759
Argued and submitted May 15, 2018, reversed and remanded April 29, petition
for review allowed August 27, 2020 (366 Or 826)
See later issue Oregon Reports
Dennis L. WRIGHT,
Personal Representative of the
Estate of Martha L. Wright, Deceased,
Plaintiff-Respondent,
v.
John A. TURNER,
Freida Turner, and Sherri L. Oliver,
Defendants,
and
MUTUAL OF ENUMCLAW INSURANCE COMPANY,
Defendant-Appellant.
Multnomah County Circuit Court
060403958; A164003
466 P3d 682
In this automobile insurance coverage dispute, defendant, who provided
underinsured motorist coverage to plaintiff, appeals for the second time. The
issues in this case are whether the trial court erred by placing the burden on
defendant to prove, if the jury found that two accidents occurred, how the damages should be apportioned and by instructing the jury on the apportionment
of damages. Held: The trial court erred in placing the burden of proving apportionment on defendant, and further erred in instructing the jury that it was not
required to apportion plaintiff’s damages per accident.
Reversed and remanded.
Karin Johana Immergut, Judge.
Thomas M. Christ argued the cause for appellant. Also
on the briefs was Cosgrave Vergeer Kester LLP.
Rick J. Glantz argued the cause for respondent. Also on
the brief was Vick & Glantz, LLP.
Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
POWERS, J.
Reversed and remanded.
______________
* Egan, C. J., vice Garrett, J. pro tempore.
760 Wright v. Turner
POWERS, J.
In this automobile insurance coverage dispute,
defendant, who provided underinsured motorist (UIM) coverage to plaintiff, appeals for the second time. The issues
before us are whether the trial court erred by placing the
burden on defendant to prove, if the jury found that two
accidents occurred, how the damages should be apportioned
and by instructing the jury on the apportionment of damages. For the reasons explained below, we conclude that the
trial court erred and, accordingly, reverse and remand.
Before addressing the merits of this appeal, the procedural history of this case, though lengthy, bears recounting for purposes of our review. Plaintiff filed a complaint
against her insurer, defendant Mutual of Enumclaw, seeking UIM benefits, after one driver, Turner, and then, in
short succession, another driver, Oliver, collided with the
truck in which plaintiff was a passenger. The jury returned
a verdict for plaintiff in the amount of $979,540.06, and the
trial court entered a judgment consistent with that verdict
less offsets.
In Wright v. Turner, 253 Or App 18,
289 P3d 309
(2012) (Wright I), rev’d and rem’d,
354 Or 815,
322 P3d 476
(2014), defendant appealed from the general judgment.
Because plaintiff’s insurance policy contains a $500,000
limit of liability per accident, defendant argued that the trial
court erred in entering a judgment on the verdict without
allowing defendant to litigate how many accidents occurred,
and that, as a matter of law, only one accident had occurred.
We held that the trial court erred in precluding defendant
from litigating the number of accidents and that, “as a matter of law, only one accident occurred.” Wright I,
253 Or App
at 28.
On review, the Supreme Court reversed, concluding that the legislature intended the question of “[w]hether the circumstances in a particular case establish more
than one ‘accident’ ” occurred to be a question of fact. Wright
v. Turner, 354 Or 815, 831,
322 P3d 476 (2014) (Wright II).
Therefore, because “plaintiff presented evidence that was
at least sufficient to give rise to a jury question on that
Cite as
303 Or App 759 (2020) 761
issue,” the trial court erred in not presenting the question
of how many accidents occurred to the jury.
Id. at 833-34.
The Supreme Court then remanded the case to the trial
court to make that factual determination and “for further
proceedings.”
Id. at 834.
Before the case returned to the trial court, however, both parties petitioned the Supreme Court for reconsideration seeking clarification. Plaintiff sought clarification as to what the court meant by “further proceedings.”
Specifically, plaintiff sought clarification on whether the
court had intended to remand the case to the trial court
solely to have the jury make the factual determination of
how many accidents occurred, or whether the court intended
a complete reversal of the trial court judgment, and thus, a
retrial of the entire case. Plaintiff proposed that the court
specify that the remand was a limited remand only on the
issue of the number of accidents.
