Filed: September 9, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

FARMERS INSURANCE COMPANY OF OREGON,

Respondent on Review,

v.

TOSHA K. MOWRY,

Petitioner on Review.

(CC 080202045; CA A141214; SC S058706)

En Banc

On review from the Court of Appeals.*

Argued and submitted on March 1, 2011.

Kathryn H. Clarke, Portland, argued the cause and filed the brief for petitioner on 

review. With her on the brief was Hala J. Gores, Portland.

Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, argued the cause and 

filed the brief for respondent on review.

BALMER, J.

The decision of the Court of Appeals and the judgment of the circuit court are 

affirmed. 

DURHAM, J., filed a specially concurring opinion, in which DeMuniz, C.J., and 

Walters, J., joined.

* Appeal from Multnomah County Circuit Court. Henry C. Breithaupt, Circuit 

Judge Pro Tem. 236 Or App 236, 234 P3d 1098 (2010).
1

1 BALMER, J.

2 This case concerns the proper application of stare decisis and requires us to 

3 decide whether Collins v. Farmers Ins. Co., 312 Or 337, 822 P2d 1146 (1991), is still 

4 good law. In Collins, this court held that an exclusion in a motor vehicle liability 

5 insurance policy that purported to eliminate all coverage for a claim by one insured 

6 against another insured under the same policy was unenforceable to the extent that it 

7 failed to provide the minimum coverage required by the Financial Responsibility Law 

8 (FRL), ORS 806.060 and ORS 806.070. Id. at 347. The exclusion, however, was 

9 enforceable as to any coverage beyond that statutory minimum. Id. In this case, plaintiff, 

10 Farmers Insurance Company, issued an insurance policy to defendant, Tosha Mowry, that 

11 contained an exclusion identical to the exclusion in Collins. Defendant was injured in an 

12 accident in which her friend -- a permissive user and thus an insured person under the 

13 policy -- was driving. Plaintiff brought this action seeking a declaration that defendant 

14 had $25,000 available in coverage under her policy -- the minimum coverage required by 

15 the FRL for bodily injury to one person in any one accident. Defendant argues that her

16 coverage is $100,000, the insurance amount stated on the declarations page of her policy. 

17 The parties filed cross-motions for summary judgment, and the trial court granted 

18 plaintiff's motion and denied defendant's. The Court of Appeals affirmed in a per curiam 

19 opinion that cited Collins. Farmers Ins. Co. v. Mowry, 236 Or App 236, 234 P3d 1098 

20 (2010). We affirm. 

21 The facts are undisputed. Plaintiff issued defendant a motor vehicle 

22 liability insurance policy that provides liability coverage with limits of $100,000 per 
2

1 person and $300,000 per occurrence. Exclusion 12(a) of the policy, however, states that 

2 "coverage does not apply to * * * [l]iability for bodily injury to an insured person." The 

3 policy defines an "insured person," in relevant part, as "you" or "[a]ny person using your 

4 insured car." Thus, the policy provided insurance coverage for claims made against an 

5 insured by third parties, but purported to exclude coverage for claims against an insured 

6 made by other "insured persons" under the policy, such as family members or others 

7 using the insured vehicle.

8 In 2005, defendant was injured in a collision while riding as a passenger in 

9 her own vehicle, which her friend was driving. Under the insurance policy, defendant's 

10 friend was an insured person. Defendant made a claim under the policy, but defendant 

11 and plaintiff disagreed on the amount of coverage available for the claim. Plaintiff 

12 contended that $25,000 was available -- the minimum amount required by the FRL --

13 because exclusion 12(a) caused defendant's coverage to "drop down" from the otherwise 

14 applicable per person liability coverage in the policy. Defendant sought coverage of 

15 $100,000 -- the per person liability coverage stated on the declarations page of the policy. 

16 As noted, the trial court and the Court of Appeals agreed with plaintiff, citing Collins. 

17 Defendant sought review, arguing that Collins should be overruled because it was 

18 wrongly decided and is in conflict with a more recent case, North Pacific Ins. Co. v. 

19 Hamilton, 332 Or 20, 22 P3d 739 (2001). 

20 We begin by reviewing the relevant statutes and then turn to this court's 
3

1 decision in Collins. Under ORS 742.450(4) (2005), amended by Or Laws 2007, ch 782, § 

1,

1

2 "[e]very motor vehicle liability insurance policy issued for delivery in this state shall 

3 provide liability coverage to at least the minimum limits specified in ORS 806.070." 

4 ORS 806.070(2)(a) sets the minimum limit at "$25,000 [for] bodily injury to or death of 

5 one person in any one accident." ORS 742.464 provides:

6 "Any policy which grants the coverage required for a motor vehicle 

7 liability insurance policy under ORS 742.450, 806.080 and 806.270 may 

8 also grant any lawful coverage in excess of or in addition to the required 

9 coverage, and such excess or additional coverage shall not be subject to the 

10 provisions of * * * [ORS] 742.450 to 742.464. With respect to a policy 

11 which grants such excess or additional coverage only that part of the 

12 coverage which is required by ORS 806.080 and 806.270 is subject to the 

13 requirements of those sections."

14 Thus, an insurance policy may limit the coverage for some types of liability, including 

15 insured-versus-insured claims, to the minimum limits required by the FRL even though 

16 the policy provides greater coverage for other types of claims. 

17 In Collins, Farmers issued a motor vehicle liability policy that was virtually 

18 identical to the policy in this case, including a liability limit of $100,000 per person and 

19 $300,000 per occurrence and an exclusion stating that "coverage does not apply to * * * 

 

1

In 2007, the legislature amended ORS 742.450 by adding subsection (8): 

"Every motor vehicle liability insurance policy issued for delivery in this state shall 

contain a provision that provides liability coverage for each family member of the insured 

residing in the same household as the insured in an amount equal to the amount of 

liability coverage purchased by the insured." Aside from that amendment, which was not 

in effect at the time of the accident in this case, the legislature has not altered the 

provisions of any statute relevant to this case since Collins. Subsequent references to 

ORS 742.450 are to the 2005 version of the statute. 
4

1 [l]iability for bodily injury to an insured person." Collins, 312 Or at 339 (boldface type 

2 omitted). The plaintiff, a family member of the insured, was injured while a passenger in 

3 the insured's car. As a family member of the insured, the plaintiff was an insured person 

4 under the policy. Farmers notified the plaintiff that it would only provide $25,000 in 

5 coverage, the minimum amount required by the FRL. The plaintiff asserted that the 

6 absolute exclusion violated Oregon law and was therefore completely unenforceable. 

7 The plaintiff argued that he was entitled to $100,000 in coverage, the full amount stated 

8 on the declarations page of the policy. Id. at 340. 

9 After describing the relevant components of the FRL, the court stated that 

10 Oregon law implies in every motor vehicle liability insurance policy issued in the state a 

11 provision that the policy includes the minimum coverage required by ORS 742.450, ORS 

12 806.080, and ORS 806.270. Id. at 342. "Coverage other than that required by law may 

13 be limited by any lawful exclusion." Id. at 343. More specifically, the court stated:

14 "The manifest purpose of ORS 742.464 is to permit an insurer to 

15 write any other lawful coverage that the insurer wishes to write, in addition 

16 to the required coverage. Such coverage may include higher limits than 

17 those required by ORS 742.450 and 806.080. But as to such higher limits, 

18 the mandatory requirements of ORS 742.450 and 806.080 do not apply. 

19 The insurer may limit such additional coverage by any exclusion not 

20 otherwise prohibited by law."

