ORTEGA, J.
Plaintiff's house was insured against fire under a policy issued by defendant Mutual of Enumclaw Insurance Company (MOE). The house burned down, and plaintiff filed a claim under the policy. He later brought this action against MOE and its agent, Hopp Insurance Agency,
For purposes of the issues raised on appeal, the relevant facts are largely undisputed. We recount them in some detail, including the relevant policy provisions and defendants' communications to plaintiff regarding those provisions, because the detail of those communications is necessary to evaluate the contract and negligence claims at issue in this appeal.
Plaintiff purchased a MOE homeowner insurance policy through Hopp. When plaintiff began an extensive remodel and addition to his home, he called Hopp and requested an increase in his basic coverage. Hopp increased plaintiff's basic coverage to $600,000, which was the maximum dwelling coverage that MOE could offer on homes. The declarations page showed a limit of $600,000 for the dwelling.
Plaintiff's policy also provided coverage for loss of use and for damage to personal property. The policy defined "loss of use" as "fair rental value" of the destroyed premises. The loss of use benefit was limited to a percentage of the amount of insurance on the structure as shown on the declarations page. In light of the $600,000 limit on the dwelling as shown on the declarations page, plaintiff's maximum "loss of use" benefit was $120,000. The policy limit for loss of personal property was $420,000.
Plaintiff's policy also included an endorsement for "guaranteed replacement cost." Under that endorsement, in the event of loss, as an alternative to payment of the liability limit of $600,000 stated on the declarations page, MOE agreed to pay
Among the conditions for receiving the replacement cost coverage, the policy required plaintiff to "[i]nsure the dwelling and other structures to 100% of replacement cost as of the date this endorsement becomes effective," and to "[n]otify [MOE] within 90 days of the start of any additions or physical changes that increase the value of the dwelling or other structures on the resident premises by $5,000 or more[.]"
The policy explained how covered losses were to be settled:
An additional endorsement provided that "[n]o action can be brought unless the policy provisions have been complied with and the action is started within two years after the date of loss."
On November 8, 2001, shortly before completion of the addition, the house was destroyed by fire, and plaintiff made a claim under the policy. Plaintiff notified MOE that he intended to take advantage of the policy's replacement-cost endorsement and that he was considering rebuilding. The addition to the home had been quite extensive and had included antique woods that were no longer available. Plaintiff obtained an estimate from Custer Construction indicating that the cost to replace the home would be between $3.6 and $4 million. Plaintiff obtained a second estimate of $3.858 million.
Plaintiff had trouble obtaining the necessary approval for reconstruction from the City of Lake Oswego. Plaintiff notified
In September 2002, 10 months after the fire, MOE's attorney, Smith, wrote to plaintiff explaining that OHI's bid was not necessarily the limit of what MOE would pay. Smith explained to plaintiff that, as construction continued, "the amount to replace your home may have to be adjusted upwards or downwards." Smith encouraged plaintiff to provide MOE with more information about the house that had burned, including construction documents for the remodel, explaining that "[t]his will go a long way toward assuring that [the OHI] bid is accurate." Smith told plaintiff that OHI was a well-regarded firm and that it could rebuild the home with like construction and use, as required by the policy. Smith advised that plaintiff was free to choose a different builder, but that, if the costs to rebuild exceeded OHI's bid, "the difference will have to be reconciled or you may be responsible for those additional costs." Smith also advised plaintiff that, under the policy, the limit of MOE's responsibility was "the necessary amount required to repair or replace the damaged building," and that currently the OHI bid was MOE's best estimate of that amount.
In the September letter, Smith also expressed concern that the rebuilding had not yet begun and reminded plaintiff that, under the policy, plaintiff was entitled to replacement cost benefits only on completion of the actual repair or replacement. Smith called "special attention" to provisions of the policy requiring that, in order to recover replacement costs, plaintiff had to complete replacement. Smith further reminded plaintiff of the policy's requirement that plaintiff had until two years from the date of loss—that is, until November 8, 2003—within which to resolve any claims against MOE or to bring an action in court. Smith closed the letter with the statement, "All rights under your policy of insurance with [MOE] are reserved. No waiver or estoppel of any kind is intended and none should be implied."
