In this automobile insurance coverage dispute, defendant, who provided underinsured motorist (UIM) coverage to plaintiff, appeals. The sole substantive issue presented for our consideration is whether, in the particular circumstances of this case — in which plaintiff was injured in a multiple-collision, three-vehicle incident — the trial court erred in failing to apply a provision of the UIM policy, limiting defendant's coverage to $500,000 "for bodily injury and property damage resulting from any one automobile accident." (Emphasis added.)
The material facts are undisputed. On April 16, 2004, plaintiff and her friend Lorenz were traveling together northbound on Interstate 5 from California. As the women entered into Oregon, they encountered a hailstorm on Siskiyou Pass. The hail turned to rain as they descended a steep downgrade. Suddenly, a sedan, driven by Turner, lost control, spun, and collided with the front end of plaintiff's truck. The two vehicles separated momentarily — and then collided again — before both cars came to rest against a center barrier on the highway median, with both vehicles facing downhill and Turner's sedan "a few feet" in front of plaintiff's truck.
After the vehicles came to a stop, Lorenz and plaintiff checked on each other. Then Lorenz, who had been driving, attempted to exit the truck; however, she could not open the driver's door because the truck was positioned against the barrier. Lorenz pulled herself out of the truck through the driver's window and walked ahead to Turner's sedan to check on its occupants while plaintiff remained in the truck. Lorenz observed that Turner and his passenger appeared to need medical attention, so she returned to the truck to retrieve her cell phone to call 9-1-1. While standing outside of the truck, Lorenz implored plaintiff not to exit on the passenger's side because Lorenz feared that plaintiff would be struck by passing traffic. Lorenz then leaned her head and shoulders into the driver's window and saw her purse on the floorboard, which she asked plaintiff to reach. Plaintiff unbuckled her seatbelt and, as she leaned over to reach the purse, a sports utility vehicle, driven by Oliver, struck the back of the truck. The rear-end impact pushed the truck into the sedan, causing Lorenz to be dragged forward and knocking plaintiff about the cab of the truck. Lorenz and plaintiff survived and received medical attention in Ashland.
The collisions exacerbated plaintiff's preexisting spinal degenerative disease and caused emotional distress, for which plaintiff underwent multiple spinal surgeries and therapy. Seeking to recover for her substantial injuries and medical expenses, plaintiff brought an action against Turner and Oliver and sought to collect UIM benefits from defendant to the extent that the other drivers were underinsured. Plaintiff settled with Turner and Oliver, respectively, for a total of $175,000. However, plaintiff and defendant disputed both the amount of plaintiff's damages as a result of the April 16, 2004, incident and the extent of defendant's coverage.
As pertinent to this dispute, the UIM policy provides that defendant "will pay damages which the covered person is entitled to recover from the owner or operator of an uninsured motor vehicle because of [bodily injury and property damage] sustained by the covered person and caused by an accident." (Boldface omitted.)
(Boldface omitted; capitalization in original; emphases added.) The declarations page, in turn, provides, under the heading "COVERAGES AND LIMITS OF LIABILITY":
(Capitalization in original.)
In her first amended complaint, plaintiff alleged that "[t]he insurance contract provides for a limit of $1,000,000 of coverage for damage or injury caused by an underinsured motorist." Further, the prayer of that complaint sought "damages available in underinsured motorist coverage not to exceed $1,000,000."
In its answer, defendant admitted plaintiff's allegation as to coverage limits but denied, inter alia, plaintiff's allegations as to the extent of her damages and requested a jury trial "to determine the monetary value of plaintiff's claims." However, on the first day of trial, during a conference in chambers between the court and counsel before the jury was empanelled, defendant tendered an amended answer to plaintiff's first amended complaint in which defendant admitted only to "$500,000 of coverage for damage or injury caused by an underinsured motorist." Plaintiff did not oppose the amendment, and the court allowed it.
Defendant also moved in limine to prohibit plaintiff
The parties agreed to limit the jury's role, and the court summarized the pre-trial agreement as follows:
(Emphasis added.)
