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Thompson v. Estate of Pannell8/15/2001
laim for those benefits. It reasons that that statute, if it applies to defendant, would require defendant to provide no more than the $25,000 in uninsured motorist benefits to plaintiff. Because plaintiff already has received $50,000 in those benefits from her own insurance carrier, she is not entitled to receive additional benefits from defendant.
The problem with that approach is that it decides the case on the basis of a statute that does not apply to defendant, ORS 806.130, while ignoring the statute that does, ORS 278.215. Admittedly, the parties did not identify ORS 278.215 as the controlling statute, but we are not free to ignore that statute simply because the parties have not cited it. See Miller v. Water Wonderland Improvement District, 326 Or 306, 309 n 3, 951 P2d 720 (1998) (" he parties may not prevent a court from noticing and invoking an applicable statute by relying only on other sources of law."). Accordingly, I believe that we must decide the case under ORS 278.215.
That statute provides, as relevant, that
" ny local public body, as defined in ORS 30.260, which establishes a self-insurance fund under ORS 30.282 for or on account of the operation of motor vehicles within the local public body's control, shall provide the uninsured motorist coverage required under ORS 742.500 to 742.504 and may provide the personal injury protection benefits required under ORS 742.520 to 742.542.
"(3) The uninsured motorist coverage provided under this section shall be excess over any other collateral benefits to which an injured person is entitled, including, but not limited to, other uninsured motorist coverage, insurance benefits, governmental benefits or gratuitous benefits." ORS 278.215(2), (3).
Defendant's self-insurance fund is subject to this statute. It follows, therefore, that, contrary to defendant's position, defendant's self-insurance fund must provide uninsured motorist coverage "for and on account of the operation of motor vehicles within control."
Because of the basis on which I believe that we should decide this case, we need not decide what monetary limit applies to the uninsured motorist coverage that ORS 278.215 requires defendant to provide. I note, however, that the limit depends on the language of ORS 278.215 rather than on the language of ORS 806.130, on which the majority relies. See ___ Or App at ___ (slip op at 7-9).
Furthermore, I am uncertain whether the interpretation that the majority gives to ORS 806.130 is correct. When the latter statute is viewed in context with its predecessor, ORS 486.570 (1981), and with the uninsured motorist coverage statutes, ORS 742.500 to 742.504, it appears to set the limit of uninsured motorist coverage for a self-insurer that is subject to ORS 806.130 and that does not specify an amount of uninsured motorist coverage at the liability limit set by the self-insurer for its fund. Both ORS 806.130(3) and ORS 742.502(2)(a) specify that the people responsible for selecting the amount of uninsured motorist coverage provided by a self-insurer or a motor vehicle insurer cannot select an amount that is less than the minimum amount required by ORS 806.070 for liability coverage, which is now $25,000 for injury or death to one person in any one accident. See ORS 806.070(1)(a), (2)(a). However, ORS 742.502(2)(a) also provides that a
"motor vehicle bodily injury liability policy shall have the same limits for uninsured motorist coverage as for bodily injury liability coverage unless a named insured in writing elects lower limits."
If a motor vehicle liability insurance policy contained no provision for uninsured motorist coverage, the coverage woul
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