Thompson v. Estate of Adrian L. Pannell , 176 Or. App. 90 ( 2001 )

BREWER, J.

In this declaratory judgment action, plaintiff appeals from a judgment on the pleadings in favor of defendant school district as to plaintiffs claim that she was entitled to uninsured motorist (UM) benefits under defendant’s self-insurance for motor vehicle liability. Plaintiff also appeals from summary judgment for defendant as to plaintiffs claim for breach of an implied contract of accidental medical and dental insurance for school volunteers. We affirm.

Plaintiffs children attended school in defendant school district. In June 1995, plaintiffs daughter’s class took a three-day school-sponsored trip to a camp on the Oregon coast. Plaintiff volunteered to act as a chaperone on the trip. At the request of school staff, plaintiff transported the students’ luggage to and from the camp in her van. During the return trip, plaintiffs van was struck head-on by a vehicle driven by an uninsured motorist. The uninsured motorist was killed, and plaintiff was seriously injured.

At the time of plaintiffs accident, defendant was self-insured for liability, including liability arising out of motor vehicle accidents. It also carried excess liability insurance covering losses exceeding $1 million, up to a limit of $2 million. Although defendant’s excess liability insurance policy included coverage for bodily injury and property damage arising out of automobile accidents, it did not include uninsured UM coverage.¹

Plaintiff recovered UM and personal injury protection (PIP) benefits under her own motor vehicle liability insurance policy. Because her medical expenses exceeded the amount recovered, plaintiff also sought additional benefits from defendant. Defendant denied coverage.

Plaintiff then brought this action, seeking a declaration that she was entitled to coverage under defendant’s motor vehicle liability self-insurance. In that context, plaintiff alleged that she was engaged in defendant’s business as a volunteer and as defendant’s agent or bailee; that defendant had made representations to volunteers, including plaintiff, regarding insurance coverage for volunteers; that defendant was self-insured for motor vehicle liability pursuant to ORS 806.130; and that plaintiff was “within the class of persons” whom statutes relating to UM coverage were intended to benefit. Relying on defendant’s “Guidebook for Volunteers”— stating, in part, that “volunteers are covered by accidental medical and accidental dental insurance while performing on site volunteer service” — plaintiff separately claimed that, in denying coverage, defendant breached an implied contract of accidental medical and dental insurance for school volunteers.² In its answer, defendant admitted that it was self-insured for motor vehicle liability and admitted that it had denied coverage to plaintiff, but it denied plaintiffs other allegations. In addition, as an affirmative defense to plaintiffs claim for declaratory relief, defendant asserted that it was exempt from the Insurance Code pursuant to ORS 731.036(4) and (5) and ORS 30.282.

Defendant then moved for judgment on the pleadings as to plaintiffs claim for declaratory relief. Defendant argued that, as a matter of law, it was not subject to the Financial Responsibility Law, ORS 806.010 et seq.,³ because a school district is not a “person” for the purpose of that statutory scheme. Defendant also argued that it was expressly exempted, under ORS 731.036, from the Insurance Code, including the UM-related provision in ORS chapter 742.⁴ Defendant argued that, even assuming that it was subject to the Financial Responsibility Law and was not exempt from Insurance Code requirements for UM coverage, plaintiffs vehicle was not covered under its self-insurance, because it was a nonowned vehicle. Finally, defendant argued that plaintiff’s own UM coverage exceeded any UM benefits to which plaintiff might be entitled under defendant’s self-insurance or its excess liability policy. Defendant also moved for summary judgment on plaintiff’s implied contract claim on the grounds that plaintiff had failed to allege an essential term of the purported implied contract of insurance for school volunteers, namely, the amount of coverage; that the coverage extended only to accidental injuries that occurred “on site” of school district property; and that such coverage was limited to $5,000 in medical and dental expenses.

In opposition to defendant’s motion for judgment on the pleadings as to her claim for declaratory relief, plaintiff contended that, as a self-insurer, defendant was required under ORS 806.130 to extend coverage to at least the limits specified in ORS 806.070 and that, consistent with ORS 742.502(2)(a) — providing that a motor vehicle bodily injury liability policy shall have the same limits for uninsured motorist coverage as for bodily injury liability coverage unless a lower limit is elected in writing — defendant’s UM coverage limit was $1 million, the amount up to which it apparently was insured for bodily injury under its self-insurance. In opposition to defendant’s motion for summary judgment on her implied contract claim, plaintiff asserted that there were issues of material fact as to whether the accident took place “on site,” within the meaning of that phrase in the “Guidebook for Volunteers,” and as to whether defendant’s liability to school volunteers was limited to $5,000 or was, instead, a matter within defendant’s discretion up to the limits of defendant’s self-insurance and its excess liability insurance policy.

