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MacMillan v. John Deere Insurance Co.12/20/2000
"(2) A person may only comply with the financial responsibility requirements of this state by establishing the required ability to respond in damages in one of the following ways:
"(a) Obtaining a motor vehicle liability policy meeting the requirements under ORS 806.080 that will provide at least minimum limits necessary to pay amounts established under the payment schedule under ORS 806.070." (Emphasis added.)
John Deere's arguments reduce to the proposition that the FRL is designed to ensure a minimum level of compensation for motor vehicle accident victims rather than to provide for the "transfer or allocation of liability" for such compensation. Although that may be true, it does not follow that John Deere owes no defense to Trus Joist. We are concerned not with what the parties believe the statute should say but, rather, with what it actually does say. ORS 174.010. Likewise, we are not concerned here with allocating the ultimate risk of loss between John Deere and any liability carrier that directly insured Trus Joist's activities. What is at stake here is a far more important question, namely, whether the FRL requires minimum liability limits covering those who load and secure cargo that is transported on our public highways. Because the ordinary meaning of the term "use" encompasses the loading of a vehicle, and because the claim made by Newton against Trus Joist arises from that use, the exclusion on which John Deere relies is in direct conflict with ORS 806.080(1)(b) and, thus, cannot be given effect. See Dowdy v. Allstate Insurance Co., 68 Or App 709, 717, 685 P2d 444, rev den 298 Or 172 (1984) (where exclusion is contrary to FRL coverage requirement, "the policy * * * 'automatically provide such coverage, regardless of its terms'"). Therefore, the trial court mistakenly concluded that John Deere owed no duty to defend the third-party complaint filed by Newton against Trus Joist and, in turn, erred by granting John Deere's motion for summary judgment and bydenying Trus Joist's cross-motion for partial summary judgment. The majority errs by concluding otherwise.
I respectfully dissent.
Armstrong and Wollheim, JJ., join in this dissent.
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