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 A 141214 ; SC S 058706 )

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 BALMER, J. 1

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

decide whether Collins v. Farmers Ins. Co. , 312 Or 337, 822 P2d 1146 (1991), is still 3
good law. In Collins , this court held that an exclusion in a motor vehicle liability 4
insurance policy that purported to eliminate all coverage for a claim by one insured 5
against another insured under the same policy was unenforceable to the extent that it 6
failed to provide th e minimum coverage required by the Financial Responsibility Law 7

(FRL) , ORS 806.060 and ORS 806.070

. Id . at 347. The exclusion, however, was 8

enforceable as to any coverage beyond that statutory minimum

. Id . In this case, plaintiff, 9

Farmers Insurance Com pany, issued an i nsurance policy to defendant, To sha Mowry, that 10

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

accident in which her friend

-- a permiss ive user and thus an insured person under the 12
policy

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

had $25,000 available in coverage under her policy

-- the minimum coverage required by 14

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

cov erage is $100,000, the insurance amount stated on the declarations page of her policy. 16
The parties filed cross

- motions for summary judgment
, and the trial court granted 17
plaintiff's motion and denied defendant's. The Court of Appeals affirmed in a per cur iam 18
opinion that cited Collins

. Farmers Ins. Co. v. Mowry , 236 Or App 236, 234 P3d 1098 19

(2010). We affirm. 20
The facts are undisputed. P laintiff issued defendant a motor vehicle 21

liabili ty insurance policy that provides liability coverage with limits of $100,000 per 222

person and $300,000 per occurrence

. E xclusion 12(a) of the policy, however, state s tha t 1
"coverage does not apply to * * * [l]iability for bodily injury to an insured person." The 2
policy defines an "insured person," in relevant part, as "you" or "[a]ny person using your 3

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

insured by t hird parties , but purported to exclude coverage for claims a gainst an insured 5
made by other "insured persons" under the policy, such as family members or others 6
using the insured vehicle

. 7
In 2005, defendant was injured in a collision while riding as a passenger in 8
her own vehicle, which her friend was driving. Under the insurance policy, defe ndant's 9

friend was an insured person

. Defendant made a claim under the policy, but defendant 10
and plaintiff disagreed on the amount of coverage available for the claim. Plaintiff 11

contended that $25,000 was available

-- th e minimum amount required by the FRL

-- 12
because exclusion 12(a) caused defendant's coverage to "drop down" from the otherwise 13
applicable per person liability coverage in the policy . Defendant sought coverage of 14
$100,000

-- the per person liability coverag e stated on the declarations page of the policy. 15
As noted, the trial court and the Court of Appeals agreed with plaintiff, citing Collins

. 16
Defendant sought review , arguing that Collins should be overruled because it was 17
wrongly deci ded and is in conflict with a more recent case, North Pacific Ins

. Co. v. 18

Hamilton , 332 Or 20 , 22 P3d 739 (2001). 19
We begin by reviewing the relevant statutes and then turn to this court's 203

decision in Collins

. Under ORS 742.450(4) (2005), amended by Or Laws 2007, ch 7 82, § 1

1
, 1 "[e]very motor vehicle liability insurance policy issued for delivery in this state shall 2
provide liability coverage to at least the minimum limits specified in ORS 806.070." 3

ORS 806.070(2)(a) sets the mini mum limit at "$25,000 [for] bodily injury to or death of 4
one person in any one accident. " ORS 742.464 provides : 5
"Any policy which grants the coverage required for a motor vehicle 6 liability insurance policy under ORS 742.450, 806.080 and 806.270 may 7 also grant any lawful coverage in excess of or in addition to the required 8 coverage, and such excess or additional coverage shall not be subject to the 9 provisions of * * * [ORS] 742.450 to 742.464. With respect to a policy 10 which grants such excess or additional coverage only that part of the 11 coverage wh ich is required by ORS 806.080 and 806.270 is subject to the 12 requirements of those sections." 13
Thus, an insurance policy may limit the coverage for some types of liability, including 14

insured

- versus

- insured claims, to the minimum limits required by the FRL e ven though 15
the policy pro vides greater coverage for other types of claims. 16

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

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

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

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 resid ing 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 pro visions of any statute relevant to this case since Collins . Subsequent references to ORS 742.450 are to the 2005 version of the statute.4

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

omitted) . T he plaintiff, a family member of the insured, was injured while a pa ssenger in 2
the insured's car. As a family member of the insur ed, the plaintiff was an insured person 3
under the policy. Farmers notified the plaintiff that it would only provide $25,000 in 4
coverage, the minimu m amount required by the FRL. The p laintiff a sserted that the 5

abs olute exclusion violated Oregon law and was therefore completely unenforceable

. 6
The p laintiff argued that he was entitled to $100,000 in coverage , the full amount stated 7
on the declarations page of the policy

. Id . at 340. 8

After d escribing the relevant components of the FRL, the court stated that 9
Oregon law implies in every motor vehicle liability insurance policy issued in the state a 10
provision that the policy includes the minimum coverage required by ORS 742.450, ORS 11

806.080, and ORS 806.270. Id . at 342. "Coverage other than that required by law may 12
be limited by any lawful exclusion." Id . at 3 43. More specifically, t he court stated : 13
"The manifest purpose of ORS 742.464 is to permit an insurer to 14 write any other lawful coverage that the insurer wishes to write, in addition 15 to the required coverage. Such coverage may include higher limits than 16 those required by ORS 742.450 and 806.080. But as to such higher limits, 17 the mandatory requirements of ORS 742.450 and 806.080 d o not apply. 18 The insurer may limit such additional coverage by any exclusion not 19 otherwise prohibited by law." 20

Id . at 342. 21

The court then examined whether the absolute exclusion for insured

- versus

22

insured claims in that policy

-- an exclusion , as not ed, identical to the one in this case

-- 235

limited coverage to the FRL minimum

. Because the law implies in every insurance 1
policy the minimum requirements of the FRL 2 and because coverage beyond those 2

minimum s could be limited by any lawful exclusion, the c ourt held that the absolute 3
exclusion "although ineffective as to the first $25,000 of coverage, [ wa s ] effective as to 4
any coverage in addition to $25,000." Id . at 343. 5

