734.640
Exhaustion of coverage under policy before making claim against association;
priority of claims.
(1)(a) A person need not exhaust any right available under an insolvent member
insurer’s policy, but if the person has a claim under an insurance policy that
arises from the same facts, injury or loss from which a covered claim against
the association arises, whether or not the insolvent member insurer issued the
policy, the person must first exhaust all coverage under the policy, including
the right to a defense, before the association must pay the covered claim. The
association’s payment obligation must be reduced by the full applicable limits
set forth in the other insurance policy and the association must receive a full
credit for the limits. If the policy does not set forth applicable limits, the
claim against the association must be reduced by the amount of the total
recovery.
(b) A claim under
this subsection includes any amount that is payable by or on behalf of a
self-insured claimant.
(c) A claim
arises from the same facts, injury or loss from which a covered claim against
the association arises if the person that makes a claim under a policy of
liability insurance is jointly and severally liable, or is a joint tortfeasor,
with a person that is covered under the policy of an insolvent member insurer
under which the covered claim arises.
(d) Before making
a claim against the association, a person that has a claim in which the injury
or loss is alleged to result from exposure to, or the release of, asbestos or
any environmental pollutant or contaminant must first exhaust all coverage available
to the person under any and all other insurance policies that cover the claim
during all periods in which the other insurance policies are available to the
person, even if an insolvent member insurer provided the only coverage for the
claim when the exposure or release allegedly occurred.
(2) Any person
that has a claim that may also be recovered from one or more insurance guaranty
agencies that perform functions similar to that of the Oregon Insurance
Guaranty Association shall first seek recovery from whichever organization
serves the place of residence of the insured, except that:
(a) Recovery on
first party claims for damage to property with a permanent location must first
be sought from whichever organization serves the location of the property; and
(b) Recovery on
workers’ compensation claims must first be sought from whichever organization
serves the residence of the claimant.
(3) Any recovery
under ORS 734.510 to 734.710 from the association must be reduced by the amount
of any recovery under this section. [1971 c.616 §16; 1977 c.793 §10; 2025 c.20 §7]
Notes of Decisions
Cited in
10
cases, 1978–2005 · leading case:
Carrier v. Hicks, 851 P.2d 581 (Or. 1993).
Carrier v. Hicks, 851 P.2d 581 (Or. 1993).
· cites it 37× “The threshold issue is whether ORS 734.640 requires a claimant to exhaust the limits of all other insurance coverage before a claimant can recover from either a tortfeasor whose liability insurer is insolvent or from OIGA.”
Bird v. Norpac Foods, Inc., 934 P.2d 382 (Or. 1997).
· cites it 33× “They argued that, because OIGA had assumed the obligations of Mission and ultimately was responsible for paying Bird’s judgment against them, pursuant to ORS 734.640, 4 the judgment must be deemed satisfied to the extent of her workers’ compensation and UM recoveries.”
Mazorol v. Coats, 793 P.2d 326 (Or. Ct. App. 1990).
· cites it 6× “1 On defendant’s motion, the trial court dismissed plaintiff’s action, because it concluded that plaintiff had failed to exhaust his remedies under his own uninsured motorist coverage, pursuant to ORS 734.640(1), before pursuing this action against defendant.”
Mazorol v. Coats, 852 P.2d 178 (Or. 1993).
· cites it 8× “Defendant's summary judgment motion asserted that defendant's motion "asks the court to rule that plaintiff's receipt of uninsured motorist, personal injury protection and collision payments from his insurer preclude further action against defendant * * * under ORS 734.640."…”
Stamp v. Dep't of Labor & Indus., 859 P.2d 597 (Wash. 1993).
“ORS § 734.640 (1991). Hence, the amount of the disputed lien belongs to either OIGA or the appellants here — not Stamp.”
McGraw v. Gwinner, 578 P.2d 1250 (Or. 1978).
“ORS 734.640(3). 3 ORS 743.114: "If settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiffs recovery exceeds the amount…”
Bird v. Norpac Foods, Inc., 888 P.2d 118 (Or. Ct. App. 1995).