21 Id. at 342. 

22 The court then examined whether the absolute exclusion for insured-versus23 insured claims in that policy -- an exclusion, as noted, identical to the one in this case --
5

1 limited coverage to the FRL minimum. Because the law implies in every insurance 

policy the minimum requirements of the FRL22 and because coverage beyond those 

3 minimums could be limited by any lawful exclusion, the court held that the absolute 

4 exclusion "although ineffective as to the first $25,000 of coverage, [was] effective as to 

5 any coverage in addition to $25,000." Id. at 343. 

6 A dissenting opinion in Collins argued at length that the plaintiff should 

7 have had $100,000 of coverage under the policy. The dissent took issue with the 

8 majority's interpretation of ORS 742.464. In its view, that statute required an insurance 

9 policy to first grant the minimum coverage required by the FRL before the policy could

10 exclude excess coverage. Collins, 312 Or at 351 (Unis, J., dissenting). Because the 

11 exclusion in Collins denied all coverage for insured-versus-insured claims instead of 

12 granting the minimum required by the FRL, ORS 742.464 did not allow Farmers to 

 

2 Unlike the policy in this case, the policy in Collins included a provision that 

"[p]olicy terms which conflict with laws of Oregon are hereby amended to conform to 

such laws." 312 Or at 343. The court, however, noted that that provision is merely an 

embodiment of ORS 742.038(2), which provides: 

 "Any insurance policy issued and otherwise valid which contains

any condition, omission or provision not in compliance with the Insurance 

Code, shall not be thereby rendered invalid but shall be construed and 

applied in accordance with such conditions and provisions as would have 

applied had such policy been in full compliance with the Insurance Code."

Thus, the court in Collins would have construed the policy to comply with Oregon law 

even had the policy not included the provision mention above. 312 Or at 343. See also 

Fleming v. United Services Automobile Assn., 329 Or 449, 459, 988 P2d 378 (1999) 

(ORS 742.038(2) "requires courts to construe an otherwise valid insurance policy to bring 

the policy into full compliance with the Insurance Code.").
6

1 exclude any excess coverage. Id. at 352. The dissent concluded:

2 "If the insurer wishes to exclude from excess coverage persons required * * 

3 * to be covered for the statutory minimum, it must first affirmatively grant 

4 the statutorily-required minimum coverage for those persons, ORS 

5 742.464, and must state the limits of liability, ORS 742.450(1)."

6 Id. (emphasis omitted).

7 The dissent also voiced concern that the majority position would encourage

8 insurers to rely on automatic inclusion of the statutory minimum coverage in policies 

9 they issue rather than writing policies that state precisely the actual coverage purchased 

10 by the insured. "The danger is that an insured and other parties might assume that the 

11 contract provisions are lawful and mean what they say and might thereby forgo making 

12 claims for coverage that Oregon law requires insurance companies to provide." Id. at 353 

13 (internal quotation marks and citation omitted). The dissent argued that such a result 

14 "rewards an insurance company for selling an insurance policy that it did not certify 

15 under [the FRL] and that it should have known did not comply with [the] FRL because it 

16 contained an exclusion which improperly denied liability coverage required by [the] 

17 FRL." Id. at 347-48.

18 In this case, defendant argues that we should overrule Collins because it 

19 was wrongly decided and because Hamilton calls the reasoning of Collins into question. 

20 Plaintiff, on the other hand, asserts that the principle of stare decisis prohibits this court 

21 from overruling precedent without sufficient justification, which defendant, in plaintiff's 

22 view, has not provided. Plaintiff argues that the issues raised by defendant were fully 

23 considered by the Collins court and that Hamilton does not conflict with Collins. 
7

1 Because the parties disagree about how stare decisis should be applied in 

2 this case, we turn to a review of that doctrine. "[T]he principle of stare decisis dictates 

3 that this court should assume that its fully considered prior cases are correctly decided. 

4 Put another way, the principle of stare decisis means that the party seeking to change a 

5 precedent must assume responsibility for affirmatively persuading us that we should 

6 abandon that precedent." State v. Ciancanelli, 339 Or 282, 290, 121 P3d 613 (2005). As 

7 this court has often stated, the motivating force behind the doctrine of stare decisis is 

8 "moral and intellectual, rather than arbitrary and inflexible." Stranahan v. Fred Meyer, 

9 Inc., 331 Or 38, 54, 11 P3d 228 (2000) (quoting Landgraver v. Emanuel Lutheran, 203 

10 Or 489, 528, 280 P2d 301 (1955)). 

11 Our cases discussing stare decisis identify various considerations that this 

12 court has weighed in deciding whether to follow or to overrule an earlier decision. We 

13 have emphasized the "undeniable importance of stability in legal rules and decisions," 

14 Stranahan, 331 Or at 53, an importance based on the values of predictability, fairness, 

15 and efficiency that are furthered by adherence to precedents. But we also have 

16 recognized "the need * * * to correct past errors," id., and to depart from precedent when 

17 the statutory context for a particular decision has substantially changed, e.g., Holcomb v. 

18 Sunderland, 321 Or 99, 105, 894 P2d 457 (1995), or when a party affirmatively 

19 demonstrates that "an earlier case was inadequately considered or wrong when it was 

20 decided." G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 

21 (1988). Although our cases apply stare decisis differently in different contexts, as 

22 discussed in greater detail below, it is a unitary doctrine that applies generally to this 
8

1 court's decisions. Put differently, the same considerations underlie the presumption that 

2 we will adhere to precedent whether the case involves constitutional interpretation, 

3 statutory interpretation, or common-law rule -- but the import of those considerations will 

vary depending on the case.

3

4

5 Before returning to the parties' differing views on the application of stare 

6 decisis in this case, we pause to sketch briefly our approach to stare decisis in several 

7 common types of cases. In the area of constitutional interpretation, our cases emphasize 

8 that decisions "should be stable and reliable," because the Oregon Constitution is "the 

9 fundamental document of this state." Stranahan, 331 Or at 53. On the other hand, there 

10 is a "similarly important need to be able to correct past errors" because "[t]his court is the 

11 body with the ultimate responsibility for construing our constitution, and if we err, no 

12 other reviewing body can remedy that error." Id. In Stranahan, this court went on to 

 

3 We do not undertake in this opinion to identify an exhaustive list of 

"considerations" that may be appropriate in determining whether a particular precedent 

should be followed or abandoned. The circumstances in which stare decisis applies are 

simply too varied. We note, however, that in addition to the considerations discussed in 

this opinion, this court has inquired into the age of the precedent at issue and the extent to 

which it had been relied upon in other cases. See Ciancanelli, 339 Or at 290-91 

(distinguishing Stranahan, where precedent being reconsidered was less than 10 years old 

and had been little relied upon, with precedent challenged there, which was more than 20 

years old and had been followed in many cases). We also acknowledge that the "degree" 

of the error in the earlier case and the extent of any resulting injustice or harm have both 

played roles, although impossible to quantify, in our cases. See Severy/Wilson v. Board 

of Parole, 349 Or 461, 474, 245 P3d 119 (2010) (an earlier interpretation of statute may 

"be so deficient" that reexamination is appropriate) (emphasis added); Safeway Stores v. 

State Bd. Agriculture, 198 Or 43, 80, 255 P2d 564 (1953) (court may depart from 

erroneous precedents which result in "grievous wrong" or are "injurious or unjust in their 

operation") (quoting 21 CJS, Courts, § 193, 322). 
9

1 describe the circumstances under which it would revisit an earlier decision interpreting 

2 the Oregon Constitution:

3 "[W]e remain willing to reconsider a previous ruling under the Oregon 

4 Constitution whenever a party presents to us a principled argument 

5 suggesting that, in an earlier decision, this court wrongly considered or 

6 wrongly decided the issue in question. We will give particular attention to 

7 arguments that either present new information as to the meaning of the 

8 constitutional provision at issue or that demonstrate some failure on the part 

9 of this court at the time of the earlier decisions to follow its usual paradigm 

10 for considering and construing the meaning of the provision in question."