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

have ha d $100,000 of coverage under the policy. The dissent took issue with the 7
majority's interpretation of ORS 742.464. In its view, that statute required an insurance 8
policy to first grant the minimum coverage required by the FRL before the policy could 9
exclude excess coverage. Collins , 312 Or at 351 (Unis, J.
, dissenting). Because the 10

exclusion in Collins denied all coverage for insured

- versus

- insured claims instead of 11
granting the minimum required by the FRL, ORS 742.464 did not allow Farmers to 12

2 Unlike the policy in this case, the policy in Collins included a provision that "[p]olicy terms which conflic t 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 c ompliance 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

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

" If the insurer wishes to exclude from excess coverage pers ons required * * 2 * to be covered for the statutory minimum, it must first affirmatively grant 3 the statutorily

- required minim um coverage for those persons, ORS 4 742.464, and must state the limits of liability, ORS 742.450(1). " 5

Id

. ( emphasis omitted). 6
The dissent also voiced concern that the majority position would encou rage 7

insurers to rely on automatic inclusion of the statutory minimum coverage in policies 8
they issue rather than writing policies that state precisely t he actual coverage purchased 9
by the insured . "The danger is that an insured and other parties might assume that the 10
contract provisions are lawful and mean what they say an d might thereby forgo making 11
claims for coverage that Oregon law requires insurance companies to provide." Id . at 353 12

( internal quotation marks and citation omitted). The dissent argued that such a result 13
"rewards an insurance company for selling an insu rance policy that it did not certify 14
under [the FRL] and that it should have known did not comply with [the] FRL because it 15
contained an exclusion which improperly denied liability coverage required by [the] 16

FRL." Id . at 347

- 48. 17

In this case, defenda nt argues that we should overrule Collins because it 18
was wrongly decided and because Hamilton call s the reasoning of Collins into question. 19

Plaintiff , on the other hand, asserts that the principle of stare decisis prohibits this court 20
from overruling precedent without sufficient justification, which defendant, in plaintiff ' s 21
view, has not provided. Plaintiff argues that the issues raised by defendant were fully 22
considered by the Collins court and that Hamilton does not conflict with Collins

. 237 Be cause the parties disagree about how stare decisis should be applied in 1

this case, we turn to a review of that doctrine. "[T]he principle of stare decisis dictates 2
that this court should assume that its fully considered prior cases are correctly decided. 3
Put another way, the principle of stare decisis means that the party seeking to change a 4
precedent must assume responsibility for affirmatively persuading us that we should 5
abandon that precedent." State v. Ciancanelli , 339 Or 282, 290, 121 P3d 613 (2005). As 6

this court has often stated, the motivating force behind the doctrine of stare decisis is 7
"moral and intellectual, rather than arbitrary and inflexible." Stranahan v. Fred Meyer
, 8

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

Or 489, 528, 280 P2d 301 (1955)). 10
Our cases discussing s tare decisis identify various considerations that t his 11
court has weighed in deciding whether to follow or to overrule an earlier decision. We 12
have emphasized the "undeniable importance of stability in legal rules and decisions," 13

Stranaha n , 331 Or at 53 , an importance based on the values of predictability, fairness, 14
and efficiency that are furt hered by adherence to precedents . But we also have 15
recognize d "the need * * * to correct past errors , " id.
, and to depart from precedent when 16
the statutory contex t for a particular decision has substantially changed, e .g. , Holcomb v. 17

Sunderland
, 321 Or 99, 105, 894 P2d 457 (1995), or when a party affirmatively 18
demonstrates that "an earlier case was inadequately considered or wrong when it was 19

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

(1988). Alth ough our cases apply stare decisis differently in different contexts , as 21
discussed in greater detail below, i t is a unitary doctrine that applies generally to this 228

court's decisions. Put differently, the same considerations underlie the presumption that 1
we will adhere to precedent whether the case involves constitutional interpretation, 2
statutory interpretation, or common

- law rule

-- but the import of those considerations will 3
vary de pending on the case

. 3 4
Before returning to the parties' differing views on the application of stare 5

decisis in this case, we pause to sketch briefly our approach to stare decisis in several 6
common types of cases. In the area of constitutional interpretation, our cases emphasize 7

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

fundamental document of this state

. " Stranahan, 331 O r at 53. On the other hand, there 9
is a "similarly important need to be able to correct past errors" because "[t]his court is the 10
body with the ultimate responsibility for construing our constitution, and if we err
, no 11
other reviewing body can remedy that error." Id. In Stranahan, this court went on to 12

3 We d o 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 varie d. 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 (disti nguishing 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 "degre e" 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 Pa role , 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

describe the circumstances under which it would revisit an earlier decision interpreting 1
the Oregon Constitution: 2
"[W]e remain willing to reconsider a previous ruling under the Oregon 3 Constitution whenever a party presents to us a principled argument 4 suggesting that, in an earlier d ecision, this court wrongly considered or 5 wrongly decided the issue in question. We will give particular attention to 6 arguments that either present new information as to the meaning of the 7 constitutional provision at issue or that demonstrate some failure on the part 8 of this court at the time of the earlier decisions to follow its usual paradigm 9 for considering and construing the meaning of the provision in question." 10

331 Or at 54. See also Ciancanelli
, 339 Or at 289

- 91, 321

- 2 2 (applying Stranahan; 11
rejecti ng effort to overturn 20

- year

- old precedent). 12
In applying the principle of stare decisis to common

- law precedents, we 13
have relied upon similar considerations, although we have articulated them somewhat 14
differently. In G.L.
, for example , we listed thre e alternative bases
, which, if affirmatively 15
asserted by a party, would "ordinarily" cause us to reconsider a nonstatutory rule or 16

doctrine: 17
"(1) that an earlier case was inadequately considered or wrong when it was 18 decided; (2) that surrounding statutory law or regulations have altered some 19 essential legal element assumed in the earlier case; or (3) that the earlier 20 rule was grounded in and tailored to specific factual conditions, and that 21 some essential factual assumptions of the rule have changed." 22