The trial court concluded that, under ORS 806.130, a self-insurer for motor vehicle liability was required to provide UM coverage only in the minimum amount stated in ORS 806.070, namely, $25,000, and that ORS 742.502 did not require a higher amount. Because plaintiff had already recovered an amount in excess of that amount under her own coverage, the court granted defendant’s motion for judgment on the pleadings with respect to plaintiffs claim for declaratory relief. It also granted defendant’s motion for summary judgment on plaintiffs implied contract claim, subject to entry of judgment in plaintiffs favor for $5,000 in damages.

On appeal, plaintiff first assigns error to the trial court’s entry of judgment on the pleadings as to her claim for declaratory relief. She again asserts that, considered in the context of defendant’s excess liability insurance policy— insuring defendant for amounts in excess of $1 million— defendant’s self-insurance constitutes, in effect, an insurance “policy” providing bodily injury liability coverage of $1 million; that, under ORS 742.502, defendant’s self-insurance must be deemed to provide UM coverage in that amount; and that she is entitled to benefits under that coverage.⁵ Defendant again asserts that, as a public body, it is not subject to the Financial Responsibility Law; that, as a self-insured entity, it is exempt from the Insurance Code; that plaintiff was not an “insured” and that her vehicle was not an “insured vehicle” for the purposes of either defendant’s self-insurance or its excess liability policy; and that any UM coverage available to plaintiff under defendant’s self-insurance was exceeded by her own UM coverage.

On review of the trial court’s entry of judgment on the pleadings as to plaintiffs claim for declaratory relief, ORCP 21 B, we review the pertinent pleadings in the light most favorable to plaintiff to determine whether, in their entirety, they affirmatively demonstrate that plaintiff has not stated a claim for relief or that defendant has a complete defense. See Slogowski v. Lyness, 324 Or 436, 439, 927 P2d 587 (1996); Williams v. Tri-Met, 153 Or App 686, 958 P2d 202, rev den 327 Or 431 (1998). In this case, whether plaintiff was entitled to a declaration of UM coverage under defendant’s self-insurance for motor vehicle liability is purely a question of law under applicable statutes, including ORS 806.010 et seq. and ORS 742.502. See, e.g., Fox v. Country Mutual Ins. Co., 169 Or App 54, 7 P3d 677 (2000), rev den 332 Or 137 (2001) (determining, as a matter of statutory interpretation, whether the trial court erred in granting the defendants’ motion for summary judgment against the plaintiffs claim for a declaration of entitlement to UM benefits). We answer that question by applying the familiar methodology of statutory interpretation set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 611-12, 859 P2d 1143 (1993).

ORS 806.010 provides for the offense of “driving uninsured,” that is, driving while not in compliance with the motor vehicle-related “financial responsibility requirements” of this state. ORS 806.060 sets out methods by which the financial responsibility requirements can be satisfied. It provides, in part:

“(1) To meet the financial responsibility requirements, a person must be able to respond in damages in amounts not less than those established under the payment schedule under ORS 806.070.

“(2) A person may only comply with the financial responsibility requirements of this state by establishing the required ability to respond in damages in one of the following ways:

“(a) Obtaining a motor vehicle liability policy meeting the requirements under ORS 806.080 that will provide at least minimum limits necessary to pay amounts established under the payment schedule under ORS 806.070.

* jjc *

“(d) Becoming self-insured as provided under ORS 806.130.” (Emphasis added.)

In turn, ORS 806.070 provides that an insurance policy described under ORS 806.080 must provide for payment of at least $25,000 because of bodily injury to or death of any one person in any one accident. See also ORS 806.080 (providing that a “motor vehicle liability insurance policy” must meet specified requirements, including providing the minimum limits of coverage required under ORS 806.070).

ORS 806.130 sets out requirements for “self-insurers.” It provides, in part, that a self-insurer must obtain a “certificate of self-insurance” from the Department of Transportation, ORS 806.130(1), and must

“[a]gree to pay the same amounts with respect to an accident occurring while the certificate [of self-insurance] is in force that an insurer would be obligated to pay under a motor vehicle liability insurance policy, including uninsured motorist coverage and liability coverage to at least the limits specified in ORS 806.070.” ORS 806.130(3) (emphasis added).

