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Medyanikov v. Continental Insurance Company8/29/2001
Argued and submitted April 6, 2001.
Summary judgment as to claim for liability benefits in excess of $25,000 reversed and remanded; otherwise affirmed.
Plaintiffs are insureds under an automobile insurance policy issued by defendant. They appeal from summary judgment dismissing their claims on their policy. ORCP 47 C. The trial court held that there was no coverage under the policy. We affirm in part and reverse in part.
In November 1997, defendant issued an automobile insurance policy to plaintiffs Mikail and Lyubov Medyanikov. The policy listed three covered vehicles and provided $100,000 in liability coverage, $100,000 in uninsured/underinsured motorist coverage, and $10,000 in personal injury protection coverage. In August 1998, Lyubov bought another car a Honda, but did not immediately notify defendant of that acquisition. On September 8, 1998, plaintiff Ivan, the 16-year-old son of Mikail and Lyubov, drove the Honda off the road while his younger brother Dimitry was a passenger. Dimitry was seriously injured. Ivan and Dimitry also are insureds under the policy.
Plaintiffs submitted three claims to defendant, a claim for personal injury protection (PIP) benefits for Dimitry, a claim for underinsured motorist (UIM) benefits for Dimitry, and a claim for full liability coverage for Ivan. Defendant tendered no PIP benefits, and only $25,000 in liability coverage to Ivan because of specific exclusions in the policy. Plaintiffs filed this action in the trial court, seeking a declaration of coverage under the PIP, UIM, and liability provisions of the policy. Defendants filed two counterclaims, essentially requesting declarations of non-coverage beyond the monies tendered and also seeking summary judgment on plaintiffs' claims. The trial court granted defendant's motion for summary judgment, and plaintiffs appeal.
In their first assignment of error, plaintiffs argue that the trial court erred when it ruled that, although Dimitry is an insured under the PIP coverage that provides benefits to any insured who sustains bodily injury in an auto accident, that coverage is subject to an exclusion in the policy. Exclusion #5 provides that there is no PIP coverage for bodily injury:
"Sustained by the named insured or any family member while occupying any motor vehicle * * * which is:
"a. Owned by or furnished for the regular use of the named insured; and
"b. Not insured for this coverage." (Boldface in original).
Plaintiffs argue that because the Honda was owned by Lyubov, an insured, and was purchased within thirty days of the accident, the Honda should be considered a covered vehicle as a newly-acquired vehicle. They point to the liability coverage provisions in the policy in support of their argument, which provide for coverage for newly acquired vehicles. According to plaintiffs, when the coverage provided for in the liability provisions of the policy is compared with the omission of PIP coverage for newly acquired vehicles, the policy becomes ambiguous, thereby requiring that the ambiguity be construed in favor of the insureds. Defendant argues that no PIP benefits are owed under the policy because the Honda was not a covered vehicle.
We perceive nothing ambiguous about the exclusion for PIP coverage in plaintiffs' policy. While the liability coverage in the policy plainly provides coverage for recently acquired vehicles, the PIP coverage provisions plainly do not. Moreover, we are not aware of any statute, nor do plaintiffs cite one, that requires PIP coverage for newly-acquired vehicles. Instead, ORS 742.520(2)(a)(A) expressly authorizes a PIP coverage exclusion for "a motor vehicle,
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