Lunsford v. Farmers Insurance Company

846 P.2d 1206 (1993)

118 Or. App. 308

Penny L. LUNSFORD, Appellant, v. FARMERS INSURANCE COMPANY OF OREGON, Respondent.

9007-04008; CA A67556.

Court of Appeals of Oregon.

Argued and Submitted October 18, 1991.

Decided February 17, 1993.

*1207 Ronald H. Elzinga, Portland, argued the cause for appellant. On the briefs was William D. Bailey, Portland.

Patrick N. Rothwell, Portland, argued the cause for respondent. With him on the brief was Hallmark, Keating & Abbott, P.C., Portland.

Before ROSSMAN, P.J., and DE MUNIZ and LEESON,[*] JJ.

PER CURIAM.

Plaintiff appeals a summary judgment dismissing her action against defendant for breach of an automobile insurance contract. We affirm.

Plaintiff was injured when the car she was driving collided with one driven by Peterson. Peterson was at fault. Plaintiff obtained a judgment against Peterson for $25,000. Because there were multiple claimants, plaintiff received only $17,500 of the $50,000 per accident limit on Peterson's liability insurance. Peterson paid plaintiff $2,500 in partial satisfaction of the judgment. Plaintiff then sued defendant, her own insurance carrier, for $7,500 in damages, or, alternatively, for an order compelling defendant to arbitrate and to pay her attorney fees pursuant to ORS 742.061. The court granted defendant's motion for summary judgment, and plaintiff appeals.

The sole issue is whether former ORS 743.789(2) (renumbered ORS 742.502(2)),[1] requires defendant to pay "underinsurance coverage" on plaintiff's claim. It does not. Under the statute, defendant is required to provide underinsurance coverage only if plaintiff's coverage exceeded Peterson's liability coverage at the time of the accident. Plaintiff acknowledges that her coverage limits were identical to Peterson's.

Affirmed.

[*] Leeson, J., vice Buttler, J., retired.

[1] ORS 742.502(2) provides, in part:

"Offers of uninsured motorist coverage larger than the [statutory minimum] required by ORS 806.070 shall include underinsurance coverage for damages or death caused by accident and arising out of the ownership, maintenance or use of a motor vehicle that is insured for an amount that is less than the insured's uninsured motorist coverage."