The opinion
No. 9 April 3, 2025 307
IN THE SUPREME COURT OF THE
STATE OF OREGON
Steven BELLSHAW,
individually and
on behalf of
all other similarly situated persons,
Respondent on Review,
v.
FARMERS INSURANCE COMPANY OF OREGON,
an Oregon corporation,
Petitioner on Review.
(CC 15CV16877) (CA A173722) (SC S070423)
On review from the Court of Appeals.*
Argued and submitted March 14, 2024.
Nadia Dahab, Sugerman Dahab, Portland, argued the
cause and filed the briefs for respondent on review. Also
on the briefs were David F. Sugerman, Sugerman Dahab,
Portland, and Tim Quenelle, Tim Quenelle PC, Lake
Oswego, Oregon.
Brad S. Daniels, Stoel Rives LLP, Portland, argued the
cause and filed the briefs for petitioner on review. Also on
the briefs were Timothy W. Snider and Stephen H. Galloway.
Elizabeth C. Savage, Elizabeth Savage Law, P.C.,
Portland, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, James, and Masih, Justices, and Walters, Senior
Judge, Justice pro tempore.**
______________
* Appeal from Multnomah County Circuit Court, Judith H. Matarazzo,
Judge. 326 Or App 605, 533 P3d 40 (2023).
** Bushong, J., did not participate in the consideration or decision of this
case.
308 Bellshaw v. Farmers Ins. Co.
GARRETT, J.
The decision of the Court of Appeals is reversed in part.
The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
James, J., dissented and filed an opinion, in which Masih,
J., joined.
Cite as 373 Or 307 (2025) 309
GARRETT, J.
Under Oregon law, motor vehicle insurers must pro-
vide their insureds with a notice stating certain information
in “clear and conspicuous language approved by the direc-
tor” of the Department of Consumer and Business Services
(DCBS). ORS 746.290(2). In this case, plaintiff alleges that
defendant Farmers Insurance Company of Oregon issued
a notice that omitted some of the required information.
Farmers contends that it satisfied its statutory obligation by
using language approved by the director of DCBS, regardless
of whether the language approved by the director includes
all the information described in the statute. Plaintiff inter-
prets ORS 746.290(2) to impose an independent and abso-
lute obligation on an insurer to provide a notice with certain
information and contends that Farmers’ notice was insuffi-
cient notwithstanding the director’s approval.
The trial court agreed with plaintiff’s interpreta-
tion of the statute and granted plaintiff’s motion for sum-
mary judgment. The Court of Appeals upheld that ruling.
We allowed review and now reverse. As we will explain,
in requiring that insurers use wording “approved by the
director” to comply with their notice obligation under ORS
746.290(2), the legislature intended that insurers would be
able to rely on the director’s approval to ensure that they
were in compliance with the statute. Accordingly, regard-
ing the content of the notice, an insurer satisfies its obliga-
tion under ORS 746.290(2) if, and only if, the insurer uses
language approved by the director. Whether the language
approved by the director omits some of the information
described in the statute is immaterial to the insurer’s liabil-
ity. In this case, the trial court interpreted the statute in the
opposite manner, determining that Farmers had violated
ORS 746.290(2) because the notice omitted required infor-
mation and holding that the director’s approval was imma-
terial to Farmers’ liability. The trial court erred in granting
summary judgment to plaintiff on that basis.
I. BACKGROUND
The trial court resolved this case on cross-motions
for summary judgment, granting plaintiff’s motion and
310 Bellshaw v. Farmers Ins. Co.
denying Farmers’ motion. Although we review the summary
judgment record in a light most favorable to the nonmov-
ing party, the parties have not identified any material fac-
tual disputes that bear on the narrow question of statutory
interpretation that we resolve. Brown v. GlaxoSmithKline,
LLC, 372 Or 225, 227, 548 P3d 817 (2024).
The statutory scheme at issue is Oregon’s “choice-
of-shop” law, which prohibits motor vehicle insurers from
requiring that insureds use particular repair shops as a
condition of recovering under a policy. ORS 746.280. The law
also imposes notice requirements on insurers and repair
shops. ORS 746.285; ORS 746.290. The notice requirement
at issue in this case is found in ORS 746.290(2). That provi-
sion requires insurers, at the time of issuing a motor vehi-
cle policy, to provide a “statement in clear and conspicuous
language approved by the director of: (a) The rights and
responsibilities of the insured when a claim is submitted;
and (b) The provisions of ORS 746.280.”1 ORS 746.290(2).
1
The notice provision in ORS 746.290(2) requires the use of language
approved by “the director,” but it does not indicate which “director.” The his-
tory of the statute makes clear that it is referring to the director of DCBS. See
Oregon Revised Statutes, Preface, xx-xxi, xxiv (2023) (describing relevant edito-
rial changes made by Legislative Counsel pursuant to statutory authorization).
When that notice provision was originally enacted, in 1977, it required the use
of language “approved by the commissioner,” rather than “approved by the director.”
Or Laws 1977, ch 785, § 4(2), codified as ORS 746.290(2) (1977) (emphasis added). The
“commissioner” referred to the state Insurance Commissioner, who, at the time, led
the Insurance Division within the Department of Commerce. See ORS 731.208 (1977)
(describing the Insurance Commissioner as the head of the Insurance Division).
In 1987, the legislature abolished the Insurance Division and created the
Department of Insurance and Finance as its successor. Or Law 1987, ch 373, § 3(1) -
(3). The legislature provided that statutory references to the Insurance Commissioner
“shall be considered as referring to or describing” the Director of the Department of
Insurance and Finance. Or Law 1987, ch 373, § 15(1). The legislature also autho-
rized Legislative Counsel to modify the ORS by replacing statutory references to
the Insurance Commissioner with references to the Director of the Department of
Insurance and Finance. Or Law 1987, ch 373, § 15(1), (2)(b). The ORS first reflected
that change in 1987. See ORS 746.290(2) (1987) (requiring the notice to contain
“clear and conspicuous language approved by the director” (emphasis added)).
The legislature did the same thing in 1993 when it abolished the Department
of Insurance and Finance and created the DCBS as its successor. Or Laws 1993,
ch 744, §§ 1, 32-33. Statutory references to the Director of the Department of
Insurance and Finance were deemed to be references to the Director of DCBS. Or
Laws 1993, ch 744, § 35(3). And the legislature authorized Legislative Counsel
to modify the ORS by replacing statutory references to the Director of the
Department of Insurance and Finance with references to the Director of DCBS.
Or Laws 1993, ch 744, § 35(5).
Cite as 373 Or 307 (2025) 311
An insured may bring a private cause of action against an
insurer for violating the notice provision set out in ORS
746.290(2). ORS 746.300. An insurer that violates that
notice provision may be subject “to actual damages or $100,
whichever is greater, for each violation.” Id.
Plaintiff purchased motor vehicle insurance from
Farmers in 2011. Upon issuing the policy, Farmers included
a notice that, according to plaintiff, failed to refer to all parts
of ORS 746.280. Plaintiff filed a class action alleging that
Farmers had violated the notice provision in ORS 746.290(2)(b)
because the notice that Farmers had provided to him and
other Oregon insureds failed to fully state “the provisions of
ORS 746.280.” ORS 746.290(2)(b).
The history of the “choice-of-shop” law provides con-
text for understanding the nature of plaintiff’s claim. In
1977, the legislature enacted both the notice provision in
dispute, ORS 746.290(2)(b), and the statute cross-referenced
in the notice provision, ORS 746.280. At the time, ORS
746.280 consisted of only one paragraph:
“An insurer shall not require that a particular person
make the repairs to the insured’s motor vehicle as a con-
dition for recovery by the insured under a motor vehicle
liability insurance policy.”
Or Laws 1977, ch 785, § 2, codified as ORS 746.280 (1977).
Although, following those 1977 enactments, insur-
ers were required to issue notices stating the provisions of
ORS 746.280 in language approved by the DCBS director’s
predecessor, there is no record of what language the direc-
tor’s predecessor approved between 1977 and 1993. In 1993,
the director’s predecessor issued a bulletin approving spe-
cific language for insurers to use in the notices required by
ORS 746.290(2). Oregon Insurance Division Bulletin 93-3,
1993 WL 13563876 (Apr 20, 1993). The bulletin approved
language intended to describe “the rights and responsibili-
ties of the insured when a claim is submitted” and “describe
the provisions of ORS 746.280.” As to the provisions of ORS
746.280, the bulletin repeated the statutory text:
“We have approved the following language for the
[notice]:
312 Bellshaw v. Farmers Ins. Co.
“* * * * *
“Oregon law states:
“An insurer shall not require that a particular person
make the repairs to the insured’s motor vehicle as a con-
dition for recovery by the insured under a motor vehicle
liability insurance policy.”
