McNeil v. Geico Casualty Company, Inc.

Plaintiff appealed a judgment dismissing her claim for breach of an insurance contract and violation of ORS 742.061. On appeal, plaintiff argued that an issue of coverage under the policy was raised when Defendant applied the PIP offset to the UM policy limits, this was a violation of the applicable statutes and insurance contract, and contrary to Defendant’s safe harbor letter. Defendant asserts that determining the damages owed to plaintiff including the issue of how to apply the PIP offset, was part of the scope of the arbitration and allowed under ORS 742.061(3) as relating to “the damages due the insured.” In safe harbor provisions for UM/UIM claims, “damages due the insured” “refers to the type of damages that would be payable in that type of case, namely, the damages that the insured would be ‘legally entitled to recover’ from the uninsured or underinsured motorist.” Spearman v. Progressive Classic Ins. Co., 361 Or 584, 593 (2017). The Court found that, as a matter of law, Defendant did not leave the safe harbor of ORS 742.061(3). Because plaintiff’s claim for attorney fees wholly relied on Defendant having left the safe harbor, the Court held that the trial court did not err in dismissing Plaintiff’s claim and motion for leave to amend their complaint. Affirmed.