Batten v. State Farm Mutual Automobile Ins. Co.

538

Argued and submitted January 28, certified question answered

September 17, 2021

Travis BATTEN,

Plaintiff,

v.

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant.

United States District Court for the District of Oregon

319CV01200MC

ESTATE OF JOHN WESLEY COUNTS,

Plaintiff,

v.

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant.

United States District Court for the District of Oregon

119CV01299CL

Cesar RIVERA,

Plaintiff,

v.

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant.

United States District Court for the District of Oregon

319CV01325SI

Lori CHISOLM,

Plaintiff,

v.

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant.

United States District Court for the District of Oregon

319CV2027IM

(SC S067887)

Cite as 368 Or 538 (2021) 539

495 P3d 1222

In each of four consolidated cases, State Farm Mutual Automobile Insurance

Company (State Farm) had issued multiple policies of uninsured/underinsured

motorist (UM/UIM) coverage that applied to the plaintiff’s losses. But in each

case, State Farm had refused to pay more than the amount that it would have

paid under the single policy with the highest limit of liability, citing a policy term

that limited coverage in that way when an insured’s losses were covered under

multiple State Farm policies. The parties disputed whether State Farm’s “other

coverage” term violated the statutory requirement that “[e]very policy” providing

UM/UIM coverage in Oregon must provide “coverage that in each instance is no

less favorable in any respect to the insured or the beneficiary than if” the model

policy terms in ORS 742.504 “were set forth in the policy.” The court accepted a

certified question from the United State District Court for the District of Oregon

to resolve that dispute. Held: The “other coverage” term in State Farm’s policies

is unenforceable because it makes the UM/UIM coverage less favorable to State

Farm’s insureds than the coverage that would have been available under the

model coverage terms that the legislature has specified in ORS 742.504.

The certified question is answered.

En Banc

On certified question from the United State District

Court for the District of Oregon; certified order dated May 27,

2020; certification accepted June 2, 2020.

Travis Eiva, Eiva Law, Eugene, and Michael Brian,

Brian Law Firm, LLC, Medford, argued the cause and filed

the briefs for plaintiffs.

Ralph Spooner, Spooner & Much, PC, Salem, argued the

cause and filed the briefs for defendant. Also on the brief

was David E. Smith, Salem.

Lisa T. Hunt, Law Office of Lisa T. Hunt, LLC, Lake

Oswego, filed the brief for amicus curiae Oregon Trial

Lawyers Association.

FLYNN, J.

The certified question is answered.

540 Batten v. State Farm Mutual Automobile Ins. Co.

FLYNN, J.

These consolidated cases reach us on a certified

question from the United States District Court for the

District of Oregon. We are asked to determine whether

Oregon law precludes an insurer from limiting its liability

for uninsured/underinsured motorist (UM/UIM) benefits on

the basis that another policy also covers the insured’s losses.

Each plaintiff suffered injuries caused by an uninsured or

underinsured motorist, and each plaintiff incurred result-

ing damages that qualify as covered losses under multiple

motor vehicle insurance policies issued by defendant State

Farm Mutual Automobile Insurance Company (State Farm).

Each plaintiff has alleged a loss that exceeds the declared

liability limits of any single applicable policy and seeks to

recover the excess under additional applicable policies, up

to the combined total of the limits of liability. In each case,

however, State Farm has refused to cover the excess loss,

citing a term in the policies that allows State Farm to limit

its liability to the amount that it agreed to pay under the

single policy with the highest applicable limit of liability.

We conclude that that term makes State Farm’s uninsured

motorist coverage less favorable to its insureds than the

model coverage that the legislature has required and, thus,

is unenforceable.

FACTS

The pertinent facts are undisputed for purposes

of the legal question before us. Each plaintiff was insured

under multiple State Farm motor vehicle insurance poli-

cies that—as required by Oregon law—included UM/UIM

coverage.1 Each plaintiff suffered losses that are within the

scope of that UM/UIM coverage: Batten was a passenger in

a rented car when he was severely injured in a head-on col-

lision with an underinsured motorist; Counts was riding his

1

The coverage details have no bearing on our legal analysis, but we set them

out to provide factual context for the disputes. Batten was covered under three

State Farm policies, each with a “declarations page” specifying that State Farm’s

limits of liability were $250,000 per person. Counts was covered under two State

Farm policies, each with a “declarations page” specifying that State Farm’s lim-

its of liability were $250,000 per person. And Chisolm and Rivera were covered

under three State Farm policies apiece, each with a “declarations page” specify-

ing that State Farm’s limits of liability were $100,000 per person.

Cite as 368 Or 538 (2021) 541

bicycle when he was injured and later died after a collision

with an underinsured motorist; Chisholm was a pedestrian

when she was struck and severely injured by an under-

insured motorist; and Rivera was a pedestrian when he was

struck and severely injured by an uninsured motorist.2

Each plaintiff has alleged that the collision caused

the insured to suffer covered losses in an amount that

greatly exceeds the maximum payment available under

any single applicable policy, and each plaintiff sought pay-

ment for the additional covered losses under the additional

applicable State Farm policies.3 But each applicable State

Farm policy contains a term that limits State Farm’s lia-

bility for its insured’s UM/UIM losses, in the event that the

losses are covered under “Other Uninsured Motor Vehicle

Coverage,” to the amount that State Farm would have paid

if the insured’s losses were covered only under the single pol-

icy with the highest liability limit.4 Citing that term of the

policies, State Farm paid each plaintiff an amount equal to

the limit of one applicable policy—$250,000 each to Batten

and Counts, $100,000 each to Chisolm and Rivera—and has

refused to pay more.

