KISTLER, J.
ORS 742.061 authorizes an award of attorney fees to an insured who prevails in "an action * * * in any court of this state upon any policy of insurance of any kind or nature * * *." A later enacted statute, ORS 742.001, provides that ORS chapter 742 "appl[ies] to all insurance policies delivered or issued for delivery in this state * * *." The question in this case is whether ORS 742.001 precludes awarding attorney fees to an insured who prevails in an action in an
While plaintiff was living in Vancouver, Washington, she applied for and received an automobile insurance policy from defendant. Defendant issued the policy for delivery in Washington and delivered it to plaintiff there. One morning, plaintiff was driving her car south on the Glenn Jackson Bridge over the Columbia River when another driver hit her car. The other driver had no insurance; however, the policy that defendant had issued plaintiff provided uninsured motorist coverage. Plaintiff filed a claim under her policy, which defendant denied on the ground that the circumstances of the accident came within an exclusion to the uninsured motorist coverage.
Plaintiff then filed this action to recover on her policy.
ORS 742.061(1). Defendant objected to plaintiff's attorney fee request. It argued that, as a result of ORS 742.001,
The trial court agreed with defendant and entered a supplemental judgment awarding plaintiff costs but no fees. On appeal, the Court of Appeals noted that the legislature enacted ORS 742.001 after it had enacted ORS 742.061. The court concluded that, in enacting ORS 742.001, the legislature intended to limit the scope of ORS 742.061. The court reasoned,
Morgan, 242 Or.App. at 670-71, 259 P.3d 39. We allowed plaintiff's petition for review to consider whether the Court of Appeals correctly interpreted the relationship between ORS 742.001 and ORS 742.061.
As the Court of Appeals recognized, the issue in this case turns on whether the legislature intended to limit the scope of ORS 742.061 when it enacted ORS 742.001. In resolving that issue, we begin by discussing briefly the backdrop against which the 1919 legislature enacted the statute that is now codified as ORS 742.061, the enactment of that statute, its codification, and its interpretation before the adoption of ORS 742.001 in
Oregon has regulated the business of insurance for over 120 years. In 1887, the legislature first prescribed the terms on which domestic and foreign insurers could engage in the business of insurance in this state. See Or. Laws 1887, pp. 118-25.
95 Or. at 461, 188 P. 207.
Two years later, in 1919, the legislature passed a separate statute regarding insurance. Or. Laws 1919, ch. 110, § 1; see Baker v. Federal Crop Ins. Corp., 241 Or. 609, 620-21, 407 P.2d 841 (1965) (explaining that the 1919 Act "is not a part of the General Insurance Law"). Unlike the 1917 Insurance Code and the 1887 Act that preceded it, the 1919 Act did not prescribe either the prerequisites for or the manner of engaging in the business of insurance in Oregon. See Or. Laws 1919, ch. 110. Rather, it provided that, "[w]henever any suit or action is brought in any of the courts of this state upon any policy of insurance of any kind or nature whatsoever," the plaintiff may recover attorney fees if settlement was not made within eight months of filing the proof of loss and if the plaintiff recovered more than the insurer had tendered. Or. Laws 1919, ch. 110, § 1. As this court has recognized, the entitlement to attorney fees that the 1919 Act provided was remedial and, as a result, was a procedural matter "controlled by the law of the forum." Baker, 241 Or. at 620, 407 P.2d 841 (internal quotation marks omitted); see also Spicer v. Benefit Ass'n of Ry. Emp., 142 Or. 574, 592-93, 17 P.2d 1107, 21 P.2d 187 (1933) (noting that the 1919 Act "concerns itself merely with the laws of procedure or remedies").
In 1920, the code commissioner codified both the 1917 Insurance Code and the 1919 act authorizing awards of attorney fees. See Oregon Laws, title XXXVI, ch. I, §§ 6322-6456 (1920).
Baker, 241 Or. at 621, 407 P.2d 841.
It follows that, before 1967, what is now codified as ORS 742.061 applied to every action brought on any insurance policy in any Oregon court. That statute did not purport to regulate the business of insurance. It did not prescribe the terms for insurance policies issued in Oregon, nor did it set out the prerequisites for engaging in the business of insurance in Oregon. Rather, it authorized Oregon courts to award attorney fees as an incident of a plaintiff's remedy in any action brought on any insurance policy in any Oregon court, and it applied without regard to the state in which the policy was issued for delivery or delivered. Having clarified the law before 1967, we turn to the question whether the legislature intended to alter the 1919 Act when it revised the insurance code in 1967.