11 331 Or at 54. See also Ciancanelli, 339 Or at 289-91, 321-22 (applying Stranahan; 

12 rejecting effort to overturn 20-year-old precedent). 

13 In applying the principle of stare decisis to common-law precedents, we 

14 have relied upon similar considerations, although we have articulated them somewhat 

15 differently. In G.L., for example, we listed three alternative bases, which, if affirmatively 

16 asserted by a party, would "ordinarily" cause us to reconsider a nonstatutory rule or 

17 doctrine:

18 "(1) that an earlier case was inadequately considered or wrong when it was 

19 decided; (2) that surrounding statutory law or regulations have altered some 

20 essential legal element assumed in the earlier case; or (3) that the earlier 

21 rule was grounded in and tailored to specific factual conditions, and that 

22 some essential factual assumptions of the rule have changed." 

23 306 Or at 59 (citations omitted). 

24 G.L., however, does not purport to cover all circumstances in which we will

25 revisit common-law precedent. Rather, G.L. identifies the typical grounds for 

26 reconsidering a decision, namely where a decision was demonstrably wrong or where the 

27 statutory or factual underpinnings of a decision have changed. G.L. has been criticized 
10

1 for making the application of stare decisis too rigid. See Schiffer v. United Grocers, Inc., 

2 329 Or 86, 104-05, 989 P2d 10 (1999) (Durham, J., concurring) (so stating); Keltner v. 

3 Washington County, 310 Or 499, 512-13, 800 P2d 752 (1990) (Unis, J., dissenting) ("The 

4 self-imposed rule of judicial restraint [adopted in G.L.] earns this court the dubious 

5 distinction of being the only state in the union to limit its traditional judicial common 

6 law-making authority so substantially."). But G.L. itself does not purport to establish a 

7 rigid "rule" for applying stare decisis to common-law decisions; rather, it illustrates 

8 common reasons that this court might be willing to reexamine precedent. 

9 This court has addressed stare decisis as it applies to statutory 

10 interpretation on a number of occasions, and not always consistently. At times we have 

11 articulated a strict version of what is often referred to as the "rule of prior interpretation." 

12 Under that rule, "[w]hen this court interprets a statute, the interpretation becomes a part 

13 of the statute, subject only to a revision by the legislature." State v. King, 316 Or 437, 

14 445-46, 852 P2d 190 (1993); see also Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 

15 600 (1992) (same). That statement in King to the contrary notwithstanding, this court has 

16 in fact declined to follow earlier decisions interpreting a statute when it has concluded 

17 that changes to other statutes, which provide the context for the statute at issue, require 

18 reconsideration of the prior decisions, see Holcomb, 321 Or at 105, and when it has been 

19 persuaded that its earlier interpretation was seriously in error. See Severy/Wilson v. 

20 Board of Parole, 349 Or 461, 474, 245 P3d 119 (2010).

21 The strict application of the rule of prior construction has long been 

22 criticized as wrong in principle and unduly restrictive in practice, see State ex rel 
11

1 Huddleston v. Sawyer, 324 Or 597, 638-44, 932 P2d 1145 (1997) (Durham, J., concurring 

2 in part and dissenting in part) (critiquing rule of prior interpretation), and we take this 

3 opportunity to review and, for the reasons that follow, disavow it. The modern 

4 application of the rule first surfaced in State v. Elliott, 204 Or 460, 465, 277 P2d 754 

5 (1955) (adopting rule), cert den, 349 US 929 (1955). When the rule was announced in 

6 Elliot, the court did not explain why (or how) an interpretation of a statute becomes part 

7 of the statute itself. Elliot simply asserted that a prior interpretation "became a part of the 

8 statute as if written into it at the time of its enactment." 204 Or at 465. The authorities 

9 Elliot cited for that proposition are of little help. The first, State ex inf. Harvey v. 

10 Missouri Athletic Club, 261 Mo 576, 606, 170 SW 904, 912 (1914), stated the rule of 

11 prior interpretation, but then declined to follow it because the prior case law was contrary 

12 to the purpose of the statute in question. The second authority, an article from American 

13 Jurisprudence, does not even discuss stare decisis and instead deals with the 

14 interpretation of one state's statutes by courts in a different state.

15 The rule of prior interpretation, as articulated in Missouri Athletic Club, is 

16 based on the theory of legislative acquiescence. 261 Mo at 605, 170 SW at 911. That 

17 theory posits that a judicial decision interpreting a statute becomes ratified by legislative 

18 silence and thus can only be changed by the legislature. Jack L. Landau, Some 

19 Observations about Statutory Construction in Oregon, 32 Willamette L Rev 1, 18-19 

20 (1996). Legislative acquiescence, however, is a legal fiction that assumes, usually 

21 without foundation in any particular case, that legislative silence is meant to carry a 

22 particular meaning -- as relevant here, affirmation of the judicial decision at issue. Id. at 
12

1 19-20. In reality, the legislature may decline to address a judicial decision for any 

2 number of reasons, none of which necessarily constitutes an endorsement of the 

3 decision's reasoning or result; this court does not surrender its authority to reexamine a 

4 prior interpretation of a statute merely because the legislature has been silent on the issue.

5 In Severy/Wilson, this court articulated a less rigid approach to precedent 

6 interpreting a statute: 

7 "Although this court makes every attempt to adhere to precedent, in 

8 accordance with the doctrine of stare decisis, it has, from time to time, 

9 found an earlier interpretation of a statute to be so deficient that it has 

10 concluded that some reexamination of the prior statutory construction was 

11 appropriate." 

12 349 Or at 474. In Severy/Wilson, this court overruled a precedent that was "internally 

13 inconsistent" and "ignore[d] the words of the statute." Id. Similarly, in Holcomb, this 

14 court overruled precedent interpreting a statute when the stated bases for the prior case 

15 did not apply to Holcomb, were no longer correct due to changes in the statutory context, 

16 or provided only marginal support for the prior decision. 321 Or at 105.

17 Thus, our more recent cases discussing stare decisis have, appropriately, 

18 abjured the strict rule of prior interpretation articulated in King and have instead relied 

19 upon considerations similar to those that we have used in examining constitutional and 

20 common-law precedents. That does not mean that we perceive no difference between our 

21 task in interpreting a statute and our task in interpreting a constitutional provision or a 

22 rule of common law. On the contrary, as discussed above, Stranahan makes the point 

23 that, because this court is the ultimate interpreter of state constitutional provisions --

24 subject only to constitutional amendment by the people -- if we have erred in interpreting 
13

1 a constitutional provision, there is no one else to correct the error. That is not true in the 

2 interpretation of statutes. Our responsibility in statutory interpretation is to "pursue the 

3 intention of the legislature, if possible." ORS 174.020(1)(a). After we have interpreted a 

4 statute, the legislature's constitutional role allows it to make any change or adjustment in 

5 the statutory scheme that it deems appropriate, given this court's construction of the 

6 statute (and, of course, subject to constitutional limitations). The legislature can -- and

7 often does -- amend a statute that this court has interpreted to clarify or change the statute 

8 or otherwise to advance the policy objectives that the legislature favors. 