Both parties generally agreed with the court's synopsis. Plaintiff's counsel requested clarification from the court that plaintiff would not be limited by the policy or the pleading in arguing the amount of damages. Defendant responded that,
Plaintiff opposed such a determination:
Defendant remonstrated that it was "not the defendant's responsibility" to raise the issue of one versus two accidents; rather, it was plaintiff's burden to establish that two accidents had occurred under the terms of the policy in order to avail herself of two policy limits. Defendant further argued that plaintiff had at least implicitly raised the issue by claiming that defendant's liability was $1 million — the sum of two $500,000 policy limits.
The court rejected defendant's request to submit a verdict form that would apportion damages, and the court appeared to defer the issue of one versus two accidents for post-verdict determination. The court explained:
Near the close of trial, after instructing the jury, the court solicited exceptions to the jury instructions and verdict form. Plaintiff did not take any exception. Defendant took exception to the verdict form:
The jury returned a verdict in which it determined plaintiff's total damages to be $979,540, consisting of $750,000 in noneconomic damages and $229,540 in economic damages. Plaintiff then submitted a proposed general judgment, which included a money award of $804,540, reflecting an offset of $175,000 for the settlement payments made by Turner and Oliver. Defendant opposed entry of that judgment. According to defendant, "the verdict is insufficient to determine [defendant's] aggregate liability upon which judgment can be entered," because "there was no determination by the court regarding whether the events giving
In response to defendant's objection, plaintiff argued that, because "[t]he trial jury was only asked to set an amount of compensation and nothing further," the trial court should enter a judgment that reflected the amount of the verdict.
The trial court entered plaintiff's proposed judgment and explained its reasoning in a memorandum opinion:
(Third emphasis in original; first and second emphases added.)
Defendant appeals from the general judgment. Defendant contends that the trial court erred in entering a judgment on the verdict without applying a single $500,000 per accident policy limit. In that regard, defendant contends, variously, that (a) it was not bound by its original answer because that answer was superseded by the amended answer; (b) it was not estopped from challenging the amount of coverage because "neither the insurer nor the insured can ever be estopped from relying on the terms of the policy to prove or disprove coverage"; and (c) a single policy limit applies because, as a matter of law, only one accident occurred and plaintiff failed to prove otherwise.
Defendant further contends that, if we conclude that only one accident occurred, the proper disposition is to reverse the judgment and remand to the trial court for entry of a new judgment that awards plaintiff $500,000 in damages less offsets for payments from
Plaintiff does not attempt to defend the trial court's expressed rationale that defendant's initial answer to the first amended complaint either represented an enforceable "admission" of UIM coverage of up to $1 million or gave rise to "estoppel." Instead, plaintiff argues that defendant failed to preserve the issue of whether one or two accidents occurred, because defendant failed to move for a directed verdict on plaintiff's alleged failure to prove that her damages resulted from two separate accidents. Plaintiff further contends that, even if the issue is preserved, as a matter of law the evidence establishes that two accidents occurred and, thus, two policy limits are available.
As explained below, we conclude that (1) the "one accident versus two accidents" issue was sufficiently and timely raised for the trial court's consideration so as to be preserved for appellate review; and (2) on this record, as a matter of law, only one accident occurred. Thus, the trial court erred in failing to apply a single $500,000 coverage limit.
At the outset, we hold that (as plaintiff implicitly recognizes) defendant is not bound by its original answer in which defendant admitted to a $1 million policy limit. The trial court expressly allowed defendant's amendment, which admitted to a policy limit of $500,000 per accident. Plaintiff did not object to the amendment. Thus, defendant's original answer had no continuing effect, either by way of admission or judicial estoppel, and the trial court erred in concluding otherwise. See McGanty v. Staudenraus, 321 Or. 532, 538-39, 901 P.2d 841 (1995) (citing Yates v. Large, 284 Or. 217, 223, 585 P.2d 697 (1978)) (a trial court may relieve a party from the effect of an admission in a pleading by allowing amendment of the pleading); see also Venture Properties, Inc. v. Parker, 223 Or.App. 321, 330 n. 4, 195 P.3d 470 (2008) ("Although a statement of fact in a pleading that has not been superseded is a judicial admission that the fact as stated exists, a party that repleads is not so bound." (Emphasis in original.)).