After Smith and plaintiff met in person, Smith wrote to plaintiff again on October 15, memorializing their discussion. Smith encouraged plaintiff to hire "whichever architect you plan to use to rebuild your home. You can build whatever kind of home you want, whether it be bigger and fancier than what you had or smaller and less fancy." Smith also reminded plaintiff that the policy contained conditions for coverage. Smith quoted portions of the policy, including the requirement that MOE would pay
(Emphasis in Smith letter.) Smith also quoted the policy's requirement that MOE would not pay more than actual cash value of the destroyed property until completion of replacement or repair, and reminded plaintiff that the replacement cost benefit was only available with the completion of replacement or repairs:
The October letter also stated:
The letter concluded with the same statement contained in the September letter concerning the reservation of rights and no waiver or estoppel.
Plaintiff asked Smith for clarification. In a letter of October 29, 2002, Smith explained further:
(Emphasis added; except final emphasis in original.) The October 29 letter concluded with the same statement concerning MOE's reservation of rights and no waiver or estoppel.
Plaintiff later asked Smith if MOE would agree to extend the two-year period for bringing suit. Smith declined plaintiff's request. On May 27, 2003, Smith again wrote to plaintiff, reminding plaintiff of the terms of MOE's replacement cost coverage and quoting those terms. Smith stated further:
Four months later, plaintiff entered into a construction contract to rebuild the home for an estimated cost of $3.8 million. Just before the second anniversary of the fire, plaintiff filed his original complaint against MOE. The reconstruction had not yet begun. Plaintiff sought a declaration that, under the policy, MOE is obligated to compensate plaintiff for replacement costs incurred more than two years from the date of loss. Plaintiff further alleged that MOE had breached the policy by refusing to pay replacement costs in excess of the amount of OHI's bid. Plaintiff also alleged a claim of negligence against Hopp, contending that Hopp had been negligent in failing to adequately assess the value of the house and in failing to write a policy of insurance with adequate coverage.
MOE moved for summary judgment. With regard to plaintiff's claim for a declaration that, under the policy, MOE is obligated to compensate plaintiff for replacement costs incurred more than two years from the date of loss, MOE argued that the policy required completion of construction as a condition for payment of replacement cost benefits, and plaintiff had not yet replaced the home. MOE asserted that, in order to have recovered replacement cost benefits over and above those that MOE had previously advanced, plaintiff had only been required to submit sufficient documentation to show that additional costs were necessary and actually spent on reconstruction. Further, MOE contended, although it had advanced plaintiff funds in excess of the actual cash value of the home, i.e., the policy limits for the dwelling, MOE did not have an obligation to do so under the policy and had no obligation to pay further benefits.
MOE argued in its motion for summary judgment that, as a matter of law, the unambiguous terms of the policy did not allow for recovery of replacement costs for work completed more than two years from the
The court denied MOE's summary judgment motion. The court rejected MOE's interpretation of the policy and its primary contention that only repairs and replacements completed within two years of loss are compensable. The court noted the policy's requirement that suit could not be brought until "the policy provisions have been complied with," and agreed that completion of construction was a condition for recovery of replacement costs, but disagreed with MOE's view that the policy required completion of construction within two years of the loss. In the court's view, the replacement cost provision "only addresses the
The case was removed from abatement and came to trial in July 2006, shortly before the completion of construction. At the beginning of trial, plaintiff sought a ruling from the trial court that Smith's letters had provided an interpretation of the policy that was binding on MOE and that required MOE to pay all replacement costs, as long as the replacement was of "like construction and use." The trial court agreed with plaintiff that Smith's letters provided an interpretation of the policy to which MOE was bound and, further, that the letters promised that MOE would pay for new construction as long as the new house was of "like construction and use." The trial court also granted plaintiff's motion in limine to limit trial to the question of whether the new house was of like construction and use, to exclude evidence of the amount that plaintiff had paid for the house that burned, and to exclude any evidence of plaintiff's failure to comply with conditions of the policy.
The trial court then allowed plaintiff to file an amended complaint, which alleged a new breach of contract claim against MOE, based on MOE's alleged refusal to pay plaintiff the actual cost of replacing the destroyed home with a home of like construction and use. The first amended complaint also added allegations that MOE had breached the contract by refusing to pay plaintiff more than $96,000 for loss of use, and more than $278,121.65 for loss of contents.
