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Haynes v. Tri-County Metropolitan Transportation District of Oregon11/13/2003
Argued and submitted September 4, 2003.
Affirmed.
Plaintiff was injured when a bus on which she was a passenger took evasive action to avoid colliding with another vehicle. She submitted a claim for uninsured motorist (UM) benefits to defendant Tri-County Metropolitan Transportation District of Oregon, the operator of the bus. An arbitrator awarded plaintiff economic and non-economic damages but denied her request, made pursuant to ORS 742.061 and ORS 806.130(3), for attorney fees. The trial court affirmed the denial of attorney fees. In her sole assignment of error on appeal, plaintiff asserts that the trial court erred in denying her request for attorney fees. We affirm.
The following facts are not disputed. Defendant is self-insured. After plaintiff was injured in the near collision between defendant's bus and the other vehicle, she brought this action seeking UM benefits in the amount of $4,564.94 for medical expenses and an amount not to exceed $25,000 for pain and suffering. Plaintiff also alleged that defendant had failed to make settlement within six months from the date that she filed proof of loss and that she therefore was entitled to an award of attorney fees as provided in ORS 742.061. Defendant answered that plaintiff was not entitled to UM benefits because she failed to comply with provisions of defendant's code pertaining to consideration for such benefits. Defendant also asserted that, because it is not an insurer for the purpose of ORS 742.061, plaintiff was not entitled to attorney fees.
The trial court transferred the case to its court-annexed arbitration program. The arbitrator awarded plaintiff $4,536.47 in special damages, $3,000 in general damages, and costs. The arbitrator concluded, however, that ORS 806.130(3)--requiring a self-insurer to " gree to pay the same amounts with respect to an accident * * * that an insurer would be obligated to pay under a motor vehicle liability insurance policy"--applied only to general and special damages attributable to an accident; that self-insurance does not involve a motor vehicle liability insurance "policy" for the purpose of ORS 742.061; and that a self-insured entity is not an "insurer" as defined in the Insurance Code. For those reasons, the arbitrator denied plaintiff's request for attorney fees.
Pursuant to ORS 36.425(6), plaintiff excepted in the circuit court to the arbitrator's denial of attorney fees, arguing that "amounts with respect to an accident" as provided in ORS 806.130(3) include attorney fees under ORS 742.061. Relying in part on Thompson v. Estate of Adrian L. Pannell, 176 Or App 90, 29 P3d 1184 (2001), rev den, 333 Or 655 (2002), and Farmers Ins. Co. v. Snappy Car Rental, Inc., 128 Or App 516, 876 P2d 833, rev den, 319 Or 625 (1994), defendant responded that the "amounts" that it is obligated to pay under ORS 806.130(3) include only the coverage limits and other obligations set out in ORS 806.070. After a hearing, the trial court affirmed the denial of attorney fees.
In this court, plaintiff reiterates that, as a self-insurer under ORS 806.130(3), defendant must "pay the same amounts" that a commercial insurer would be obligated to pay, including attorney fees as provided in ORS 742.061. According to plaintiff, the express, but nonexclusive, reference in ORS 806.130(3) to "uninsured motorist coverage and liability to at least the limits specified in ORS 806.070" does not preclude payment of other "amounts." She also argues that defendant's exemption from the Insurance Code under ORS 731.036(4) and (5) does not exempt it from provisions of the Financial Responsibility Law (FRL), ORS chapter 806, or from provisions of the Insurance Code that are made appl
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