Id. at *1. The bulletin explained, “If you [an insurer] choose
to use this language, it is not necessary to submit notice for
the director’s approval.” Id. In 1994, Farmers began using
language tracking the 1993 bulletin in the notices that it
sent to all its insureds in Oregon.
In 2007, the legislature amended ORS 746.280 to
add additional requirements. The statute retained the exist-
ing wording but moved it to a new subsection (1). Or Laws
2007, ch 506, § 1(1), codified as ORS 746.280(1). It was fol-
lowed by three new subsections that require an insurance
adjuster to provide disclosures to an insured before recom-
mending a particular repair shop; prohibit an insurer from
limiting recovery for repairs based on an insured’s decision
not to use a recommended shop; and require an insurer
to provide disclosures to an insured if the insured accepts
the insurer’s repair shop recommendation. Or Laws 2007,
ch 506, § 1(2) - (4), codified as ORS 746.280(2) - (4).2 Although
2
As amended, ORS 746.280 provides:
“(1) An insurer may not require that a particular person make the repairs
to the insured’s motor vehicle as a condition for recovery by the insured under
a motor vehicle liability insurance policy.
“(2) Prior to providing a recommendation that a particular person
make repairs to the insured’s motor vehicle, the person adjusting the claim
on behalf of the insurer shall inform the insured of the rights conferred by
subsection (1) of this section by communicating in a statement substantially
similar to the following:
“OREGON LAW PROHIBITS US FROM REQUIRING YOU TO GET
REPAIRS TO YOUR VEHICLE AT A PARTICULAR MOTOR VEHICLE
REPAIR SHOP. YOU HAVE THE RIGHT TO SELECT THE MOTOR
VEHICLE REPAIR SHOP OF YOUR CHOICE.
“(3) If an insured elects to have the motor vehicle repaired at a motor
vehicle repair shop other than a shop recommended by the insurer, the
insurer may not limit the cost of repairs necessary to return the motor vehi-
cle to a preloss condition relative to safety, function and appearance other
than as stated in the policy or as otherwise allowed by law.
“(4) If an insured accepts the insurer’s recommendation, the insurer
shall provide, electronically or in printed form, a statement to the insured
Cite as 373 Or 307 (2025) 313
the legislature amended ORS 746.280 at that time, the leg-
islature made no corresponding change to the notice provi-
sion, ORS 746.290(2)(b), which continued to require that the
notice state “the provisions of ORS 746.280.”
The legislature has not amended ORS 746.280 since
2007. Following the 2007 amendments to ORS 746.280,
DCBS did not issue guidance approving new language for
insurers to use in the notices that accompany their motor
vehicle policies.
The notice that Farmers provided to plaintiff in
2011 used the same language that Farmers had been using
since 1994, tracking the language from the 1993 bulletin.
So, as it related to the provisions of ORS 746.280, the notice
repeated the single original paragraph of that statute as
enacted in 1977, which is now contained in ORS 746.280(1).
But Farmers’ notice did not repeat or otherwise expressly
address the new subsections that the legislature added in
2007 and that are contained in ORS 746.280(2) to (4). The
notice that Farmers provided to plaintiff stated:
“AN INSURER SHALL NOT REQUIRE THAT A
PARTICULAR PERSON MAKE THE REPAIRS TO THE
INSURED’S MOTOR VEHICLE AS A CONDITION FOR
RECOVERY BY THE INSURED UNDER A MOTOR
VEHICLE LIABILITY INSURANCE POLICY.”
(Uppercase in original.)
In his complaint on behalf of a class of Farmers’
insureds, plaintiff alleged that, because Farmers’ notice
included only subsection (1) of ORS 746.280 and did not
quote or address subsections (2) to (4), Farmers’ notice failed
to include a “statement” of “[t]he provisions of ORS 746.280,”
as required by the notice provision in ORS 746.290(2)(b).
Plaintiff alleged that Farmers had violated ORS 746.290(2)(b)
within three business days after the date of acceptance in substantially the
following form:
“WE HAVE RECOMMENDED A MOTOR VEHICLE REPAIR SHOP.
IF YOU AGREE TO USE OUR RECOMMENDED REPAIR SHOP, YOUR
VEHICLE WILL RECEIVE REPAIRS RETURNING IT TO A PRELOSS
CONDITION RELATIVE TO SAFETY, FUNCTION AND APPEARANCE
AT NO ADDITIONAL COST TO YOU OTHER THAN AS STATED IN THE
INSURANCE POLICY OR AS OTHERWISE ALLOWED BY LAW.”
(Uppercase in original.)
314 Bellshaw v. Farmers Ins. Co.
by failing to sufficiently state the provisions of ORS 746.280;
plaintiff did not allege that Farmers violated ORS 746.290(2)
(b) by failing to use language approved by the director.
Following discovery, plaintiff and Farmers filed
cross-motions for summary judgment. According to plain-
tiff’s motion, the fact that Farmers’ notice had failed to
state all “[t]he provisions of ORS 746.280” entitled him
and the other class members to statutory damages under
ORS 746.300. Farmers argued that it had satisfied ORS
746.290(2)(b) because it had used language “approved by
the director,” regardless of whether the director-approved
language included all the information that plaintiff alleged
it should have. Farmers further argued, in the alternative,
that its notice did include all the statutorily required infor-
mation. According to Farmers, only subsection (1) of ORS
746.280 was required to appear in the notice because sub-
sections (2) to (4) merely repeated the right to choose a repair
shop already described in subsection (1). And Farmers main-
tained that, when the legislature added subsections (2) to (4)
in 2007, it did not add new requirements to the notice that
accompanies the issuance of the policy. Instead, Farmers
argued that the notices required by subsections (2) to (4)
apply only during the claim adjustment process, after an
insured has filed a claim for repairs and an adjuster recom-
mends, or already has recommended, a repair shop to the
insured.
The trial court agreed with plaintiff, concluding that,
regardless of whether Farmers had used language approved
by the director, Farmers had an independent obligation to
provide a statement of “[t]he provisions of ORS 746.280” and
that Farmers had failed to satisfy that obligation because
its notice described only one of the four subsections in ORS
746.280. On that basis, the trial court granted plaintiff’s
motion for summary judgment and denied Farmers’ motion
for summary judgment. The trial court imposed the statu-
tory penalty of $100 for each insured in the plaintiff class,
resulting in a judgment against Farmers in the amount of
$26,319,200.
Farmers sought appellate review, challenging
numerous decisions by the trial court, including the decisions
Cite as 373 Or 307 (2025) 315
to grant plaintiff’s motion for summary judgment and to
deny Farmers’ motion for summary judgment. As to those
decisions, the Court of Appeals rejected Farmers’ argu-
ments. That court first rejected Farmers’ argument that an
insurer satisfies the notice requirement in ORS 746.290(2)(b)
by providing a notice that uses language approved by the
director. The court reasoned that, although the notice pro-
vision requires insurers to use language “approved by the
director,” the notice provision “does not delegate authority to
the director to determine what is necessary to comply with
the statute.” Bellshaw v. Farmers Ins. Co., 326 Or App 605,
613, 533 P3d 40 (2023). The court further held that, because
Farmers’ notice “did not contain information regarding all
four sections of ORS 746.280,” the notice was deficient and
the trial court had, therefore, properly granted summary
judgment to plaintiff. Id. at 617.3
Farmers petitioned this court for review, which we
allowed.
II. ANALYSIS
On review, Farmers reprises its arguments to the
trial court and the Court of Appeals. First, Farmers con-
tends that the notice provision in ORS 746.290(2) requires
an insurer to use language “approved by the director” but
imposes no independent obligation on the insurer to ensure
that the director-approved language includes any particular
content. Second, Farmers contends in the alternative that,
if an insurer does have an independent obligation to ensure
that the notice includes particular content, then its notice
was sufficient. Plaintiff disputes both arguments.
We begin with the first of those two arguments
because that argument determines the scope of the obli-
gation imposed on the insurer. That is, if we agree with
Farmers that an insurer satisfies the content requirement
for the notice described in ORS 746.290(2) if, and only if,
the insurer uses language approved by the director, then an
insurer’s liability for violating that requirement turns solely
on that approval. An insurer that uses language approved
3
The Court of Appeals decision also addressed questions related to the
class definition, the statute of limitations, and due process limits on the damage
award. Id. at 617-30. Those issues are not before this court on review.