As another preliminary matter, we conclude that defendant's contentions pertaining to the number of accidents — and the sufficiency of plaintiff's proof in that regard — were preserved for our consideration. As we and the Supreme Court have repeatedly emphasized, the touchstone of preservation is that the trial court was afforded a reasonable opportunity to address the contention advanced on appeal. See Peeples v. Lampert, 345 Or. 209, 219-23, 191 P.3d 637 (2008). Here, as recounted at length above, that occurred. Specifically: (a) at the outset of trial, defendant raised the question of whether the circumstances established a single "accident" instead of multiple "accidents" and, thus, whether any recovery against defendant should be subject to a single $500,000 coverage limit; (b) the trial court deferred addressing and resolving that matter ("[W]e will wait until we see what the verdict looks like, and then we'll try and sort those issues out."); (c) the trial court reiterated that "wait-and-see" approach in the context of rejecting defendant's special verdict form ("[A]gain, we may be crossing bridges that we don't even have to worry about crossing."); and, finally, (d) after the jury returned its verdict, the court rejected defendant's renewed contention, albeit without addressing its substance. Preservation is patent.
We proceed to the merits. In doing so, we emphasize, at the outset, that the parties agree that, as framed on this record, the
In Holloway v. Republic Indemnity Co. of America, 341 Or. 642, 649-50, 147 P.3d 329 (2006), the court summarized the applicable analytical framework:
341 Or. at 649-50, 147 P.3d 329 (internal quotation marks, citations, and brackets omitted; emphasis in original).
Significantly, although case law addressing the meaning of similar or analogous policy language can be informative, the utility of such decisional law (especially that of other jurisdictions) is highly variable and, in the final analysis, pertinent and persuasive only to the extent that it comports with the referent text and context. Interstate Fire v. Archdiocese of Portland, 318 Or. 110, 117, 864 P.2d 346 (1993); see also id. at 117 n. 6, 864 P.2d 346 ("Case law and other authorities * * * are no substitute for a thorough examination of the policy in the first instance.").
We apply the foregoing interpretive framework to the phrase "any one automobile accident." The policy does not include a definition of "accident" or "any one automobile accident." That is unsurprising because, as the Supreme Court observed in Botts v. Hartford Acc. & Indem. Co., 284 Or. 95, 103, 585 P.2d 657 (1978), "[t]here is no such thing" as "one all-encompassing definition of `accident' which accommodates all circumstances." Thus, the term must be analyzed with regard to the "particular factual circumstances in which the meaning of the terms is brought into question." Id. at 102, 585 P.2d 657. Consequently, we examine the operative language in context.
As noted, defendant agreed to "pay damages which [plaintiff] is entitled to recover from the owner or operator of an uninsured motor vehicle because of [bodily injury and property damage] sustained by [plaintiff] and caused by an accident."
Given that qualifying language, it is patent that the parties contemplated and understood that "any one automobile accident" could involve multiple other vehicles (besides the insured's vehicle) — and, hence, could involve multiple potentially tortious impacts. Bluntly, "any one automobile accident," implicating only a single limit of liability, can involve multiple vehicles, multiple collisions, and (again, potentially) multiple underinsured motorist tortfeasors. That abstract, contextually compelled premise is, however, hardly conclusive. The mere fact that "one automobile accident" can involve multiple vehicles and multiple collisions — that is, that some single accidents can involve such circumstances — does not mean, logically or practically, that all events involving multiple vehicles colliding with the insured's vehicle constitute only "one automobile accident" (triggering only one coverage limit).
The policy's text in context offers no further guidance on resolving that question — viz., in what circumstances do incidents involving multiple vehicles colliding with the insured's vehicle constitute multiple accidents rather than "any one accident"? — on which the coverage determination depends. Accordingly, we turn, finally and unavoidably, to decisional law for assistance in construing the critical language. Interstate Fire, 318 Or. at 117, 864 P.2d 346. Ultimately, as we will explain, we find the reasoning of United Servs. Automobile Ass'n v. Baggett, 209 Cal.App.3d 1387, 258 Cal.Rptr. 52 (1989), to be persuasive and adopt that construction.