The 1967 legislature enacted what is now codified as ORS 742.001 as part of the first comprehensive revision of the Insurance Code since 1917. See Or. Laws 1967, ch. 359, § 335.
Id.
The legislature divided the 189 sections that made up Chapter 6 (sections 335 to 524) into 11 "divisions," each of which was headed by a "division title." The first division was titled "Generally." See id. §§ 336-371. The next 10 divisions were titled "Individual Life Insurance and Annuities," "Individual Health Insurance," "Fire Insurance," "Mortgage Insurance," "Surety Insurance," and the like. For the most part, each of the last 10 divisions in Chapter 6 set out the terms that a policy for that type of insurance may or must contain. See, e.g., id. § 373 (a life insurance policy "shall contain a provision stating the amount of benefits payable"); id. § 446 (a health insurance policy may contain an "other insurers" provision).
The first division in Chapter 6, which was titled "Generally," included sections that specified the grounds on which the Insurance Commissioner could approve, disapprove, or withdraw approval of forms and rates. See id. §§ 336-338 (approval and disapproval of forms); id. § 339 (filing and approval of rates for certain kinds of insurance). It set out standard terms for policies and provided when a policy could contain additional or different terms. Id. §§ 350-351 (standard provisions); id. § 353 (additional terms). The last section included in the first division of Chapter 6 — section 371 — amended the
With that background in mind, we turn to the text of section 335, which is codified, as amended, as ORS 742.001. As noted, section 335 provided,
Or. Laws 1967, ch. 359, § 335. Section 335 consists of a single sentence, which divides into two parts. The first part provides that "[s]ections 335 to 524 * * * apply as to all insurance policies delivered or issued for delivery in this state." The second part is a prepositional phrase, which excepts "reinsurance and wet marine and transportation insurance policies." Defendant's argument turns on the first part of the sentence. He asserts, and the Court of Appeals agreed, that section 335 unambiguously provides that sections 335 to 524 of the 1967 Act apply only to insurance policies delivered or issued for delivery in Oregon.
In our view, the text of section 335 does not require the interpretation that defendant gives it, which depends on reading the word "only" into that section. To be sure, the text of section 335, read in isolation, permits defendant's interpretation; that is, it is possible to conclude that, because section 335 provided that "[s]ections 335 to 524 * * * apply as to all insurance policies delivered or issued for delivery" in this state, those sections did not apply to policies delivered or issued for delivery in other states. Cf. Waddill v. Anchor Hocking, Inc., 330 Or. 376, 381-82, 8 P.3d 200 (2000) (applying the maxim inclusio unius est exclusio alterius). However, as this court explained in Stevens v. Czerniak, 336 Or. 392, 401, 84 P.3d 140 (2004), "text should not be read in isolation but must be considered in context." In this case, two contextual sources cast a different light on the meaning of section 335.
First, comparable sections in Chapter 6 of the 1967 Insurance Code contain the word "only." For example, section 372, the first section in the division titled "Individual Life Insurance and Annuities" in Chapter 6, provides that "[s]ections 372 to 374 of this 1967 Act apply only to policies of life insurance, other than group life insurance." Or. Laws 1967, ch. 359, § 372. Similarly, section 375 provides that "[s]ections 376 to 403 of this 1967 Act apply only to policies of life insurance other than group life insurance, and do not apply to annuity or pure endowment policies." Id. § 375.
Given the close relationship among sections 335, 372, and 375, we assume that the omission of the word "only" from section 335 was purposeful. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993) (explaining that the "use of a term in one section [of a statute] and not in another section of the same statutes indicates a purposeful omission"). The purposeful omission of the word "only" from section 335 is at odds with defendant's reading of that section, which turns on the proposition that that limitation is necessarily implicit in the terms of section 335.
A second contextual source points in the same direction. Defendant's reading of section 335 is difficult to square with the text of section 371, which is now codified as
As explained below, the legislative history of the 1967 Insurance Code shows that section 335 serves a different purpose than defendant perceives and that we may give full effect to both sections 335 and 371. More specifically, the legislative history demonstrates that, in enacting section 335, the 1967 legislature intended to expand the state's authority to impose substantive regulations on insurers transacting business in Oregon, consistently with federal limitations. The legislature did not intend that section 335 would limit the scope of any remedial sections, such as section 371, included within Chapter 6 of the 1967 Act. We turn to that history.