30 6 Or at 59 (citations omitted). 23

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

revisit common

- law precedent. Rather, G.L. identifies the typical grounds for 25
reconsidering a decision, namely where a decision was demonstrably wrong or where the 26
statutory or factual underpinnings of a decision have changed. G.L. has been criticized 2710

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

329 Or 86, 104

- 05, 989 P2d 10 (1999) (Durham, J., concurring) (so stating); Keltner v. 2
Washington County , 310 Or 499, 512

- 13, 800 P2d 752 (1990) (Unis, J., dissenting) (" The 3

self

- imposed rule of judicial restraint [adopted in G.L. ] earns this court the dubious 4
distinction of being the only state in the union to limit its traditional judicial common 5

law

- making authority so substantially." ). But G.L. itself does not purport to establish a 6
rigid "rule" for applying stare decisis to common

- law decisions; rather, it illustrates 7
common reasons that this court might be willing to reexamine precedent. 8

This court has addressed stare decisis as it appl ies to statutory 9
interpretation on a number of occasions, and not always consistently. At times we have 10

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

Under that rule, "[w]hen this court interprets a statute, the interpretation becomes a part 12
of the statute, subject only to a revision by the legislature." State v. King , 316 Or 437, 13

445

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

600 (1992) (same)

. That statement in King to the contrary notwithsta nding, this court has 15
in fact declined to follow earlier decisions interpreting a statute when it has concluded 16
that changes to other statute s , which provide the context for the statute at issue
, require 17

reconsider ation of the prior decisions, see Holcomb
, 321 Or at 105
, and when it has been 18
persuaded that its earlier interpretation was seriously in error. See Severy/Wilson v. 19
Board of Parole , 349 Or 461, 474, 245 P3d 119 (2010). 20

Th e stric t application of the rule of prior construction has long been 21
criticized as wrong in principle and unduly restrictive in practice
, see State ex rel 2211

Huddleston v. Sawyer , 324 Or 597, 638

- 44 , 932 P2d 1145 (1997) (Durham, J., concurring 1
in part and dissenting in part) (critiquing rule of prior interpretation) , and we take this 2
opportunity to review and, for the reasons that follow, disavow it. The modern 3
application of the rule first surfaced in State v. Elliott , 204 Or 460, 465, 277 P2d 754 4
(1955) (adopting rule), cert den
, 349 US 929 (1955)

. When the rule was announced in 5

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

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

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

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

Missouri Athletic Club , 261 Mo 576, 606, 170 SW 904 , 912 (1914), stated the rule of 10
prior interpretation, but then declined to follow it because the prior case law was contrary 11
to the purpose of the statute in question. The second authority, an article from American 12
Jurisprudence , does not even discuss stare d ecisis and instead deals with the 13
interpretation of one state's statutes by courts in a different state. 14
The rule of prior interpretation, as articulated in Missouri Athletic Club , is 15
based on the theory of legislat ive acquiescence. 261 Mo at 605, 170 SW at 911 . That 16
theory posits that a judicial decision interpreting a statute becomes ratified by legislative 17
silence and thus can only be changed by the legislature. Jack L. Landau, Some 18
Observations about Statutory Construction in Oregon , 32 Willamette L Rev 1, 18

- 19 19
(1996). Legislative acquiescence, however, is a legal fiction that assumes, usually 20

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

-- as relevant here, affirmation of th e judicial decision at issue

. Id . at 2212

19

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

number of reasons , none of which necessarily constitute s an endorsement of the 2
decision's reasoning or result ; this court does not surrender its authority to re examine a 3
prior interpretation of a statute merely because the legislature has been silent on the issue. 4

In Severy/Wilson, this court articulated a less rigid approach to precedent 5
interpreting a statu t e: 6

" Although this court makes every attempt to adhere to precedent, in 7 accordance with the doctrine of stare decisis, it has, from time to time, 8 found an earlier interpretation of a statute to be so deficient that it has 9 concluded that some reexamination of the prior statutory construc tion was 10 appropriate. " 11

349 Or at 474 . In Severy/Wilson , this court overruled a precedent that was "internally 12
inconsistent" and "ignore[d] the words of the statute." Id . Similarly, in Holcomb , this 13
court overruled precedent interpreting a statute when the stated bases for the prior case 14
did not apply to Holcomb , were no longer correct due to changes in the statutory context
, 15
or provided only marginal support for the prior decision. 321 Or at 105. 16

Thus, o ur more recent cases discussing stare decisis have, appropriately, 17
abjured the strict rule of prior interpretation articulated in King and have instead relied 18
upon considerations similar to those that we have used in exam ining constitutional and 19

common

- law precedents. That does not mean that we perceive no difference between our 20
task in interpreting a statute and our task in interpreting a constitutional provision or a 21
rule of common law. On the contrary, as discussed above, Stranahan makes the point 22
that, because this court is the ultimate interpreter of state constitutional provisions

-- 23
subject only to constitutional amendment by the people

-- if we have er red in interpreting 2413

a constitutional provision, there is no one else to correct the error. That is not true in the 1
interpretation of statutes. Our responsibility in statutory interpretation is to "pursue the 2
intention of the legislature, if possible." ORS 174.020 (1)(a)

. After we have interpreted a 3
statute, the legislature 's constituti onal role allows it to make any change or adjustment in 4
the statutory scheme that it deems appropriate, given this court's construction of the 5

statu t e (and, of course, subject to constitutional limitations )

. The legislature can

-- and 6

often does

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

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

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

set out in cases such as E lliott and King . I n applying stare decisis to decisions construing 10

statutes , we will rely upon the same considerations we do in constitutional and common

11

law cases
, although, as noted, the weight given to particular considerations will not 12
necessarily be the same. 13
As the discussion above indicates, the application of stare decisis is not 14

mechanistic. Rather, stare decisis is a prudential doctrine that is defined by the 15
competing needs for stability and flexibility in Oregon law. Stability and predictability 16
are important values in the law ; individuals and institutions act in reliance on this court's 17

decisions
, and to fr ustrate reasonable expectations based on pr ior decisions creates the 18
potential for uncertainty and unfairness. 4 Moreover, lower courts depend on consistency 19