316 Bellshaw v. Farmers Ins. Co.
by the director is not subject to liability, while an insurer
that does not use such language is subject to liability. Under
that interpretation, whether the notice sufficiently states
the provisions of ORS 746.280 in the opinion of a third party
or a reviewing court would be immaterial to the insurer’s
liability and would be outside the scope of a private cause of
action against the insurer.
Before attempting to resolve the parties’ dispute on
that issue, it is important to define the issue more clearly. At
times, plaintiff frames the question as who decides whether
an insurer has complied with the notice provision. Plaintiff
appears to characterize Farmers as taking the position that
the statute delegates to the director the authority to deter-
mine whether an insurer’s notice is adequate; according to
plaintiff, courts must assess whether the insurer’s notice
sufficiently states the provisions of ORS 746.280, without
deference to the director’s interpretation of the notice provi-
sion. That framing is also reflected in the Court of Appeals
decision. As noted, the Court of Appeals held that the legisla-
ture did “not delegate authority to the director to determine
what is necessary to comply with the statute.” Bellshaw,
326 Or App at 613. Based on that reasoning, the Court of
Appeals held that the director’s approval of an insurer’s
notice language does not determine whether the content of
a notice actually satisfies an insurer’s obligation under the
notice provision.
But the issue before us is not one of delegation; the
question is not who decides whether an insurer’s notice has
complied with the statutory obligation. Instead, the inter-
pretive question is what obligation the notice provision
imposes on an insurer in the first place. That is, Farmers is
not arguing that the director, rather than a court, decides
whether an insurer has satisfied its obligation to provide
the required notice. Instead, Farmers argues that, under
the correct interpretation of ORS 746.290(2), an insurer’s
only obligation regarding the content of a notice is to use
language “approved by the director.”
Stated another way, the parties’ dispute turns
on how we define the elements of plaintiff’s claim against
Farmers. Under ORS 746.300, an insured may bring a
Cite as 373 Or 307 (2025) 317
private cause of action against an insurer if the insurer
“violates” ORS 746.290. An insurer violates ORS 746.290 by
failing to satisfy the obligations that ORS 746.290 imposes
on an insurer. Therefore, the issue before us is determining
what obligations ORS 746.290 imposes on an insurer.
Defining the elements of a statutory cause of action
presents a question of statutory interpretation. See Moody v.
Oregon Community Credit Union, 371 Or 772, 791, 542 P3d
24 (2023) (“When the legislature intends to impose liability
for violation of a statute, the elements of that statutory claim
are determined by the legislature[.]”). We review questions
of statutory interpretation for errors of law, seeking to give
effect to the intent of the legislature as demonstrated by the
text in context and any helpful legislative history. State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).
We begin with the text of ORS 746.290(2):
“(2) Every motor vehicle liability insurance policy issued
in this state after December 31, 1977, and any extension or
renewal after that date of a policy issued before that date
shall be accompanied by a statement in clear and conspicu-
ous language approved by the director of:
“(a) The rights and responsibilities of the insured when
a claim is submitted; and
“(b) The provisions of ORS 746.280.”
Thus, ORS 746.290(2)(b) requires an insurer to state the
provisions of ORS 746.280 using clear and conspicuous lan-
guage approved by the director.
While that general directive is clear, the details
remain in dispute. Plaintiff contends that the text is sus-
ceptible to only one interpretation: that an insurer’s notice
violates ORS 746.290(2) if an insurer fails to issue a notice
that recites each and every word of ORS 746.280, regardless
of whether the director has approved the notice language.
But the text is not a model of legislative drafting and does
not, on its face, compel only one interpretation. Although
plaintiff’s view that “a statement” of “[t]he provisions of ORS
746.280” must recite each provision verbatim is plausible,
the fact that the notice provision requires that the statement
be in “clear” language “approved by the director” suggests
318 Bellshaw v. Farmers Ins. Co.
a plausible alternative: the legislature intended the director
to play a role in determining the content of the notice so that
it is written in plain and understandable language accessi-
ble to ordinary consumers.4
As to the scope of an insurer’s obligation, the text of
the notice provision is ambiguous because it fails to clearly
identify who is required to do what. The subject of the provi-
sion is the insurance policy, rather than a person or entity,
and the act required by the provision is in the passive voice.
See ORS 746.290(2) (“Every motor vehicle liability insur-
ance policy * * * shall be accompanied by a statement * * *.”).
That complicates the task before this court, which is deter-
mining the scope of an insurer’s obligation under the provi-
sion. The provision, for example, never expressly refers to an
insurer. One is left to infer that, because insurance policies
are issued by insurers, the obligation to accompany a pol-
icy with the required notice is an obligation belonging to
insurers.
Although the parties agree that the provision
requires insurers to make sure that policies are accompa-
nied by a notice, the parties dispute the scope of the insur-
er’s obligation in determining the content of that notice. The
provision’s failure to identify who is required to do what
poses a textual problem in resolving that dispute. The provi-
sion imposes two requirements regarding the content of the
notice: (1) the language must be approved by the director;
and (2) the language must clearly and conspicuously state
certain information—the rights and responsibilities of the
insured when a claim is submitted and the provisions of
ORS 746.280. The question is whether those requirements
should be interpreted as obligations imposed on the insurer,
the director, or both.
Based on the text of the notice provision, the require-
ment that the language be approved by the director is an
obligation imposed on the insurer. It would be incoherent
4
We also observe that, since its adoption in 1977, ORS 746.290(2)(b) has
referred to “[t]he provisions of ORS 746.280.” Or Laws 1977, ch 785, § 4(2)(b)
(emphasis added). Despite the reference to the plural “provisions,” ORS 746.280
consisted of only one paragraph from 1977 to 2007, when the legislature added
three additional paragraphs. Or Laws 1977, ch 785, § 2. As a result, it is unclear
what weight, if any, to place the legislature’s use of the plural “provisions.”
Cite as 373 Or 307 (2025) 319
to require the director to obtain the director’s approval. As
a result, the text suggests that an insurer cannot satisfy
the notice provision unless the insurer uses language in the
notice that has been approved by the director.
Determining who is obligated to ensure that the
language clearly and conspicuously states the necessary
information, including the provisions of ORS 746.280, is
more difficult to resolve. Farmers interprets that require-
ment as being addressed to the director and describing the
notice language that the director should approve. Plaintiff
interprets that requirement as imposing a second obliga-
tion on the insurer, so that the insurer is required to both
obtain the director’s approval on the notice language and
ensure that the language clearly and conspicuously states
the necessary information, including the provisions of ORS
746.280.
As noted above, both interpretations are plausible
on the face of the statute. The text can reasonably be read
to support Farmers’ interpretation. On that view, the phrase
“approved by the director” would essentially modify the
remainder of the obligation imposed by the statute, so that
the director’s approval would be determinative of whether the
wording in a notice is legally sufficient. Similarly, plaintiff’s
view that a notice under ORS 746.290 must use language
approved by the director and, as an independent requirement,
clearly and conspicuously state each provision of ORS 746.280
is textually plausible. Neither party identifies any additional
context that would help resolve the textual ambiguity.
The legislative history, however, directly addresses
the separate obligations of the insurer and director in deter-
mining the content of the notice and persuades us that the
legislature intended Farmers’ interpretation. The salient
legislative history focuses on the legislature’s decision to
add the words “approved by the director”—or, as it was
originally adopted, “approved by the commissioner,” which
referred to the state Insurance Commissioner, the position
that preceded the DCBS director.
The notice provision that appears in ORS 746.290(2)
was drafted during hearings before the House Judiciary
320 Bellshaw v. Farmers Ins. Co.
Committee in 1977. The committee first considered a ver-
sion of the notice provision that did not include the words
“approved by the commissioner” but that otherwise tracked
the current version of ORS 746.290(2). That original ver-
sion of the notice provision would have required insurers to
provide insureds with a clear statement of their rights and
responsibilities when a claim is submitted as well as the
provisions of what was later codified as ORS 746.280.