Plaintiff's amended complaint also alleged a negligence claim against Hopp, based on its
MOE's answer asserted several affirmative defenses, among them failure to state a claim and failure to meet the policy's conditions of coverage. The trial court struck MOE's affirmative defenses as contrary to the promises expressed in Smith's letters. The trial court also denied MOE's request to exclude Smith's letters as irrelevant and to construe the policy as written rather than as interpreted in the letters. MOE continued during trial to assert the terms of the policy, but the trial court repeatedly ruled that the letters controlled the interpretation of the policy.
The trial court stated that "Smith's letters establish what the policy means. That's been the ground zero of this case from the very beginning." In response to a question from MOE's counsel as to whether the trial court had determined the meaning of the policy as a matter of law, the court replied, "Virtually." The court explained:
At the close of plaintiff's case-in-chief, the trial court and the parties engaged in a colloquy concerning MOE's request to admit evidence of OHI's bid of $1.7 million as evidence of the amount necessary to replace the house with like construction. MOE's attorney explained:
Plaintiff's attorney then spoke:
MOE's attorney further explained the purpose of the testimony MOE proposed to offer:
The trial court asked, "The policy uses the word `necessary'?" MOE's counsel then quoted the two paragraphs of the replacement cost endorsement,
The trial court expressed surprise at MOE's focus on the term "necessary," and said:
Plaintiff's counsel expressed the view that, as interpreted by Smith, the two paragraphs of the replacement cost endorsement provided essentially the same coverage—replacement cost of the total loss. The trial court then looked through Smith's letters and noted several references to the "necessary" cost to rebuild the home. The court commented, "So it's a recurring word and theme in all of these letters." The court then stated that it would allow the evidence of OHI's bid to come in for the purpose of establishing the amount necessary to replace the house.
After further colloquy, however, the court again expressed the view that this was the first time that the "necessary amount to repair or replace the damaged building" had been suggested as a limitation on plaintiff's coverage.
Hopp and MOE moved for directed verdicts on plaintiff's negligence claims. The trial court concluded that the evidence was insufficient as a matter of law to establish causation and granted the motions.
MOE also sought a directed verdict on the breach of contract claim, asserting that there was no evidence that, at the time the lawsuit was filed, MOE was in breach of the contract. MOE contended that, in order to maintain a claim for breach of contract, all the elements of the claim must be satisfied at the time the complaint is filed and that, in this case, when the suit was filed, there had been no breach of contract. MOE further contended that, to the extent that plaintiff was arguing that there had been an alteration of the policy by either waiver or estoppel, that was not legally cognizable and had not been pleaded.
Plaintiff's counsel responded that plaintiff was not asserting estoppel, but that Smith's letters provided an interpretation of the policy on which plaintiff was entitled to rely and that was binding on MOE. Because of those letters, plaintiff asserted, MOE was required to pay all replacement costs for like construction. The trial court denied MOE's motion on the breach of contract claim and rejected MOE's contention that plaintiff was in effect
Plaintiff then sought a directed verdict on the breach of contract claim, contending that "[t]here is no evidence in the record that this house is not like construction and use[.]" The trial court allowed the motion and entered judgment for plaintiff for damages based on the full amount spent to rebuild the house, $3.23 million, less the $1.7 million that MOE had previously advanced. The trial court further determined that MOE owed plaintiff an additional $24,000 for the loss of use of his home. The court awarded plaintiff pre- and post-judgment interest and attorney fees of approximately $500,000.
In its first assignment of error, MOE contends that the court erred in denying MOE's motion for summary judgment on the breach of contract claim.
As plaintiff correctly points out, the denial of a motion for summary judgment generally is not reviewable, unless it is based on a purely legal contention that does not require the establishment of any predicate facts. Freeman v. Stuart, 203 Or.App. 191, 194, 125 P.3d 786 (2005). That means that the facts must not only be undisputed but also immaterial. Id. Because the question raised by the motion for summary judgment here cannot be resolved without reference to the predicate fact that plaintiff had not completed replacement of the home within two years, we conclude that, even if that predicate fact is undisputed, the ultimate issue is not purely legal. Thus, plaintiff is correct that the ruling denying the motion for summary judgment is not reviewable.