The plaintiffs filed separate actions contending that

Oregon law precludes State Farm from limiting its UM/

UIM coverage in that way and seeking to recover the unsat-

isfied loss under the other applicable policies. State Farm

removed all four actions to the United States District Court

2

UM/UIM coverage is “coverage for bodily injury or death if the amount of

liability insurance recovered is less than the sums that the insured or the heirs

or legal representative of the insured is legally entitled to recover as damages for

bodily injury or death that is caused by accident and that arises out of owning,

maintaining or using an uninsured vehicle.” ORS 742.502(5).

3

Batten’s complaint alleges damages of almost $5 million, Counts’s com-

plaint alleges damages of more than $500,000, Chisolm’s complaint alleges dam-

ages of more than $3 million, and Rivera’s complaint alleges damages of more

than $600,000.

4

In the parties’ briefing, State Farm refers to the term as an “anti-stacking”

provision, and plaintiffs refer to it as a “negation provision.” Although both

labels suggest that the challenged term serves to limit the payments to which

the insured would otherwise be entitled under the applicable UM/UIM policies,

neither label quite captures that concept. We refer to the term, instead, as an

“other coverage” limitation or, simply, an “other coverage” term because it limits

the payments that State Farm will make under one of its UM/UIM policies based

on the existence of “other coverage” that applies to the insured’s loss.

542 Batten v. State Farm Mutual Automobile Ins. Co.

for the District of Oregon and filed counterclaims seeking

a declaration that the “other coverage” term in its policies

is valid and enforceable. The parties in each case then filed

competing motions for summary judgment asking the court

to resolve the legal question presented by State Farm’s

counterclaim, and, before those motions were resolved, the

district court certified the legal question to this court. We

accepted the certified question and consolidated the cases

for briefing and argument.

DISCUSSION

In Oregon, insurance coverage for loss caused by an

uninsured or underinsured motor vehicle is almost entirely

a creature of statute. The legislature has required that

“[e]very motor vehicle liability policy” must provide “unin-

sured motorist coverage,” which includes “underinsurance

coverage.” ORS 742.502(1), (3). In general, UM/UIM cover-

age is insurance against the loss that arises when an insured

suffers “bodily injury or death” related to a motor vehicle

accident for which another person is at fault and the at-fault

person either has no motor vehicle liability insurance or

insufficient liability insurance to pay the damages that the

injured person or heirs of the injured person would have

been “legally entitled to recover” in a civil action against the

at-fault person. ORS 742.502(5); ORS 742.504(2). The legis-

lature has set out in ORS 742.504 “a comprehensive model”

policy of UM/UIM coverage. Vega v. Farmers Ins. Co., 323

Or 291, 302, 918 P2d 95 (1996). The statute specifies that

“[e]very policy” providing the mandated UM/UIM cover-

age must provide “coverage that in each instance is no less

favorable in any respect to the insured or the beneficiary

than if” those model policy terms “were set forth in the pol-

icy.” ORS 742.504(1). As we explained in Vega, the legisla-

ture intended that the terms of an actual policy of UM/UIM

coverage could vary from the terms of the statutory model

policy “only in the sense that terms that disfavor insureds

may be excluded or softened and extraneous terms that are

neutral or that favor insureds may be added.” 323 Or at 302.

Any added term that causes the UM/UIM coverage under

a policy to be less favorable to the insured than the model

policy is “unenforceable.” Erickson v. Farmers Ins. Co., 331

Or 681, 685, 21 P3d 90 (2001).

Cite as 368 Or 538 (2021) 543

The disputed term that appears in each State Farm

policy that covers the loss of each insured provides:

“If Other Uninsured Motor Vehicle Coverage

of Any Kind Applies

“1. If Uninsured Motor Vehicle Bodily Injury and

Property Damage Coverage provided by this policy and

Uninsured Motor Vehicle Coverage of any kind provided

by one or more other vehicle policies issued to you or any

resident relative by the State Farm Companies apply to the

same bodily injury or property damage, then:

“a. such Uninsured Motor Vehicle Coverage limits of

such policies will not be added together to determine the

most that may be paid; and

“b. the maximum amount that may be paid from all

such policies combined is the single highest applicable limit

provided by any one of the policies. We may choose one or

more policies from which to make payment.”

Plaintiffs contend that the “other coverage” limita-

tion in State Farm’s policy is an added term that causes the

coverage to be less favorable to the insured than the cov-

erage that the legislature has required. Depending on how

State Farm implements the “other coverage” limitation in

a particular case, State Farm either treats the additional

policies as irrelevant—as providing no source of payment

toward the sum that the insured would be “legally entitled

to recover as damages” from the uninsured or underinsured

motorist—or it treats the payments under each applicable

policy as capped at a fraction of the amount that the pol-

icy declares to be State Farm’s “limit of liability.” Plaintiffs

contend that no provision of the “model” policy authorizes

that result and, consequently, that State Farm’s “other cov-

erage” limitation is unenforceable. Plaintiffs bolster their

construction of ORS 742.504 by emphasizing that, in 2015,

the legislature removed from the statutory “model” policy a

provision that previously authorized insurers to include the

kind of “other coverage” limitation that State Farm’s policies

still contain.