ORS 742.450 provides, in part:

“(2) Every motor vehicle liability insurance policy issued for delivery in this state shall contain an agreement or indorsement stating that, as respects bodily injury * * *, the insurance provides * * *:

“(a) The coverage described in ORS 806.070 and 806.080[.]” (Emphasis added.)

Finally, ORS 742.502(2)(a) provides, in part:

“A motor vehicle bodily injury liability policy shall have the same limits for uninsured motorist coverage as for bodily injury liability coverage unless a named insured in writing elects lower limits. The insured may not elect limits lower than the amounts prescribed to meet the requirements of ORS 806.070 for bodily injury or death.” (Emphasis added.)

See also ORS 742.447 (requiring an insurer issuing motor vehicle insurance to “issue with the policy” a card showing the effective dates of the insurance) (emphasis added).

By their terms, the quoted provisions demonstrate that insurance maintained by a self-insurer pursuant to a certificate of self-insurance is not a “motor vehicle liability insurance policy” within the meaning of the latter statutory phrase. See State v. Guzek, 322 Or 245, 265, 906 P2d 272 (1995) (when the legislature uses different terms in related statutes, court presumes that the legislature intended different meanings; citing PGE, 317 Or at 611). Accordingly, requirements for a “motor vehicle liability insurance policy” set out in ORS chapters 806 and 742 apply to self-insurance only to the extent that those requirements are made applicable to self-insurance by operation of ORS 806.130 or another statute setting out requirements for self-insurance. See Farmers Ins. Co. v. Snappy Car Rental, Inc., 128 Or App 516, 520-21, 876 P2d 833, rev den 319 Or 625 (1994) (in the context of determining whether a self-insured car rental agency was required under ORS 806.080 to provide coverage to a person who rented a vehicle from the car rental agency, the court noted different methods of compliance with the Financial Responsibility Law set out in ORS 806.060, noted that neither ORS 806.080 nor ORS 806.130 makes any reference to the other, and concluded that ORS 806.080 imposes no obligations on self-insurers). ORS 806.130(3) requires a self-insurer subject to that provision to provide “uninsured motorist coverage and liability coverage to at least the limits set out in ORS 806.070.” That limit is $25,000.

We therefore need not decide whether defendant is a “person” within the meaning of ORS chapter 806; whether any of the exemptions from the Insurance Code provided in ORS 731.036 applies to defendant under the circumstances at issue here; or whether plaintiff is an insured under defendant’s self-insurance or its excess liability insurance policy. Even assuming that we might reach conclusions favorable to plaintiff in regard to any or all of those issues, plaintiff would not be entitled to any UM benefits under defendant’s self-insurance, because she had already recovered an amount of UM benefits in excess of $25,000 from her own insurer. The trial court did not err in granting defendant’s motion for judgment on the pleadings as to plaintiffs claim for a declaration that she was entitled to UM coverage under defendant’s self-insurance.⁶

We turn to plaintiffs second assignment of error, in which she asserts that the trial court erred in granting defendant’s motion for summary judgment as to her claim for breach of an implied contract of insurance coverage for school volunteers. The trial court concluded that, even in the light most favorable to plaintiff and even assuming that the injury to plaintiff occurred “on site” within the meaning of that phrase in defendant’s “Guidebook for Volunteers,” the only evidence in the record was that, after defendant’s policy of accidental medical and dental insurance for volunteers expired in 1992, defendant “intended to continue on a self-insured basis” the same coverage amount, namely, $5,000. The trial court therefore granted defendant’s motion for summary judgment on the condition that judgment in that amount be entered in plaintiffs favor.

In this court, plaintiff again asserts that defendant represented in its “Guidebook for Volunteers” that volunteers were covered by accidental medical and dental insurance and that the guidebook contained no express coverage limitations. She also again asserts that, although defendant previously had a policy issued by The Hartford insurance company having an indemnity limit of $5,000 for volunteer medical and dental claims, that policy had expired in 1992; that, at the time of her accident, defendant was self-insured as to accidental medical and dental insurance for volunteers; that, before plaintiff s claim, no volunteer had ever made a claim based on an automobile accident and that the court therefore could not infer that such claims were not within the scope of defendant’s accidental medical and dental insurance for volunteers; and that defendant’s self-insurance for that purpose was not limited to $5,000 in coverage. Plaintiff argues that the trial court therefore erred in granting summary judgment to defendant on the condition that plaintiff take judgment in the amount of $5,000. Defendant responds that plaintiff is alleging the existence of an implied-in-fact contract, that an implied-in-fact contract of insurance arises only when there is actual agreement on all five essential elements of the purported contract, and that, where plaintiff failed to allege any amount of insurance, no such contract arose here. Defendant also argues that, even assuming that there was an implied contract of accidental medical and dental insurance between it and plaintiff, the record in this case indisputably demonstrates that the amount of coverage was limited to $5,000 and that the trial court therefore did not err in granting its motion for summary judgment on the condition that judgment be entered in that amount.