4 As Justice Brandeis put it, " Stare decisis is usua lly the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it14

in this court's decisions in deciding the myriad cases that come before them. Few legal 1
principles are so central to our tradition as the co ncept that courts should " [t]reat like 2

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

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

issue s considered in our prior cases are co rrectly decided, and "the party seeking to 5
change a precedent must assume responsibility for affirmatively persuading us that we 6
should abandon that precedent." Ciancanelli
, 339 Or at 290. W e will not depart from 7
established precedent simply because the "personal policy preference [ s ] " of the members 8
of the court may differ from those of our predecessors who decided the earlier case. G.L.
, 9

306 Or at 59. 10

At the sam e time, this court's obligation when interpreting constitutional 11
and statutory provisions and when formulating the common law is to reach what we 12

determine to be the correct result in each case

. If a party can demonstrate that we failed 13
in that obligation and erred in deciding a case, because we were not presented with an 14
important argument or failed to apply our usual framework for decision or adequately 15
analyze the controlling issue , we are willing to reconsider the earlier case. See 16

Stranah an , 331 Or a t 54 (so stating)

. Simi larly, this court is w illing to reconsider cases 17
when the legal or factual context has changed in such a way as to seriously undermine the 18

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. 5 1

With that discussion of stare decisis as background, we return to the parties ' 2
arguments. Plaintiff asserts that Collins is a case involving statutory interpretation, and 3

so defendant's argument for overruling Collins should be summarily rejected under the 4
rule of prior interpretation. As we have discussed in detail above, we reject the rule of 5
prior interpretation. Defendant , on the other hand, contends that Collins was a case 6
involving contract interpretation and thus, for stare decisis purpos es, should be reviewed 7
under the assertedly mo re flexible standard for common

- law precedents set out in G.L. 8

Collins
, in fact, relied on both common

- law contract principles and 9
statutory interpretation

. See Collins , 312 Or at 341 ("The only question b efore us 10

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

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

t he parties agree d that Farmers had to provide at least $2 5,000 in co verage for the 13

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

to the additional coverage that the policy provided for some claims

. Stated differently, 15

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

the parties and the court agree d that ORS 7 4 2.464 allows an insurance policy to limit 1
coverage to the minimum require d by the FRL for insured

- versus

- insured claims. Th e 2
question was whether the contractual exclusion had achieved that result. 3

Whether we consider Collins to be a commo n

- law case or one of statutory 4
interpretation makes little difference here

. The sole issue in this case is whether the rule 5

announced in Collins

-- that a contractual exclusion for insured

- versus

- insured liability is 6
effective beyond the minimum limit set by the FRL

-- should be overruled. Defendant 's 7
basic argument is that Collins should be overruled because the case was wrong when 8

decided. Defendant does not argue that o ther considerations, such as a change in the 9
legal context or a change in the factu al underpinnings of Collins
, support reconsidering 10
and overturning that decision. In fact, the Insurance Code and the FRL did not change in 11
any relevant way between the time Collins was decided and when the accident leading to 12

this case occurred

. Similar ly, the essential facts in this case are identical to those in 13

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

Collins

. 15
In arguing that Collins was wrongly decided, d efendant contends that the 16

Collins majority impermissibly rewrote the insurance policy in that case to grant the 17
coverage required by the FRL when the policy expressly excluded such coverage. 18
Defendant asserts that, under ORS 742.464, an insurer may exclude additional coverage 19

for insured

- versus

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

minimum coverage for those claims. However, Collins explicitly considered and rejected 21
that argument. See 312 Or at 343, 343 n 3. Moreover
, as noted, defendant does not argue 2217

t hat the statutory or factual context of this issue has changed
, so that Collins, even if not 1
erroneous when decided, should no longer be followed. Rather, b y raising only issues 2

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

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

arguments were unpersuasive to a maj ority of this court. 5

W e assume that fully considered pri or cases were correctly decided, 6

Ciancanelli , 339 Or at 290, and de fendant raises no argument that was not rejected by the 7
majority in Collins . A s such, the re is no principled reason for this court to overrule 8

Collins on the ground that the majority was wrong

. See G.L. , 306 Or at 59 ("judicial 9
fashion or personal policy preference" are not "sufficient grounds" to reverse well 10
established precedent). Were we writing on a blank slate, we might agree with defendant 11

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

decisis , that prospect is an insufficient basis for overruling Collins

. 13
In the area of commercial transactions, we have noted that stability and 14
predictability strongly support adherence to precedent. Noonan v. City of Portland , 161 15

Or 213, 239, 88 P2d 808 ( 1939). That is so because parties rely on the rules of law 16
announced by this court to structure their transactions, and this court should not upend 17
those expectations without sufficient reason. See Wilson v. Willamette Industries
, 280 Or 18

45, 52

- 53, 569 P 2d 609 (1977) (so stating); Huddleston , 324 Or at 644 (Durham, J., 19
concurring in part and dissenting in part) (precedent interpreting statutes that govern 20

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

order to serve the public's strong need for stabi lity in commercial transactions " ). That 2218

need for predictability and stability in commercial transactions provides further support 1
for adherence to precedent in this case. 2

We turn to defendant 's contention that
, despite Col lins having decided th e 3
precise issue presented in this case
, we should rule in defendant's favor because of this 4

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

(2001)

. In that case, f ollowing an accident, the insured filed a claim against the driver, a 6
family member, seeking the full coverage stated on the declarations page of the policy. 7
North Pacific responded that onl y $ 25,000, the FRL minimum , was available in liability 8
coverage under the policy. T he policy contained a provision that North Pacific claimed 9

was intended to exclude excess coverage for insured

- versus

- insured claims beyond the 10

minimum amount required by the FRL

. Id . at 22

- 23. Th e exclusion provided , "We do 11
not provide Liability Coverage for any person * * * [f]or bodily injury or property 12
damage to you or any family member to the extent that the limits of liability for this 13
coverage exceed the limits of liability required by the Oregon financial responsibility 14

law." Id

. at 23 (boldface type omitted). That phrasing was an attempt by North Pacific to 15
embody the holding in Collins

