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Thompson v. Estate of Pannell8/15/2001
d be imposed by statute, and it would be imposed at the liability limit for the policy. See ORS 742.038; ORS 742.502(2)(a).
I am not sure that the result would be different for a self-insurer that is subject to ORS 806.130 and that fails to agree to provide uninsured motorist coverage. Such a self-insurer is required to agree
"to pay the same amounts with respect to an accident occurring while the [self-insurance] certificate is in force that an insurer would be obligated to pay under a motor vehicle liability insurance policy." ORS 806.130(3).
An insurer that failed to provide uninsured motorist coverage under its policy would be required to pay an uninsured motorist claimant up to the liability limit specified in the policy, so a self-insurer that failed to provide uninsured motorist coverage might be required to pay such a claimant up to the liability limit of its coverage as well. I am equally unsure whether the result would be different under ORS 278.215(2) for a self-insured local public body such as defendant that failed to include uninsured motorist coverage as a component of its self-insurance fund.
As I noted earlier, however, I do not believe that we need to decide what limit applies to the uninsured motorist coverage that ORS 278.215(2) requires defendant to provide through its self-insurance fund. Because defendant's self-insurance fund does not, by its terms, include uninsured motorist coverage, the coverage that does apply to defendant is the coverage required by law. ORS 278.215(2) requires defendant to provide uninsured motorist coverage for motor vehicles within its control. As discussed below, I would conclude that plaintiff has not alleged sufficient facts in her complaint to support a finding that her vehicle was under defendant's control. Consequently, her vehicle is not one that is subject to uninsured motorist coverage under defendant's self-insurance fund.
The trial court decided plaintiff's declaratory judgment claim for uninsured motorist coverage by granting defendant's motion for judgment on the pleadings. See ORCP 21 B. In evaluating such a motion, "we accept as true all well-pleaded allegations and all reasonable inferences that may be drawn therefrom, Stringer v. Car Data Systems, Inc., 314 Or 576, 584, 841 P2d 1183 (1992), recons den 313 Or 308, 844 P2d 905 (1993), but disregard any allegations that are conclusions of law, Tydeman v. Flaherty, 126 Or App 180, 182, 868 P2d 755 (1994)." Huang v. Claussen, 147 Or App 330, 332, 936 P2d 394, rev den 325 Or 438 (1997); see also Walthers v. Gossett, 148 Or App 548, 558, 941 P2d 575 (1997) (plaintiff must do more than state "bald legal conclusion " in order to provide a factual predicate for her claim for relief). In Huang, the plaintiff alleged a claim for breach of contract under a creditor-beneficiary theory. We held that the defendants were entitled to judgment on the pleadings because the plaintiff had failed to allege any facts showing that the parties to the contract intended to benefit the plaintiff. Huang, 147 Or App at 333-35. Plaintiff's complaint suffers from a similar defect on the issue whether her vehicle was subject to defendant's control.
As noted, ORS 278.215(2) requires defendant to provide uninsured motorist coverage under its self-insurance fund for all vehicles within its control. In her complaint, plaintiff does not specifically allege that the vehicle was in defendant's control. Moreover, the facts that she alleges cannot rationally lead to that conclusion. Neither we nor the Supreme Court has determined what "control" means for purposes of ORS 278.215. However, definitions from other contexts indicate that the term "control" contains an elemen
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