Wright v. Turner

Under ORS 742.504(7)(a) and ORS 742.502(2), uninsured motorist protection is part of coverage under an insurance policy; the burden of proof is on the insured to prove coverage. FountainCourt Homeowners v. FountainCourt Develop., 360 Or 341, 360, 380 P3d 916 (2016).

Insurer, Mutual of Enumclaw, appealed jury verdict awarding Insured, Wright, damages for two car accidents, where the jury was unable to apportion the damages between the two accidents.  On appeal, Mutual of Enumclaw assigned error to the trial court’s decision to place the burden of proving the number of accidents and apportionment of damages on Mutual of Enumclaw, instead of on Wright. Mutual of Enumclaw argued that the insured bears the burden to prove allocation of damages.  In response, Wright argued that the trial court did not err in placing the burden of proving apportionment on Mutual of Enumclaw because multiple tortfeasors are liable for all of the plaintiff’s harm if the harm cannot be apportioned.  Under ORS 742.504(7)(a) and ORS 742.502(2), uninsured motorist protection is part of required insurance coverage in Oregon.  The insured seeking coverage has the burden of proving coverage. FountainCourt Homeowners v. FountainCourt Develop., 360 Or 341, 360, 380 P3d 916 (2016).  The Court held that because uninsured motorist protection is an entitlement of coverage, the insured bears the burden of proving the number of accidents and whether damages should be apportioned.  Thus, the trial court erred in placing the burden of proving allocation of damages on Mutual of Enumclaw. Reversed and remanded for the limited purpose of getting a jury verdict on apportionment of damages between the two accidents, with burden of apportioning on Wright.