. Id . at 26. 16
This court, however, distinguished the exclusion in Hamilton from the one 17

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

The Hamilton exclusion operat ed only "to the extent that the limits of liability for this 19
coverage exceed the limits required" by the FRL. Id . at 23. Hamilton thus required the 20

insured to look to the FRL to divine the circumstances in which the exclusion applied an d 21
the attendant coverage . Even assuming that an insured was sufficiently sophisticated to 2219

locate the FRL i n the Oregon Revised Statutes, the words used by North P acific in the 1
exclusion did not track the wording of the FRL , which does not contain the phrase "limits 2
of liability

. " Id . at 27

- 29. Further , as used in the policy, "limits of liability" referred to 3
the maximum amount of coverage available under the poli cy; yet the FRL makes no 4
mention of maximum limits of liability and instead sets the minimum amount of coverage 5
insurers are required to provide

. Id. at 28

- 29. Accordingly, the court held that the 6

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

insurance would not be able to determine what [the exclusion] means and, more 8
particularly, would not be able to determine that it is meant to reduce the limits of 9
liability for certain claimants below the amount that appears on th e declarations page." 10

Id . at 29. A lthough Collins established that an insurer could limit liability to the FRL 11
minimum, the exclusion drafted by North Pacific had not done so. Id

. 12
Following the methodology for interpreting insurance contracts set o ut in 13
Hoffman Construction Co. v. Fred S. James & Co. , 313 Or 464, 469, 836 P2d 703 (1992)
, 14

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

of insurance contract law, that the exclusion was not enforceable to any degree. 16
Accordingly, that provision was eliminated from the policy, and North Pacific was liable 17
for the full coverage listed on the declarations page

. Hamilton
, 332 Or at 29. 18

T he parties agree that Hami lton did not expressly overrule Collins . Indeed, 19

Hamilton cited Collins as establishing "that an insurance company may write an 20
insurance policy that limits coverage" for insured

- versus

- insured claims to the FRL 21

minimum
, i d

. , and it contrasted the exclusi on in Collins
, which did just that
, with the 2220

ineffective exclusion in Hamilton

. Id. at 27. Thus, at the time this court decide d 1

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

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

view, in both cases
, " the basic problem is that the insured i s confused and misled." 4
Defendant's argument hangs on the notion that it is inconsistent for this 5

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

enfor ce an exclusion that att empted to follow the law but did so in an ambiguous manner. 7
That perceived inconsis tency, however, misses the mark

. This court decided Hamilton 8

based on common

- law p rinciples of insurance policy interpretation. See Hamilton , 332 9

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

. 10

The exclusion in that case was unenforceable because the insurer failed to draft it in a 11
comprehe nsible manner. Id

. Collins , on the other hand, was decided based on the 12
conflict between an unambiguous exclusion that denied all coverage for insured

- versus

13

insured claims and the un ambiguous statutory requirement for minimum coverage

. 14

Because the excl usion was lawful under ORS 742.464 but the FRL imported a minimum 15
coverage of $25,000 into the policy, the exclusion remained effective, but only as to the 16
excess coverage granted by the policy. Collins , 312 Or at 343. Because Hamilton and 17

Collins were d ecided under distinct le gal theories construing differently worded 18

exclusions, those cases do not directly conflict. 19
Even if we were to agree that Hamilton provides the proper approach to 20
examining the exclusion in this case, such an inquiry simply leads back to the question 21
posed by Collins , namely, the effect of an absolute exclusion for insured

- versus

- insured 2221

claims. As a matter of contract law, exclusion 12(a) 6 in this case is perfectly clear: the 1

insurer will provide no liability coverage for insured

- versus

- insured claims. Based on 2
that unambiguous phrasing, the intent of the parties was that no coverage would be 3

available. See Hoffman , 313 Or at 469 (goal of interpreting an insurance policy is to 4
determine the intent of the parties based on the terms and conditions of the policy ). Thus, 5

i n contrast to Hamilton , where the exclusion was unenforceable because it was 6
ambiguous
, the exclusion here is unambiguous and thus valid as a matter of con tract law. 7
The question then becomes whether and to what extent the exclusion is also valid under 8

the relevant statutes , and, as discussed above, Collins held that it was valid as to amounts 9
in excess of the statutory minimum

. 10
Finally , defendant a rgues that the primary problem with the exclusion in 11

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

b ecause the absolute exclusion s in this case and Collins are also "misleading"

-- in that 13

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

-- the absolute exclusions should be unenforc e able as well . That argument, 15
however, disregards the reasoning in Hamilton

. This court did not hold that the exclusion 16

i n Hamilton was mis leading ; rather, the legally significant fact was that the insured could 17
not understand the meaning of the exclusion itself

-- it was "incomprehensible

. " 18

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

6 Again, exclusion 12(a) states, "coverage does not apply to * * * [l]iability fo r bodily injury to an insured person."22

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

FRL. Collins resolved that inconsistency by holding that the exclusion was 2
unenforceable as to the minimum coverage required by those statutes, but enforcea ble as 3
to coverage in excess of that amount

. Moreover, d efendant does not allege that she was, 4
in fact, misled by exclusion 12(a) or that she relied on that exclusion to her detriment. 5
Nor did the plaintiff in Collins make such an allegation. 6

The propo nent of overturning prece dent bears the burden of demonstrating 7
why prior case law should be abandoned. Ciancanelli , 339 Or at 290. As noted, Collins 8

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

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

. 10

Defendant failed t o carry the burden for overturning a fully co nsidered precedent of this 11

court. 12

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

are affirmed. 141 DURHAM, J., specially concurring. 1
The central question posed by this case is whether this court should 2
continue to recognize the unfortunate decision in Collins v. Farmers Ins. C o. , 312 Or 3
337, 822 P2d 1146 (1991), as a precedent under the court's doctrine of stare decisis . The 4
majority's answer