State Farm does not dispute that its insurance

policies must include UM/UIM coverage that is at least as

544 Batten v. State Farm Mutual Automobile Ins. Co.

favorable to its insureds as the coverage that ORS 742.504

specifies. And State Farm agrees that ORS 742.504 no lon-

ger contains any model term that is comparable to the “other

coverage” limitation in the State Farm policies. But State

Farm contends that, in 2015, the legislature intended only

to preclude a different type of “other coverage” limitation

and did not intend to prevent insurers from continuing to

include the kind of limitation that is at issue here. According

to State Farm, the remaining model terms of ORS 742.504

and the remaining provisions of the other statutes govern-

ing UM/UIM coverage continue to permit an insurer to

limit its liability if additional policies afford identical UM/

UIM coverage to the insured.

The dispute in this case thus turns on whether the

UM/UIM coverage that the legislature has required “every

policy” to provide continues to accommodate the kind of

“other coverage” limitation that State Farm has continued

to include in its polices. As with all questions of statutory

construction, our responsibility is to “pursue the intention

of the legislature if possible,” ORS 174.020(1)(a), and we

pursue that goal through the analytical framework that we

described in State v. Gaines, 346 Or 160, 171-72, 206 P3d

1042 (2009). Under that framework, we primarily consider

the text and context of a statute because “there is no more

persuasive evidence of the intent of the legislature than the

words by which the legislature undertook to give expres-

sion to its wishes,” but we also consider legislative history

“where that legislative history appears useful to the court’s

analysis.” Id. (internal quotation marks omitted).

Both ORS 742.502 and ORS 742.504 have been the

subject of extensive prior analysis by this court, and those

prior decisions significantly inform our analysis in this case.

See Farmers Ins. Co. v. Mowry, 350 Or 686, 697-98, 261 P3d 1

(2011) (explaining that court follows its prior constructions

of a statute as a matter of stare decisis and assumes that

issues considered in those cases were correctly decided).

Among the most significant of our prior decisions is Vega,

in which this court construed “ORS 742.504(1) to (12) as set-

ting out a comprehensive model UM/UIM policy that may be

varied only in the sense that terms that disfavor insureds

Cite as 368 Or 538 (2021) 545

may be excluded or softened and extraneous terms that are

neutral or that favor insureds may be added.” 323 Or at 302.

As State Farm recognizes, there is no longer any particular

provision in ORS 742.504 that addresses how UM/UIM cov-

erage will be affected if multiple policies apply to the same

injury. So there is no specific provision to which State Farm’s

“other coverage” limit can be compared. We explained in

Vega, however, that “the validity of a challenged UIM pro-

vision must be tested, not by a direct comparison between

the challenged provision with an individual statutory provi-

sion but, instead, by a comparison between coverage offered

by the policy containing the challenged provision and the

coverage offered by a hypothetical policy containing the

provisions set out at ORS 742.504(1) to (12).” 323 Or at 299

(emphases in original). Given that requirement, it is helpful

to consider what coverage would be available to plaintiffs

under the legislature’s “model” policy.

The starting point for that inquiry is the first model

term—the promise that

“the insurer will pay all sums that the insured or the heirs

or legal representative of the insured is legally entitled

to recover as damages from the owner or operator of an

uninsured vehicle because of bodily injury sustained by the

insured caused by accident and arising out of the owner-

ship, maintenance or use of the uninsured vehicle.”

ORS 742.504(1)(a).

The legislature has further illuminated that

requirement through a statutory definition of “sums that

the insured * * * is legally entitled to recover as damages.”

In general, the concept is defined to mean the amount of

damages that the “claimant could have recovered in a civil

action from the owner or operator at the time of the injury

after determination of fault or comparative fault and reso-

lution of any applicable defenses.” ORS 742.504(2)(j)(A). But

the legislature has also defined the concept in a way that

incorporates by cross-reference several important limits set

out in a later subsection of the statute: ORS 742.504(2)(j)(C)

provides that “ ‘sums that the insured * * * is legally entitled

to recover as damages’ means the amount of damages that,”

among other things, “[a]re no larger than benefits payable

546 Batten v. State Farm Mutual Automobile Ins. Co.

under the terms of the policy as provided in subsection (7) of

this section.”5

Most significantly, that cross-reference to “subsec-

tion (7)” incorporates into the definition of “sums” that the

insurer must pay a requirement that those sums will never

exceed “[t]he limit[s] of liability stated in the declarations”

for the policy.6 ORS 742.504(7)(a). The cross-reference also

incorporates certain authorized reductions for payments

that the insurer receives or has a right to receive from spec-

ified other sources—essentially, a deduction for workers’

compensation, disability benefits, or similar benefits and a

deduction for amounts that the insured failed to collect from

the underinsured motorist’s insurance carrier (the “unreal-

ized portion” of the underinsured motorist’s liability limits).

ORS 742.504(7)(b), (c).7

5

ORS 742.504(2)(j) specifies that “ ‘sums that the insured * * * is legally enti-

tled to recover as damages’ ” means the amount of damages that:

“(A) A claimant could have recovered in a civil action from the owner or

operator at the time of the injury after determination of fault or comparative

fault and resolution of any applicable defenses;

“(B) Are calculated without regard to the tort claims limitations of ORS

30.260 to 30.300; and

“(C) Are no larger than benefits payable under the terms of the policy as

provided in subsection (7) of this section.”

6

The term “declarations” is not defined in the statute, but “in common par-

lance,” it refers to “the first page of an insurance policy and summarizes the

terms of that policy, including, among other things, setting out the insurer’s limit

on liability.” Bergmann v. Hutton, 337 Or 596, 606, 101 P3d 353 (2004).