MOE's first assignment of error also challenges the trial court's denial of MOE's motion for a directed verdict on the breach of contract claim, in which MOE asserted that the claim had not been established because there was no evidence that MOE was in breach of the policy at the time the claim was filed. MOE asserts that the motion should have been granted, because plaintiff's claim was premature at the time it was filed.
Assuming, as MOE contends, that the claim was premature at the time it was filed because plaintiff had not yet completed construction of the home so as to trigger MOE's obligation under the policy to pay replacement costs, later events altered those circumstances. A motion for directed verdict is directed against the operative pleading and based on the evidence at trial, and our review is based on that same record. Plaintiff's breach of contract claim was held in abatement for two years pending completion of the home, and the home was two weeks shy of completion when the case came to trial. As noted, the trial court allowed the complaint to be amended during trial, and the first amended complaint made new allegations, including that MOE had breached the policy by refusing to pay plaintiff the actual cost of replacing the destroyed home. The trial court's allowance of the amended complaint is not challenged. At trial, plaintiff put on
In its second assignment of error, MOE challenges multiple rulings of the trial court, which it asserts depended on the trial court's erroneous conclusion that statements made by Smith in his letters to plaintiff could and did alter the meaning of the policy so as to bind MOE to pay all replacement costs of "like construction and for like use," without regard for the written provisions of the policy. Those rulings include allowing plaintiff's motion in limine to limit the issue for trial to whether the new house is of "like construction and use" to the house that burned; striking MOE's affirmative defenses based on plaintiff's failure to complete replacement of the home within two years of loss and before demanding payment from MOE; excluding evidence of the amount that plaintiff actually spent to build the house that burned; excluding evidence of plaintiff's failure to comply with policy provision; and, finally, granting plaintiff's motion for directed verdict on the breach of contract claim.
MOE is correct that the described rulings depend on the trial court's conclusion that Smith's statements provided an "interpretation" of the policy that precluded any inquiry into the meaning of the provisions of the document itself. However, we need not address whether it is impermissible under Oregon law for the trial court to treat Smith's letters as providing an interpretation of the policy that bound MOE. Compare DeJonge v. Mutual of Enumclaw, 315 Or. 237, 241, 843 P.2d 914 (1992) (an insurer is not estopped from denying coverage because of its agent's representation that the policy would provide coverage), with Farley v. United Pacific Ins. Co., 269 Or. 549, 558, 525 P.2d 1003 (1974) (an insurer's agent's interpretation of doubtful language in the policy binds the insurer, unless the interpretation is patently absurd). That is so because we agree with MOE that, to the extent that Smith's letters provided an interpretation of the policy, that interpretation was consistent with the policy's unambiguous terms.
The interpretation of an insurance policy is a matter of law, Employers Insurance of Wausau v. Tektronix, Inc., 211 Or.App. 485, 503, 156 P.3d 105, rev. den., 343 Or. 363, 169 P.3d 1268 (2007), and our objective in construing the policy is to determine the intent of the parties. Hoffman Construction Co. v. Fred S. James & Co., 313 Or. 464, 469, 836 P.2d 703 (1992). Under Hoffman, the first step is to examine the text of the policy to determine whether it is ambiguous. If it is not, the policy is interpreted in accordance with its unambiguous terms. Id. at 469-70, 836 P.2d 703. Accordingly, the court begins with "the wording of the policy, applying any definitions that are supplied by the policy itself and otherwise presuming that words have their plain, ordinary meanings." Tualatin Valley Housing v. Truck Ins. Exchange, 208 Or.App. 155, 159, 144 P.3d 991 (2006), rev. den., 342 Or. 344, 153 P.3d 124 (2007). If the wording of the policy is susceptible to more than one plausible interpretation, we examine the disputed terms in the context of the policy as a whole. Andres v. American Standard Ins. Co., 205 Or.App. 419, 424, 134 P.3d 1061 (2006). If, after such an examination, the ambiguity persists, we construe the policy against the drafter—in this case, MOE. Id. Thus, the interpretation of an insurance policy is not to be resolved by reference to evidence extrinsic to the policy itself. Id.; cf. Dewsnup v. Farmers Ins. Co., 349 Or. 33, 239 P.3d 493 (2010) (holding that whether a plastic tarp was a
In our view, the policy's provisions relating to the recovery of replacement costs are straightforward and not ambiguous. As we understand the replacement-cost endorsement, read in the context of the provisions for settlement of loss, in the event of a fire, plaintiff could recover either (1) the policy limits of $600,000 as stated on the declaration page; or (2) replacement cost benefits. When, as here, the loss is greater than $2,500, the policy required that, in order to recover replacement cost benefits, plaintiff must complete the replacement of the destroyed property. Thus, the completion of construction is a condition for recovery of replacement costs. Smith repeatedly referred to that requirement in his letters.