9 For those reasons, we disavow the inflexible rule of prior interpretation as 

10 set out in cases such as Elliott and King. In applying stare decisis to decisions construing 

11 statutes, we will rely upon the same considerations we do in constitutional and common12 law cases, although, as noted, the weight given to particular considerations will not 

13 necessarily be the same. 

14 As the discussion above indicates, the application of stare decisis is not 

15 mechanistic. Rather, stare decisis is a prudential doctrine that is defined by the 

16 competing needs for stability and flexibility in Oregon law. Stability and predictability 

17 are important values in the law; individuals and institutions act in reliance on this court's 

18 decisions, and to frustrate reasonable expectations based on prior decisions creates the 

potential for uncertainty and unfairness.419 Moreover, lower courts depend on consistency 

 

4 As Justice Brandeis put it, "Stare decisis is usually the wise policy, because 

in most matters it is more important that the applicable rule of law be settled than that it 
14

1 in this court's decisions in deciding the myriad cases that come before them. Few legal

2 principles are so central to our tradition as the concept that courts should "[t]reat like 

3 cases alike," H.L.A. Hart, The Concept of Law 155 (1st ed 1961), and stare decisis is one 

4 means of advancing that goal. For those reasons, we begin with the assumption that 

5 issues considered in our prior cases are correctly decided, and "the party seeking to 

6 change a precedent must assume responsibility for affirmatively persuading us that we 

7 should abandon that precedent." Ciancanelli, 339 Or at 290. We will not depart from 

8 established precedent simply because the "personal policy preference[s]" of the members 

9 of the court may differ from those of our predecessors who decided the earlier case. G.L.,

10 306 Or at 59. 

11 At the same time, this court's obligation when interpreting constitutional 

12 and statutory provisions and when formulating the common law is to reach what we 

13 determine to be the correct result in each case. If a party can demonstrate that we failed 

14 in that obligation and erred in deciding a case, because we were not presented with an 

15 important argument or failed to apply our usual framework for decision or adequately 

16 analyze the controlling issue, we are willing to reconsider the earlier case. See

17 Stranahan, 331 Or at 54 (so stating). Similarly, this court is willing to reconsider cases 

18 when the legal or factual context has changed in such a way as to seriously undermine the 

 

be settled right." Brunet v. Coronado Oil & Gas Co., 285 US 393, 406, 52 S Ct 443, 76 

L Ed 815 (1932) (Brandeis, J., dissenting.) 
15

reasoning or result of earlier cases. See Holcomb, 321 Or at 105.51 

2 With that discussion of stare decisis as background, we return to the parties'

3 arguments. Plaintiff asserts that Collins is a case involving statutory interpretation, and 

4 so defendant's argument for overruling Collins should be summarily rejected under the 

5 rule of prior interpretation. As we have discussed in detail above, we reject the rule of 

6 prior interpretation. Defendant, on the other hand, contends that Collins was a case 

7 involving contract interpretation and thus, for stare decisis purposes, should be reviewed 

8 under the assertedly more flexible standard for common-law precedents set out in G.L. 

9 Collins, in fact, relied on both common-law contract principles and 

10 statutory interpretation. See Collins, 312 Or at 341 ("The only question before us 

11 concerns the effect of exclusion 11(a). * * * ORS 742.464 answers the question."). In

12 Collins, as here, there was no question as to the amount of coverage required by statute; 

13 the parties agreed that Farmers had to provide at least $25,000 in coverage for the 

14 insured's injuries, the FRL minimum. The issue was whether the exclusion was valid as 

15 to the additional coverage that the policy provided for some claims. Stated differently, 

 

5 Although parties seeking to overturn an adverse precedent often argue that 

the case they challenge was erroneous at the time it was decided, that is not always 

necessary. Particularly in cases involving common-law rules, an earlier precedent may 

have not have been "wrong" when it was decided, but changes in other statutes and the 

evolution of the common law may lead this court to conclude that the earlier case should 

no longer be followed. See, e.g., Winn v. Gilroy, 296 Or 718, 733-34, 681 P2d 776 

(1984) (abrogating common-law parental immunity because common-law developments 

and changed statutory context demonstrated that controlling precedent had been 

"superseded"). 
16

1 the parties and the court agreed that ORS 742.464 allows an insurance policy to limit 

2 coverage to the minimum required by the FRL for insured-versus-insured claims. The 

3 question was whether the contractual exclusion had achieved that result. 

4 Whether we consider Collins to be a common-law case or one of statutory 

5 interpretation makes little difference here. The sole issue in this case is whether the rule 

6 announced in Collins -- that a contractual exclusion for insured-versus-insured liability is 

7 effective beyond the minimum limit set by the FRL -- should be overruled. Defendant's 

8 basic argument is that Collins should be overruled because the case was wrong when 

9 decided. Defendant does not argue that other considerations, such as a change in the 

10 legal context or a change in the factual underpinnings of Collins, support reconsidering 

11 and overturning that decision. In fact, the Insurance Code and the FRL did not change in 

12 any relevant way between the time Collins was decided and when the accident leading to 

13 this case occurred. Similarly, the essential facts in this case are identical to those in 

14 Collins, so there is no difference in the factual setting to provide a basis to depart from 

15 Collins.

16 In arguing that Collins was wrongly decided, defendant contends that the 

17 Collins majority impermissibly rewrote the insurance policy in that case to grant the 

18 coverage required by the FRL when the policy expressly excluded such coverage. 

19 Defendant asserts that, under ORS 742.464, an insurer may exclude additional coverage 

20 for insured-versus-insured claims only if the policy first grants at least the required 

21 minimum coverage for those claims. However, Collins explicitly considered and rejected 

22 that argument. See 312 Or at 343, 343 n 3. Moreover, as noted, defendant does not argue 
17

1 that the statutory or factual context of this issue has changed, so that Collins, even if not 

2 erroneous when decided, should no longer be followed. Rather, by raising only issues 

3 that were considered and rejected in Collins, defendant actually demonstrates that the

4 Collins majority did in fact consider the arguments that she raises and that those 

5 arguments were unpersuasive to a majority of this court. 

6 We assume that fully considered prior cases were correctly decided,

7 Ciancanelli, 339 Or at 290, and defendant raises no argument that was not rejected by the 

8 majority in Collins. As such, there is no principled reason for this court to overrule 

9 Collins on the ground that the majority was wrong. See G.L., 306 Or at 59 ("judicial 

10 fashion or personal policy preference" are not "sufficient grounds" to reverse well 

11 established precedent). Were we writing on a blank slate, we might agree with defendant 

12 that the Collins dissent had the better argument, but unless we ignore the doctrine of stare 

13 decisis, that prospect is an insufficient basis for overruling Collins. 

14 In the area of commercial transactions, we have noted that stability and 

15 predictability strongly support adherence to precedent. Noonan v. City of Portland, 161 

16 Or 213, 239, 88 P2d 808 (1939). That is so because parties rely on the rules of law 

17 announced by this court to structure their transactions, and this court should not upend 

18 those expectations without sufficient reason. See Wilson v. Willamette Industries, 280 Or 

19 45, 52-53, 569 P2d 609 (1977) (so stating); Huddleston, 324 Or at 644 (Durham, J., 

20 concurring in part and dissenting in part) (precedent interpreting statutes that govern 

21 commerce "should not be reconsidered, except in the narrowest of circumstances, in 

22 order to serve the public's strong need for stability in commercial transactions"). That 
18

1 need for predictability and stability in commercial transactions provides further support 

2 for adherence to precedent in this case.