7

ORS 742.504(7) provides, in full:

“(a) The limit of liability stated in the declarations as applicable to ‘each

person’ is the limit of the insurer’s liability for all damages because of bodily

injury sustained by one person as the result of any one accident and, subject

to the above provision respecting each person, the limit of liability stated in

the declarations as applicable to ‘each accident’ is the total limit of the com-

pany’s liability for all damages because of bodily injury sustained by two or

more persons as the result of any one accident.

“(b) Any amount payable under the terms of this coverage because of

bodily injury sustained in an accident by a person who is an insured under

this coverage shall be reduced by the amount paid and the present value of

all amounts payable on account of the bodily injury under any workers’ com-

pensation law, disability benefits law or any similar law.

“(c) Any amount payable under the terms of this coverage because of

bodily injury sustained in an accident by a person who is an insured under

this coverage shall be reduced by the credit given to the insurer pursuant to

subsection (4)(d)(C) or (D) of this section [which provides that, if an insured

settles with a liable underinsured motorist for less than the limits of the

Cite as 368 Or 538 (2021) 547

Thus, the starting point for determining what “the

insurer will pay”—“sums that the insured * * * is legally enti-

tled to recover as damages”—requires application of a basic

formula: The amount that the insured “could have recovered

in a civil action from” the uninsured/underinsured motorist

is determined, the amount of any authorized deduction is sub-

tracted, and the remainder is compared to the “limit of liabil-

ity stated in the declarations.” ORS 742.504(1)(a), (2)(j), (7).

The insurer then pays whichever amount is lower.

In the consolidated cases before us, State Farm

does not contend that any of the authorized reductions in

ORS 742.504(7)(b) is applicable, and it does not claim a right

to a credit for any “unrealized portion” of the liability lim-

its of any policy insuring the underinsured motorists. State

Farm also does not dispute that each plaintiff may be able

to prove that the “sums that the insured * * * is legally enti-

tled to recover as damages” exceed the amount stated in

the declarations of any one applicable policy as State Farm’s

limit of liability. Thus, if each plaintiff were insured under

only one UM/UIM policy, then the statutory formula would

direct State Farm to pay the amount stated in the declara-

tions for that one policy as the limits of State Farm’s liabil-

ity. That appears to be the formula that State Farm applied

when determining that it would pay each plaintiff the limits

stated in one of the applicable policies.

The problem, plaintiffs insist, is that the legislature

has required “[e]very motor vehicle liability policy” to pro-

vide UM/UIM coverage that is paid according to the for-

mula specified in ORS 742.504. ORS 742.502(1), (4) (empha-

sis added). Yet State Farm’s “other coverage” term creates an

exception to that formula, allowing State Farm to pay only

what it would pay under the UM/UIM coverage of a single

motorist’s liability insurance, then the insured must credit to the UM/UIM

insurer the ‘unrealized portion’ of the liability limits].

“(d) The amount payable under the terms of this coverage may not be

reduced by the amount of liability proceeds offered, described in subsection

(4)(d)(B) or (D) of this section, that has not been paid to the injured person. If

liability proceeds have been offered and not paid, the amount payable under

the terms of the coverage shall include the amount of liability limits offered

but not accepted due to the insurer’s refusal to consent. The insured shall

cooperate so as to permit the insurer to proceed by subrogation or assignment

to prosecute the claim against the uninsured motorist.”

548 Batten v. State Farm Mutual Automobile Ins. Co.

policy even though each plaintiff has at least one additional

policy that provides the same coverage.

State Farm proposes several alternative paths to its

conclusion that the formula does not apply if another UM/

UIM policy covers the same loss.8 It proposes that the defi-

nition of “sums” that the insurer must pay accommodates

limitations like that accomplished by State Farm’s “other

coverage” term, it proposes that a legislative intent to allow

such limitations can be discerned from text that the legisla-

ture failed to add in amending the law in 2015, and it pro-

poses that another statute authorizes the “other coverage”

policy term under the circumstances of the cases before us.

With respect to the statutory definition of “sums”

that the insurer must pay to the insured, State Farm sug-

gests two ways that the definition could be construed to

accommodate its “other coverage” limitation. First, State

Farm emphasizes the portion of ORS 742.504(2)(j) that

provides:

“ ‘Sums that the insured * * * is legally entitled to recover

as damages’ means the amount of damages that:

“* * * * *

“(C) Are no larger than benefits payable under the

terms of the policy * * *.”

State Farm points out that its “other coverage” limitation

is one of the “terms of the policy” and that it addresses the

amount of “benefits payable.” Accordingly, State Farm con-

cludes, its “other coverage” limitation must be authorized by

the definition of “sums that the insured * * * is legally enti-

tled to recover as damages.”

We reject State Farm’s proposed construction of

ORS 742.504(2)(j), however, because it fails a fundamental

rule of statutory construction:

“In the construction of a statute, the office of the judge

is simply to ascertain and declare what is, in terms or in

substance, contained therein, not to insert what has been

8

Although State Farm’s “other coverage” term is limited to other policies

that it has issued to members of the same household, that limitation plays no role

in the rule that State Farm proposes or in its arguments in support of the rule.

Cite as 368 Or 538 (2021) 549

omitted, or to omit what has been inserted; and where there

are several provisions or particulars such construction is, if

possible, to be adopted as will give effect to all.”