Similarly, defendant also sought, among other things,
clarification on the scope of the remand. Defendant, however, disagreed that a new trial should be limited solely to
a determination on the number of accidents. In particular,
defendant argued that simply determining how many accidents occurred “w[ould] not, by itself, resolve the dispute
over how much plaintiff is entitled to recover from defendant.” Because plaintiff’s policy contains a $500,000 limit
on the amount recoverable per accident, a limited remand
would not resolve “whether the damages for injuries in any
single accident exceeds the [policy] limit.” Therefore, defendant requested that the court clarify that the scope of the
remand encompassed all of the factual issues, including the
number of accidents, the amount of damages, and the damages per accident. The court denied both petitions for reconsideration without discussion.
On remand, the trial court proceeded with the
assumption that there should be a new trial on all of the
issues. Based on the parties’ briefs and pretrial arguments,
the trial court made the following pretrial rulings:
“1. Liability of Turner and Oliver is not at issue and
has been conceded or proven;
762 Wright v. Turner
“2. Plaintiff has already proven that damages in the
amount of [$979,540.06] resulted from the negligence of
Turner and Oliver;
“3. The jury shall determine whether this case involved
one accident or two;
“4. In the event that the jury determines that two accidents were involved, the jury shall determine what percentage of the injury is due to the first accident and second
accident[;]
“5. It is plaintiff’s burden to prove the number of accidents, as well as the allocation of damages because it is
plaintiff’s burden to prove the availability of coverage.”
The trial court’s initial ruling placed the burden on plaintiff
to prove how many accidents occurred and the allocation of
damages as to each accident, should the jury find that two
accidents occurred.
After the trial court made its pretrial rulings, plaintiff again sought clarification from the Supreme Court by filing a petition for a writ of mandamus. Plaintiff argued that,
in light of the Supreme Court’s opinion in Wright II, the trial
court exceeded the scope of the court’s remand and should
be ordered to limit the trial to a factual determination of
whether plaintiff’s injuries were caused by one accident or
two accidents. In response, defendant agreed that the court
should grant the petition and the court should instruct the
trial court that the jury should determine the amount of
plaintiff’s damages, not just the number of accidents and
the amount of damages per accident. The court denied by
order plaintiff’s mandamus petition without explanation.
Following the Supreme Court’s denial, the trial court
decided to pose an additional question to the jury based on
further briefing and argument from the parties regarding the burden of proof: whether plaintiff’s injuries could
be apportioned between the two accidents? If the answer
was no, the jury was not required to apportion the damages and a verdict for the full amount of damages would
be for plaintiff. The trial court reasoned that, “[b]ecause,
normally, if there wasn’t an indivisibility issue, the burden
Cite as 303 Or App 759 (2020) 763
of apportionment—which part of which accident is I think
[plaintiff’s] burden. But it seems to me if [plaintiff] prove[s]
they’re indivisible, I think it’s a defense burden to prove the
apportionment.” The jury verdict form provided:
“1. How many accidents occurred on April 16,
2004?
“ANSWER: (One or Two)
“If ‘two,’ go to question 2.
“If ‘one,’ your verdict is for the defendant. Do not answer
any more questions. Your presiding juror must sign this
verdict form.
“2. Can plaintiff’s injuries be apportioned between
the two accidents?
“ANSWER: (Yes or No)
“If ‘yes,’ go to question 3.
“If ‘no,’ your verdict is for plaintiff. Do not answer any more
questions. Your presiding juror must sign this verdict form.
“3. What percentage of plaintiff’s damages were
caused by each accident?
“Sherry Oliver: ________%
“John Turner: _________%
“The percentages must total 100%.”
(Boldface and uppercase in original.) The trial court’s
instruction to the jury provided, “If you find that plaintiff’s injuries can be apportioned between the two accidents,
defendant has the burden of proving what percentage is
assigned to each collision.” Thus, the trial court altered its
initial pretrial rulings and shifted the burden of proving the
amount of damages per accident to defendant.
Ultimately, the jury found that two accidents
occurred, and that it was unable to apportion the damages
between each accident. Therefore, the trial court entered a
verdict for plaintiff and awarded the entire amount of damages that plaintiff requested. Defendant subsequently filed
this appeal.