3 We turn to defendant's contention that, despite Collins having decided the

4 precise issue presented in this case, we should rule in defendant's favor because of this 

5 court's more recent decision in North Pacific Ins. Co. v. Hamilton, 332 Or 20, 22 P3d 739 

6 (2001). In that case, following an accident, the insured filed a claim against the driver, a 

7 family member, seeking the full coverage stated on the declarations page of the policy. 

8 North Pacific responded that only $25,000, the FRL minimum, was available in liability 

9 coverage under the policy. The policy contained a provision that North Pacific claimed 

10 was intended to exclude excess coverage for insured-versus-insured claims beyond the 

11 minimum amount required by the FRL. Id. at 22-23. The exclusion provided, "We do 

12 not provide Liability Coverage for any person * * * [f]or bodily injury or property 

13 damage to you or any family member to the extent that the limits of liability for this 

14 coverage exceed the limits of liability required by the Oregon financial responsibility 

15 law." Id. at 23 (boldface type omitted). That phrasing was an attempt by North Pacific to 

16 embody the holding in Collins. Id. at 26.

17 This court, however, distinguished the exclusion in Hamilton from the one 

18 in Collins, "which was worded as a simple, absolute exclusion from coverage." Id. at 27. 

19 The Hamilton exclusion operated only "to the extent that the limits of liability for this 

20 coverage exceed the limits required" by the FRL. Id. at 23. Hamilton thus required the 

21 insured to look to the FRL to divine the circumstances in which the exclusion applied and 

22 the attendant coverage. Even assuming that an insured was sufficiently sophisticated to 
19

1 locate the FRL in the Oregon Revised Statutes, the words used by North Pacific in the 

2 exclusion did not track the wording of the FRL, which does not contain the phrase "limits 

3 of liability." Id. at 27-29. Further, as used in the policy, "limits of liability" referred to 

4 the maximum amount of coverage available under the policy; yet the FRL makes no 

5 mention of maximum limits of liability and instead sets the minimum amount of coverage 

6 insurers are required to provide. Id. at 28-29. Accordingly, the court held that the 

7 exclusion was so ambiguous as to be indecipherable: "[T]he ordinary purchaser of 

8 insurance would not be able to determine what [the exclusion] means and, more 

9 particularly, would not be able to determine that it is meant to reduce the limits of 

10 liability for certain claimants below the amount that appears on the declarations page." 

11 Id. at 29. Although Collins established that an insurer could limit liability to the FRL 

12 minimum, the exclusion drafted by North Pacific had not done so. Id. 

13 Following the methodology for interpreting insurance contracts set out in 

14 Hoffman Construction Co. v. Fred S. James & Co., 313 Or 464, 469, 836 P2d 703 (1992), 

15 the court construed the ambiguous exclusion against North Pacific and held, as a matter 

16 of insurance contract law, that the exclusion was not enforceable to any degree. 

17 Accordingly, that provision was eliminated from the policy, and North Pacific was liable 

18 for the full coverage listed on the declarations page. Hamilton, 332 Or at 29. 

19 The parties agree that Hamilton did not expressly overrule Collins. Indeed, 

20 Hamilton cited Collins as establishing "that an insurance company may write an 

21 insurance policy that limits coverage" for insured-versus-insured claims to the FRL 

22 minimum, id., and it contrasted the exclusion in Collins, which did just that, with the 
20

1 ineffective exclusion in Hamilton. Id. at 27. Thus, at the time this court decided

2 Hamilton, it did not view the two cases as in conflict. Despite that fact, defendant argues 

3 that Collins cannot be reconciled with the court's approach in Hamilton. In defendant's 

4 view, in both cases, "the basic problem is that the insured is confused and misled." 

5 Defendant's argument hangs on the notion that it is inconsistent for this 

6 court to enforce an exclusion that did not accurately reflect Oregon law but to refuse to 

7 enforce an exclusion that attempted to follow the law but did so in an ambiguous manner. 

8 That perceived inconsistency, however, misses the mark. This court decided Hamilton

9 based on common-law principles of insurance policy interpretation. See Hamilton, 332 

10 Or at 29 ("It is the insurer's burden to draft exclusions and limitations that are clear."). 

11 The exclusion in that case was unenforceable because the insurer failed to draft it in a 

12 comprehensible manner. Id. Collins, on the other hand, was decided based on the 

13 conflict between an unambiguous exclusion that denied all coverage for insured-versus14 insured claims and the unambiguous statutory requirement for minimum coverage. 

15 Because the exclusion was lawful under ORS 742.464 but the FRL imported a minimum 

16 coverage of $25,000 into the policy, the exclusion remained effective, but only as to the 

17 excess coverage granted by the policy. Collins, 312 Or at 343. Because Hamilton and 

18 Collins were decided under distinct legal theories construing differently worded

19 exclusions, those cases do not directly conflict. 

20 Even if we were to agree that Hamilton provides the proper approach to 

21 examining the exclusion in this case, such an inquiry simply leads back to the question 

22 posed by Collins, namely, the effect of an absolute exclusion for insured-versus-insured 
21

claims. As a matter of contract law, exclusion 12(a)61 in this case is perfectly clear: the 

2 insurer will provide no liability coverage for insured-versus-insured claims. Based on 

3 that unambiguous phrasing, the intent of the parties was that no coverage would be 

4 available. See Hoffman, 313 Or at 469 (goal of interpreting an insurance policy is to 

5 determine the intent of the parties based on the terms and conditions of the policy). Thus, 

6 in contrast to Hamilton, where the exclusion was unenforceable because it was 

7 ambiguous, the exclusion here is unambiguous and thus valid as a matter of contract law. 

8 The question then becomes whether and to what extent the exclusion is also valid under 

9 the relevant statutes, and, as discussed above, Collins held that it was valid as to amounts 

10 in excess of the statutory minimum. 

11 Finally, defendant argues that the primary problem with the exclusion in 

12 Hamilton was not that it was ambiguous but that it was misleading. In defendant's view, 

13 because the absolute exclusions in this case and Collins are also "misleading" -- in that 

14 the exclusions do not accurately reflect the coverage that the insurer is directed by law to 

15 provide -- the absolute exclusions should be unenforceable as well. That argument, 

16 however, disregards the reasoning in Hamilton. This court did not hold that the exclusion

17 in Hamilton was misleading; rather, the legally significant fact was that the insured could 

18 not understand the meaning of the exclusion itself -- it was "incomprehensible." 

19 Hamilton, 332 Or at 29. In this case, as in Collins, the exclusion is misleading only to the 

 

6 Again, exclusion 12(a) states, "coverage does not apply to * * * [l]iability 

for bodily injury to an insured person." 
22

1 extent that it is inconsistent with the coverage required by the Insurance Code and the 

2 FRL. Collins resolved that inconsistency by holding that the exclusion was 

3 unenforceable as to the minimum coverage required by those statutes, but enforceable as 

4 to coverage in excess of that amount. Moreover, defendant does not allege that she was, 

5 in fact, misled by exclusion 12(a) or that she relied on that exclusion to her detriment. 

6 Nor did the plaintiff in Collins make such an allegation.

7 The proponent of overturning precedent bears the burden of demonstrating 

8 why prior case law should be abandoned. Ciancanelli, 339 Or at 290. As noted, Collins

9 and Hamilton are not directly in conflict, and defendant advanced no argument that this 

10 court has not previously considered for reaching a different result from that in Collins. 

11 Defendant failed to carry the burden for overturning a fully considered precedent of this

12 court. 

