Oregon’s Uninsured Motorist Safe Harbor Provision Undermined By Defense Pleadings

Oregon’s Uninsured Motorist Safe Harbor Provision Undermined By Defense Pleadings 

            In Kiryuta v. Country Preferred Insurance Company, 376 P.3d 284 (2016), the Oregon Supreme Court found that an insurer’s defensive pleadings can render Oregon’s “Safe Harbor” provision, intended to insulate insurers from attorney fees if the insurer accepts uninsured/underinsured  (“UIM”) coverage, inapplicable.

 

     A plaintiff seeking UIM coverage is entitled to recover attorney’s fees if timely settlement is not made and the plaintiff’s recovery exceeds the insurer’s tender. However, ORS 742.061(3) provides insurers with a “Safe Harbor” from attorney fees if (1) the insurer accepts coverage in writing; (2) the only issues are “the liability of the uninsured or underinsured motorist” and “the damages due the insured;” and (3) the insurer agrees to binding arbitration.

 

            In Kiryuta, the insurer sent plaintiff a letter that accepted UIM coverage, stated that the only issues were liability of the uninsured or underinsured motorist and the damages due the insured.  However, after plaintiff filed suit, the insurer’s answer included two affirmative defenses, labeled "Contractual Compliance" and "Offset." The insurer argued that the affirmative defenses were not intended to assert that some term in the policy prevented plaintiff from recovering any damages and that no issues other than the damages due plaintiff were litigated in the arbitration.

 

     The court disagreed with insurer.  Under Oregon’s fact-pleadings rules, the court noted that a “party's pleadings matter” in that the pleadings declare and control the issues to be determined, the relations that the parties bear to each other and set the boundaries for evidence that can be admitted at trial.  Generally, a defendant's responsive pleading has two functions: informing the plaintiff of facts that a defendant intends to prove at trial and providing the trial court a pleading foundation for taking testimony and instructingthe jury. Stated differently, a defendant's pleading can extend the boundaries of relevancy initially established by a plaintiff's pleadings.

 

     The court found that the insurer’s pleadings provided a foundation for defendant to litigate an issue other than the amount of plaintiff's damages or liability of the underinsured driver. Through its answer, the insurer pursued a litigation strategy that was broader than that allowed under the Safe Harbor rules.   The fact that the insurer may not have followed through with that litigation strategy at the arbitration proceeding makes no difference. The insurer was in control of its own pleadings and was in a position to conform those pleadings to the limitations of the Safe Harbor provision, by alleging only ultimate facts that pertained to the liability of the uninsured or underinsured motorist and the damages due plaintiff.  As a result, plaintiff had to be prepared at the arbitration hearing to meet any proof that the insurer might offer consistent with its pleadings.  The court concluded that insurer's conduct was inconsistent with the safe-harbor provision and that the trial court erred in not awarding plaintiff his reasonable attorney fees.

 

Diane L. Polscer – appointed Chair of Federation of Defense and Corporate Counsel (FDCC) Diversity Committee

Diane Polscer has been appointed chair of the Federation of Defense and Corporate Counsel (FDCC) Diversity Committee. Diversity is an essential part of the FDCC, which welcomes people of diverse backgrounds and enhances the bonds between all people with respect and understanding within the legal profession. Diane has been a member of the Federation of Defense and Corporate Counsel (FDCC) since 1998. 

Diane L. Polscer – appointed Vice Chairman of the Board of United Heritage Mutual Holding Company, United Heritage Financial Group and United Heritage Life Insurance Company (United Heritage).

Diane Polscer has been appointed Vice Chairman of the Board of United Heritage Mutual Holding Company, United Heritage Financial Group and United Heritage Life Insurance Company. Diane has been a member of the Board since 2013. United Heritage offers life insurance, annuities, and group life and disability income insurance through United Heritage Life Insurance Company in 38 states and the District of Columbia. Auto, homeowners and fire insurance products are provided through United Heritage Property & Casualty Company in Oregon, Idaho, Utah and Arizona, and Sublimity Insurance Company in Oregon, Idaho, and Utah. Homeowners and dwelling fire insurance is offered through Merced Property & Casualty Company in California's North, South and Central valleys. The Company is headquartered in Boise, Idaho.