-- that Collins is "still good law" ___ Or at ___ (slip op. at 1)

-- should 5
not be taken as a compliment to either the reasoning or resu lt adopted in that case. 6
Rather, the majority concludes that defendant's arguments for overturning Collins fall 7
short of meeting the requirements of stare decisis

. 8
As I explain below, I join in the majority's conclusion, but not because 9

defendant has ma de an insufficient showing that Collins was decided erroneously. The 10
opposite is true. 11
The inquiry here, however, is broader than an assessment of whether 12

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

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

on the rule announced in Collins to conduct their commercial transactions in a way that 15
that case seems to permit. When viewed in that light, it appears that the Collins de cision 16
gave approval to the marketing of motor vehicle liability insurance policies that, contrary 17
to law, explicitly eliminate all coverage for a claim by one insured against another 18
insured under the same policy. In short, plaintiff's argument

-- that, in these 19
circumstances, the policy's minimum coverage of $25,000 for bodily injury to one person 20
in one accident is the limit of its obligation to defendant

-- is supported by a prior 21
decision of this court in a virtually identical case. Although this cou rt correctly has 222

declined to follow Collins in other coverage interpretation disputes, as discussed below, 1
the societal interest in the stability of commercial transactions that the doctrine of stare 2

decisis protects is especially strong when this court's precedent already has accepted, in 3
an identical dispute, plaintiff's request to partially enforce its absolute exemption. 4

Collins was a 4

- to

- 3 decision in this court. Justice Unis authored a lengthy 5
dissenting opinion, which Justices Van Hoomissen and F adeley joined. I will not repeat 6
all the points registered in the dissent. To be candid, it does not appear to this writer that 7
the majority and dissenting opinions succeeded in addressing the same issues. 8
According to the Collins majority, the issue in that case was whether a 9
motor vehicle liability policy afforded the statutorily required minimum coverage of 10
$25,000 for a claim by one insured party against another insured party under the same 11
policy, even though the policy contai ned an express exclusion of any coverage for that 12

kind of claim. 1 The plaintiff argued that the exclusion in the policy was unenforceable 13

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, whic h 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 requir ed 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 the3

because it violated the pertinent state statute, ORS 742.450, in two respects. 1
First, ORS 742.450(2) required the p olicy to "contain an agreement or 2
indorsement stating that, as respects bodily injury and death or property damage, or both, 3
the insurance provides * * * [t]he coverage described in ORS * * * 806.080 [ i.e. , $25,000 4
because of bodily injury to or death of o ne person in any one accident]." The plaintiff 5
pointed out that the policy in question failed to contain the required agreement; rather, it 6
expressly excluded coverage for that kind of claim when state law required the insurer to 7
expressly cover that kind of claim. 8
Second, ORS 742.450(1) provided: 9
"Every motor vehicle liability insurance policy issued for delivery in this 10 state shall state * * * the coverage afforded by the policy, * * * and the 11 limits of liability." 12
According to the plaintiff, the insur er's statutory obligation to state the coverage and the 13
limits of liability afforded by the policy in the policy itself protected the interest of the 14

insurance

- consuming public in allowing policyholders to determine their policy's 15
coverage, as well as excl usions and exceptions to that coverage, from the face of the 16
policy and, thus, obviate the need to research insurance statutes to determine the extent of 17

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

any coverage. 1

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

742.450 on which th e plaintiff relied: the duty under subsection (2) to provide coverage 3
in the amounts required by the statute. 312 Or at 340. The Collins majority then stated 4
that the "only question before us concerns the effect of exclusion 11(a). Is the exclusion 5

to be disregarded only as to the amount of the minimum liability coverage required by 6
ORS 742.450 (and ORS 806.080)? Or is the exclusion to be disregarded totally?" Id. at 7

341. The Collins majority proceeded to effectively reform the terms of the absolute 8
exclusion in the policy. In revising the policy's absolute exclusion in that manner, the 9

Collins majority disregarded this court's long

- standing rule that the court will enforce the 10
policy's lawful terms as written and will not attempt to rewrite them, to suit one party's 11
preferences, through the guise of interpreting the policy. See Sitzman v. John Hancock 12

Mut. Life , 268 Or 625, 632, 522 P2d 872 (1974) ("we cannot rewrite the insurance policy 13
or construe the same beyond its clear language"). It conclude d that the exclusion was not 14
effective as to the first $25,000 of coverage but was effective as to all coverage above 15
that statutorily required amount. Collins , 312 Or at 347. 16

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

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

Collins majority never evaluated whether its theory of partial enforcement of the policy's 19
absolute exclusion still left the policy in violation of state law because the policy sold to 20
the plaintiff failed to state the coverage and limits of liability, as ORS 742.450(1) 21
required. 225 The Collins majority found support for its theory in ORS 742.464, which 1
provides: 2
"Any policy which grants the coverage required for a motor vehicle 3 liability insurance policy under ORS 742.450, 806.080 and 806.270 may 4 also grant any lawful coverage in excess of or in addition to the required 5 coverage, and such excess or additional coverage shall not be subject to the 6 provisions of ORS 742.031, 742.400 and 742.450 to 742.464. With respect 7 to a policy which grants such excess or additional coverage only that part of 8 the coverage which is required by ORS 806.080 and 806.270 is subject to 9 the requirements of those sections." 10

The Collins majority 's reliance on that statute fails to support the ultimate 11
answer given in Collins . That is because the governing statute, ORS 742.450(1) and (2), 12
imposed two significant requirements, not one, on insurers that marketed motor vehicle 13
liability insurance po licies in this state. Those requirements, as noted above, required the 14
delivered policy (1) to state the policy's coverage and limits of liability, and (2) to 15