ORS 174.010. State Farm’s argument would require us to

read ORS 742.504(2)(j) as if the legislature had omitted a key

limiting clause—as if the statute provided only that “sums

that the insured * * * is legally entitled to recover” are “no

larger than benefits payable under the terms of the policy

as provided in subsection (7) of this section.” (Strikethrough

added.) Moreover, State Farm’s selective reading of ORS

742.504(2)(j)(C), which is untethered from the limits and

reductions that the legislature has expressly authorized in

“subsection (7),” would convert the provision to one that effec-

tively allows “benefits payable” to mean whatever amount

the “terms of the policy” say is payable. Had the legislature

intended to allow the terms of a UM/UIM policy to dictate

what benefits are payable, however, there would have been

no reason for the legislature to set out specific model terms

in ORS 742.504 and no meaning to the requirement that

UM/UIM coverage must be “no less favorable in any respect

to the insured or the beneficiary than if [those] provisions

were set forth in the policy.” ORS 742.504. We decline to

adopt a construction of ORS 742.504(2)(j)(C) that effectively

nullifies the entire point of the statute.

Second, State Farm insists that, by limiting “the

insurer’s liability for all damages” to the “limit of liability

stated in the declarations,” ORS 742.504(7)(a) reflects that

the legislature “necessarily contemplated” that the insur-

er’s liability under the model coverage could be limited to

the highest amount stated in the declarations of any appli-

cable policy. The same obstacle confronts this proposal as

well. The legislature did specify that an insurer’s payment

under the formula set out in ORS 742.504 includes a limita-

tion based on the amount specified in the declarations of the

policy. But the legislature also specified that “[e]very motor

vehicle liability policy” must provide for payment according

to that formula. ORS 742.502(1) (emphasis added). Thus,

the UM/UIM coverage under every policy must provide for

payment of “sums that the insured * * * is legally entitled

to recover as damages” up to the declared limit of liability.

ORS 742.502(5); ORS 742.504(1)(a), (2)(j), (7). The effect of

550 Batten v. State Farm Mutual Automobile Ins. Co.

State Farm’s “other coverage” limitation, however, is that

only one of the applicable policies provides for payment of

“sums that the insured * * * is legally entitled to recover as

damages” up to the declared limit of liability. Nothing in the

definition of “sums” that an insurer must pay contemplates

the exception that State Farm has imposed.

There is one provision of ORS 742.504 that addresses

how the coverage under a UM/UIM policy is affected when

other similar coverage applies to the same loss, but it, too,

is an obstacle to State Farm’s “other coverage” limitation.9

Currently, ORS 742.504(9) specifies an order of priority

between policies when other coverage “that is similar to this

coverage” is available to the insured:

“(9)(a) With respect to bodily injury to an insured:

“(A) While occupying a vehicle owned by a named

insured under this coverage, the insurance under this cov-

erage is primary.

“(B) While occupying a vehicle not owned by a named

insured under this coverage, the insurance under this cov-

erage shall apply only as excess insurance over any pri-

mary insurance available to the occupant that is similar

to this coverage, and this excess insurance coverage shall

then apply only to the sums that the insured or the heirs

or legal representative of the insured is legally entitled to

recover as damages for bodily injury or death that is caused

by accident and that arises out of owning, maintaining or

using an uninsured vehicle.

“(b) With respect to bodily injury to an insured while

occupying any motor vehicle used as a public or livery con-

veyance, the insurance under this coverage shall apply only

as excess insurance over any other insurance available to

9

There are other provisions of ORS 742.504 that create exceptions to the

requirement of ORS 742.504(1)(a) that the UM/UIM insurer must pay the “sums

that the insured * * * is legally entitled to recover as damages.” For example,

insurers may specify, subject to exceptions, that UM/UIM “coverage does not

apply” if the insured has settled with any liable party without obtaining the

insurer’s written consent, if the insured or a relative in the same household

owned the uninsured vehicle, or if the insured failed to exhaust the limits of

applicable liability insurance. ORS 742.504(4). But State Farm does not contend

that any of those coverage exceptions applies to the cases before us or that any

model term authorizes a limitation on payments that is analogous to the limita-

tion created by State Farm’s “other coverage” limitation.

Cite as 368 Or 538 (2021) 551

the insured that is similar to this coverage, and this excess

insurance coverage shall then apply only to the amount

by which the applicable limit of liability of this coverage

exceeds the sum of the applicable limits of liability of all

other insurance.”

In other words, except for injuries to an insured “while

occupying any motor vehicle used as a public or livery con-

veyance,” one UM/UIM policy is designated “primary,” and

the other policy must pay to the extent that “the sums that

the insured * * * is legally entitled to recover as damages”

exceeds the primary payment. ORS 742.504(9).

But State Farm’s “other coverage” limitation is not

an attempt to model the primary-excess structure specified

in ORS 742.504(9). The model term requires each policy

that has been designated “excess” to pay any outstanding

“sums that the insured * * * is legally entitled to recover as

damages,” up to the limit of liability specified in the pol-

icy, which—as explained above—would mean in this case

that each applicable policy would provide payment up to the

limit of liability specified in the policy. ORS 742.504(2)(j)(C),

(7)(a), (9). State Farm’s “other coverage” term, to the con-

trary, denies any payment of excess damages that remain

after State Farm has paid an amount equal to the limit

specified in a single policy. Thus, to the extent that the legis-

lature’s model term addresses an insurer’s obligation when

there is other applicable UM/UIM coverage, the approach

required by the model term is more favorable to insureds

than is State Farm’s approach to other applicable cover-

age. See Erickson, 331 Or at 685-86 (concluding that policy

terms that denied UM/UIM coverage in the event of appli-

cable “other insurance” were less favorable to the insured

than model “other insurance” terms in the version of ORS

742.504(9) then in effect, which would have limited—but not

denied—coverage under the circumstances presented).