13 The decision of the Court of Appeals and the judgment of the circuit court 

14 are affirmed.
1

1 DURHAM, J., specially concurring.

2 The central question posed by this case is whether this court should 

3 continue to recognize the unfortunate decision in Collins v. Farmers Ins. Co., 312 Or 

4 337, 822 P2d 1146 (1991), as a precedent under the court's doctrine of stare decisis. The 

5 majority's answer -- that Collins is "still good law" ___ Or at ___ (slip op. at 1) -- should 

6 not be taken as a compliment to either the reasoning or result adopted in that case. 

7 Rather, the majority concludes that defendant's arguments for overturning Collins fall 

8 short of meeting the requirements of stare decisis.

9 As I explain below, I join in the majority's conclusion, but not because 

10 defendant has made an insufficient showing that Collins was decided erroneously. The 

11 opposite is true.

12 The inquiry here, however, is broader than an assessment of whether 

13 Collins was wrongly decided. We must evaluate, in addition, the extent to which the 

14 Collins decision, even if erroneous, has caused parties, such as plaintiff, to rely justifiably 

15 on the rule announced in Collins to conduct their commercial transactions in a way that 

16 that case seems to permit. When viewed in that light, it appears that the Collins decision 

17 gave approval to the marketing of motor vehicle liability insurance policies that, contrary 

18 to law, explicitly eliminate all coverage for a claim by one insured against another 

19 insured under the same policy. In short, plaintiff's argument -- that, in these 

20 circumstances, the policy's minimum coverage of $25,000 for bodily injury to one person 

21 in one accident is the limit of its obligation to defendant -- is supported by a prior 

22 decision of this court in a virtually identical case. Although this court correctly has 
2

1 declined to follow Collins in other coverage interpretation disputes, as discussed below, 

2 the societal interest in the stability of commercial transactions that the doctrine of stare 

3 decisis protects is especially strong when this court's precedent already has accepted, in 

4 an identical dispute, plaintiff's request to partially enforce its absolute exemption.

5 Collins was a 4-to-3 decision in this court. Justice Unis authored a lengthy 

6 dissenting opinion, which Justices Van Hoomissen and Fadeley joined. I will not repeat 

7 all the points registered in the dissent. To be candid, it does not appear to this writer that 

8 the majority and dissenting opinions succeeded in addressing the same issues.

9 According to the Collins majority, the issue in that case was whether a 

10 motor vehicle liability policy afforded the statutorily required minimum coverage of 

11 $25,000 for a claim by one insured party against another insured party under the same 

12 policy, even though the policy contained an express exclusion of any coverage for that 

kind of claim.113 The plaintiff argued that the exclusion in the policy was unenforceable 

 

1

The Collins majority stated:

"Under Oregon law, every motor vehicle liability insurance policy 

issued for delivery in Oregon must, at the least, provide coverage in the 

amounts required by statute. ORS 742.450.

1

"

312 Or at 340 (text of footnote omitted). In the footnote, the Collins majority opinion set 

out the text of the pertinent provisions of ORS 742.450, including subsections (1) and (2), 

and ORS 806.080. However, the court's sentence, quoted above, which purported to 

summarize what ORS 742.450 required "at the least," in fact distorted the text of that 

statute against the position of the insured. Id. As I explain, ORS 742.450 obligates the 

insurer to do more than "provide coverage in the amounts required by statute[,]" as 

Collins stated. Id. Subsections (1) and (2) both obligate the insurer, in issuing a motor 

vehicle liability insurance policy, to include in the policy an agreement that states the 
3

1 because it violated the pertinent state statute, ORS 742.450, in two respects.

2 First, ORS 742.450(2) required the policy to "contain an agreement or 

3 indorsement stating that, as respects bodily injury and death or property damage, or both, 

4 the insurance provides * * * [t]he coverage described in ORS * * * 806.080 [i.e., $25,000 

5 because of bodily injury to or death of one person in any one accident]." The plaintiff 

6 pointed out that the policy in question failed to contain the required agreement; rather, it 

7 expressly excluded coverage for that kind of claim when state law required the insurer to 

8 expressly cover that kind of claim.

9 Second, ORS 742.450(1) provided:

10 "Every motor vehicle liability insurance policy issued for delivery in this 

11 state shall state * * * the coverage afforded by the policy, * * * and the 

12 limits of liability."

13 According to the plaintiff, the insurer's statutory obligation to state the coverage and the 

14 limits of liability afforded by the policy in the policy itself protected the interest of the 

15 insurance-consuming public in allowing policyholders to determine their policy's 

16 coverage, as well as exclusions and exceptions to that coverage, from the face of the 

17 policy and, thus, obviate the need to research insurance statutes to determine the extent of 

 

coverage that the policy provides. The Collins court should have addressed whether the 

insurer could satisfy those aspects of subsections (1) and (2) by seeking a partial 

enforcement of its absolute policy exclusion. But the Collins majority opinion never 

addressed those matters, in part because the court improperly narrowed the issue under 

ORS 742.450, asking only whether the policy "provide[d] coverage in the amounts 

required by statute." Id. (emphasis added.) Thus, I do not agree that Collins considered 

but rejected the arguments that defendant raises here.
4

1 any coverage.

2 The Collins majority began by acknowledging only one aspect of ORS 

3 742.450 on which the plaintiff relied: the duty under subsection (2) to provide coverage 

4 in the amounts required by the statute. 312 Or at 340. The Collins majority then stated 

5 that the "only question before us concerns the effect of exclusion 11(a). Is the exclusion 

6 to be disregarded only as to the amount of the minimum liability coverage required by 

7 ORS 742.450 (and ORS 806.080)? Or is the exclusion to be disregarded totally?" Id. at 

8 341. The Collins majority proceeded to effectively reform the terms of the absolute 

9 exclusion in the policy. In revising the policy's absolute exclusion in that manner, the 

10 Collins majority disregarded this court's long-standing rule that the court will enforce the 

11 policy's lawful terms as written and will not attempt to rewrite them, to suit one party's 

12 preferences, through the guise of interpreting the policy. See Sitzman v. John Hancock 

13 Mut. Life, 268 Or 625, 632, 522 P2d 872 (1974) ("we cannot rewrite the insurance policy 

14 or construe the same beyond its clear language"). It concluded that the exclusion was not

15 effective as to the first $25,000 of coverage but was effective as to all coverage above 

16 that statutorily required amount. Collins, 312 Or at 347.

17 The Collins majority never considered, much less interpreted, subsection 

18 (1) of ORS 742.450, on which both the plaintiff and the dissent relied. Consequently, the 

19 Collins majority never evaluated whether its theory of partial enforcement of the policy's 

20 absolute exclusion still left the policy in violation of state law because the policy sold to 

21 the plaintiff failed to state the coverage and limits of liability, as ORS 742.450(1) 

22 required.
5

1 The Collins majority found support for its theory in ORS 742.464, which 

2 provides:

3 "Any policy which grants the coverage required for a motor vehicle 

4 liability insurance policy under ORS 742.450, 806.080 and 806.270 may 

5 also grant any lawful coverage in excess of or in addition to the required 

6 coverage, and such excess or additional coverage shall not be subject to the 

7 provisions of ORS 742.031, 742.400 and 742.450 to 742.464. With respect 

8 to a policy which grants such excess or additional coverage only that part of 

9 the coverage which is required by ORS 806.080 and 806.270 is subject to 

10 the requirements of those sections."

11 The Collins majority's reliance on that statute fails to support the ultimate 

12 answer given in Collins. That is because the governing statute, ORS 742.450(1) and (2), 

13 imposed two significant requirements, not one, on insurers that marketed motor vehicle 

14 liability insurance policies in this state. Those requirements, as noted above, required the 

15 delivered policy (1) to state the policy's coverage and limits of liability, and (2) to 

16 contain an agreement providing (among other things) the $25,000 minimum coverage. 