Baggett involved very similar circumstances — the plaintiffs' decedent was killed in an incident involving two successive collisions by different vehicles — and the construction and application of almost identical language, albeit with respect to liability, not UIM, coverage. There, a vehicle operated by a driver insured under the disputed liability policy, struck the decedent's vehicle from behind on a freeway. 209 Cal.App.3d at 1390, 258 Cal.Rptr. 52. The decedent and the (liability) insured driver drove a short distance and then parked in the median to discuss the collision. Id. The decedent and insured driver stood outside of their vehicles talking and, within a minute, a third vehicle struck the insured's vehicle from behind, pushing it into the decedent and her vehicle, killing the decedent. Id.
The decedent's heirs filed an action against the insured for wrongful death and property damages. Id. at 1389, 258 Cal.Rptr. 52. The insured's liability coverage included limits of $100,000 "for all damages for bodily injury sustained by any one person in any one auto accident," and $300,000 "for all damages for bodily injury resulting from any one auto accident." Id. at 1390, 258 Cal.Rptr. 52 (emphasis added). The policy further provided (like the UIM coverage here) that those limits applied "regardless of the number of * * * vehicles involved in the auto accident." Id. The parties disputed whether the circumstances that resulted in the decedent's death constituted one "accident" or two, which would implicate multiple limits under the liability coverage. Specifically, the decedent's heirs contended that the insured had (1) caused the initial collision (the purported "first accident") by his negligent driving and (2) also tortiously contributed to/caused the subsequent collision (the purported "second accident") by negligently failing to, e.g., undertake warning measures and "direct[ ] traffic around the stopped vehicles" after the initial collision. Id.
The liability insurer filed a declaratory judgment action, seeking resolution of that coverage dispute, and the trial court, by summary judgment, resolved that question in the
The Court of Appeal affirmed. In doing so, the court noted contextually (as we have here) the policy's provision that the limits of liability for "any one auto accident" applied regardless of the number of claims made or vehicles involved — and reasoned, consequently, that "[t]he policy thus contemplates one accident involving several vehicles." Id. at 1394, 258 Cal.Rptr. 52. The court also reviewed cases from California and other jurisdictions in which courts had interpreted similar policy limitations and summarized their reasoning as follows:
Id. at 1393, 258 Cal.Rptr. 52 (internal quotation marks omitted).
The court acknowledged that many of the decisions that it had canvassed could be characterized as "involving simply one negligent act of driving by the [liability] insured," whereas the underlying circumstances in Baggett involved "two negligent acts by [the] insured," each causing a separate collision. Id. at 1394, 258 Cal.Rptr. 52. Nevertheless, the court rejected the categorical proposition that separate negligent acts necessarily result in separate "accidents." Id. at 1395, 258 Cal.Rptr. 52. Rather, "[i]f cause and result are so simultaneous or so closely linked in time and space as to be considered by the average person as one event, courts adopting the cause analysis uniformly find a single occurrence or accident." Id. at 1394, 258 Cal.Rptr. 52 (internal quotation marks omitted). Consistently with that premise, the court ultimately concluded that "the insurance policy provisions limiting maximum liability `for any one auto accident' unambiguously contemplate two consecutive collisions as occurred here to be one accident." Id. at 1396, 258 Cal.Rptr. 52.
We do not understand plaintiff here to ultimately dispute the abstract correctness of the proximate cause-driven construct of "any one accident" as expressed in Baggett, specifically including its proviso as to the spatial and temporal proximity of the initial and subsequent impacts involving separate vehicles. Rather, plaintiff contends that the proper application of that construct here compels the conclusion that plaintiff was injured as the result of two accidents, not one.
In Rawls, the insured driver, who was driving northbound on a highway at high speeds attempting to elude the police, collided with the rear of a northbound automobile, "knock[ing] it off the highway." 404 F.2d at 880. The insured driver then continued northward, veered across the center lane, and collided head-on with a southbound vehicle. The tortfeasor driver's liability insurance policy provided that $20,000 was "`the total limit of the company's liability * * * as the result of any one accident.'" Id. The insurance company settled with the occupants of the second car for $20,000, and, in subsequent litigation against the insured, the occupants of the first car contended that that settlement had not exhausted coverage limits because there had been two accidents, not one. Id. The district court, on stipulated facts and by way of summary judgment, concluded that there had been two accidents. Id. The Fifth Circuit affirmed:
Accordingly, "there were, in law, two accidents." Id. at 881.
