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Meoli v. Brown6/1/2005
ions period is tolled until notice actually has been given.
The phrasing of the relevant statutes suggests that the "advance payments" to which the tolling effect of ORS 12.155 apply are payments for damages the liability for which ultimately depends on a determination of fault. The definition of the term itself refers to compensation for injury or death "before the determination of legal liability therefor." ORS 31.550. That is why ORS 31.560 provides that such advance payments are "not an admission of liability."
What the text suggests has been borne out by the case law interpreting it. In Duncan v. Dubin, 276 Or 631, 636, 556 P2d 105 (1976), the Supreme Court reviewed the text and the legislative history of ORS 12.155 and concluded that the legislation had a two-fold purpose:
"One was to allow an insurer to make advance payments without admitting liability for a claim and to encourage such payments by eliminating any apprehension on the part of the insurer that evidence of the advance payments could be admissible in court to prove liability. The other objective, which is clearly discernible, was to protect an injured party from being misled into believing that a limitation period upon his claim is no longer applicable because the insurer has, in effect, acknowledged that its insured is liable for the claim."
Citing Duncan, we concluded in Smith that ORS 12.155 does not apply to personal injury protection (PIP) payments. 88 Or App at 582. We explained:
"The legislatively encouraged incentives to make advance payments are not applicable to the PIP statutory scheme. Under ORS [742.520], PIP benefits are payable to an injured person without consideration of fault or tort liability of the insured. The insurer must pay PIP benefits promptly on proof of loss. Its liability is contractual."
Id. Thus, in Smith, we concluded that PIP payments are not "advance payments" within the meaning of ORS 12.155, not because the payments are required by statute, but because they "are payable to an injured person without consideration of fault or tort liability of the insured." Smith, 88 Or App at 582.
Similarly, in Ailes v. Portland Meadows, Inc., 118 Or App 517, 848 P2d 138, rev den, 318 Or 24 (1993), we concluded that payments that the defendant's insurer had made to a plaintiff under the terms of a policy that required the payments without regard to fault did not trigger the tolling effect of ORS 12.155. Citing Duncan and Smith, we reasoned that the critical factor was that the defendant's liability had no effect on the insurer's obligation to pay the benefits as the contract required. Ailes, 118 Or App at 523.
Turning to the undisputed facts of this case, defendant's insurer made payments to the debtor's medical providers pursuant to a provision in the policy that required such payments "regardless of fault." Duncan, Smith, and Ailes are therefore directly controlling. Contrary to plaintiff's contention, the fact that the insurer's obligation was contractual, as opposed to statutory, is of no moment. It necessarily follows that the payments were not "advance payments" within the meaning of ORS 12.155.
Because we conclude that ORS 12.155 does not apply, we need not consider the parties' alternative arguments about whether the debtor, in fact, was lulled into believing that the statute of limitations had been tolled. The argument that the lack of notice caused the debtor to misunderstand the effect of the payments assumes the applicability of the notice requirements of ORS 12.155 in the first place.
Affirmed.
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