State Farm does not contend otherwise. Instead,

it emphasizes that ORS 742.504(9) currently does not

expressly apply to the accident scenarios of the cases before

us—because three of the insureds were not occupying any

vehicle and the fourth was occupying a rental car with no

“primary insurance available.” State Farm argues that the

omission is the product of an intentional legislative choice to

552 Batten v. State Farm Mutual Automobile Ins. Co.

allow “other coverage” limitations under other accident sce-

narios. Although we accept State Farm’s premise that the

terms of ORS 742.504(9) fail to address the “other coverage”

scenarios presented in the cases before us, we do not discern

from that omission an intent to allow the kind of “other cover-

age” limitation that State Farm seeks to enforce in the cases

before us. We emphasized in Vega that “the legislature did

not intend to leave insurers free to structure their policies as

they pleased outside the subject matter represented by the

provisions at subsections (1) to (12).” 323 Or at 301 (empha-

sis in original). Instead, we concluded “that the contrary is

true.” Id. We explained that “the legislature intended to pro-

vide insurers with some measure of freedom” with respect

to how they structure policy terms within “the subject mat-

ter represented by the provisions” of ORS 742.504, but that

freedom is limited; the “comprehensive model” policy “may

be varied only in the sense that terms that disfavor insureds

may be excluded or softened and extraneous terms that are

neutral or that favor insureds may be added.” Vega, 323 Or

at 301-02.

Moreover, under the comparison framework that we

described in Vega, a challenged provision in a UM/UIM pol-

icy is not tested “by a direct comparison between the chal-

lenged provision [and] an individual statutory provision but,

instead, by a comparison between coverage offered by the

policy containing the challenged provision and the coverage

offered by a hypothetical policy containing the provisions

set out at ORS 742.504(1) to (12).” 323 Or at 299 (emphases

in original). Even if State Farm’s “other coverage” limitation

is not expressly inconsistent with a term that the legisla-

ture has specified for its model coverage, the term is still

unenforceable because it causes State Farm’s coverage to

be less favorable to its insureds than “the coverage offered

by a hypothetical policy containing the provisions set out at

ORS 742.504(1) to (12).” See Vega, 323 Or at 299 (emphasis

in original).

State Farm nevertheless points to the legislative

history surrounding the legislature’s 2015 adoption of the

current version of ORS 742.504(9) and attempts to discern

a legislative intent to leave insurers free to add the kind

of “other coverage” limitation to coverage that State Farm

Cite as 368 Or 538 (2021) 553

has added to its policies. State Farm’s argument revolves

around a statutory amendment that plaintiffs cite as evi-

dence of precisely the opposite legislative intent.

As all parties emphasize, prior to 2015, ORS

742.504(9) had set out a model “other coverage” term that had

precisely the same effect on coverage as the term in State

Farm’s policies. The relevant provisions of ORS 742.504(9)

previously had specified that,

“[w]hile occupying a vehicle not owned by a named insured

under this coverage, the insurance under this coverage

shall apply only as excess insurance over any primary

insurance available to the occupant that is similar to this

coverage, and this excess insurance shall then apply only in

the amount by which the applicable limit of liability of this

excess coverage exceeds the sum of the applicable limits of

liability of all primary insurance available to the occupant.”

ORS 742.504(9)(a)(B) (2013), amended by Or Laws 2015,

ch 5, § 3 (emphasis added). And subsection (9)(b) previously

specified that,

“[i]f an insured is an insured under other primary or excess

insurance available to the insured that is similar to this

coverage, then the insured’s damages are deemed not to

exceed the higher of the applicable limits of liability of this

insurance or the additional primary or excess insurance

available to the insured.”

ORS 742.504(9)(b) (2013) (emphasis added). There is no dis-

pute that, had the italicized portions remained in the stat-

ute, State Farm’s “other coverage” limitation would have

been enforceable, because ORS 742.504(9)(b) (2013) provided

the same exception for the model coverage. See Mid-Century

Ins. Co. v. Perkins, 344 Or 196, 216, 179 P3d 633, modified

on recons, 345 Or 373, 195 P3d 59 (2008) (explaining that

the version of ORS 742.504(9)(b) then in effect “require[d]

the insurer to determine its liability by comparing its own

policy limit to the limits of the other policies in order to set

a cap on the insured’s damages”).

But Senate Bill (SB) 411 (2015) removed those pro-

visions. Understandably, then, plaintiffs point to the 2015

change as an additional indication that the legislature

intended to reject that approach to “other coverage” for

554 Batten v. State Farm Mutual Automobile Ins. Co.

policies issued after 2015. State Farm’s argument to the

contrary assumes that the meaning of the statute can be

discerned from comments that were not made and changes

that were not adopted as SB 411 moved through committee.

State Farm first emphasizes that the original ver-

sion of SB 411 proposed to amend ORS 742.504(9)(b) (2013)

in a way that—in State Farm’s view—clearly would have

precluded the kind of “other coverage” limitation that State

Farm now seeks to enforce. By the time the bill passed out of

committee, however, it had been amended to entirely delete

ORS 742.504(9)(b) (2013), rather than to delete only parts

of it. State Farm contends that the committee’s amendment

reflects a “clear and unambiguous” decision that UM/UIM

coverage would continue to include the “other coverage” lim-

itation that ORS 742.504(9) (2013) had expressly authorized.

