88 Or. App. 579 746 P.2d 247

Argued and submitted November 2,

affirmed December 9, 1987,

reconsideration denied January 29,

petition for review denied March 1, 1988 (305 Or 273)

SMITH, Appellant, v. RIKER, Respondent.

(85-58-CV; CA A42207)

746 P2d 247

S. David Eves, Corvallis, argued the cause for appellant. With him on the brief was S. David Eves, P.C., Corvallis.

Robert H. Grant, Medford, argued the cause for respondent. With him on the brief was Grant, Ferguson, Carter, P.C., Medford.

Before Buttler, Presiding Judge, and Warren and Rossman, Judges.

WARREN, J.

*581WARREN, J.

In this negligence action, plaintiff appeals a summary judgment in favor of defendant. The dispositive issue is whether ORS 12.155(1) applies to Personal Injury Protection payments (PIP) to require a paying insurer to give written notice of when the applicable tort Statute of Limitations will run.1 If it does not, plaintiffs action is barred.

On February 1,1983, plaintiff was injured when a car driven by defendant, in which plaintiff was a passenger, collided with a school bus. Defendant was insured under her parents’ State Farm Insurance (State Farm) policy. State Farm paid plaintiff under that policy over $21,000 in PIP payments. Plaintiff filed an action for damages against defendant on January 31, 1985, within the two-year Statute of Limitations, but the complaint was not served within the 60-day period under ORS 12.020(2), thus resulting in untimely commencement of the action. Plaintiff contends, however, that her action is not barred, because the Statute of Limitations was tolled by State Farm’s failure to give notice under ORS 12.155.

Defendant contends that that provision is applicable only to “advance payments,” not PIP benefits, mainly because an insurer’s duty to pay PIP benefits is contractual, whereas the advance payments concept contemplates tort liability. Ben Rybke Co. v. Royal Globe Ins. Co., 55 Or App 833, 640 P2d 620, aff’d 293 Or 513, 651 P2d 138 (1982). “Advance payment” is defined in ORS 18.500:

“ ‘[A]dvance payment’ means compensation for the injury or *582death of a person or the injury or destruction of property prior to the determination of legal liability therefor.”

ORS 18.520(1) provides:

“Advance payment for damages arising from the death or injury of a person is not an admission of liability for the death or injury by the person making the payment unless the parties to the payment agree to the contrary in writing.”

The purpose of enacting those statutes was two-fold: First, to allow an insurer to make advance payments to a person injured or damaged by the conduct of an insured without admitting liability for an injured person’s claim and to encourage such payments; second, to protect an injured party from being misled into believing that a limitation period is no longer applicable because the insurer has acknowledged its insured’s liability. Duncan v. Dubin, 276 Or 631, 636, 556 P2d 105 (1976).

The legislatively encouraged incentives to make advance payments are not applicable to the PIP statutory scheme. Under ORS 743.800, PIP benefits are payable to an injured person without consideration of fault or tort liability of the insured. The insurer must pay PIP benefits promptly on proof of loss. Its liability is contractual. The insured’s tort liability is relevant only with regard to the insurer’s reimbursement rights. ORS 743.825. It is apparent that the legislature intended to create two different schemes of compensation. ORS 12.155, which provides for the Statute of Limitations suspension and notice requirement, is explicit. It refers only to ORS 18.520 and ORS 18.530, which deal with “voluntary” advance payments made before determination of tort liability. PIP, when payable, is pursuant to a statutorily imposed contractual duty and is not voluntary. The notice requirement of ORS 12.155 does not extend to PIP benefits.2

*583Affirmed.

Smith v. Riker
88 Or. App. 579 746 P.2d 247

Case Details

Name
Smith v. Riker
Decision Date
Dec 9, 1987
Citations

88 Or. App. 579

746 P.2d 247

Jurisdiction
Oregon

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