764 Wright v. Turner
On appeal, defendant argues that the trial court
erred in instructing the jury that, if it found that two accidents occurred, yet found plaintiff’s injuries indivisible, it
did not have to apportion plaintiff’s damages between the
two accidents. Relatedly, defendant contends that the trial
court also erred by placing the burden on defendant to prove
the allocation of damages. In response, plaintiff contends
that “there is precedent in Oregon law for holding multiple tortfeasors liable for the entirety of plaintiff’s harm once
plaintiff establishes that said tortfeasors caused plaintiff’s
harm and that the harm cannot be apportioned,” and, thus,
the trial court did not err in placing the burden of proving
apportionment on defendant.1
As explained below, we conclude that the trial court
erred by placing the burden of proving apportionment on
defendant, and further erred by not requiring the jury, if it
found that two accidents occurred, to apportion plaintiff’s
damages per accident.
As required by Oregon law, plaintiff’s insurance
policy provides UIM benefits in the event of an automobile
accident. Specifically, plaintiff’s policy contains a “limit of
liability” provision, capping the amount of damages plaintiff
can recover from defendant at $500,000 per accident.2 Given
1
Plaintiff also takes issue with the trial court’s instruction to the jury
regarding apportionment, arguing that the Supreme Court remanded the case
for the jury to make one, and only one, factual determination: whether one or two
accidents occurred on April 16, 2004. Plaintiff, therefore, contends that defendant’s arguments regarding the apportionment of damages are moot. We reject
that argument without discussion.
2
The “limit of liability” provisions in plaintiff’s policy provides, in part:
“If the Declarations Page shows a single limit of liability for Part C—
Uninsured Motorist Coverage, this limit is our maximum limit of liability for
all damages for bodily injury and property damage resulting from any one
automobile accident. This is the most we will pay regardless of the number
of:
“a. Covered persons;
“b. Claims made;
“c. Vehicles or premiums shown on the Declarations Page;
“d. Premiums paid; or
“e. Vehicles involved in the accident.”
(Boldface omitted.)
Cite as 303 Or App 759 (2020) 765
that $500,000 limit, the heart of the parties’ disagreement
regarding the amount of damages plaintiff can recover, lies
on which party had the burden of proof. That is, which party
bore the burden of proving how many accidents occurred,
and in turn, how much in damages should be apportioned
per accident.
In an insurance dispute, it is well established that
the initial burden of proving coverage is on the insured seeking coverage and that the insurer has the burden of proving
whether any policy exclusions apply. See, e.g., FountainCourt
Homeowners v. FountainCourt Develop., 360 Or 341, 360,
380
P3d 916 (2016); Employers Insurance of Wausau v. Tektronix,
Inc.,
211 Or App 485, 509,
156 P3d 105, rev den,
343 Or 363
(2007). It is not clear in Oregon law, however, whether a
“limit of liability” provision that caps an insured’s recoverable damages functions more as a grant of “coverage” or an
“exclusion” for purposes of allocating which party has the
burden of proof. Thus, our task is to determine whether that
provision in plaintiff’s policy functions more as a grant of
“coverage” or as an “exclusion” for purposes of allocating the
burden. See ZRZ Realty v. Beneficial Fire and Casualty Ins.,
222 Or App 453, 465,
194 P3d 167 (2008), adh’d to as modified on recons,
225 Or App 257,
201 P3d 912 (2009), aff’d in
part and rev’d in part,
349 Or 117,
241 P3d 710 (2010), adh’d
to as modified on recons,
349 Or 657,
249 P3d 111 (2011)
(noting that whether an insurance policy “is more properly
characterized as part of the grant of coverage or an exclusion” is “critical to the allocation of the burden of proof”).
Generally, “[i]nsurance policies are contractual in
nature and are interpreted, for the most part, like any other
business contract.” Tekronix, Inc., 211 Or App at 502-03.