We reject the premise on which that argument

rests. As we already have explained, the validity of a chal-

lenged provision in a UM/UIM policy must be tested, “not

by a direct comparison between the challenged provision”

and a statutory provision addressing the same subject, “but,

instead, by a comparison between coverage offered by the

policy containing the challenged provision and the cover-

age offered by a hypothetical policy containing the provi-

sions set out at ORS 742.504(1) to (12).” Vega, 323 Or at 299

(emphases in original). And to the extent the insurer adds a

term that falls outside of “the subject matter represented by

the provisions” of ORS 742.504, the extraneous term is valid

only if the term is neutral or favors insureds. Vega, 323 Or at

301-02. Thus, the legislature’s removal of a model term that

previously authorized an exception to coverage can be just as

significant as an amendment to expressly prohibit the excep-

tion. We presume that the legislature was aware of how ORS

742.504 operates and, as a result, was aware that entirely

removing ORS 742.504(9)(b) (2013) from the authorized

terms could effect the same change to the model coverage

as the initially proposed amendment to ORS 742.504(9)(b)

(2013). See Mastriano v. Board of Parole, 342 Or 684, 693,

159 P3d 1151 (2007) (“[W]e generally presume that the leg-

islature enacts statutes in light of existing judicial decisions

that have a bearing on those statutes.”). What matters is

that there no longer is any provision in the model policy that

Cite as 368 Or 538 (2021) 555

would produce the coverage result that State Farm seeks to

achieve with its “other coverage” limitation.

State Farm, nevertheless, insists that the legisla-

ture did not intend that the removal of the “other coverage”

limitation from the model coverage would have the effect

of precluding insurers from enforcing such an exception in

their terms of coverage. State Farm bases that conclusion on

silence in the legislative history regarding the change to ORS

742.504(9). According to State Farm, “[p]laintiffs are unable

to cite to anything contained in the legislative record that

indicates that the legislature even contemplated” changing

how UM/UIM payments would be calculated when similar

coverage is available under more than one policy.

That argument requires some context. The amend-

ments to ORS 742.504(9) (2013) were only one of multiple

changes that SB 411 made to half a dozen statutes that

govern UM/UIM and other mandated coverage for Oregon

motor vehicle insurance policies. Or Laws 2015, ch 5. Among

those was a significant change to the meaning of the UIM

portion of that coverage, which received a great deal of

attention in the legislative testimony. We turn briefly to that

change.

Prior to 2015, the wording of ORS 742.502 and ORS

742.504 had left room for debate regarding the role of UIM

coverage—coverage for damages caused by a motorist with

insufficient liability insurance. See Vogelin v. American

Family Mutual Ins. Co., 346 Or 490, 492-93, 213 P3d 1216

(2009) (describing the competing statutory interpretations).

The plaintiff in Vogelin had argued that UIM coverage

essentially served as an additional layer of insurance to

cover the insured’s unsatisfied damages up to the liability

limits stated in the policy. Id. at 492. But this court agreed

with the defendant that the legislature had intended UIM

coverage only to address the gap between the liability limits

specified in the insured’s own policy and lower limits avail-

able from the negligent driver’s liability insurance policy.

Id. at 492, 506 (concluding that, although the insured’s unsat-

isfied damages were well in excess of the $100,000 limits

of liability for the insured’s UIM coverage, the insurer was

obligated to pay only the difference between the coverage

556 Batten v. State Farm Mutual Automobile Ins. Co.

limits and the amount of damages that had been satis-

fied by the negligent driver’s liability insurance). The 2015

Legislative Assembly changed the role of UM/UIM coverage

to align with the role proposed by the plaintiff in Vogelin,

through amendments to ORS 742.502 and ORS 742.504(7)

that now make UIM coverage a layer of protection for the

insured’s unsatisfied damages. Or Laws 2015, ch 5, §§ 2-3.

According to State Farm, the committee discussion demon-

strates that those changes to the role of UM/UIM cover-

age were intended, but the lack of discussion regarding the

changes to ORS 742.504(9) suggests that the legislature did

not intend to change the exception for “other coverage.”

Plaintiffs do not dispute that the changes to the

role of UIM coverage appear to have been “the primary

rule targeted” by the sponsors of SB 411. But plaintiffs

reject State Farm’s conclusion that the legislature did not

intend to change the role of other available coverage when

it changed how ORS 742.504(9) treats other available cov-

erage. We reject State Farm’s conclusion as well. We cannot

disregard the legislature’s decision to omit from the “com-

prehensive model policy” a term that would have authorized

State Farm’s approach to “other coverage.” See ORS 174.010

(in construing statutes, court must not “insert what has

been omitted”). We have previously cautioned against ignor-

ing the textual changes that the legislature has adopted in

favor of statements made in committee proceedings, because

“[o]nly the text of a statute receives the consideration and

approval of a majority of the members of the legislature, as

required to have the effect of law.” Gaines, 346 Or at 171

(citing Or Const, Art IV, § 25). That principle carries even

greater weight when we are urged to ignore textual changes

on the basis of an inference drawn from silence in the records

of committee proceedings. See Wyers v. American Medical

Response Northwest, Inc., 360 Or 211, 226-27, 377 P3d 570

(2016) (cautioning that silence in the legislative history can

have a variety of explanations beyond suggesting that the

legislature did not intend the effect that the text appears

to direct: “for example, a proposed legislative change to the

status quo might not prompt comment precisely because

everyone understands that the law will have that effect or

because supporters do not wish to draw attention to it”);

