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Thompson v. Estate of Pannell8/15/2001
ebook contained no express coverage limitations. She also again asserts that, although defendant previously had a policy issued by The Hartford insurance company having an indemnity limit of $5,000 for volunteer medical and dental claims, that policy had expired in 1992; that, at the time of her accident, defendant was self-insured as to accidental medical and dental insurance for volunteers; that, before plaintiff's claim, no volunteer had ever made a claim based on an automobile accident and that the court therefore could not infer that such claims were not within the scope of defendant's accidental medical and dental insurance for volunteers; and that defendant's self-insurance for that purpose was not limited to $5,000 in coverage. Plaintiff argues that the trial court therefore erred in granting summary judgment to defendant on the condition that plaintiff take judgment in the amount of $5,000. Defendant responds that plaintiff is alleging the existence of an implied-in-fact contract, that an implied-in-fact contract of insurance arises only when there is actual agreement on all five essential elements of the purported contract, and that, where plaintiff failed to allege any amount of insurance, no such contract arose here. Defendant also argues that, even assuming that there was an implied contract of accidental medical and dental insurance between it and plaintiff, the record in this case indisputably demonstrates that the amount of coverage was limited to $5,000 and that the trial court therefore did not err in granting its motion for summary judgment on the condition that judgment be entered in that amount.
An implied-in-fact contract is one in which the parties' agreement is inferred in whole or in part from their conduct. Staley v. Taylor, 165 Or App 256, 262, 994 P2d 1220 (2000). Assuming that plaintiff and defendant were parties to an implied contract of accidental medical and dental insurance for volunteers, the pertinent question here is whether plaintiff was entitled to an amount of coverage greater than $5,000. As the party moving for summary judgment on plaintiff's implied contract claim, defendant had the initial burden to establish that there was no genuine issue as to that material fact. If defendant met its initial burden, it then was incumbent on plaintiff, the nonmoving party, to set forth "specific facts showing that there is a genuine issue as to any material fact for trial." ORCP 47 D. We review the summary judgment record in the light most favorable to plaintiff to determine whether there is a genuine issue of material fact and, if not, whether defendant was entitled to judgment as a matter of law. ORCP 47 C; see also Gish v. Youngblood, 161 Or App 591, 594-95, 984 P2d 931, rev den 329 Or 527 (1999) (setting out those standards; citing Jones v. General Motors Corp., 325 Or 404, 939 P2d 608 (1997)). The summary judgment record includes the "pleadings, depositions, affidavits and admissions on file." ORCP 47 C; see also ORCP 47 D (setting out form of affidavits and exhibits in support of or opposing summary judgment). We turn to the record in this case.
In support of its motion for summary judgment, defendant submitted the affidavit of its insurance broker, Henderson, to which were attached copies of its expired policy of insurance issued by The Hartford and its excess liability insurance policy. By its terms, the policy issued by The Hartford provided a maximum benefit of $5,000 for accidental medical expenses and $250 for accidental dental expenses incurred by "PARTICIPANTS IN THE VOLUNTEER TEACHER'S AIDES ACTIVITIES SPONSORED BY THE POLICYHOLDER" while "PARTICIPATING IN THE VOLUNTEER TEACHER'S AIDES ACTIVITIES * * * AND SUCH PARTICIPATION IS ON THE PREMISES DESIGNATED BY A
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