Later in the hearing, Tom Fender, a witness repre-
senting auto body repair shops, suggested adding the words
“approved by the commissioner.” According to Fender, some
insurers had expressed concern about the uncertain scope
of the required notice in the draft bill. As Fender described
that concern, the insurers feared that without clear statu-
tory direction on the content required to be in the notice,
insurers would have no certainty before issuing the new
notices that the notices complied with the statute. Requiring
that the notice be approved by the commissioner would pro-
vide the insurers with certainty that they could avoid liabil-
ity so long as they used language that the commissioner had
approved:
“Fender: Mr. Chairman, the—the other suggestion
we had in that Subsection 2 of Section 5 [codified as ORS
746.290], is that after the word ‘statement’ in the last line,
there be inserted ‘accompanied by a statement approved
by the commissioner.’ And the thought in mind here was is
[sic] several of the—of the carriers were concerned about
just how much or—or how little they had to advise their
insured of in order to satisfy the requirements of the act.
And since the—they are a regulated industry, except in the
area of rates, we—we felt that it would be best to have the
insurance commissioner make the determination of—of
the policy provision, which he already does. Now, this, of
course, would not be a policy provision. It would simply be
a notice, a separate piece of paper from the policy itself, so
as not to require the—the carriers to reprint their policies
just for Oregon.
“* * * * *
“Rep. Frohnmayer: Now, if the insurance commissioner
signs off, that’s the end of the dispute though. Is that your
understanding, what—?
Cite as 373 Or 307 (2025) 321
“Fender: That would be our understanding.
“Rep. Frohnmayer: There’s no collateral attack on
whether or not it was adequate? There’s no fine or penalty
for—?
“Fender: That’s—that’s correct.”
Tape Recording, House Committee on Judiciary, SB 718,
June 24, 1977, Tape 55, Side 2. Later in the hearing, William
Wheatley, a witness representing State Farm Insurance,
gave testimony along the same lines. Wheatley agreed that
the content of the required statement should be left to the
insurance commissioner:
“Rep. Myers: If you [State Farm] assume we’re going
to require you to do this, do you see any problem with hav-
ing the insurance commissioner approve it? Don’t you want
that?
“Wheatley: Well I think, you know—
“Rep. Myers: Just assume we’re going to do it now.
“Wheatley: Okay. Yeah, if you’re going to do it, I think
that it should either be spelled out with great clarity here
or else left to the insurance commissioner to spell out. But
to leave it as is is big.”
Id.
The committee voted to add the words “approved
by the commissioner” without further discussion, and no
further discussion of that issue appears in the legislative
record. The legislature ultimately enacted the bill that used
the committee’s proposed text. Or Laws 1977, ch 785, § 4. As
described above, the word “commissioner” was later changed
to “director” to reflect changes in the regulatory structure
after adoption.
That legislative history confirms, as an initial
matter, that the legislature intended the notice provision
to require that the insurer use language approved by the
director, and, as a result, an insurer violates the notice pro-
vision if the insurer fails to do so. Beyond that, the legis-
lative history undermines plaintiff’s interpretation that
the notice provision imposes a second distinct obligation
on insurers to ensure that the notice sufficiently states
322 Bellshaw v. Farmers Ins. Co.
the required information, including the provisions of ORS
746.280. Instead, the legislature required insurers to use
language approved by the director in order to relieve insur-
ers of the obligation to determine on their own whether the
language in the notice was sufficient.
Plaintiff argues that, although Fender testified
to the House Judiciary Committee that a notice approved
by the director should not be subject to collateral attacks,
the text of the bill adopted by the legislature does not sup-
port Fender’s understanding of the bill. In support of that
argument, plaintiff points out that the bill expressly makes
the notice subject to collateral attacks by creating the pri-
vate cause of action. Or Laws 1977, ch 785, § 7, codified as
ORS 746.300. But that argument, again, somewhat miscon-
ceives the question before this court. The question is not
whether an insurer can be liable for violating the obliga-
tions imposed on it under ORS 746.290(2); it can be, and
that is not a “collateral attack.” The question is what obli-
gations ORS 746.290(2) imposes on an insurer in the first
place. The legislative history reflects that the legislature
was concerned about collateral attacks on language that
had been “approved by the director” and, therefore, limited
the scope of the insurer’s obligation to using language that
had received such approval.
As a result, we agree with Farmers’ interpretation.
Regarding the content of the notice, an insurer satisfies
the notice provision in ORS 746.290(2) if, and only if, the
insurer uses language that has been approved by the direc-
tor. A plaintiff cannot establish that an insurer violated
ORS 746.290(2) by challenging the substantive content of
the insurer’s notice. Instead, an insurer’s liability turns on
whether the insurer provided a notice that uses language
approved by the director.5
In light of that conclusion, this case provides no
opportunity for us to decide the second question presented—
namely, whether Farmers’ notice sufficiently stated “[t]he
5
Our conclusion is limited to ORS 746.290(2). That conclusion is based on
the legislative intent specific to that provision and does not reach other provi-
sions within the Insurance Code that may require insurers to obtain the direc-
tor’s approval.
Cite as 373 Or 307 (2025) 323
provisions of ORS 746.280.” To the extent that plaintiff
seeks to challenge whether a notice approved by the direc-
tor comports with the requirement in ORS 746.290(2) that
the notice state “the provisions of ORS 746.280,” such a
challenge would properly arise, if at all, through a differ-
ent avenue. See, e.g., ORS 731.240(1) (“The Director of the
Department of Consumer and Business Services shall hold
a hearing upon written demand for a hearing by a person
aggrieved by any act, threatened act or failure of the direc-
tor to act.”).6
The trial court’s order granting summary judgment
to plaintiff and denying summary judgment to Farmers was
based on an interpretation of the notice provision in ORS
746.290(2) that conflicts with the legislative history set
out above. Plaintiff had sought summary judgment on the
ground that Farmers had violated the notice provision by
failing to sufficiently state the provisions of ORS 746.280.
Farmers argued that it sufficiently stated the provisions of
ORS 746.280 and separately sought summary judgment,
arguing that it satisfied its obligation under ORS 746.290(2)
by providing a notice using language approved by the direc-
tor. The trial court agreed with plaintiff’s argument that,
under the notice provision, an insurer has an independent
obligation to ensure that the notice sufficiently states the
provisions of ORS 746.280 and that Farmers had failed to
satisfy that obligation. In concluding that an insurer has an
independent obligation to ensure that the notice sufficiently
states the provisions of ORS 746.280, the trial court rejected
Farmers’ argument that Farmers could and did satisfy its
obligation under ORS 746.290(2) by providing a notice using
language approved by the director.
For the reasons stated above, the trial court erred
in concluding that Farmers had an independent obligation
to ensure that the notice sufficiently states the provisions
of ORS 746.280. The only obligation that ORS 746.290(2)
6
The parties have not briefed the nature of any obligation that ORS 746.290(2)
imposes on the director, and we express no view on that issue. Similarly, the par-
ties have not briefed whether the director could approve notice language through
formal rulemaking. If the director has authority to do so and adopted a rule
approving notice language, then whether the language approved by the director
sufficiently states the provisions of ORS 746.280 could be determined through
judicial review under ORS 183.400.
324 Bellshaw v. Farmers Ins. Co.
imposes on an insurer regarding the content of the notice is
to use language approved by the director. Either the insurer
used language approved by the director and satisfied the
notice provision or the insurer failed to do so and violated
the notice provision. Whether the notice sufficiently states
the provisions of ORS 746.280 is not material to either of
those determinations. Because we hold that an insurer has
no independent obligation to ensure that the notice language
sufficiently states the provisions of ORS 746.280, we reverse
the trial court’s order granting plaintiff summary judgment
and conclude that the trial court erred in the reason that it
gave for denying Farmers’ motion for summary judgment.
Nevertheless, we do not reach the question of whether
the trial court should have, instead, granted Farmers’
motion for summary judgment. That motion consisted of
two parts: an argument about the scope of an insurer’s obli-
gation under the notice provision and an argument about
whether Farmers satisfied that obligation in this case. We
agree with Farmers’ argument about the scope of an insur-
er’s obligation. An insurer satisfies the content requirement
in ORS 746.290(2) if, and only if, the insurer uses language
approved by the director. But we do not address whether, in
the notices at issue in this case, Farmers actually used lan-
guage that had been approved by the director.
Neither party has presented this court with suffi-
ciently developed arguments on that question. For example,
although Farmers’ notice used language tracking the 1993
bulletin issued by the director’s predecessor, that bulletin
appears to have been withdrawn, along with dozens of other
bulletins, as part of a 2003 effort “to reduce the regulatory
burden imposed by the Oregon Insurance Division.” Bulletin
2003-2 (Mar 10, 2003), 2003 WL 24892185, *1; see also id.
(“THE FOLLOWING BULLETINS ARE WITHDRAWN:
* * * 93-3 Approved Anti-direction of Work Notice with Auto
Policy”). The parties have not briefed the legal significance,
if any, of that 2003 bulletin.