An implied-in-fact contract is one in which the parties’ agreement is inferred in whole or in part from their conduct. Staley v. Taylor, 165 Or App 256, 262, 994 P2d 1220 (2000). Assuming that plaintiff and defendant were parties to an implied contract of accidental medical and dental insurance for volunteers,⁷ the pertinent question here is whether plaintiff was entitled to an amount of coverage greater than $5,000. As the party moving for summary judgment on plaintiff’s implied contract claim, defendant had the initial burden to establish that there was no genuine issue as to that material fact. If defendant met its initial burden, it then was incumbent on plaintiff, the nonmoving party, to set forth “specific facts showing that there is a genuine issue as to any material fact for trial.” ORCP 47 D. We review the summary judgment record in the light most favorable to plaintiff to determine whether there is a genuine issue of material fact and, if not, whether defendant was entitled to judgment as a matter of law. ORCP 47 C; see also Gish v. Youngblood, 161 Or App 591, 594-95, 984 P2d 931, rev den 329 Or 527 (1999) (setting out those standards; citing Jones v. General Motors Corp., 325 Or 404, 939 P2d 608 (1997)). The summary judgment record includes the “pleadings, depositions, affidavits and admissions on file.” ORCP 47 C; see also ORCP 47 D (setting out form of affidavits and exhibits in support of or opposing summary judgment). We turn to the record in this case.

In support of its motion for summary judgment, defendant submitted the affidavit of its insurance broker, Henderson, to which were attached copies of its expired policy of insurance issued by The Hartford and its excess liability insurance policy. By its terms, the policy issued by The Hartford provided a maximum benefit of $5,000 for accidental medical expenses and $250 for accidental dental expenses incurred by “PARTICIPANTS IN THE VOLUNTEER TEACHER’S AIDES ACTIVITIES SPONSORED BY THE POLICYHOLDER” while “PARTICIPATING IN THE VOLUNTEER TEACHER’S AIDES ACTIVITIES *** AND SUCH PARTICIPATION IS ON THE PREMISES DESIGNATED BY AND UNDER THE DIRECT SUPERVISION OF THE POLICYHOLDER.”⁸ Also by its terms, defendant’s excess liability policy lacked any provision relating to accidental medical or dental coverage for volunteers. Defendant also submitted the affidavit of its insurance claims specialist in which she averred that, until September 1992, the reference in the “Guidebook for Volunteers” to “Accidental Medical and Dental Insurance Coverage for Volunteers” meant the policy issued by The Hartford; that, after that date, defendant elected to become self-insured for that risk to the same dollar limit of coverage; and that defendant had never paid, and lacked discretion to pay, an amount in excess of that limit on a “no-fault” claim by a volunteer.

In opposition to defendant’s motion, plaintiff submitted a document captioned “PORTLAND PUBLIC SCHOOL DISTRICT” and listing 12 “CLAIMS” by persons categorized as “OCCUPATION VOLUNTEERS.” One entry on the list indicated that the amount paid was $12,726.98. Plaintiff also submitted a 1977 Portland Public School District document captioned “POLICY ON LIABILITY CLAIMS HANDLING” and related deposition testimony of defendant’s risk manager and defendant’s claims specialist that, according to plaintiff, raised a question of fact as to whether the purported $5,000 limit represented an absolute limit on coverage or, instead, merely a limit on discretionary payments by defendant’s risk manager.⁹ Finally, plaintiff argued that the policy issued by The Hartford had expired and that the “Guidebook for Volunteers” (submitted by defendant as an attachment to defendant’s claims specialist’s affidavit) lacked any express coverage limit.

