b. any additional auto;
“c. any replacement auto; or
“d. a trailer owned by you.”
Although the record does not describe exactly what
model or configuration of motorcycle plaintiff was operating
when he was injured, we can infer that it did not have “at
least four wheels,” and was therefore excluded as a “covered
auto” under the terms of the policy.
We assess whether a UM policy provides “less
favorable” terms to an insured “not by a direct comparison
Cite as 325 Or App 184 (2023) 193
between the challenged provision with an individual statu-
tory provision,” rather, we compare the coverages provided
in the policy against those required by statute. Vega, 323
Or at 299. As hypothesized in Vega, because the challenged
policy provision bears a clear relationship to a statutory
provision, the distinction between the statutory provision
and the coverage arising therefrom is inconsequential. Put
differently,
“[i]f a policy contains a challenged provision that is ‘less
favorable to the insured’ than one of the statutory provi-
sions, it takes no great leap of imagination to conclude that,
at least in that respect, the coverage in the policy also is
less favorable than the coverage in a policy comprised of
the statutory provisions.”
Id. at 299-300. In the instant case, it poses little challenge
to conclude that defendant’s policy, with respect to the defi-
nition of “additional auto,” excludes vehicles that are other-
wise included within the coverages prescribed by statute.
A motorcycle, under a common understanding of the term,
is a “device” “upon or by which any person” “may be trans-
ported * * * upon a public highway” and is not “moved by
human power” or “used exclusively upon stationary rails
or tracks.” ORS 742.504(2)(m); see also Webster’s Third New
Int’l Dictionary 1476 (unabridged ed 2002) (motorcycle is “a
2-wheeled tandem automotive vehicle having 1 or 2 riding
saddles and sometimes having a 3d wheel for the support
of a sidecar”). A motorcycle is therefore a vehicle within the
definition provided by the legislature.
Thus, we must conclude that, by limiting the defi-
nition of “auto” in the policy to devices having “at least four
wheels,” defendant impermissibly provided less favorable
coverage to plaintiff than that required by law. The trial
court did not err by so concluding, or by granting summary
judgment to plaintiff on that basis.
Affirmed.