Additionally, in September 2015, after plaintiff filed
his claim against Farmers in this case, DCBS began requir-
ing motor vehicle insurers to submit their ORS 746.290(2)
notices to DCBS as part of the insurance form preapproval
Cite as 373 Or 307 (2025) 325
process. See ORS 742.003 (describing insurance form pre-
approval process). According to the summary judgment
record, Farmers submitted its notice form, using the same
language that it had provided to plaintiff and used since
1994. DCBS approved that notice in 2016. The parties have
not briefed the legal significance, if any, of that approval or
otherwise identified any further guidance from the direc-
tor between the 2003 bulletin and that 2016 approval. We
therefore do not rule on whether the trial court should have
granted Farmers’ motion for summary judgment.
The dissent disagrees with our answer in this case.
But the dissent does not dispute our interpretation of the
phrase “approved by the director”—namely, where an insurer
is required to state information using language “approved
by the director,” then the insurer satisfies that obligation by
stating the information using language that the director has
approved. Instead, the dissent takes the position that the
notice must use language approved by the director only in
describing the rights and responsibilities of the insured and
not in describing the provisions of ORS 746.280.
Again, the notice must provide:
“(2) * * * a statement in clear and conspicuous language
approved by the director of:
“(a) The rights and responsibilities of the insured when
a claim is submitted; and
“(b) The provisions of ORS 746.280.”
ORS 746.290(2). The dissent would conclude that the lead-in
requirement that the statement be “in clear and conspicuous
language approved by the director,” or at least the phrase
“approved by the director,” applies only to paragraph (a); it
does not apply to paragraph (b), which, in the dissent’s view,
requires the notice to include a verbatim copy of the wording
of ORS 746.280. The dissent asserts that that interpreta-
tion advances the legislature’s “purpose,” which the dissent
understands as the legislature’s policy goal—here, to pro-
tect the consumer.
We differ with the dissent not because we differ in
our understanding of the legislature’s objective, but because
326 Bellshaw v. Farmers Ins. Co.
we are unwilling to ignore the text that the legislature
enacted to advance that objective.
It is clear from the structure and wording of ORS
746.290(2) that the legislature intended to require “a state-
ment” describing two different matters: (a) the rights and
responsibilities of the insured when a claim is submitted;
and (b) the provisions of ORS 746.280. The required state-
ment must be “in clear and conspicuous language approved
by the director.” The colon at the end of that phrase, and the
fact that paragraphs (a) and (b) are connected with the word
“and,” indicate that the legislature most certainly intended
the phrase “clear and conspicuous language approved by
the director” to apply to both parts of the required notice.
Although the dissent acknowledges that our interpretation
might be “the most natural textual interpretation” of the
statute, the dissent nevertheless asserts that its own inter-
pretation is plausible. 373 Or at 339 (James, J., dissenting).
That plausibility, however, is not apparent, and the dissent
does not try to establish it. Neither plaintiff nor amicus
contend that the phrase “clear and conspicuous language
approved by the director” can be read to apply differently
to the two paragraphs of the statute. The only plausible
reading of the statute is that the phrase preceding the colon
applies equally to both paragraphs.
On that issue, the text is clear. Where the text is
clear, then we generally presume that the text reflects the
legislature’s policy goals and that those goals are best car-
ried out by applying the statute as it is written. See Gaines,
346 Or at 171 (“Only the text of a statute receives the con-
sideration and approval of a majority of the members of the
legislature[.]”). “[W]e simply do not have authority to rewrite
the terms of a statute to accomplish what we may suspect
the legislature intended but did not actually enact into law.”
Halperin v. Pitts, 352 Or 482, 496, 287 P3d 1069 (2012); see
also ORS 174.010 (“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 omitted, or to omit what has been inserted[.]”);
State v. Giron-Cortez, 372 Or 729, 756, 557 P3d 505 (2024)
(James, J., dissenting) (“We are not free to ignore the text of
Cite as 373 Or 307 (2025) 327
a statute if we think that the text does not accurately state
what the legislature intended. If we did that, we would be
rewriting a clear statute based solely on our conjecture that
the legislature could not have intended a particular result.”
(Internal citation and quotation marks omitted.)).
Disregarding clear text in search of “purpose” is per-
ilous. A statute rarely reflects a single policy objective that
the legislature intends to be pursued at all costs. Instead,
bills often result from “ ‘the accommodation of competing
and mutually inconsistent values.’ Many bills contain both
provisions that advance their principal purposes and provi-
sions that may limit their pursuit of those goals to protect
other interests.” State v. Uroza-Zuniga, 364 Or 682, 692-93,
439 P3d 973 (2019) (quoting Hans A. Linde, Due Process of
Lawmaking, 55 Neb L Rev 197, 212 (1976)). In those situa-
tions, a court that casts aside unambiguous text seeking to
understand the statute’s “purpose” is at risk of elevating one
purpose over another—a policy choice that may upset the
balance struck by the legislature.
This case is illustrative. We agree with the dissent
that the purpose of the choice-of-shop law is consumer pro-
tection—namely, protecting an insured’s right to choose
a repair shop and requiring insurers and repair shops to
notify insureds of that right. But the question presented in
this case is about how the legislature intended to carry out
that purpose and to what extent. The legislature added the
phrase “approved by the director” to address insurer uncer-
tainty about the content of the required notice. In other
words, in addition to protecting consumers, the legislature
had a second purpose: to provide insurers with certainty
about how to meet their statutory obligation. Thus, the leg-
islature intended to advance both purposes by providing
insurers a clear path to satisfying their notice obligation to
insureds while still punishing insurers who failed to do so.
The dissent interprets the statute, however, by deny-
ing or minimizing the insurer uncertainty that prompted
the legislature to add the phrase “approved by the director.”
The dissent posits, without any support in the legislative
history, that insurers had (or could have had) uncertainty
only with respect to the requirement in paragraph (a) (the
328 Bellshaw v. Farmers Ins. Co.
“rights and responsibilities of the insured”). As to paragraph
(b), the dissent asserts that “the provisions of ORS 746.280”
is unambiguous and can only be interpreted to mean that
the notice must recite verbatim the statutory text of ORS
746.280.
The dissent’s contention is difficult to square with
its separate assertion that text is rarely “so unmistakably
clear that no reasonable person could find some uncertainty
within it.” 373 Or at 337 (James, J, dissenting). And we dis-
agree that the phrase “a statement of * * * the provisions of
ORS 746.280” can mean only a recitation of every word of
the statute. It also could mean a statement that summa-
rizes the provisions or rephrases them in plainer terms.
Thus, the dissent’s premise that only paragraph (a), and
not paragraph (b), has any room for ambiguity is mistaken.
Moreover, nothing in the legislative history cited by the dis-
sent suggests that the insurer uncertainty was limited to
paragraph (a) or that anyone viewed the two parts of the
notice differently in that regard.
Although the dissent frames its disagreement with
the majority as a matter of judicial philosophy, that is not
how we see it. Considering the legislature’s policy goals is
a normal part of our framework for interpreting statutes,
and, in fact, the “paramount goal” of statutory interpreta-
tion is “discerning the legislature’s intent.” Gaines, 346 Or
at 171. But a court cannot faithfully carry out that intent by
choosing for itself how best to accomplish legislative goals,
ignoring the means by which the legislature has chosen to
do so.
The decision of the Court of Appeals is reversed in
part. The judgment of the circuit court is reversed, and the
case is remanded to the circuit court for further proceedings.
JAMES, J., dissenting.
ORS 746.290(2) provides:
“Every motor vehicle liability insurance policy issued in
this state after December 31, 1977, and any extension or
renewal after that date of a policy issued before that date
shall be accompanied by a statement in clear and conspicu-
ous language approved by the director of:
Cite as 373 Or 307 (2025) 329
“(a) The rights and responsibilities of the insured
when a claim is submitted; and
“(b) The provisions of ORS 746.280.”
This case concerns the phrase “in clear and con-
spicuous language approved by the director,” and what
that phrase means—does it apply to both paragraphs (2)(a)
and (2)(b), or only paragraph (2)(a)? The majority concludes
that it applies to both, holding that “an insurer satisfies
its obligation under ORS 746.290(2) if, and only if, the
insurer uses language approved by the director. Whether
the language approved by the director omits some of the
information described in the statute is immaterial to the
insurer’s liability.” 373 Or at 309. The crux of the dispute,
therefore, is accuracy, and who bears the obligation to accu-
rately inform the consumer about “[t]he provisions of ORS
746.280.”
