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Thompson v. Estate of Pannell8/15/2001
ntiff to transport the luggage after she volunteered to serve as a chaperone for the field trip. The above allegations say nothing about whether defendant had the right to control plaintiff's van, for example, by determining who could drive it, how it would be driven or used, what could be carried in it, or where and when it would be fueled. Based on our determination in Gold II that control and use are separate questions, we know that the fact that plaintiff used her van for defendant's benefit cannot in and of itself be used to establish that defendant had the requisite right to control the van. In this case, plaintiff has alleged only the use of her van for defendant's benefit; nothing in her complaint tends to suggest that defendant controlled her van during that use.
In summary, I would conclude that the trial court properly granted defendant's motion for judgment on the pleadings because plaintiff did not allege facts tending to show that defendant controlled plaintiff's van. Consequently, defendant was not required by ORS 278.215(2) to provide plaintiff with uninsured motorist benefits from its self-insurance fund. Although I disagree with the majority as to the analysis that it uses to address plaintiff's uninsured motorist claim, I agree with the result that it reaches on that claim as well as with its resolution of plaintiff's contract claim.
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