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Oregon Judicial Department Appellate Court Opinions

FILED: January 14, 2004 IN THE COURT OF APPEALS OF THE STATE OF OREGON DELIA L. SCHMIDT, Appellant, v. UNDERWRITERS AT LLOYDS OF LONDON, Respondent. 0201-00717; A119759 Appeal from Circuit Court, Multnomah County. Thomas M. Christ, Judge pro tempore. Argued and submitted September 9, 2003. Michael O. Moran argued the cause for appellant. With him on the briefs was Black, Helterline, LLP. Justin M. Thorp argued the cause for respondent. With him on the brief was Martin, Bischoff, Templeton, Langslet & Hoffman, LLP. Before Edmonds, Presiding Judge, and Armstrong and Schuman, Judges. EDMONDS, P. J. Affirmed. EDMONDS, P. J.

Plaintiff insured appeals after the trial court granted summary judgment to defendant insurer on plaintiff's claim for loss under her fire insurance policy. ORCP 47 C. We affirm.

The material facts are not in dispute. In late January 2001, plaintiff purchased a house in Pendleton with the intention that it become her son's residence. She obtained an insurance policy for the property from defendant that provided coverage for loss from fires from February 14, 2001 through February 14, 2002. Soon thereafter, plaintiff's son began paying rent to plaintiff for the Pendleton house in anticipation of his relocation there from Portland. Plaintiff and her son also took some of his belongings to

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Oregon Judicial Department Appellate Court Opinions

the house in late February. At that time, they performed house cleaning tasks and some repair work, but no one stayed overnight at the house because the power, water and heat were not turned on until April 2, 2001. During the February visit to Pendleton, plaintiff's son applied for jobs in that area and listed the Pendleton house as his address on the applications and his resume. On either the first or second weekend in April, plaintiff's son returned to the house with most of his belongings, although he left his clothing where he was living with plaintiff in Portland because he had not yet obtained other employment. After staying in the house for the weekend, he returned to Portland. Neither he nor his mother had any contact with the house thereafter. A fire caused by faulty wiring destroyed the house on May 30, 2001.

Plaintiff made a claim for the loss under her insurance policy that defendant denied because the house was unoccupied for more than 60 days before the fire. The policy includes an exclusion for coverage that suspends or restricts insurance coverage when there is an increase in the hazards insured against. The exclusion from coverage provides, in relevant part: "As provided in this policy, the Company shall not be liable for loss occurring * * * while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days[.]" Plaintiff filed a complaint for breach of contract seeking damages for the amount of her loss. Plaintiff and defendant each sought summary judgment arguing, respectively, that as a matter of law the house was or was not "occupied." In a well-reasoned opinion, the trial court concluded that the policy exclusion applied because, as a matter of law, "the house was unoccupied at the time of the fire and for at least sixty days beforehand." We reach the same conclusion.

The only question on appeal is whether the house was "unoccupied beyond a period of 60 consecutive days." In light of the date of the fire, the only contact with the house during the pertinent time involved plaintiff's son staying there on the first or second weekend of April. We must consider the meaning of the terms and conditions in the policy as they were intended by the parties. Hoffman

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Oregon Judicial Department Appellate Court Opinions

Construction Co. v. Fred S. James & Co., 313 Or 464, 469, 836 P2d 703 (1992). The policy itself does not define the term "unoccupied." However the language in the policy contains the current statutory language required by ORS 742.216. That statute provides, in relevant part: "A fire insurance policy shall contain a provision as follows: 'Unless otherwise provided in writing added hereto this company shall not be liable for loss occurring: "'* * * * * "'(2)While a described building, whether intended for occupancy by owner or tenant, is vacated or unoccupied beyond a period of 60 consecutive days[.]'" Where language appears in the contract because the legislature requires it, we must necessarily determine the meaning intended by the legislature. Moore v. Mutual of Enumclaw Ins. Co., 317 Or 235, 244-45, 855 P2d 626 (1993).

ORS 742.216 contains almost the same language that the legislature enacted in 1907. The relevant portion of that law provided that insurance policies contain the following language: "This entire policy * * * shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days." Lord's Oregon Laws, title XXXIV, ch VI,

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