35 Trial Lawyer • Spring 2023 Ben Cox GET OUTTA MY DREAMS, GET INTO MY CAR By Ben Cox OTLA Guardian Note: The author is indebted to all recent contributors to this magazine’s Between the Sheets feature, including Cody Hoesly, Lisa Hunt, Nadia Dahab, and the late Christine Moore. One May evening, Kain decided to go pick up some Chinese food. Kain’s decision, on its own, was reasonable enough. However, his previous decisions (to drink all day long and then drive) complicated matters. He made it less than a mile before his Subaru left the far side of the roadway and then lurched back on across oncoming traffic, causing a broadside crash with a pickup truck. Inside the truck were Justin and his teenaged son, Kaleb. When Justin and Kaleb emerged from the wreck and approached Kain’s destroyed Subaru, they found Kain conscious but in shock, his left arm ripped off at the shoulder. First responders arrived quickly, applied a tourniquet, and life flighted Kain to OHSU. He would survive, and his arm was reattached. A few hours after the crash, Kain’s blood alcohol was measured at 0.245%, over three times the legal limit. Justin and Kaleb both suffered concussions, and Kaleb would endure nightmares, panic and other PTSD symptoms over the next year. Shortly after the crash, Justin and Kaleb learned Kain had made another poor decision that would complicate their lives: Kain’s Subaru was uninsured. Auto liability insurers have long been permitted to exclude punitive damages from coverage. Harrell v. Traveler’s Indemnity Co., 297 Or 199, 205 (1977). Punitive damages were later described as “not a part of a plaintiff’s compensation for what they have lost; punitives are a penalty for conduct.” Andor v. United Air Lines, Inc., 303 Or 505, 517 (1987). Before SB 411 amended ORS 742.504’s UM/UIM “model policy” for policies issued in 2016 or later, this was reflected in the core description of what damages uninsured motorist / underinsured motorist (UM/UIM) covered. Under the old description, benefits must cover “all sums that the insured . . . is legally entitled to recover [from tortfeasors] as general and special damages,” a construction that clearly described compensatory damages but excluded punitive damages. However, SB 411 amended the statute to read instead, “all sums that the insured is legally entitled to recover [from tortfeasors] as damages,” eliminating any limitation. Ever since, UM/UIM claimants assert that no matter what an actual or theoretical liability insurance policy may or must cover (an uninsured driver’s policy is always only theoretical), there is no longer any lawful basis for excluding punitive damages from UM/UIM benefits. Claimants insist upon the plain language of the statute, while carriers argue that the change was the unintended result of a legislative “housekeeping” error. Carriers point to a lack of legislative history to clearly demonstrate the Legislature’s intention to mandate punitive damage coverage. While no appellate court has ruled on the issue and no relevant case is pending appeal, there have been five rulings at the trial court level centering on the same question (though arriving upon varied postures). In 2019, Judge Powers in Union County ruled for the claimant and against Allstate (17CV52969). In 2020, Judge Cramer in Grant County provided insurers (State Farm, in this case) with their only win on this issue (19CV24074). In 2021, Judge Matarazzo ruled for the claimant and against Safeco (20CV23154). In 2022, in Multnomah County, Judge Baggio ruled for claimants and against State Farm (21CV03477). Finally, I’m pleased to report that my INSURANCE UPDATE See Insurance Update p 36
RkJQdWJsaXNoZXIy MTY1NDIzOQ==