Necessarily, then, there is a material issue of fact for a jury's determination, one that defeats summary judgment for either party. See also To v. State Farm Mutual Ins., 319 Or. 93, 104-05, 873 P.2d 1072 (1994) (suggesting possible inappropriateness of summary judgment where the moving party offers only witness affidavits in support of its motion and the credibility of the affiants is brought into question by specific facts, particularly when "the knowledge of events * * * on which the action lies are exclusively within the control of the party moving for summary judgment"). Consequently, the trial court erred in granting defendants' summary judgment motion as to plaintiffs' fraudulent transfer claim.

Because the intention of the legislature, rather than the parties, controls the interpretation of those terms, we examine only those statutory provisions. See To v. State Farm Mutual Ins., 319 Or. 93, 97, 873 P.2d 1072 (1994) (when insurance contract provision is required by statute, the intent of the legislature, rather than the intent of the parties to the contract, controls); Moore v. Mutual of Enumclaw Ins. Co., 317 Or. 235, 244-45, 855 P.2d 626 (1993) (when a provision appears in a contract because required by statute, the court must determine meaning intended by the legislature). We first examine the text and context of the statutes to discern the intent of the legislature.

Our role is to determine the effect of this exclusion on this case, not to describe the effect of this or some other exclusion on some other case. Martin relies on To v. State Farm Mutual Ins., 319 Or. 93, 873 P.2d 1072 (1994), in which the issue was what evidence was legally required to corroborate an uninsured motorist claim for an accident with a "phantom vehicle." The applicable policy, following statutory provisions, required proof of the facts of the accident other than the testimony of an insured or a person with a claim under the policy.

Id. at 216-18. For a more recent discussion of the statutory corroboration requirement, see To v. State Farm Mutual Ins., 319 Or 93, 873 P2d 1072 (1994). The court determined that the claim reporting dead-line was unenforceable against the claimant, even though, as the court acknowledged, the statute in question made the notice of the claim "a condition precedent to any liability on the part of the insurer."

However, under certain circumstances, such as those arising in this case, this court may review an order denying summary judgment on an appeal following the entry of final judgment. See To v. State Farm Mutual Ins., 319 Or. 93, 873 P.2d 1072 (1994) (in appeal from final judgment entered after grant of summary judgment, court reviewed and reversed trial court's denial of cross-motion for summary judgment); see also Payless Drug Stores v. Brown, 300 Or. 243, 248, 708 P.2d 1143 (1985) (court may not review denial of motion for summary judgment in appeal from judgment after trial, unless motion raised only issue of law about which facts found at trial would have made no difference). As noted, Article XI, section 11b, is a constitutional provision that the voters adopted by initiative petition that sets dollar limits upon taxes that government imposes upon real property.

But To reached this decision against the backdrop of a recently enacted statute that had repealed Oregon's former physical contact requirement and replaced it with a corroboration requirement. 860 P.2d 294 (Or.App. 1993), rev'd in part and aff'd in part, 873 P.2d 1072 (Or. 1994).See To, 860 P.2d at 295-97 (quoting ORS 742.504(2)(g)).

"In the absence of an express temporal qualification in the text of ORS 742.504(2)(g)(B) itself, we believe that the corroboration requirement set out in that subparagraph should be read consistently with the companion requirements set out in subparagraphs (A) and (C). Accordingly, we conclude that, based on text and context, the operative phrase in ORS 742.504(2)(g)(B) — `any person having an uninsured motorist claim resulting from the accident' — is most reasonably read as referring to a person who has such a claim at the time that the determination of uninsured motorist coverage is being made i.e., the time when the person's testimony is offered to corroborate the facts of the `phantom vehicle' accident — rather than to a person who has such a claim at the time of the accident." To v. State Farm Mutual Ins., 319 Or. 93, 101, 873 P.2d 1072 (1994). Farmers settled with Hipp on his claim against Cannon. At the time of Cannon's action against Farmers, and under the provisions of K.S.A. 40-284(e)(3), Hipp is "not making a claim under the policy," for his claim had been settled by Farmers. Hipp, at that time, had absolutely no pecuniary interest in the outcome of the case.

Consequently, we attempt to determine the legislature's intention in enacting that statute rather than the parties' contractual intention in entering into the insurance contract. See Vega v. Farmers Ins. Co., 323 Or. 291, 299-300, 918 P.2d 95 (1996) (where statutory UM coverage provision controls, court resolves coverage dispute by applying methodology for statutory interpretation); To v. State Farm Mutual Ins., 319 Or. 93, 97, 873 P.2d 1072 (1994) (where contractual and statutory provisions are equivalent, resolution of dispute over "phantom vehicle" UM coverage turns on interpretation of statute, not contract). We discern the legislature's intention in adopting a statute by examining, first, the text and context of the statute.

That approach was erroneous: Because the phrase "legally entitled to recover" was included in the policy at issue pursuant to a statutory requirement (ORS 742.504 (1)(a)), the intent of the legislature, rather than the intent of the parties, controls. See Windsor Ins. Co. v. Judd, 321 Or. 379, 384, 898 P.2d 761 (1995) (stating principle); To v. State Farm Mutual Ins., 319 Or. 93, 97, 873 P.2d 1072 (1994) (same). In particular, the Court of Appeals quoted an argument advanced by a leading commentator in the field of uninsured/underinsured motorist coverage.

We proceed to examine the statutory provisions to determine whether they require that Windsor provide underinsurance coverage under these circumstances. See To v. State Farm Mutual Ins., 319 Or. 93, 97, 873 P.2d 1072 (1994) (when a provision of insurance contract is required by legislature, the intent of the legislature, rather than the intent of the parties to the contract, controls); Moore v. Mutual of Enumclaw Ins. Co., 317 Or. 235, 244-45, 855 P.2d 626 (1993) (when a provision appears in the contract because required by legislature, the court must determine meaning intended by the legislature). In interpreting a statute, this court's task is to determine the intent of the legislature.