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

The Collins m ajority asserted that ORS 742.464 permitted the majority to read into the 17
defendant's policy a provision granting the minimum coverage of $25,000 required by 18
ORS 742.450(2) and ORS 806.080 (even though, obviously, the policy explicitly 19

excluded that covera ge). 312 Or at 342

- 43. That approach, however, utterly fails to 20
address, and clearly does not satisfy, the equally important requirement in ORS 21
742.450(1) that the policy must state the coverage that it affords and the limits of liability 22
that apply, inc luding statutorily required minimum coverage. The Collins majority gave 23
not a word of explanation about how a policy that explicitly denied any coverage for 24

insured

- versus

- insured claims nonetheless could satisfy the obligation to state expressly 256

in the p olicy that it granted the statutory minimum coverage for those claims. 1
As a result of the theory that the Collins majority adopted in the context of 2

insured

- versus

- insured claims, the insurance

- consuming public lost the assurance that the 3
legislature sou ght to provide in ORS 742.450(1) and (2)

-- that every motor vehicle 4
liability insurance policy will contain an agreement providing the statutorily mandated 5
coverage and that the policy will state the coverage and limits of liability in its text . The 6

Collins decision leaves consumers at a serious disadvantage, despite the legislature's 7
effort to protect them in those circumstances. 2 If policyholders read their insurance 8
policies, they will learn only that their insurer has completely excluded any cove rage of 9

an insured

- versus

- insured claim, even though state law requires the insurer to provide 10
minimum coverage of $25,000 for such a claim. The predictable effect of that 11
circumstance is that policyholders will not request coverage, which state law requi res 12
insurers to provide, on insured

- versus

- insured claims. 13

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 th e 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 t hose 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

- establis hed Oregon law.7 This court has declined to extend the rationale of Collins in later cases that 1
also involved broad policy exclusions and the minimum coverage requirement of the 2
Financial Responsibility Law (FRL) , ORS 806.060, and ORS 806.070. In North Pacific 3

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

benefit of the Collins rationale by drafting its mot or vehicle liability insurance exclusion, 5
"Exclusion 10," which excluded claims by one insured family member against another 6
insured, to apply "to the extent that the limits of liability for this coverage exceed the 7
limits of liability required by the Oreg on financial responsibility law." The Hamiltons, 8
husband and wife, were policyholders and named insureds. The husband was injured in 9
an automobile accident; the wife was the driver of the car. The policy provided for 10
$60,000 of coverage for each acciden t for bodily injury, and the husband requested that 11
coverage. The insurer refused, contending that Exclusion 10 limited any bodily injury 12
claim by one insured family member against another under the same policy to the 13
statutory minimum coverage of $25,000 . The insurer argued that the wording of 14
Exclusion 10 was intended to embody the holding in Collins by confining any insured 15
family member claim to the minimum $25,000 coverage provided by statute. 16

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

used in Collins . Unlike in Collins , the North Pacific court focused on whether the insurer 18
had clearly phrased Exclusion 10. The court concluded that the exclusion was ambiguous 19
and, thus, unenforceable, stating: 20

"This court's decisi on in Collins establishes that an insurance 21 company may write an insurance policy that limits coverage in that manner, 22 but the policy in the present case does not do so." 238

Id. at 29. The court held that, because Exclusion 10 was ambiguous and unenforceable
, 1
the insured husband was entitled to liability coverage in the amount of $60,000, as 2
provided by the policy for bodily injury claims generally. Id. 3

The North Pacific court's description of Collins as a case pertaining to 4
insurer authority to limit insu red

- versus

- insured claims by the device of an exclusion is 5
not fully accurate. Rather, Collins addressed only the legal effect of the exclusion in that 6

case. 312 Or at 341. The Collins court concluded that "any lawful exclusion" could limit 7
"coverage ot her than that required by law[,]" with the consequence being that the 8

exclusion in Collins was not effective as to the first $25,000 of coverage but was 9
effective as to any coverage above $25,000. Id . at 343. 10

If the North Pacific court had had any conti nuing confidence in the 11

correctness of Collins , it easily could have held that Exclusion 10, at a minimum, was a 12
lawful, even if ambiguous, exclusion and that its inartful reference to the "limits of 13
liability for this coverage" did not obscure its exclusi on of coverage exceeding that 14
"required by the Oregon financial responsibility law." North Pacific , 332 Or at 23. 15

Instead, unlike in Collins , the North Pacific court voiced a concern that the 16
ordinary purchaser of insurance would be unable to understand the scope of Exclusion 17

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

exclusion in Collins , because Exclusion 10 was so co nfusing that it failed to confine the 19
insurer's exposure to the $25,000 coverage required by statute. Id. at 29. 20

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

state of affairs in the law. Under Collins , if the insurer uses clear wording and expressly 229

excludes any coverage for insured

- versus

- insured claims, even though the law requires 1
$25,000 in minimum coverage for such claims, the court will partially enforce the 2
exclusion and confine the coverage to the $25,000 statutory minimum coverage. 3

However, under North Pacific , if the insurer's exclusion does not directly contradict the 4
statutorily mandated minimum coverage requirement, and merely expresses an exclusion 5
of coverage above statutory minimum amounts with some ambiguity, the court will not 6
enforce the exclusion at all and will permit the insured claimant to recover coverage up to 7
the limit stated on the declaration page for claims of bodily injury. 8
The court sought to explain the basis for that distinction in Wright v. State 9

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

same date as North Pacific . In Wright , the automobile insurer asserted that its policy 11
excluded coverage for claims of bodily injury to insured family members. The wording 12
of the policy exclusion was similar to that examined in North Pacific . The policy 13
provided that it excluded any coverage for claims of bodily injury to the insured or " any 14
other insured or member of an insured's family residing in the insured's household [,] to 15
the extent the limits of liability of this policy exceed the limits of the liability required by 16

law." Id. at 6. Relying on that exemption, the insurer refused to pay any amount above 17
the minimum $25,000 coverage required by statute for the death of the insured plaintiffs' 18
son, who was killed in a collision in his parent's vehicle. The insurer argued that, because 19
the son resided in the plaintiffs' household, Co llins required the court to construe the 20
policy to exclude coverage "to the extent that" it exceeded $25,000. Id. 21

This court followed North Pacific in concluding that the exemption was 2210

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

Collins : 2

"We held in North Pacific that the wording of the foregoing 3 exclusion was ambiguous because it failed to provide proper notice to the 4 insured that liability coverage under the policy is limited to the statutorily 5 required minimum coverage for injured insureds and their family members

