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Progressive Insurance v. National American Insurance Co. of California8/31/2005
Argued and submitted February 14, 2005.
Before Landau, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.
Affirmed.
This is a contribution action between two motor vehicle liability insurers. Plaintiff defended and settled a personal injury claim against its insured, Eugene Fastener & Supply Co., Inc. (Eugene Fastener), that arose from a motor vehicle accident. Plaintiff then brought this action for contribution against defendant, which also insured Eugene Fastener against motor vehicle liability claims for the same coverage period. The parties filed cross-motions for summary judgment; the trial court granted plaintiff's motion and denied defendant's motion. Defendant appeals.
The primary issues on appeal are (1) whether defendant's policy excluded the driver of the insured's vehicle from the coverage required by the Oregon Financial Responsibility Law (FRL) in accordance with ORS 742.450(6) and (2) whether the insured's vehicle that was involved in the accident was a covered vehicle under defendant's policy. We affirm.
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. Because the pertinent facts are not in dispute, we review to determine whether the moving parties are entitled to judgment as a matter of law.
Mitchell was the vice president and owner of Eugene Fastener. In June 1995, Eugene Fastener's local insurance agent, Cross, secured a commercial liability policy for the company from defendant that included motor vehicle liability coverage with an individual liability limit of $1 million. On June 14, Mitchell signed an application for that coverage. The application stated that Mitchell was excluded from coverage and that defendant would not "pay for any claim arising from an accident or loss while the insured's car is being driven, either with or without the insured's permission, by" an excluded driver. However, the application was not attached to the policy when it was delivered to Eugene Fastener.
The policy was renewed on its anniversary date in 1996. With the renewal, defendant issued an endorsement stating that it would not be liable for any accidents or losses occurring while a covered vehicle was driven by Mitchell. The endorsement included a signature line for the insured to agree, but it was never signed by Mitchell or anyone else on behalf of Eugene Fastener.
In April 1997, Cross requested that defendant add a 1997 Ford Expedition as a covered vehicle under defendant's policy. Defendant did so. Cross simultaneously obtained coverage for that vehicle from plaintiff. On April 10, Mitchell was driving the Expedition and had a collision that resulted in personal injuries to the driver of the other vehicle, Rogers. Rogers filed an action for personal injuries against Eugene Fastener. Plaintiff defended the action after defendant rejected a tender of the defense. After a jury returned a verdict for Rogers, plaintiff settled the case for the policy limit, $250,000.
In late July 1997, Cross asked defendant to delete the Expedition as a covered vehicle under defendant's policy because Eugene Fastener had duplicate coverage for the vehicle under plaintiff's policy. Defendant complied with that request in August by issuing an endorsement deleting the vehicle from coverage.
Plaintiff later filed this action as Eugene Fastener's subrogee, seeking contribution from defendant. As noted, defendant appeals from a judgment for plaintiff on summary judgment. The judgment required defendant to pay $200,000, its pro rata share--based on the parties' respect
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