The 1965 legislature established an interim committee to "prepar[e] a proposed substantive revision of the insurance laws of this state[.]" HJR 51 (1965). When the proposed revision of the insurance code was presented to the legislature in 1967, one of the issues that the legislature discussed was the scope of the revised code. Specifically, a member of the interim committee noted that "one particular problem" that the committee had considered was whether Oregon could regulate out-of-state mail-order insurers consistently with "interstate commerce and federal laws pre-empting state laws." See Minutes, House Committee on Financial Affairs, Jan. 12, 1967, 4 (testimony of William Love). He explained that the proposal that the committee had adopted was "basically the one in the Wisconsin Code which was upheld by the Wisconsin Supreme Court" against a claim that Wisconsin's code exceeded the limits placed on it by federal law. Id. The interim committee member explained that, "[s]ince the U.S. Supreme Court refused to review the Wisconsin decision, the revisers felt the Wisconsin [provision] could safely be adopted as constitutional." Id. Among other things, that provision defined "[t]ransact[ing] insurance" as including "[i]ssuing or delivering policies of insurance" "by mail or otherwise." See Or. Laws 1967, ch. 359, § 30.
The Wisconsin case to which the interim committee member referred appears to be Ministers Life & Casualty Union v. Haase, 30 Wis.2d 339, 141 N.W.2d 287 (Wis.), appeal dismissed, 385 U.S. 205, 87 S.Ct. 407, 17 L.Ed.2d 301 (1966).
The Wisconsin Supreme Court held that, in identifying those cases as the outer limit of a state's authority to regulate the business of insurance, Congress had not intended to adopt their reasoning, which was based on older theories of due process. See id. at 293 (rejecting the notion that the McCarran Act enshrined a "static or conceptualistic theory of `doing business' as the jurisdictional basis for state regulation"). Rather, the court reasoned that the results, not the reasoning, in those cases defined the outer limit of a state's authority. See id. (explaining that those cases stood for the proposition that a state may not regulate an out-of-state insurer when the insurer's "only contact [with the state] was the location of the risk within the state"). The court accordingly concluded that federal law permitted a state to impose substantive regulations on out-of-state insurers when, among other things, those insurers issued policies for delivery or delivered polices within the state. See id. at 291 (upholding the Wisconsin statute); id. at 296 (explaining that imposing substantive regulations on out-of-state insurers that transact business in Wisconsin did not violate due process).
The insurer in the Wisconsin case appealed to the United States Supreme Court, which dismissed the appeal on December 5, 1966, for want of a substantial federal question. Ministers Life & Casualty Union v. Haase, 385 U.S. 205, 87 S.Ct. 407, 17 L.Ed.2d 301 (1966) (per curiam). That dismissal occurred approximately five weeks before the interim committee member explained to the 1967 Oregon legislature that Oregon's proposed insurance code extended as far as Wisconsin's did and that the United States Supreme Court had declined to consider the Wisconsin Supreme Court's decision upholding its state's law against a federal challenge. See Minutes, House Committee on Financial Affairs, Jan. 12, 1967, 4 (testimony of William Love).
We draw three conclusions from that legislative history. First, given the Wisconsin Supreme Court's decision that federal law did not prevent Wisconsin from regulating mail-order insurance companies selling and delivering insurance in that state, Oregon sought to regulate insurers to the same extent. Second, in providing that "[s]ections 335 to 524 of this 1967 Act apply as to all insurance policies delivered or issued for delivery in this state," the 1967 legislature sought to expand the state's substantive authority to regulate out-of-state insurers transacting business in Oregon, as Wisconsin had done. Third, the 1967 legislature understood that the McCarran Act and the Due Process Clause imposed limits on a state's authority to regulate out-of-state insurers, but that was not the intended function of section 335.
Considering the text, context, and legislative history of the 1967 Act, we conclude that the legislature did not intend that ORS 742.001 would limit the scope of ORS 742.061. For us to hold otherwise, we would have to turn an expansion of the state's authority to impose substantive regulations on insurers transacting business in Oregon into a limitation on the remedial and procedural rules that affect insurers appearing in its courts. We would have to overlook the purposeful omission of the word "only" from the text of ORS 742.001, and we would have to read a limitation into the text of that section that the legislature did not include. We may not do that. We accordingly hold that ORS 742.001 does not limit the scope of ORS 742.061. Rather, ORS 742.061 applies, as its terms state, whenever "an action is brought in any court of this state upon any policy of
The decision of the Court of Appeals is reversed. The supplemental judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Or. Laws 1967, ch. 359, § 371(1).