Cite as 368 Or 538 (2021) 557

see also State v. McNally, 361 Or 314, 332-33, 392 P3d 721

(2017) (“[T]he fact that the legislature had a specific concern

in mind in enacting legislation does not mean that the leg-

islature necessarily intended the legislation to address only

that concern[.]”). We are persuaded that the model coverage

set out in ORS 742.504 no longer allows an exception when

other similar coverage also applies to the loss. As a result,

State Farm’s coverage is less favorable than that set out in

ORS 742.504. Under the rule that we articulated in Vega,

that conclusion should end the inquiry and render State

Farm’s “other coverage” provision unenforceable.

State Farm, however, proposes a final argument

that looks beyond the model coverage of ORS 742.504 to

another statute, ORS 742.506, which addresses the “alloca-

tion of responsibility between insurers” in cases of multiple,

potentially applicable policies. Under the terms of that stat-

ute, “if all policies potentially involved expressly allocate

responsibility between insurers, or self-insurers, without

repugnancy, then the terms of the policies shall control,” but

otherwise “the provisions of ORS 742.504(9) shall control

allocation of responsibility between insurers.”10 According

to State Farm, the “other coverage” term in its policies “allo-

cate[s] responsibility between insurers,” does so “without

repugnancy” among the policies (because each contains

the identical term), and, therefore “shall control.” Both the

initial premise and the conclusion of that argument are

flawed.

State Farm’s initial premise is flawed because it

requires us to assign a meaning to “allocate responsibil-

ity” that is contrary to the standard usage of those terms.

As used elsewhere in the Oregon insurance code, the term

“responsibility” refers to accountability for damages. ORS

801.280 (describing Oregon’s “[f]inancial responsibility

requirements” as meaning “the ability to respond in dam-

ages for liability, on account of accidents arising out of the

ownership, operation, maintenance or use of a motor vehi-

cle” up to the minimum amounts required by ORS 806.060);

10

ORS 742.506 is not expressly limited to the allocation of responsibility

between multiple policies of UM/UIM coverage, but that limitation is suggested

by the fact it incorporates “the provisions of ORS 742.504(9),” which address pri-

ority among multiple policies that provide applicable UM/UIM coverage.

558 Batten v. State Farm Mutual Automobile Ins. Co.

see also Black’s Law Dictionary 1569 (11th ed 2019) (defin-

ing “responsibility” as “[t]he quality, state, or condition of

being duty-bound, answerable, or accountable; liability”).

And an “allocation” refers to “[t]he amount or share of some-

thing that has been set aside or designated for a particular

purpose” or “[a] designation or apportionment for a specific

purpose.” Black’s at 94. Thus, ORS 742.506 would appear

to refer to the method of determining which portion of an

insured’s damages each insurer will pay. For example, if

an insured’s total outstanding losses were $150,000, and

two applicable policies each provided coverage with limits

of $100,000, an allocation of responsibility would determine

what portion of the $150,000 each insurer must pay. See

ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117,

126 n 8, 241 P3d 710 (2010), adh’d to as modified on recons,

349 Or 657, 249 P3d 111 (2011) (explaining that trial court

had “allocated responsibility” for future cost to insured of

remediating contaminated soil by assigning one insurer

90 percent of the total insured potential loss and the other

the remaining 10 percent).

That meaning is further suggested by the fact that

ORS 752.506 makes the default method for “allocation of

responsibility between insurers” the method that is speci-

fied in ORS 742.504(9)—a method that designates one pol-

icy as “primary” and one as “excess” when multiple poli-

cies insure against the loss. Using the example above, the

allocation of responsibility under ORS 742.504(9) would be

$100,000 to the primary policy and the remaining $50,000

to the “excess” policy. Under ORS 742.506, however, if the

two applicable policies both specify that liability will be

apportioned differently—say 50 percent  - 50 percent—then

that agreement would be enforceable, and each policy would

pay $75,000. But State Farm’s “other coverage” term does

not purport to specify which policy will pay which portion of

the insured’s loss; instead, it specifies a maximum sum that

all policies combined will pay, no matter how large the loss.

We are unwilling to assign that strained construction to the

terms of ORS 742.506, particularly when doing so leads to

an equally flawed conclusion.

State’s Farm’s conclusion that ORS 742.506 allows

its “other coverage” limitation to control what it must pay to

Cite as 368 Or 538 (2021) 559

its insured is flawed because it contradicts the primary com-

mand of ORS 742.504, that the UM/UIM coverage in every

policy must be “no less favorable in any respect to the insured

or the beneficiary than” coverage under the terms specified

in that statute. To accept State Farm’s conclusion that its

added “other coverage” term controls what it must pay would

require us to accept that a term that causes an insurer’s

UM/UIM coverage to be less favorable to the insured than

the coverage under ORS 742.504 is, nevertheless, enforce-

able under ORS 742.506. In other words, to accept State

Farm’s conclusion that ORS 742.506 authorizes a coverage

limitation beyond those authorized by ORS 742.504 we also

would have to accept a conclusion that the “comprehensive

model” coverage in ORS 742.504 is not actually comprehen-

sive. We cannot accept that conclusion. Accordingly, State

Farm’s “other coverage” limitation is unenforceable.

The certified question is answered.