We conclude that, even viewing the stated facts and all reasonable inferences in the light most favorable to plaintiff, there was no disputed issue of material fact in regard to the coverage limit of the accidental medical and dental insurance for volunteers referred to in defendant’s “Guidebook for Volunteers.” In particular, it was undisputed that defendant’s expired policy for that purpose, issued by The Hartford, was limited to $5,000 in coverage. In addition, defendant’s insurance claims specialist averred that defendant’s self-insurance for accidental medical and dental expenses incurred by volunteers also was limited to $5,000. Finally, the record indicates that defendant’s excess liability policy lacked any coverage for accidental medical and dental expenses incurred by volunteers. Although plaintiff submitted evidence purporting to show that defendant had paid a volunteer claim in an amount in excess of $5,000 and evidence purporting to show that the asserted $5,000 limit pertained only to amounts payable within the discretion of defendant’s risk manager, the evidence failed to demonstrate that the described claim or the described payment policy related to accidental medical or dental expenses, as opposed to some other type of expense or basis of coverage. None of plaintiffs evidentiary submissions showed that defendant had ever insured, or agreed to insure, volunteers against accidental medical and dental expenses in an amount exceeding $5,000. On this record, no reasonable factfinder could so find. The trial court did not err in granting defendant’s motion for summary judgment as to plaintiffs implied contract claim.

Affirmed.

1 Defendant’s excess liability policy stated that it included “AUTOMOBILE COVERAGE” for “all sums in excess of the Self-insured Retention which an insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.” (Boldface in original.)

2 Plaintiff also brought a claim for negligence against the estate of the uninsured motorist whose vehicle struck her van. The estate is not a party to this appeal.

3 ORS 806.010 et seq. provides for the crime of driving uninsured and, as discussed below, sets out methods of complying with requirements relating to insurance.

4 The Insurance Code encompasses ORS chapters 731-735, 737, 742-744,746, 748, and 750.

5 Plaintiff appears to assert on appeal that she is a covered party for purposes of UM coverage under both defendant’s self-insurance and its excess liability policy. In addition, defendant appears to respond to the latter argument, at least to the extent of asserting that the issuer of the excess liability policy is not a party to this action and by briefly proposing an interpretation of the excess liability policy. However, plaintiffs second amended complaint does not allege entitlement to benefits under the excess liability policy. Rather, it lays claim only to defendant’s self-insurance. Accordingly, we treat plaintiffs description and discussion of the excess liability policy as part of her argument that defendant’s self-insurance constitutes a "policy” under which, complementarily to the excess liability policy, she also is a covered party for amounts up to (rather than amounts exceeding) $1 million for bodily injury, and her argument that the self-insurance likewise must be reformed to include UM coverage up to that amount.

6 Contrary to the opinion of thé concurrence, this is not a case that, consistent with Miller v. Water Wonderland Improvement District, 326 Or 306, 951 P2d 720 (1998), we must resolve by applying ORS chapter 278, which provides for motor vehicle liability insurance and self-insurance for, among other categories of vehicle, vehicles “within [a] local public body’s control.” ORS 278.215(2). Plaintiff does not assert, and the record does not establish, that her vehicle was “within the local body’s control” as that term is used in ORS 278.215(2). In Miller, the plaintiff sought a declaration that, pursuant to the Public Records Law, ORS chapter 192, he was entitled to inspect and copy records of a nonprofit water improvement corporation organized under ORS chapter 554. The defendant asserted that it was not subject to the Public Records Law and that the plaintiff had “adequate recourse” to examine the records pursuant to the records-inspection provision of ORS chapter 554. Noting that “parties may not prevent a court from noticing and invoking an applicable statute by relying only on other sources of law,” and noting that, in any event, the defendant had expressly relied on ORS chapter 554, id. at 309 n 2, the Supreme Court decided the case by applying the latter statute. Here, plaintiffs claim was brought exclusively under ORS chapter 806, and neither plaintiff nor defendant advanced any factual or legal argument under ORS chapter 278'. Nor is consideration of ORS chapter 278 necessary to our interpretation of the statutes relied on by the parties. See Erickson v. Farmers Ins. Co., 163 Or App 426, 435 and n 9, 989 P2d 481 (1999), reversed on other grounds 331 Or 681 (2001) (resolving issue arising under ORS chapter 742 by consideration of provision of that chapter not cited by the parties). For those reasons, we decline to consider whether plaintiff was entitled to a declaration of coverage under ORS chapter 278.

7 In this case, where defendant provided plaintiff with its “Guidebook for Volunteers” and plaintiff proceeded to act as a volunteer, the implied contract, if any, was in the nature of a unilateral contract. See Joseph M. Perillo, 1 Corbin on Contracts § 1.23 (revised ed 1993).

8 Consistent with the terms of the policy, in his affidavit, Henderson averred that the expired policy issued by The Hartford was limited to $5,000. He also averred that the term “premises” meant defendant’s real property, that is, land and buildings.

9 The list of “CLAIMS” and the Portland Public School District “POLICY ON LIABILITY CLAIMS HANDLING” were attached to plaintiffs counsel’s affidavit, wherein she averred that they were “materials produced by defendant.”