Under the majority’s reasoning, informing Oregon
consumers, accurately, of “[t]he provisions of ORS 746.280,”
is entirely the obligation of the director. Insurance compa-
nies could intentionally misrepresent—i.e., lie—to their
insureds about the contents of ORS 746.280. They could send
insureds an entirely different statute without consequence,
so long as the director had accidentally approved it. The
requirement to provide “[t]he provisions of ORS 746.280” is
not a requirement for insurers to accurately inform consum-
ers about that statute; it is only a requirement to pass along
the language of the director. In this way, the majority inter-
prets ORS 746.290(2) as a regulatory scheme that places the
burden for, and the consequences of, accurately informing
Oregon insureds of “[t]he provisions of ORS 746.280,” on
the director, not the insurance industry. I must respectfully
dissent.
Perhaps the majority’s interpretation of “in clear
and conspicuous language approved by the director” is
grammatically supportable, but I part ways with the major-
ity for one reason: purpose. As I will explain, in my own
judicial philosophy, in cases such as this where reasonable
minds can and do read a text in multiple ways, the purpose
that gave rise to the statute exerts the strongest gravita-
tional pull on my decision-making.
330 Bellshaw v. Farmers Ins. Co.
BACKGROUND
Oregon has a long history of insurance providers
failing to fully and accurately inform consumers about their
automobile repair rights. This has been so widespread, and
so pervasive, that the Oregon legislature has had to step in
and protect consumers on multiple occasions over decades.
In 1977, the Oregon legislature first enacted a con-
sumer protection bill—an “anti-steering” law—one aimed at
“protect[ing] the insurance-buying public,” see ORS 731.008,
by prohibiting insurers from steering insureds to have their
vehicles repaired at specific motor vehicle repair shops.
See generally Or Laws 1977, ch 785, codified as ORS ch 746
(1977). The 1977 anti-steering law sought to regulate—and
penalize—the insurance industry, for the benefit of consum-
ers, by creating three things: a substantive right to repair, a
notice provision, and a penalty for insurers who violated the
law. The substantive right provided insureds with the right
to recover under their automobile insurance policy without
regard to the shop at which they chose to have their vehicle
repaired. The notice provision required that insurers advise
insureds of the substantive right by including in every auto-
mobile insurance policy issued, extended, or renewed after
December 31, 1977, “a statement in clear and conspicuous
language” of the substantive right. Or Laws 1977, ch 785,
§ 3, codified as ORS 746.290 (1977). The notice accompany-
ing the insured’s policy (“the policy notice”) was required to
be printed separately from the policy; it could not simply be
included in the policy document. Id. The penalty the legisla-
ture chose to impose against insurance companies for viola-
tions of the substantive right or notice provision was “actual
damages or $100, whichever is greater, for each violation.”
Or Laws 1977, ch 785, § 7.
The problem of insurers subverting the repair rights
of Oregon consumers did not stop. Between 1977 and 2007,
insurance companies created “Direct Repair Programs.”
Through their Direct Repair Programs, insurers created
lists of “preferred” repair shops at which the insurer had
prenegotiated service prices and procedures. To be on an
insurer’s Direct Repair Program list, repair shops often
were required to agree to the insurer’s repair procedures
Cite as 373 Or 307 (2025) 331
and timelines, charge discounted prices, and use cheaper,
aftermarket parts and materials, compromising the safety
and quality of the vehicle repair. See generally Testimony,
Senate Committee on Commerce, SB 523, Mar 5, 2007, Ex
D (statement of Fred Linenko, Specialty Auto Body, Inc.).
Because Direct Repair Program shops were required by
insurers to reduce labor rates, repair shops were pressured
to perform repairs quickly, further compromising quality.
Id. Ex C (statement of Jack Isselmann, Oregonians for Safe
Auto Repair). Insureds often were not informed of the Direct
Repair Program relationship or the insurer’s requirements
regarding rates, repair procedures, or other discounts that
the Direct Repair Program shops had to absorb to maintain
their status on a Direct Repair Program list. Id.
Thus, in 2007, the Oregon legislature convened,
again, to further regulate insurance providers by enacting
more consumer protection laws. To help solve the problem
created by those insurance industry practices, and to create
additional transparency and consumer protections beyond
those afforded under the 1977 law, the Oregon legislature in
2007 amended the substantive rights afforded under ORS
746.280 to include an additional substantive right and more
frequent notice about the insureds’ rights to use a vehicle
repair shop of their choice.
Specifically, ORS 746.280 was amended to make
clear that, if an insured elects to have their vehicle repaired
at a shop other than one recommended by the insurer, the
insurer “may not limit the cost of repairs necessary to return
the motor vehicle to a preloss condition relative to safety,
function and appearance” other than as stated in the insur-
ance policy or otherwise permitted by law. ORS 746.280(3).
It was also amended through subsections (2) and (4) to spec-
ify the notice to which insureds are entitled.
Importantly, the 2007 amendments did not lessen the
law’s 1977 policy notice requirement—i.e., the requirement
that the insurer provide the insured with a separately stated
notice fully setting forth in clear and conspicuous language
the substantive rights the law affords. ORS 746.290(2)(b).
And with the passage of new protections in 2007, those
332 Bellshaw v. Farmers Ins. Co.
notices, including the “provisions of ORS 746.280” needed to
change; for this insurer, they did not.
That brings us to this suit, and our central ques-
tion: In light of the multiple attempts to regulate insurers,
and to penalize them for providing inaccurate information
to Oregon consumers, how do we interpret the phrase “in
clear and conspicuous language approved by the director,”
as it appears in the requirement of ORS 746.290(2)(b) to pro-
vide the “provisions of ORS 746.280?”
PHILOSOPHIES OF STATUTORY INTERPRETATION
Statutory interpretation is a literary exercise that,
like all literary exercises, seeks to find meaning in a text.
Countless academic endeavors have debated the proper
approach to divining meaning. Within the legal field,
approaches to finding meaning within a statute have set-
tled across a spectrum. At one end of that spectrum sits
textualism. In its purest form, textualism holds that it is
inappropriate to ever consider legislative history, let alone
statutory purpose. The other end of the spectrum is less
clearly labeled, but there is some consensus on the term
“purposivism.” Extreme purposivism, at the other end, will
take the extraordinary step to judicially alter substantive
provisions of a statutory text to conform to the legislative
purpose. From textualism to purposivism, every point on
the philosophical spectrum can find its adherents, and legit-
imate arguments in support.
This court articulated an approach to statutory
interpretation, partially grounded in ORS 174.020, in PGE
v. Bureau of Labor and Industries, 317 Or 606, 611-12, 859
P2d 1143 (1993).1 PGE’s announced method was a subset
of the statutory interpretive philosophical spectrum, per-
mitting a consideration of legislative history only when the
text was ambiguous. See id. at 612-13 (“If, but only if, the
intent of the legislature is not clear from the text and con-
text inquiry, the court will then move to the second level,
which is to consider legislative history to inform the court’s
1
PGE described this method as the method of “the court.” PGE, 317 Or at
610. Whether institutions, as opposed to people, can have philosophies, or man-
date a collective philosophy upon its members, is an interesting question, but one
I do not need to delve into here.
Cite as 373 Or 307 (2025) 333
inquiry into legislative intent.”). PGE was not an articula-
tion of a pure textualist approach, but the gravity of its orbit
was towards the textualist end of the spectrum.
In response, the legislature amended ORS 174.020
to make clear its desire that courts permissibly consider
legislative history in all instances, not just when text and
context fail to resolve the issue. The legislature retained
its entreaty that courts should pursue “the intention of the
legislature if possible.” ORS 174.020(1)(a) (emphasis added).2
The legislature also retained its preference that courts con-
strue statutes to give effect to the “substance” contained
therein, and not “insert what has been omitted, [nor] omit
what has been inserted.” ORS 174.010. The legislature’s
response to PGE was eventually recognized by us in State v.
Gaines, 346 Or 160, 206 P3d 1042 (2009).
In this way, Oregon’s statutory interpretive scheme
can be seen as permitting judges the full array of the philo-
sophical spectrum, omitting the extreme positions on either
end. Strict textualism’s refusal to consider legislative his-
tory is rejected, while extreme purposivism’s willingness
to judicially redraft substantive provisions of legislation is
also rejected. But between those two polar ends sits a wide
field of thought, approach, and weight, and each judge must
locate themselves within it. As we noted in Gaines, Oregon’s
approach “[strikes] a delicate balance between the legisla-
ture’s role in ensuring that its enactments are interpreted
in the way that the legislature intended and the court’s
independent role in performing that interpretive exercise.”
