Opinion
Argued October 11, 1972
Modified and remanded December 14, 1972
IN BANC
Appeal from Circuit Court, Multnomah County.
WILLIAM M. DALE, Judge.
MODIFIED AND REMANDED.
Frederic P. Roehr, Portland, argued the cause for appellant. With him on the brief were Vergeer, Samuels, Roehr Sweek, Portland. David N. Hobson, Portland, argued the cause for respondent. With him on the brief were Phillips, Coughlin, Buell, Stoloff Black, Portland.
Defendant appeals from a judgment in favor of plaintiff which was entered after a demurrer to plaintiff's complaint was overruled and defendant refused to plead further.
Defendant issued a policy of automobile insurance to plaintiff which contained uninsured motorist coverage regardless of whether plaintiff was occupying an owned automobile or one belonging to another. Plaintiff was injured by an uninsured motorist while riding as a passenger in a vehicle other than his own. Plaintiff was also the beneficiary of a policy containing uninsured motorist coverage issued by Volkswagen Insurance Company to the owner of the vehicle in which plaintiff was riding. Each policy provided coverage of $10,000. Plaintiff's damage was in excess of $20,000. Volkswagen paid plaintiff $10,000. Plaintiff brought this action upon his policy issued to him by defendant and secured a judgment for an additional $10,000. Defendant contends there is no liability to plaintiff under its policy, but, if there is, that liability can be no more than $5,000.
The applicable provisions of both the defendant's and Volkswagen's policy and the legal questions involved are substantially the same as those considered by this court in Byrns v. Allstate Ins. Co., 262 Or. 462, 498 P.2d 762 (1972). Byrns holds that an insurer in defendant's position is responsible to its insured for that proportion of the greater of the two policies which defendant's policy limits bear to Volkswagen's limits.
Also see, U.S. Fidelity and Guaranty v. Farmers Insurance Exchange, 263 Or. 457, 502 P.2d 1375 (1972), and Thurman v. Signal Insurance Co., 260 Or. 524, 491 P.2d 1002 (1971).
The judgment of the trial court is modified and the case is remanded for the entry of a judgment against defendant in the sum of $5,000.