· cites it 21× “In that motion, they argued that, because OIGA had assumed *353 the responsibilities of their insolvent insurer and was ultimately responsible for payingthe judgment against them, the judgment was subject to ORS 734.640. That statute provides: “(1) Any person who has a claim…”
Carrier v. Hicks, 793 P.2d 329 (Or. Ct. App. 1990).
· cites it 2× “Defendants’ insurer became insolvent, and the Oregon Insurance Guaranty Association (OIGA) assumed responsibility for the claim under ORS 734.”
Oregon Ins. Guar. Ass'n v. Hall, 113 P.3d 452 (Or. Ct. App. 2005).
“AAIC provided workers’ compensation coverage for employer when claimant was injured, and it remains a solvent insurer.”
Roman Catholic Archbishop of the Archdioces v. Oregon Ins. Guar. Ass'n, 945 P.2d 645 (Or. Ct. App. 1997).
“However, in our view, only Lloyd’s language is in issue. Under ORS 734.570(1), OIGA is responsible for Midland’s liability (up to the statutory limitation); but if, under a proper interpretation of Lloyd’s policy, Lloyd’s liability was not exhausted, Midland’s policy is not…”
— Or. Rev. Stat. § 734.640(1) — 8 cases
Carrier v. Hicks, 851 P.2d 581 (Or. 1993).
“The threshold issue is whether ORS 734.640 requires a claimant to exhaust the limits of all other insurance coverage before a claimant can recover from either a tortfeasor whose liability insurer is insolvent or from OIGA.”
Bird v. Norpac Foods, Inc., 934 P.2d 382 (Or. 1997).
“They argued that, because OIGA had assumed the obligations of Mission and ultimately was responsible for paying Bird’s judgment against them, pursuant to ORS 734.640, 4 the judgment must be deemed satisfied to the extent of her workers’ compensation and UM recoveries.”
Mazorol v. Coats, 793 P.2d 326 (Or. Ct. App. 1990).
“1 On defendant’s motion, the trial court dismissed plaintiff’s action, because it concluded that plaintiff had failed to exhaust his remedies under his own uninsured motorist coverage, pursuant to ORS 734.640(1), before pursuing this action against defendant.”
Mazorol v. Coats, 852 P.2d 178 (Or. 1993).
“Defendant's summary judgment motion asserted that defendant's motion "asks the court to rule that plaintiff's receipt of uninsured motorist, personal injury protection and collision payments from his insurer preclude further action against defendant * * * under ORS 734.640."…”
Carrier v. Hicks, 793 P.2d 329 (Or. Ct. App. 1990).
“Defendants’ insurer became insolvent, and the Oregon Insurance Guaranty Association (OIGA) assumed responsibility for the claim under ORS 734.”
— Or. Rev. Stat. § 734.640(2)(b) — 1 case
Bird v. Norpac Foods, Inc., 934 P.2d 382 (Or. 1997).
“They argued that, because OIGA had assumed the obligations of Mission and ultimately was responsible for paying Bird’s judgment against them, pursuant to ORS 734.640, 4 the judgment must be deemed satisfied to the extent of her workers’ compensation and UM recoveries.”
— Or. Rev. Stat. § 734.640(3) — 4 cases
Bird v. Norpac Foods, Inc., 934 P.2d 382 (Or. 1997).
“They argued that, because OIGA had assumed the obligations of Mission and ultimately was responsible for paying Bird’s judgment against them, pursuant to ORS 734.640, 4 the judgment must be deemed satisfied to the extent of her workers’ compensation and UM recoveries.”
Carrier v. Hicks, 851 P.2d 581 (Or. 1993).
“The threshold issue is whether ORS 734.640 requires a claimant to exhaust the limits of all other insurance coverage before a claimant can recover from either a tortfeasor whose liability insurer is insolvent or from OIGA.”
McGraw v. Gwinner, 578 P.2d 1250 (Or. 1978).
“ORS 734.640(3). 3 ORS 743.114: "If settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiffs recovery exceeds the amount…”
Bird v. Norpac Foods, Inc., 888 P.2d 118 (Or. Ct. App. 1995).
“In that motion, they argued that, because OIGA had assumed *353 the responsibilities of their insolvent insurer and was ultimately responsible for payingthe judgment against them, the judgment was subject to ORS 734.640. That statute provides: “(1) Any person who has a claim…”
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