In Higgins v. Insurance Co. of N. America, 256 Or. 151, 469 P.2d 766 (1970), the Supreme Court explained the purpose and effect of replacement cost provisions in a fire insurance policy. The policy at issue in that case required the insurer to pay the actual cash value of the burned property and also included replacement cost coverage, under which the insurer agreed to pay the lesser of the "replacement cost of the building structure * * * on the same premises and intended for the same occupancy and use," or the "amount actually and necessarily expended in repairing or replacing said building(s) * * * for the same occupancy and use." Id. at 161, 469 P.2d 766. The plaintiffs had not expended any money to repair or replace the insured structure, and the insurance company contended therefore that the plaintiffs were not entitled to any benefits under the replacement cost provisions of the policy, but were entitled only to the actual cash value of the insured property under the basic coverage. Id. at 162, 469 P.2d 766.
In determining whether the plaintiffs were entitled to replacement cost coverage or to just their basic coverage, the court considered the relationship between the two types of coverage. The court quoted extensively from a bulletin published by the National Underwriter and from insurance treatises. As explained by those authorities, replacement cost coverage developed as a means to protect the insured from the risk of loss when, because of depreciation, the insured property costs more to rebuild than it was worth at the time of the fire. In that circumstance, the basic coverage does not even cover the insured's loss. Id. at 162-63, 469 P.2d 766. The authorities explained that replacement cost coverage is a type of coverage under which the insurer agrees to pay the difference between actual cash value and the full replacement cost. Id. The court recognized that replacement cost coverage creates a risk that the insured will intentionally destroy the insured property (referred to as "moral hazard"). For that reason, the court explained, replacement cost insurance is written only under definite limitations, the basic limitation being that "`the insured collects on this "new for old" basis only if the property is repaired or replaced.'" Id. at 163, 469 P.2d 766 (footnote omitted). Thus, the court explained, the risk of "moral hazard" is mitigated by the requirement that the property must actually be replaced before replacement cost benefits are owing. Id. at 165, 469 P.2d 766. The court concluded:
Id. at 166, 469 P.2d 766.
MOE's replacement cost endorsement is similar to the provision that was at issue in Higgins, in that it expressly requires actual replacement of the destroyed property before the insured is entitled to recover replacement costs. We conclude that MOE is correct that, under the terms of the policy, in the absence of actual replacement, MOE had
The replacement cost endorsement states two limitations on the amount that can be recovered for replacement costs. If the insured elects to recover replacement costs, the insured is entitled to recover the lesser of (1) the cost of replacing the house with one of like construction and use; or (2) the amount necessary to rebuild the same house. Once again we agree with MOE that the policy is unambiguous. The two alternative limitations on the recovery of replacement costs require a comparison of the cost of replacing the house with one of like construction and the amount necessary to rebuild the same house. MOE is required to pay only the lesser of those two amounts. As the trial court noted, Smith's letters repeatedly made reference to the policy's requirement that benefits were limited to the amount necessary to rebuild the house that burned. Contrary to plaintiff's contention, MOE did not define the only issue at trial to be whether the rebuilt house was of like construction; the trial court did, in response to plaintiff's contention that Smith's letters had defined that requirement as the only limitation on replacement cost damages.
Further, also contrary to plaintiff's contention, we conclude that Smith's letters never promised that MOE could continue to pay replacement costs for expenses incurred more than two years from the date of loss. In fact, Smith warned plaintiff that
The trial court's mistaken conclusion that Smith promised that MOE would pay all replacement costs incurred for like construction and use—regardless of when they were incurred—led the trial court to mistakenly refuse to consider MOE's contention, raised by way of affirmative defense, that there was no breach of contract because, under the terms of the policy, construction had not been completed within two years from the date of loss.