. 6 Id. at 29. We construed the provision against the insurer, the party who 7 drafted the policy. Under that construction, we held that the insured was 8 entitled to liability coverage in the amou nt provided on the declarations 9 page of the policy. Id. at 29. 10
"The wording of the exclusion in the automobile policy in the present case 11 is as obtuse, if not more so, than the wording that we construed in North 12 Pacific . The reference in the exclusion to 'the limits of liability required by 13 law' does not inform a policyholder what limit, if any, is applicable in a 14 given situation and does not even direct the policyholder to a particular 15 body of law to find out what that limit is. [ 3 ] Resort to the context in which 16 the phrase is used in the exclusion, as well as to other provisions of the 17 policy, does not clarify the matter. The exclusion remains inherently 18 ambiguous, if not incomprehensible. As we did in North Pacific , we hold 19 that the exclusion in the a utomobile policy is unenforceable." 20
Wright , 332 at 7

- 8 (emphasis added). 21
According to North Pacific and Wright , the dispositive problem with the 22
exemptions in those cases was that they failed to clearly notify the insured that the policy 23
limited coverage to injured insureds and the insured's family members to the statutorily 24
required minimum coverage. That reasoning is sound, but it came too late to change the 25

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 woul d 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

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

e xclusions in North Pacific and Wright , where the insurer had attempted to limit claims 2
by injured insureds but stumbled in that effort due to ambiguous phrasing, certainly the 3
court should not have been willing to enforce the exemption in Collins , where th e 4
exemption unambiguously and incorrectly stated that the policy afforded no coverage at 5
all for claims by injured insureds. In both circumstances, the policy wording "failed to 6
provide proper notice to the insured that liability coverage under the policy is limited to 7
the statutorily required minimum coverage[,]" Wright , 332 Or at 7, and, accordingly, the 8

result in each of the cases should have been the same. 9
Despite the virtually identical failure of notice to policyholders in Collins
, 10
North Pacific , a nd Wright , this court chose not to overrule Collins in North Pacific and 11
Wright but to distinguish Collins instead. It was not essential to nullify Collins to reach a 12

correct answer in North Pacific and Wright . But we still must decide whether Collins has 13
continuing precedential force in this case, where the policy exemption is on all fours with 14

that examined in Collins

. 15

The record indicates that, after Collins came down, plaintiff and other 16
insurers rewrote the pertinent exclusion for insured

- versus

- insured claims in their 17
automobile liability policies to incorporate exemptions similar or identical to those later 18

examined in North Pacific and Wright . After North Pacific and Wright declared that the 19
revised exemptions were ambiguous and ineffectual, because they failed to give notice to 20
policyholders that the policies limited coverage to $25,000, plaintiff again responded by 21
rewriting its exclusion to return to the absolute phrasing of the policy exemption 2212

addressed in Collins

. 1

The motivation for th at revision is clear and is not seriously questioned by 2
defendant. By that tactic, plaintiff sought to claim that the revised exemption was 3
enforceable against any insured

- versus

- insured claim beyond the minimum coverage of 4
$25,000 required by state law, as Collins had held. Because this court had distinguished, 5

not overruled, Collins in North Pacific and Wright , plaintiff had no incentive to eliminate 6
the ambiguity in wording noted in North Pacific and Wright , and to give "proper notice to 7

the insured" a s Wright put it, 332 Or at 7, so that the exemption would satisfy ORS 8
742.450(1) and (2) by stating accurately the policy's coverage and limits of liability. 9
As the majority indicates, this court considers a number of factors in 10
deciding whether to follo w or to overrule a prior decision of this court. This court's 11
disagreement with the result reached in a prior case ordinarily is not an adequate 12
justification for overturning the prior decision. 13

Collins was an incorrect decision, in my view, because, as discussed above, 14
the court disregarded important parts of the pertinent statutory text and reached a result 15
that contradicts the legislature's intent to require insurers to state a policy's coverage and 16
limits on liability in the text of the policy itself . The court effectively rewrote the policy 17
exclusion, contrary to the court's ordinary interpretive methodology. The policy text 18
gave no notice to policyholders that the coverage, as rewritten by the court, was limited 19
to the $25,000 statutory minimum co verage. Those defects justify the conclusion that 20

Collins was wrong when this court decided it. 21

Other factors, however, also must be considered. Here, the record shows 2213

that plaintiff relied on Collins in redrafting its automobile liability policy exemp tion and 1
in marketing its automobile liability policies. In fact, plaintiff restored to its exemption 2
the exact wording that this court had addressed in Collins . Under that circumstance, a 3

decision in this case to overrule Collins would upset the reasona ble expectations of 4
plaintiff and, presumably, other insurers about the case law that governs the interpretation 5
of the exemption under review. 6
We also consider other factors. The legislature has not modified the 7
legislative or administrative scheme sur rounding the exemption in question in a way that 8
might justify a reconsideration of Collins by this court

. 4 Collins , decided by this court in 9
1991, is neither a particularly old nor a particularly new opinion. Finally, because 10

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

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

decision

- making of governmental agencies and administrative policymakers who oversee 13
the regulation of the automobile insurance market in Oregon. 5 14

4 The unchanged character of th e 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 sati sfaction 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 are14 In my view, this is a circumstance in which the need for stability and 1
predictability in the automobile insurance industry, as well as the evidence of plaintiff's 2
reliance on the ruling, support adherence to Collins under the stare decisis doctrine, even 3
though Collins was wrongly decided. But I also urge the legislature to consider the 4
problems surrounding Collins , particularly the failure of that decision to heed the 5
legislature's efforts to assure that po licyholders will receive reasonable notice, in the text 6
of their policies, if the policy confines its coverage of insured

- versus

- insured claims to 7
the minimum statutory coverage. 8
For the reasons stated above, I specially concur in the majority's decision

. 9
De Muniz, C. J., and Walters, J., join in this opinion. 10

11

questions that are properly addressed by the legislature.