The analysis differs, however, when the provision at issue
is statutorily required. In that case, “we attempt to determine the legislature’s intention in enacting that statute
rather than the parties’ contractual intention in entering
into the insurance contract.” Wright II,
354 Or at 820 (quoting Fox v. Country Mutual Ins. Co.,
327 Or 500, 506,
964
P2d 997 (1998)). Because ORS 742.502 mandates that every
motorist’s insurance policy provide a minimum level of UIM
coverage for damages, we must interpret plaintiff’s “limit
766 Wright v. Turner
of liability” provision in accordance with the legislature’s
intent.3
In Wright II, the Supreme Court addressed how
UIM coverage functions in Oregon. Specifically, the court
discussed the relationship between ORS 742.502 and ORS
742.504,4 the two statutes governing plaintiff’s “limit of liability” provision:
“ORS 742.502 requires that Oregon automobile liability
insurance policies include coverage for damages caused by
3
ORS 742.502(2) provides, in part:
“(2)(a) A motor vehicle bodily injury liability policy must have the same
limits for uninsured motorist coverage as for bodily injury liability coverage
unless a named insured in writing elects lower limits. The insured may not
elect limits lower than the amounts prescribed to meet the requirements of
ORS 806.070 for bodily injury or death. Uninsured motorist coverage must
include underinsurance coverage for bodily injury or death caused by accident and arising out of the ownership, maintenance or use of a motor vehicle
with motor vehicle liability insurance that provides recovery in an amount
that 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. Underinsurance coverage must
be equal 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 up to the limits of the uninsured motorist
coverage.”
ORS 742.502 has been amended several times since 2004; however, because those
subsequent amendments do not affect our analysis, we refer to the current version of the statute.
4
ORS 742.504 provides, in part:
“Every policy required to provide the coverage specified in ORS 742.502
shall provide uninsured motorist coverage that in each instance is no less
favorable in any respect to the insured or the beneficiary than if the following provisions were set forth in the policy. However, nothing contained in
this section requires the insurer to reproduce in the policy the particular
language of any of the following provisions:
“…
“(7)(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 company’s liability for all damages because of bodily injury sustained by
two or more persons as the result of any one accident.”
ORS 742.504 also has been amended several times since 2004; however, because
those subsequent amendments do not affect our analysis, we refer to the current
version of the statute.
Cite as 303 Or App 759 (2020) 767
both uninsured (UM) and underinsured (UIM) drivers. The
limits for UM and UIM coverage must be the same as for
bodily injury liability coverage unless a named insured in
writing elects lower limits. ORS 742.502(2)(a). ORS 742.504
sets out the terms that must appear in any insurance policy to comply with the terms of ORS 742.502. ORS 742.504
(7)(a) provides that ‘the limit of liability stated in the declarations as applicable to ‘each accident’ is the total limit
of the company’s liability for all damages because of bodily
injury sustained by two or more persons as the result of
any one accident.’ ”
354 Or at 820-21 (footnote omitted).
After examining ORS 742.502 and ORS 742.504
together, we conclude that plaintiff’s “limit of liability” provision more closely resembles a limited grant of “coverage,”
rather than an exclusion.5 The text of ORS 742.504(7)(a),
in context with the other UIM provisions in ORS chapter
742, support a determination that plaintiff’s “limit of liability” provision is part of the overall grant of coverage for
purposes of allocating the burden of proof. Although the
language in ORS 742.504(7)(a) denotes a “limit of liability”
provision as “the total limit of the company’s liability for all
damages because of bodily injury,” when viewed in context
with ORS 742.502, it refers to an insurer’s obligation to pay
what an insured is entitled to recover as a result of an accident with an underinsured motorist. See ORS 742.502(2)(a)
(“Underinsurance coverage must be equal to the sums that
5
Other jurisdictions are split on whether the burden is on the insurer or the
insured to prove damages when the policy contains a “limit on liability” provision. Compare Miller v. Industrial Hospital Ass’n, 183 Neb 704, 705, 163 NW2d
891 (1969) (determining that the “schedule limiting the benefits payable under
an insurance policy … are generally defensive in character and must be pleaded
and proved by the insurer”), and Canal Ins. Co. v. Bryant¸ 173 Ga App 173, 174,
325 SE2d 839 (1984) (determining that because “the burden of proof generally
lies upon the party asserting or affirming a fact … the burden of proof with
reference to the provisions of the ‘limit of liability’ clause was on [insurer] and
[insured] had no evidentiary burden in that regard” (capitalization omitted)),
with City of Tacoma v. Great American Ins. Companies,
897 F Supp 486, 487-88
(WD Wash 1995) (determining that “not all limitations on coverage fall within
the meaning of ‘exclusionary’ ” and that because an aggregate limit on a policy
“does not appear to fall within an exclusionary provision … the [insured] has
the burden of proving all elements of coverage, including the monetary value of
coverage”). Ultimately, we find the cases that categorize such limits as exclusions
and place the burden on the insurer unpersuasive and contrary to the legislature’s intent.