17 The Collins majority asserted that ORS 742.464 permitted the majority to read into the 

18 defendant's policy a provision granting the minimum coverage of $25,000 required by 

19 ORS 742.450(2) and ORS 806.080 (even though, obviously, the policy explicitly 

20 excluded that coverage). 312 Or at 342-43. That approach, however, utterly fails to 

21 address, and clearly does not satisfy, the equally important requirement in ORS 

22 742.450(1) that the policy must state the coverage that it affords and the limits of liability 

23 that apply, including statutorily required minimum coverage. The Collins majority gave 

24 not a word of explanation about how a policy that explicitly denied any coverage for 

25 insured-versus-insured claims nonetheless could satisfy the obligation to state expressly 
6

1 in the policy that it granted the statutory minimum coverage for those claims.

2 As a result of the theory that the Collins majority adopted in the context of 

3 insured-versus-insured claims, the insurance-consuming public lost the assurance that the 

4 legislature sought to provide in ORS 742.450(1) and (2) -- that every motor vehicle 

5 liability insurance policy will contain an agreement providing the statutorily mandated 

6 coverage and that the policy will state the coverage and limits of liability in its text. The 

7 Collins decision leaves consumers at a serious disadvantage, despite the legislature's 

effort to protect them in those circumstances.28 If policyholders read their insurance 

9 policies, they will learn only that their insurer has completely excluded any coverage of 

10 an insured-versus-insured claim, even though state law requires the insurer to provide 

11 minimum coverage of $25,000 for such a claim. The predictable effect of that 

12 circumstance is that policyholders will not request coverage, which state law requires 

13 insurers to provide, on insured-versus-insured claims.

 

2

For many decades, the Oregon legislature has required insurers to state in 

their motor vehicle liability policies the coverage that the policy affords and the limits of 

liability under the policy. See, e.g., ORS 486.540 (1953), which provided:

"Every motor vehicle liability policy shall state * * * the coverage 

afforded by the policy * * * and the limits of liability, and shall contain an 

agreement or indorsement which provides that the insurance is provided 

thereunder in accordance with the coverage defined in this chapter as 

respects bodily injury and death or property damage, or both, and is subject 

to all the provisions of this chapter."

The legislature consistently has retained those substantive statutory 

requirements although it has renumbered that statute several times during the intervening 

years. Those requirements now appear in ORS 742.450. It seems safe to say that the 

statutory rule that Collins modified was well-established Oregon law.
7

1 This court has declined to extend the rationale of Collins in later cases that 

2 also involved broad policy exclusions and the minimum coverage requirement of the 

3 Financial Responsibility Law (FRL), ORS 806.060, and ORS 806.070. In North Pacific 

4 Ins. Co. v. Hamilton, 332 Or 20, 23, 22 P3d 739 (2001), the insurer sought to obtain the 

5 benefit of the Collins rationale by drafting its motor vehicle liability insurance exclusion, 

6 "Exclusion 10," which excluded claims by one insured family member against another 

7 insured, to apply "to the extent that the limits of liability for this coverage exceed the 

8 limits of liability required by the Oregon financial responsibility law." The Hamiltons, 

9 husband and wife, were policyholders and named insureds. The husband was injured in 

10 an automobile accident; the wife was the driver of the car. The policy provided for 

11 $60,000 of coverage for each accident for bodily injury, and the husband requested that 

12 coverage. The insurer refused, contending that Exclusion 10 limited any bodily injury 

13 claim by one insured family member against another under the same policy to the 

14 statutory minimum coverage of $25,000. The insurer argued that the wording of 

15 Exclusion 10 was intended to embody the holding in Collins by confining any insured 

16 family member claim to the minimum $25,000 coverage provided by statute.

17 The court in North Pacific adopted a markedly different analysis than that 

18 used in Collins. Unlike in Collins, the North Pacific court focused on whether the insurer 

19 had clearly phrased Exclusion 10. The court concluded that the exclusion was ambiguous 

20 and, thus, unenforceable, stating:

21 "This court's decision in Collins establishes that an insurance 

22 company may write an insurance policy that limits coverage in that manner, 

23 but the policy in the present case does not do so."
8

1 Id. at 29. The court held that, because Exclusion 10 was ambiguous and unenforceable, 

2 the insured husband was entitled to liability coverage in the amount of $60,000, as 

3 provided by the policy for bodily injury claims generally. Id.

4 The North Pacific court's description of Collins as a case pertaining to 

5 insurer authority to limit insured-versus-insured claims by the device of an exclusion is 

6 not fully accurate. Rather, Collins addressed only the legal effect of the exclusion in that 

7 case. 312 Or at 341. The Collins court concluded that "any lawful exclusion" could limit 

8 "coverage other than that required by law[,]" with the consequence being that the 

9 exclusion in Collins was not effective as to the first $25,000 of coverage but was 

10 effective as to any coverage above $25,000. Id. at 343.

11 If the North Pacific court had had any continuing confidence in the 

12 correctness of Collins, it easily could have held that Exclusion 10, at a minimum, was a 

13 lawful, even if ambiguous, exclusion and that its inartful reference to the "limits of 

14 liability for this coverage" did not obscure its exclusion of coverage exceeding that 

15 "required by the Oregon financial responsibility law." North Pacific, 332 Or at 23.

16 Instead, unlike in Collins, the North Pacific court voiced a concern that the 

17 ordinary purchaser of insurance would be unable to understand the scope of Exclusion 

18 10. The North Pacific court concluded that Exclusion 10 was distinguishable from the 

19 exclusion in Collins, because Exclusion 10 was so confusing that it failed to confine the 

20 insurer's exposure to the $25,000 coverage required by statute. Id. at 29.

21 The court's effort in North Pacific to distinguish Collins leaves a curious 

22 state of affairs in the law. Under Collins, if the insurer uses clear wording and expressly 
9

1 excludes any coverage for insured-versus-insured claims, even though the law requires 

2 $25,000 in minimum coverage for such claims, the court will partially enforce the 

3 exclusion and confine the coverage to the $25,000 statutory minimum coverage. 

4 However, under North Pacific, if the insurer's exclusion does not directly contradict the 

5 statutorily mandated minimum coverage requirement, and merely expresses an exclusion 

6 of coverage above statutory minimum amounts with some ambiguity, the court will not 

7 enforce the exclusion at all and will permit the insured claimant to recover coverage up to 

8 the limit stated on the declaration page for claims of bodily injury.

9 The court sought to explain the basis for that distinction in Wright v. State 

10 Farm Mutual Auto. Ins. Co., 332 Or 1, 22 P3d 744 (2001), which the court decided on the 

11 same date as North Pacific. In Wright, the automobile insurer asserted that its policy

12 excluded coverage for claims of bodily injury to insured family members. The wording 

13 of the policy exclusion was similar to that examined in North Pacific. The policy 

14 provided that it excluded any coverage for claims of bodily injury to the insured or "any 

15 other insured or member of an insured's family residing in the insured's household [,] to 

16 the extent the limits of liability of this policy exceed the limits of the liability required by 

17 law." Id. at 6. Relying on that exemption, the insurer refused to pay any amount above 

18 the minimum $25,000 coverage required by statute for the death of the insured plaintiffs' 

19 son, who was killed in a collision in his parent's vehicle. The insurer argued that, because 

20 the son resided in the plaintiffs' household, Collins required the court to construe the 

21 policy to exclude coverage "to the extent that" it exceeded $25,000. Id.