Id. at 168.
I think, perhaps, we as judges do not talk often
enough, in clear and conspicuous language, about where we
exist on that philosophical spectrum. For me, it is import-
ant, particularly in a system where judges are elected
and responsible to the public, that I do so. I do so both for
transparency and personal accountability. Like all my col-
leagues, it is my desire, in each case, to reason from a princi-
ple, not towards a result. Articulating a philosophy is a way
to attempt to minimize, for my own decision-making, what
2
We frequently cite ORS 174.020(1)(a), but we often leave out the “if possible”
ending to the sentence.
334 Bellshaw v. Farmers Ins. Co.
Justice Durham called the “frank but all-too-true” empiri-
cal observation of Professors Hart and Sacks:
“Do not expect anybody’s theory of statutory interpre-
tation, whether it is your own or somebody else’s, to be an
accurate statement of what courts actually do with stat-
utes. The hard truth of the matter is that American courts
have no intelligible, generally accepted, and consistently
applied theory of statutory interpretation.”
Carlson v. Myers, 327 Or 213, 232 n 5, 959 P2d 31 (1998)
(Durham, J., concurring) (citing Henry M. Hart, Jr. and
Albert M. Sacks, The Legal Process: Basic Problems in the
Making and Application of Law, 1169 (William N. Eskridge,
Jr. & Phillip P. Frickey eds., 2d ed 1994)). This case provides
me such an opportunity, and in the interest of transparency,
I will take it. In deciding how to approach a question of stat-
utory meaning within the Gaines approach, and especially
in close or difficult cases, I find that purposivism exerts the
strongest pull on my reasoning.
Purposivism, broadly, “reminds the judge * * * that it
is in [the legislature], not the courts, where the Constitution
places the authority to enact a statute.” Stephen Breyer, Our
Democratic Constitution, 77 NYU L Rev 245, 266 (2002); see
also Peter L. Strauss, Essay, The Courts and the Congress:
Should Judges Disdain Political History, 98 Colum L Rev
242, 252-53 (1998) (arguing that purposivism makes courts
the most effective agents of the legislature). The purposivist
approach, perhaps most famously articulated by Henry Hart
and Albert Sacks, traces its ancestry to at least the 1500’s
and Heydon’s Case, 76 Eng Rep 637 (Ex 1584). Heydon’s
Case articulated the mischief rule—that in construing a
statute, courts first look to the mischief to which the statute
was directed, and then to interpret the statute to advance
the drafters’ purposes in responding to that mischief. The
mischief rule was foundational to Blackstone, who professed
that “the most universal and effectual way of discovering
the true meaning of a law, when the words are dubious,
is by considering the reason and spirit of it; or the cause
which moved the legislator to enact it. For when this rea-
son ceases, the law itself ought likewise to cease with it.” 1
Cite as 373 Or 307 (2025) 335
William Blackstone, Commentaries on the Laws of England
*61-62 (footnotes omitted).
In searching for the meaning of a statute, purposiv-
ism approaches statutes as essentially reactive in nature.
Unlike a constitution, which is more foundational and aspi-
rational, statutes come about because legislators perceive a
specific social need, and craft legislation in response to that
perceived social need. See, e.g., Hart & Sacks, The Legal
Process at 1378. Accordingly, for purposivism, statutory
interpretation begins, not with text, but with social back-
ground. It is imperative to first understand what prompted
the legislature to action, and to interpret through that lens,
wherever possible, the enacted statute in furtherance of the
legislative purpose that prompted it.
Purposivism is grounded in pragmatism and real-
ism. In a search for statutory meaning, the purposivist
approach recognizes that text and language is imperfect. As
Justice Holmes noted, “[a] word is not a crystal, transparent
and unchanged, it is the skin of a living thought and may
vary greatly in color and content according to the circum-
stances and the time in which it is used.” Towne v. Eisner,
245 US 418, 425, 38 S Ct 158, 62 L Ed 372 (1918). The imper-
fection of language is further complicated by the realities of
the legislative process. Legislation is drafted, as a collective
effort, by a citizen legislature, often with outside pressure
and tinkering, frequently resulting in language that is more
an expression of a collective belief about what a bill will do,
rather than language meticulously chosen to actually do the
thing.3
Finally, although they are certainly similar and
closely aligned, purposivism is not completely synonymous
with intentionalism:
3
I have written previously about the cognitive bias of lawyers and judges to
read legal technicalities and complexity into legislative language, where perhaps
none was intended. See, e.g., Marshall v. PricewaterhouseCoopers, LLP, 371 Or
536, 560-61, 539 P3d 766 (2023) (James, J., dissenting) (“Although many mem-
bers of that body are lawyers, the vast majority are not. And although the leg-
islature is advised by lawyers in the Legislative Counsel’s Office, the general
drafting guidelines of that office set the expectation to legislative members that
terms that give rise to legally specific meanings typically should be avoided.”).
336 Bellshaw v. Farmers Ins. Co.
“The intentionalist regards the goal of statutory interpre-
tation as being to discern and implement the intent of the
legislature. The intentionalist does not ignore statutory
text, but neither does she regard the text as simply being
the law, independent of the intent behind it, because ‘in
rare cases the literal application of a statute will produce
a result demonstrably at odds with the intentions of its
drafters, and those intentions must be controlling.’ Thus,
the intentionalist regards legislative intent—not statutory
text—as the ultimate determinant of the law.”
Jonathan Siegel, The Inexorable Radicalization of Textualism,
158 U Pa L Rev 117, 123 (2009) (footnotes omitted; quoting
Griffin v. Oceanic Contractors, Inc, 458 US 564, 571, 102 S Ct
3245, 73 L Ed 2d 973 (1982).
In contrast, purposivism has been described as an
approach under which
“a court interpreting a statute should ‘[d]ecide what purpose
ought to be attributed to the statute and * * * [i]nterpret the
words of the statute immediately in question so as to carry
out the purpose as best it can.’ [Hart & Sacks, The Legal
Process at 1374.] Statutes, purposivists believe, should ‘be
presumed to be the work of reasonable [people] pursuing
reasonable purposes reasonably.’ [Id. at 1125.] The mean-
ing of a statute can ‘never [be] plain unless it fits with some
intelligible purpose.’ [Id. at 1124 (italics omitted).]”
Id. at 124 (footnotes omitted).
Purposivism is not, therefore, just another word
for legislative intent. First, legislative intent is all too often
confined to the intent of a particular legislative body exist-
ing in a specific time. Purposivism, by contrast, looks to the
social situation that prompts legislative action, and, accord-
ingly, recognizes that a body of law can be created over time,
in incremental response—the work of the “Legislature” writ
large, as an institution—that goes beyond the subjective
intent of any particular group of elected representatives on
a particular date. By shifting focus away from the exclusive
intent of a single legislature to the actions of the legisla-
ture over time, purposivism may read more into subsequent
legislative action, or inaction, in the search for statutory
meaning.
Cite as 373 Or 307 (2025) 337
Second, purposivism and intentionalism may dif-
fer in seeing textual ambiguity at all. Legislative inten-
tionalism typically espouses that “[a] statute’s text is the
best indicator of legislative intent.” Oregon Trucking Assns.
v. Dept. of Transportation, 364 Or 210, 220, 432 P3d 1080
(2019). Through a purposivist lens, however, that statement
is neither particularly helpful, nor frankly accurate. Text
is an attempted expression of intent, but it is imperfect, as
previously discussed. And rarely is text so unmistakably
clear that no reasonable person could find some uncertainty
within it. “A statute may be ambiguous for any number of
reasons—whether lexical, syntactical, referential, seman-
tic, or vague in the linguistic sense. The courts refer to all
of those different forms of indeterminacy as ‘ambiguity.’ ”
Jack L Landau, Oregon Statutory Construction, 97 Or L Rev
583, 616 (2019). This is further exacerbated when we con-
sider “latent ambiguity”—ambiguity that does not appear
directly in the words of a statute but only emerges from con-
sidering the perspective provided by external facts or cir-
cumstances. Latent ambiguity of punctuation, in particular,
is not uncommon to find, when statutes are viewed through
the lens of their purpose, as noted by the United States
Supreme Court itself: “Punctuation is a minor, and not a
controlling element in interpretation, and courts will disre-
gard the punctuation of a statute, or re-punctuate it, if need
be, to give effect to what otherwise appears to be its purpose
and true meaning.” Barrett v. Van Pelt, 268 US 85, 91, 45 S
Ct 437, 69 L Ed 857 (1925) (internal citations omitted).