768 Wright v. Turner
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 up to the limits of the uninsured motorist coverage.”). Because the general purpose of the UIM provisions
is to provide coverage for recovery for damages sustained
as a result of “any one accident,” any statutory minimum or
maximum placed on the amount recovered does not fundamentally change that those statutes are properly viewed as
a grant of coverage for purposes of allocating the burden.
Thus, because the language of both ORS 742.502
and ORS 742.504, describe UIM benefits as an entitlement
to coverage—even if that coverage has a limit of liability—
we are persuaded that an insured should bear the burden
of proving that a loss came within the scope of that limited
coverage. As applied here, plaintiff bears the burden of proving how many accidents occurred and how much in damages
should be apportioned per accident. Indeed, if two accidents
had occurred on different days, the burden would be on the
insured to show that the second accident was also covered
under the insured’s insurance policy. The fact that the accidents happened close in time and the policy limits coverage
up to $500,000 in damages per accident is not determinative
on who bears the burden of proof.
Because the trial court erred in shifting the burden
of apportioning damages to defendant when it altered its
pretrial ruling, the court further erred by asking the jury
whether the two accidents could be apportioned, and then
instructing the jury that it was not required to apportion the
damages per accident.6 We further conclude that, given the
trial court’s erroneous jury instructions, we must reverse
and remand to determine the amount of damages resulting
from each accident. See Sherertz v. Brownstein Rask, 288
Or App 719, 727,
407 P3d 914 (2017) (“[I]f there is ‘some’
6
Given our determination that plaintiff bears the burden of proving the
apportionment of damages between each accident, we conclude that plaintiff’s
arguments based on tort concepts to shift the burden of proof to defendant are
inapplicable. See Interstate Fire v. Archdiocese of Portland in Oregon, 318 Or 110,
118,
864 P2d 346 (1993) (noting “that reference to precepts of Oregon tort law as
a means of defining policy terms is appropriate only if the policy expressly or by
clear inference implicates those precepts”).
Cite as
303 Or App 759 (2020) 769
likelihood or a ‘significant’ likelihood that the [instructional]
error influenced the jury’s verdict, we must reverse.”).
Finally, defendant contends that, if we reverse, the
court should remand for entry of a judgment based on “just
one limit of damages” and not for another trial. Relying on
Sunset Presbyterian Church v. Andersen Construction, 268
Or App 309,
341 P3d 192 (2014), rev den,
357 Or 551 (2015),
defendant argues that the case should be remanded “for
entry of a new and final judgment based on what plaintiff
did prove in the course of two trials: that she suffered at
least $500,000 in recoverable damages.” (Emphasis omitted.) The problem with defendant’s argument, however, is
that the number of accidents and the amount of damages
per accident are both questions of fact. Further, given that
defendant has successfully argued that the jury was incorrectly charged in the second trial, we decline defendant’s
invitation to decide the appropriate damages. See Estate of
Michelle Schwarz v. Philip Morris Inc.,
348 Or 442, 459,
235
P3d 668 (2010) (explaining that, under Article I, section 17,
of the Oregon Constitution, the court should not “decide the
damages that a correctly instructed jury would award, and
we therefore must remand this case for a jury’s decision”).
In sum, for the reasons stated above, we reverse
and remand for the limited purpose of having a jury determine how much in damages should be apportioned between
the two accidents with plaintiff bearing the burden of apportioning the damages per accident.
Reversed and remanded.