In Szczepkowicz, another declaratory judgment action, the insured truck driver had attempted, in foggy conditions, to cross over the median of a four-lane highway. 185 Ill.App.3d 1091, 134 Ill.Dec. 90, 542 N.E.2d at 91. The insured driver stopped with the rear portion of the driver's tractor-trailer in the northbound traffic lanes, and a northbound vehicle collided with the rear of the trailer. Id. The insured truck driver then "moved forward approximately 12 feet `almost immediately' after the collision, and then stopped again"; however, the trailer continued to block the northbound lanes. Five minutes later, another northbound vehicle collided with the trailer. Id. The occupants of both vehicles sought to recover for their injuries, implicating the liability policy's coverage limits of $300,000 for one accident. Id.
The trial court, on summary judgment, concluded that there had been two accidents. Id. at 91, 542 N.E.2d 90. The appellate court, adopting the same (proximate) "cause theory" as in Baggett, observed:
Id. at 92, 542 N.E.2d 90 (internal quotation marks omitted). The court then canvassed case law from other states and noted that, generally, two accidents occur where collisions are separated by time and distance and the cause of the subsequent collision is distinct; conversely, only one accident occurs where separate collisions are "almost instantaneously" and the subsequent impact was caused by the first impact. Id. at 93, 542 N.E.2d 90. Applying the cause theory, the court concluded that two accidents had occurred. Id.
Here, plaintiff argues that, as a matter of law under the reasoning in Rawls and Szczepkowicz, two accidents occurred in this case because the evidence establishes that the initial collision with the first vehicle (driven by Turner), which caused the UIM-insured vehicle to come to rest against the center barrier, and the subsequent collision with the second vehicle (driven by Oliver), while plaintiff was still in the insured vehicle, were "separated by time and space" and because the driver (Lorenz) resumed control of the UIM-insured vehicle during the interval between the impacts.
On this record, we respectfully disagree.
In that regard, we emphasize two overarching and, ultimately, dispositive considerations. The first is the proper allocation of the burden of production and persuasion as to establishing coverage — and specifically, the availability of coverage for multiple "accidents." Because, "[u]nder Oregon law, the initial burden of proving coverage is on the insured[,]" Employers Insurance of Wausau v. Tektronix, Inc., 211 Or.App. 485, 509, 156 P.3d 105, rev. den., 343 Or. 363, 169 P.3d 1268 (2007), plaintiff had the burden of presentation and persuasion as to whether there were two accidents, instead of one.
Second, and equally critical, is the idiosyncratic posture of this case. Plaintiff does not contend that, given the trial court's erroneous
Thus, in the hackneyed, but here apt, phrase, the record "is what it is." And plaintiff, as the party with the burden of presentation and persuasion with respect to establishing the availability of coverage for two accidents instead of one, was obligated at least to adduce prima facie evidence that the second collision was not merely proximately derivative of the causation of the first.
Plaintiff failed to meet that prima facie burden. That is so because the record is completely devoid of any evidence regarding the cause of the second collision. The record reveals only that the plaintiff's truck came to rest pinned against a barrier on the center median and that Lorenz was concerned that, if plaintiff got out on the passenger side, she might be injured by passing traffic. No evidence reveals what caused the second vehicle to collide with plaintiff's truck.
Further, to the extent that (as recognized in Baggett and other decisions) distinct causation can be circumstantially inferred from substantial temporal or spatial attenuation of the separate collisions, the record here was legally insufficient to support such an inference. The time between the two successive collisions was brief — almost certainly akin to the time in Baggett — and the record does not disclose the distance between the points of impact. On this record, any inference as to the causal dynamics of the second collision would be impermissibly speculative.
In sum, this limited record is insufficient to support a determination of multiple "accidents" for purposes of UIM coverage. Accordingly, the trial court erred in failing to apply a single policy limit of $500,000.
Reversed and remanded with instruction to apply $500,000 limit of liability to judgment in plaintiff's favor.
(Emphasis added.)