But most importantly, in differentiating intention-
alism from purposivism, we must remember that statutory
interpretation is a search for meaning, and meaning is not
exclusively found in the intent of the writer. Meaning is a
broader inquiry—one that considers the intent of the writer,
the likely understanding of the reader, the context of the
communication, and the underlying purpose that prompted
the utterance in the first instance.
In sum, my purposivist approach to statutory inter-
pretation begins with the social background—the purpose of
the legislation—not the text. It sees text as an imperfect tool
applied in response to that purpose. Centering that purpose,
338 Bellshaw v. Farmers Ins. Co.
while still respecting the legislatively requested boundary
that substantive text neither be omitted, nor inserted, see
ORS 174.010, text should be liberally construed, or ambigu-
ity perceived, if doing so is necessary to align the text with
that purpose.
APPLICATION
Having, perhaps clumsily, explained my purposiv-
ist approach, I will explain why it leads me to parting ways
with the majority. ORS 746.290(2) regulates, and penal-
izes, insurance companies who fail to accurately inform
Oregonians of their repair rights. It is a consumer protec-
tion statute that regulates the insurance industry. That is
its purpose. It came into existence because insurance com-
panies, not the director, were being less than fully accurate
with Oregon consumers.
When the legislature passed SB 718 in 1977, it was
well aware that it was imposing additional requirements
on an already highly regulated industry. See ORS 731.004
(defining the “Insurance Code” to consist of ORS chapters
731, 732, 733, 734, 735, 737, 743, 744, 746, 748, 750, and
751). And those regulations, read consistently with the
declared legislative purpose set out in ORS 731.008 that “the
Insurance Code is for the protection of the insurance-buying
public,” had still left the public vulnerable to the insurance
companies’ practices of steering claimants to particular
repair shops. Clearly, the regulator and regulated commu-
nity had not sufficiently protected the public, requiring the
legislature to impose the requirement that “the provisions of
ORS 746.280” be provided to the insurance-buying public “in
clear and conspicuous language approved by the director.”
The legislature did not convene in 1977, nor again
in 2007, to regulate the insurance director. It had not been
the insurance director who had been inaccurately advising
Oregon consumers for decades. The purpose of the regula-
tion in 1977, and again in 2007, was to regulate, and penal-
ize, insurers who misinformed Oregon consumers about
their rights. Nothing evidences that the legislature threw
up its hands, believing the insurance industry could not
be required to accurately inform Oregon consumers, and
Cite as 373 Or 307 (2025) 339
instead turned the responsibility for accurately informing
Oregonians entirely over to the director.
The majority turns ORS 746.290 on its head, and
makes it, instead, a statute to protect insurance compa-
nies—protecting them even if they knowingly mislead
Oregon consumers about the letter of the law, so long as the
insurance commissioner approved the deception. The major-
ity reads the phrase “in clear and conspicuous language
approved by the director” as applying to both the require-
ments contained in paragraphs 2(a) and 2(b). Perhaps that
is a defensible position. Perhaps, as the majority argues, it
may even be the most natural textual interpretation of the
phrase. But, in a search for meaning grounded in purpose,
there is another potential reading: We can read the phrase
“in clear and conspicuous language approved by the direc-
tor” as applying only to paragraph (2)(a)—the notice of rights
and responsibilities. In my view, that interpretation better
serves the purpose of the legislation. I see nothing in the
purpose of the statute, which is to accurately inform con-
sumers of their rights, by informing them of a very specific
statute, that would empower insurance companies to disre-
gard the explicit statutory requirement contained in para-
graph (2)(b) to include in insurers’ notices to Oregonians “[t]
he provisions of ORS 756.280,” regardless of whatever model
language the director had promulgated.
The majority relies on discussions that occurred in
committee in 1977, specifically that “insurers had expressed
concern about the uncertain scope of the required notice in the
draft bill. * * * [I]nsurers feared that without clear statutory
direction on the content required to be in the notice, insur-
ers would have no certainty before issuing the new notices
that the notices complied with the statute.” 373 Or at 320.
But nothing in those discussions evidence that anyone was
uncertain as to the scope or requirements of paragraph (2)(b).
I cannot find a single instance in the legislative record that
any witness, nor any legislator, perceived any lack of clarity
in the mandate to provide consumers the “[t]he provisions of
ORS 756.280.” Rather, the entire discussion about any need
for a safe harbor of director-approved language came in
response to paragraph (2)(a), the “rights and responsibilities.”
340 Bellshaw v. Farmers Ins. Co.
But as to paragraph (2)(b), there is nothing vague about that
paragraph. There is no need for the director’s clarity, or to
have the director approve language. The only permissible
language is set forth by the legislature itself—the clear, defi-
nite, and unarguable language of the statute as it exists in
print. And looking again to the purpose of the regulatory
scheme, who bears the consequence for the failure to include
that language? It is the insurers.
When it was enacted in 1977, the statements on the
floor of the Oregon House of Representatives make it clear
that the onus to inform was on the insurers, not the director:
“In section 4 we’re going also further in the disclosure
area by requiring that adjusters who are adjusting a par-
ticular insured loss advise the individuals (the insureds)
advise their insureds that you cannot have the direction
and control, in other words, if you do that you do not have to
have your car repaired at a specific shop and finally there
has to be notification in the policy itself in plain and under-
standable language both of this fact and what the insured’s
rights and obligations are as well as the shares rights and
obligations are under the policy.”
Tape Recording, House Floor Debate, SB 718, July 2, 1977,
Tape 38, Side 2 (statement of Rep Lombard).
And on the Senate side, floor statements make it
clear that the onus to inform was on the insurers:
“Mr. President, this was a bill that would prohibit insur-
ers from requiring particular persons to make repairs on
their automobile. This came from the house amendments
were made in the House Judiciary Committee * * *. The
house amendments removed third party claimants and
the bill now clearly defines the relationship between the
insurers and the insured. Reciprocal responsibilities were
imposed upon both insurance companies and the auto body
shops as well. Insurance company [sic; probably insurance
commissioner] is directed to study the extent of any of
insurance company financier involvement with auto body
shop and report to the legislature with its recommenda-
tions as to actions that may be needed. The bill requires
insurance companies to make full disclosure to the insured
as to his right to have his vehicle repaired at a shop of his
choice.”
Cite as 373 Or 307 (2025) 341
Tape Recording, Senate Floor Debate, SB 718, July 2, 1977,
Tape 54, Side 1 (statement of Sen Groener) (emphasis added).
We can see this in Bulletin 93-3, in which the
Insurance Division of the Oregon Department of Insurance
and Finance expressly told insurers the following:
“This example is not the only acceptable language. If you
choose to use this language, it is not necessary to submit
notice language for the director’s approval.
“Failure to comply with these statutes could result in
a fine of up to $10,000 for each offense. Moreover, ORS
746.300 provides:
“An insured whose insurer violates ORS 746.280 or
746.290, or a customer whose motor vehicle body and
frame repair shop violates ORS 746.292, may file an action
to recover actual damages or $100, whichever is greater,
for each violation. Any person who brings an action under
this section may also recover costs, necessary disburse-
ments and reasonable attorney fees at trial and on appeal
as determined by the court.
“If you have not yet complied with ORS 746.290(2), you
must enclose the insert with a full cycle of renewals to
ensure that all insureds have received the notice of prohi-
bition at least once.”4
Oregon Insurance Division Bulletin 93-3, 1993 WL 13563876
(Apr 20, 1993) (emphasis added).
In short, the purpose of the regulatory scheme is
to place the burden to accurately inform Oregon consum-
ers of the contents of ORS 746.280, on insurers. Accordingly,
an insurer fails their statutory obligation when they fail to
accurately inform Oregonians about the contents of ORS
746.280. Both the trial court, and the Court of Appeals,
correctly, determined that that had occurred here. The
Oregon Legislature crafted those consumer protections over
decades, in response to real, ongoing, abuses by the insur-
ance industry. Today, I fear that we weaken them. For all of
the reasons stated above, I cannot join the majority. In my
view, it fails to center the “protection of the insurance-buying
4
That bulletin was ultimately withdrawn, leaving insurers no choice but to
send their own language.
342 Bellshaw v. Farmers Ins. Co.
public” consistent with the purpose of ORS 746.290(2) and
the Insurance Code.
Accordingly, I respectfully dissent.
Masih, J., joins in this dissenting opinion.