Opinion
A173209
05-05-2021
David ROBERTS, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent.
Dean Heiling, Portland, argued the cause for appellant. Also on the briefs was Heiling Dwyer Fernandes. Ralph C. Spooner, Salem, argued the cause for respondent. Also on the brief were David E. Smith and Spooner & Much, PC.
Dean Heiling, Portland, argued the cause for appellant. Also on the briefs was Heiling Dwyer Fernandes.
Ralph C. Spooner, Salem, argued the cause for respondent. Also on the brief were David E. Smith and Spooner & Much, PC.
Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.
PER CURIAM Plaintiff was injured in a single-car accident while a passenger in a car insured by defendant State Farm Mutual Automobile Insurance Company. State Farm paid plaintiff $25,000—the liability limits of the policy—for his injuries. Because that amount did not cover the full amount of plaintiff's damages, he demanded that State Farm pay him an additional $25,000 from the policy's underinsured motorist (UIM) coverage. State Farm declined because, under its policy, an uninsured or underinsured vehicle does not include a vehicle insured by the policy, that is, a vehicle "whose ownership, maintenance, or use is provided Liability Coverage by this policy."
That led to this action, in which plaintiff contends that State Farm's exclusion from UIM coverage of injuries resulting from the insured vehicle violates the Oregon statutes governing UIM coverage. Relying in part on our decision in Wright v. State Farm Mutual Auto. Ins. Co. , 152 Or. App. 101, 112-13, 952 P.2d 73 (1998) ( Wright I ), rev'd in part on other grounds , 332 Or. 1, 22 P.3d 744 (2001) ( Wright II ), the trial court granted summary judgment to State Farm.
On appeal, plaintiff reiterates the arguments he made below, arguing that we should construe the Oregon statutes governing UIM coverage to require State Farm to provide UIM coverage for injuries resulting from the insured vehicle where, as here, the liability limits of the policy are insufficient to cover all damages incurred. That argument, however, is contrary to how we construed the statutes in Wright I . There, we rejected an argument virtually identical to the one plaintiff presses here, concluding that "applying the ‘insured vehicle’ exclusion, [ ORS 742.504(2)(L)(A) ], to UIM coverage is fully consonant with the statutory scheme and, particularly, with ORS 742.502(4)." Wright I , 152 Or. App. at 114, 952 P.2d 73 ; see also William J. Schermer, 3 Auto Liability Ins. 4th § 39.3 (2020) (noting approaches by different states and that, under our decision in Wright I , Oregon enforces the exclusion of a "vehicle insured under the policy's liability coverages from the definition of an uninsured/underinsured motor vehicle"). Although the Supreme Court later reversed our decision in Wright II in part on other grounds, it did not displace that portion of our decision. See generally Wright II , 332 Or. 1, 22 P.3d 744.
In his opening brief, plaintiff did not address Wright I or otherwise demonstrate that it is appropriate for us to abandon our own prior precedent. In his reply brief, defendant argues for the first time that the Supreme Court's decision in Vogelin v. American Family Mutual Ins. Co. , 346 Or. 490, 213 P.3d 1216 (2009), has called Wright I into question. But Vogelin did not address the specific issue at hand and, to the extent plaintiff's argument in reply is that we should reconsider Wright I in light of Vogelin , that argument comes too late. See State v. Murga , 291 Or. App. 462, 468, 422 P.3d 417 (2018) ("We have long held that arguments raised for the first time in a reply brief normally will not be considered."). In all events, Wright I has been the final word on the issue since 1998, and no intervening case law has called into question our decision in any clear way. Under those circumstances, plaintiff's challenge to Wright I may be more suitably directed to the Supreme Court than to us.
Affirmed.