In summary, assuming, without deciding, that Smith's letters could have any bearing on the meaning of the policy, we have read them carefully, and we do not understand them to have altered the unambiguous terms of the policy in any respect. It is true, as plaintiff points out, that Smith told plaintiff that he could build the house that he wanted, with the builder of his choice, and that MOE would reimburse plaintiff for the costs to rebuild the house. However, Smith also consistently qualified those statements by reminding plaintiff that his right to replacement-cost coverage was subject to the conditions and terms of the policy, including the requirement that construction actually be completed and that MOE would pay only the lesser of the cost of replacing the house with one of like construction and use or the amount necessary to rebuild the same house. We conclude, therefore, that the trial court erred in concluding that Smith had interpreted the conditions and limitations on recovery of replacement costs to vary from the terms of the written policy.
On cross-appeal, plaintiff contends that the trial court erred in granting Hopp's motion for a directed verdict on the claim of negligence. In reviewing the trial court's ruling, we view the evidence and all reasonable inferences in the light most favorable to plaintiff. A directed verdict for the defendant on a negligence claim is proper only if there is no evidence from which the jury could have found the facts necessary to establish the elements of the claim. Or. Const, Art. VII (Amended), § 3; Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984); Ballard v. City of Albany, 221 Or.App. 630, 639, 191 P.3d 679 (2008).
Plaintiff explains that his negligence claim is directed primarily at the "loss of use" coverage in the policy. He argues, essentially, that there is evidence from which the jury could have found that, as an independent insurance broker, Hopp owed plaintiff a duty of reasonable care, see Lewis-Williamson v. Grange Mutual Ins. Co., 179 Or.App. 491, 495, 39 P.3d 947 (2002), that Hopp breached that duty by undervaluing plaintiff's home, and that that undervaluation necessarily resulted in a similar understatement in the policy's limit for loss of use. Plaintiff emphasizes Hopp's failure to obtain an appraisal before determining the policy limits.
In granting defendants' motion for a directed verdict on the negligence claim, the trial court was persuaded by Hopp's contention that plaintiff had failed to establish that any negligence on Hopp's part in undervaluing the property caused plaintiff's damages. In particular, the trial court was persuaded by Hopp's argument that there was no evidence of what an appraisal would have shown or that an appraisal would have made any difference in plaintiff's coverage.
Plaintiff cites two Supreme Court opinions, Sandford v. Chev. Div. Gen. Motors, 292 Or. 590, 642 P.2d 624 (1982), and Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), for the rule that "causation" in the context of a negligence claim means "cause in fact." Plaintiff argues that, despite the absence of an appraisal valuing the house that burned at more than $600,000, the jury could have found, based on the evidence in the record, that Hopp undervalued the house, and plaintiff asserts that the jury should have been given the opportunity to decide whether Hopp's negligence in failing to obtain an appraisal was a cause in fact of Hopp's failure to obtain a policy with the proper face value.
We agree with plaintiff that, under the standard for review of a directed verdict, there was some evidence from which a jury could have found facts necessary to establish that Hopp, as an independent agent, owed a duty of care to plaintiff, see Lewis-Williamson, 179 Or.App. at 495, 39 P.3d 947, and that his failure to obtain an appraisal constituted a breach of that duty. Further, even in the absence of an appraisal, there was evidence from which a jury could have found that the house that burned had a value higher than $600,000. Although there was no explicit evidence that, had the house been appraised at a higher value, Hopp would have obtained a policy for plaintiff with a dwelling limit higher than $600,000, that is a reasonable inference from the evidence.
The difficulty with plaintiff's case, however, is that, even assuming that the jury could find that Hopp was negligent, that an appraisal would have shown a value for the burned house higher than $600,000, and that plaintiff would have purchased a policy to cover that higher value, there was no evidence as to what that different policy might have provided in the way of limits for loss of use. MOE did not offer dwelling coverage in excess of $600,000, and plaintiff did not offer evidence of the loss-of-use coverage that might have been available from a different company. Further, because there is no evidence of the value of the house that burned, there is no evidence from which the jury could have inferred the limits of plaintiff's loss-of-use coverage had plaintiff obtained a policy with higher coverage for the dwelling. To survive a directed verdict
On appeal, reversed and remanded for new trial; on cross-appeal, affirmed.
The "Suits Against Us" provision satisfies the requirement of ORS 742.240:
