MacMillan v. John Deere Insurance

LANDAU, J. At issue in this case is whether defendant John Deere Insurance Company (John Deere) has a duty to defend plaintiff Trus Joist MacMillan (Trus Joist),1 whose employee assisted in the loading of a truck that John Deere insured. The trial court held that, under Oregon law, the duty to defend applies only to persons who “used” the insured’s truck, and that, by merely assisting in the loading of the insured’s truck, the Trus Joist employee did not “use” it. We affirm. The relevant facts are undisputed. Trus Joist manufactures and sells wood floor joists. A customer purchased several bundles of joists. Newton & Sons, Inc. (Newton), arrived to pick up the joists and transport them to the customer. The parties stipulated that Newton did not work for Trus Joist and that Trus Joist did not hire Newton to transport the joists. Newton is insured by John Deere. The policy defines an “insured” to include permissive users, with specified exceptions: “1. WHO IS AN INSURED “The following are ‘insureds’: “a. You for any covered ‘auto.’ “b. Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow, except: “(4) Anyone other than your employees, partners, a lessee or borrower or any of their employees, while moving property to or from a covered ‘auto.’ ” One of Trus Joist’s employees helped Newton to load and secure several bundles of joists onto Newton’s tractor-trailer. Some hours later, as the Newton truck proceeded to — 479 — its destination, it veered across the center lane of the highway, spilled its load, and hit an oncoming car, killing its driver, Earl Shew. Shew’s estate filed a wrongful death action against Newton. Newton then filed a third-party complaint against Trus Joist, alleging that the accident occurred in part because the load of joists had shifted due to Trus Joist’s negligence in assisting with the loading. Trus Joist then tendered the defense of the action to Newton’s insurer, John Deere, arguing that it was entitled to defense as permissive users of Newton’s truck. John Deere denied coverage and refused to defend Trus Joist in the Shew action. Trus Joist then initiated this action for a declaration that John Deere is obligated to defend it in the Shew action. John Deere moved for summary judgment, relying on the policy provision that excluded coverage for persons “moving property to or from” a covered vehicle. Trus Joist filed a cross-motion for summary judgment, arguing that the exclusion does not apply and that, in any event it is “trumped” by ORS 806.080, which requires all motor vehicle liability policies to include coverage for permissive users of an insured vehicle. According to Trus Joist, by helping Newton to load its truck, the Trus Joist employee became a permissive user of the Newton truck. The trial court held that, even if the Trus Joist employee “used” the Newton truck within the meaning of the term in ORS 806.080, that use ceased long before the accident that resulted in Shew’s death. Accordingly, the trial court entered summary judgment for John Deere. On appeal, Trus Joist argues that the trial court erred in allowing John Deere’s summary judgment motion and in denying the cross-motion. According to Trus Joist, the policy exclusion does not apply, because it excludes coverage only while property is being loaded and unloaded, and, in this case, the accident did not occur until long after. In the alternative, Trus Joist argues that, regardless of any exclusions in John Deere’s policy, ORS 806.080 mandates coverage and creates a duty to defend, because its employee “used” Newton’s covered vehicle when he assisted Newton in loading it. In support of its argument, Trus Joist places particular reliance on Liberty Mut. Ins. v. Truck Ins., 245 Or 30, 420 P2d 66 (1966), which it reads as holding that the loading of a — 480 — track amounts to using the truck for purposes of Oregon insurance law. In response, John Deere begins by arguing that the policy exclusion for loading and unloading covered vehicles plainly does apply: Trus Joist can claim coverage only to the extent that it was a permissive user, and the basis for its claim of permissive use — loading and unloading of the vehicle — is expressly excluded. John Deere then contends that ORS 806.080 does not impose a duty to defend for either of two reasons. First, it argues that the statute applies only to motor vehicle liability insurance policies, while the policy issued to Newton was for a “motor truck.” Second, John Deere argues that, even if the statute applies to commercial motor carrier policies, it does not create a duty to defend in this case because, by merely assisting Newton in loading Newton’s truck, Trus Joist’s employee did not “use” the truck within the meaning of the statute. We begin with the parties’ arguments about the effect of the policy exclusion. The policy defines as an insured anyone “while using” a covered vehicle, excluding anyone “while moving property to and from” a covered vehicle. Trus Joist argues that the exclusion does not apply, because the Shew accident occurred after the loading and unloading. As John Deere complains, however, the argument cannot be reconciled with the language of the policy. That policy provides coverage for permissive users of a covered vehicle. Trus Joist contends that its employee used the Newton truck when he assisted in the loading of that truck. But loading the truck is expressly excluded from coverage. Thus, the very act on which Trus Joist relies to demonstrate its permissive use is one that the policy excludes from coverage. We conclude that the policy unambiguously excluded from coverage the act of loading the Newton truck. We turn to the question whether ORS 806.080 creates a duty to defend notwithstanding the policy exclusion. That statute provides, in part: “(1) A motor vehicle liability insurance policy used to comply with financial responsibility requirements * * * must meet all of the following requirements: — 481 — “(b) It must insure the named insured and all other persons insured under the terms of the policy against loss from the liabilities imposed by law for damages arising out of the ownership, operation, use or maintenance of those motor vehicles by persons insured under the policy. The policy must include in its coverage all persons who, with the consent of the named insured, use the motor vehicles insured under the policy * * John Deere’s first argument is that the statute does not apply, because the statute applies only to liability insurance for “motor vehicles,” not “motor trucks.” We disagree. ORS 801.355 provides that, for the purposes of ORS chapters 801 through 826, the term “motor truck” means “a motor vehicle that is primarily designed or used for carrying loads other than passengers.” Thus, the statute defines a “motor truck” as a species of “motor vehicle.” John Deere’s second argument is that, in any event, the statute does not create a duty to defend, because Trus Joist’s employee did not “use” the Newton truck. With that argument we agree. The statute requires coverage for persons who, with permission, “use” the named insured’s vehicle. That means that the person must actually put the vehicle to his or her own use. In this case, there is no evidence that Trus Joist’s employee did that. As with the construction of statutes generally, we begin with the text of the provisions of insurance statutes, in their context, to determine the intended meaning of the wording in dispute. Marcilionis v. Farmers Ins. Co., 318 Or 640, 645, 871 P2d 470 (1994). The ordinary meaning of the verb “use” is “to put into action or service : have recourse to or enjoyment of: EMPLOY * * * to carry out a purpose or action by means of : make instrumental to an end or process : apply to advantage : turn to account: UTILIZE * * Webster’s Third New Int’l Dictionary, 2523-24 (unabridged ed 1993). To “employ,” in turn, means “to make use of * * * to use or occupy advantageously * * Id. at 743. And to “utilize” means “to make useful : turn to profitable account or use.” Id. at 2525. Putting aside the inherently tautological — 482 — nature of this definitional exercise, the point is clear that “use” connotes acting in a way that serves some purpose of the user. See Couch on Insurance 3d § 111:35 (1997) (“ ‘Use’ is to be given its ordinary meaning. It denotes the employment of the automobile for some purpose of the user.”) (footnote omitted). When Trus Joist’s employee assisted in the loading of Newton’s truck, he did not “use” the truck. He did not put the truck into action, employ it, apply it to his or his employer’s advantage, or utilize it. The parties, in fact, stipulated that Trus Joist did not hire the truck and that Newton did not work for Trus Joist. Trus Joist’s employee simply offered assistance to Newton in its loading of its truck. Newton may have been using the truck, but Trus Joist’s employee was not. That only makes sense. See State v. Steele, 33 Or App 491, 499, 577 P2d 524 (1978) (statutes must be read “with the saving grace of common sense”). A grocery store clerk who helps a customer load his or her car with groceries is not using the customer’s car. The customer is. Liberty Mut. Ins. is not to the contrary. To begin with, the issue in that case was the meaning of an insurance policy, not ORS 806.080. In any event, the case is distinguishable on its facts. In Liberty Mut. Ins., U. S. Plywood purchased a load of logs and had them shipped by Butler Transport. The driver was injured when unloading the logs at U. S. Plywood’s site. The driver brought an Employers’ Liability Act action against U. S. Plywood. After that claim was settled, U. S. Plywood sought coverage from Butler’s motor vehicle liability insurer for liability incurred as a result of the use of the truck. The court held that, in unloading its logs from the truck, U. S. Plywood was “using” the truck. 245 Or at 33. The court’s holding is unremarkable, given that, in unloading its own logs from the truck, U. S. Plywood was employing the track to its advantage. In this case, in contrast, Trus Joist sold the joists and had no further interest in them and had no interest in how they were transported to whoever purchased them, whether they were shipped by Newton’s truck or by any other means. Thus, there is no evidence that Trus Joist derived any benefit — 483 — from offering gratuitous assistance to Newton. In no reasonable sense of the term can it be said that Tras Joist’s employee “used” Newton’s track. The dissent arrives at a different conclusion, but by ignoring the ordinary meaning of the relevant statutory wording. According to the dissent, to determine the meaning of ORS 806.080, we should consult the John Deere policy and not a dictionary of ordinary meanings. That is not the way interpretation of the Oregon insurance code works, however. The focus of statutory construction is the intentions of the legislature, not the intentions of the parties to a private insurance policy. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). There is a presumption that the legislature intended the ordinary meaning of terms to apply, as generally reflected in common dictionary definitions. See, e.g., Marcilionis, 318 Or at 644-45 (insurance statutes to be interpreted in accordance with “natural, plain, and ordinary meaning” of their terms). To the extent that the policy in this case reflects a different meaning of the term “use,” it simply demonstrates that the parties intended something other than the ordinary meaning of the term. It says nothing about what the legislature intended ORS 806.080 to mean. The dissent similarly appeals to what it characterizes as the majority rule in the case law, of other jurisdictions as to the meaning of the “use” of a motor vehicle. Again, the dissent ignores the proper approach to the construction of statutes, which is to ascertain what the Oregon legislature intended the disputed wording to mean. Those intentions are not determined merely by counting cases from other jurisdictions. This is not a case in which the Oregon legislature enacted a uniform law. See, e.g., Security Bank v. Chiapuzio, 304 Or 438, 445 n 6, 747 P2d 335 (1987) (“the legislative intent to make the UCC a uniform code makes relevant the decisions of other courts”). Nor is it a case in which the Oregon statute is based on the wording of a statute from another jurisdiction, in which case pre-existing decisions from that jurisdiction may become relevant. See, e.g., Pamplin v. Victoria, 319 Or 429, 433, 877 P2d 1196 (1994) (pre-existing federal court decisions construing federal rule of civil procedure relevant to interpretation of identical — 484 — Oregon rule based on the federal counterpart). In the absence of any such evidence that the Oregon legislature intended to follow decisions of other jurisdictions, the fact that some of those decisions construe similar language differently provides little, if any, assistance to us in determining what the Oregon legislature intended. We conclude that the trial court did not err in entering summary judgment in favor of defendant John Deere. Affirmed. Footnotes [1] Plaintiffs are Trus Joist MacMillan, an Idaho corporation, and Trus Joist MacMillan, a limited partnership. For ease of reference, we refer to the two as a single entity.