22 This court followed North Pacific in concluding that the exemption was 
10

1 unenforceable, and the reasoning that the court relied on is pertinent to our discussion of 

2 Collins:

3 "We held in North Pacific that the wording of the foregoing 

4 exclusion was ambiguous because it failed to provide proper notice to the 

5 insured that liability coverage under the policy is limited to the statutorily 

6 required minimum coverage for injured insureds and their family members. 

7 Id. at 29. We construed the provision against the insurer, the party who 

8 drafted the policy. Under that construction, we held that the insured was 

9 entitled to liability coverage in the amount provided on the declarations 

10 page of the policy. Id. at 29.

11 "The wording of the exclusion in the automobile policy in the present case 

12 is as obtuse, if not more so, than the wording that we construed in North 

13 Pacific. The reference in the exclusion to 'the limits of liability required by 

14 law' does not inform a policyholder what limit, if any, is applicable in a 

15 given situation and does not even direct the policyholder to a particular 

body of law to find out what that limit is.[3]16 Resort to the context in which 

17 the phrase is used in the exclusion, as well as to other provisions of the 

18 policy, does not clarify the matter. The exclusion remains inherently 

19 ambiguous, if not incomprehensible. As we did in North Pacific, we hold 

20 that the exclusion in the automobile policy is unenforceable."

21 Wright, 332 at 7-8 (emphasis added).

22 According to North Pacific and Wright, the dispositive problem with the 

23 exemptions in those cases was that they failed to clearly notify the insured that the policy 

24 limited coverage to injured insureds and the insured's family members to the statutorily 

25 required minimum coverage. That reasoning is sound, but it came too late to change the 

 

3

The court's comment in Wright that the exemption under review "does not 

even direct the policyholder to a particular body of law to find out what that limit is" is 

dictum. Wright, 332 at 8. It is at least doubtful whether a policy would comply with the 

obligation in ORS 742.450(1) to state the policy's coverage and limits of liability by, for 

example, referring the policyholder to limits on coverage in the FRL without stating those 

limits in the policy.
11

1 incorrect reasoning applied in Collins. That is, if the court was not willing to enforce the 

2 exclusions in North Pacific and Wright, where the insurer had attempted to limit claims 

3 by injured insureds but stumbled in that effort due to ambiguous phrasing, certainly the 

4 court should not have been willing to enforce the exemption in Collins, where the 

5 exemption unambiguously and incorrectly stated that the policy afforded no coverage at 

6 all for claims by injured insureds. In both circumstances, the policy wording "failed to 

7 provide proper notice to the insured that liability coverage under the policy is limited to 

8 the statutorily required minimum coverage[,]" Wright, 332 Or at 7, and, accordingly, the 

9 result in each of the cases should have been the same.

10 Despite the virtually identical failure of notice to policyholders in Collins, 

11 North Pacific, and Wright, this court chose not to overrule Collins in North Pacific and 

12 Wright but to distinguish Collins instead. It was not essential to nullify Collins to reach a 

13 correct answer in North Pacific and Wright. But we still must decide whether Collins has 

14 continuing precedential force in this case, where the policy exemption is on all fours with 

15 that examined in Collins.

16 The record indicates that, after Collins came down, plaintiff and other 

17 insurers rewrote the pertinent exclusion for insured-versus-insured claims in their 

18 automobile liability policies to incorporate exemptions similar or identical to those later 

19 examined in North Pacific and Wright. After North Pacific and Wright declared that the 

20 revised exemptions were ambiguous and ineffectual, because they failed to give notice to 

21 policyholders that the policies limited coverage to $25,000, plaintiff again responded by 

22 rewriting its exclusion to return to the absolute phrasing of the policy exemption 
12

1 addressed in Collins.

2 The motivation for that revision is clear and is not seriously questioned by 

3 defendant. By that tactic, plaintiff sought to claim that the revised exemption was 

4 enforceable against any insured-versus-insured claim beyond the minimum coverage of 

5 $25,000 required by state law, as Collins had held. Because this court had distinguished, 

6 not overruled, Collins in North Pacific and Wright, plaintiff had no incentive to eliminate 

7 the ambiguity in wording noted in North Pacific and Wright, and to give "proper notice to 

8 the insured" as Wright put it, 332 Or at 7, so that the exemption would satisfy ORS 

9 742.450(1) and (2) by stating accurately the policy's coverage and limits of liability.

10 As the majority indicates, this court considers a number of factors in 

11 deciding whether to follow or to overrule a prior decision of this court. This court's 

12 disagreement with the result reached in a prior case ordinarily is not an adequate 

13 justification for overturning the prior decision.

14 Collins was an incorrect decision, in my view, because, as discussed above, 

15 the court disregarded important parts of the pertinent statutory text and reached a result 

16 that contradicts the legislature's intent to require insurers to state a policy's coverage and 

17 limits on liability in the text of the policy itself. The court effectively rewrote the policy 

18 exclusion, contrary to the court's ordinary interpretive methodology. The policy text 

19 gave no notice to policyholders that the coverage, as rewritten by the court, was limited 

20 to the $25,000 statutory minimum coverage. Those defects justify the conclusion that 

21 Collins was wrong when this court decided it.

22 Other factors, however, also must be considered. Here, the record shows 
13

1 that plaintiff relied on Collins in redrafting its automobile liability policy exemption and 

2 in marketing its automobile liability policies. In fact, plaintiff restored to its exemption 

3 the exact wording that this court had addressed in Collins. Under that circumstance, a 

4 decision in this case to overrule Collins would upset the reasonable expectations of 

5 plaintiff and, presumably, other insurers about the case law that governs the interpretation 

6 of the exemption under review.

7 We also consider other factors. The legislature has not modified the 

8 legislative or administrative scheme surrounding the exemption in question in a way that 

might justify a reconsideration of Collins by this court.

4

9 Collins, decided by this court in 

10 1991, is neither a particularly old nor a particularly new opinion. Finally, because 

11 Collins construed the terms of an automobile liability policy, that decision likely affected 

12 a substantial number of commercial transactions in that form of insurance, as well as the 

13 decision-making of governmental agencies and administrative policymakers who oversee 

the regulation of the automobile insurance market in Oregon.514

 

4

The unchanged character of the legislative and administrative scheme since 

Collins was decided is not the same thing as so-called "legislative acquiescence." I do 

not rely at all on the latter, because the absence of an intervening legislative change does 

not signify legislative satisfaction with any court decision.

5

The record contains little information about the purported justification for 

an exclusion of coverage of insured-versus-insured claims from automobile liability 

policies. Defendant suggests that the exclusion is aimed at eliminating fraudulent claims. 

Certainly that is a proper goal. However, the exclusion paradoxically denies coverage for 

all claims, not only for fraudulent ones, despite the existence of ample evidence and good 

faith to support a claim by an injured insured and the existence of other effective means 

whereby an insurer can protect itself against a false or fraudulent claim. Those are 
14

1 In my view, this is a circumstance in which the need for stability and 

2 predictability in the automobile insurance industry, as well as the evidence of plaintiff's 

3 reliance on the ruling, support adherence to Collins under the stare decisis doctrine, even 

4 though Collins was wrongly decided. But I also urge the legislature to consider the 

5 problems surrounding Collins, particularly the failure of that decision to heed the 

6 legislature's efforts to assure that policyholders will receive reasonable notice, in the text 

7 of their policies, if the policy confines its coverage of insured-versus-insured claims to 

8 the minimum statutory coverage.

9 For the reasons stated above, I specially concur in the majority's decision.

10 De Muniz, C. J., and Walters, J., join in this opinion.

11

 

questions that are properly addressed by the legislature.