S055318, Opinion — Scott v. State Farm Mutual Auto. Ins.

146
Argued and submitted March 7, decision of Court of Appeals reversed; judgment of
circuit court reversed, and case remanded to circuit court for further proceedings
July 17, 2008
Laura SCOTT,
Petitioner on Review,
v.
STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY,
a foreign corporation,
Respondent on Review.
(CC 0312-13683; CA A127691; SC S055318)
190 P3d 372

CJS, Insurance § 1586.
En Banc
On review from the Court of Appeals.*
Meagan 	A. 	Flynn, 	Preston 	Bunnell 	& 	Flynn, 	LLP,
Portland argued the cause and filed the briefs for petitioner
on review.
R. Daniel Lindahl, Bullivant Houser Bailey PC, Portland,
argued the cause for respondent on review. With him on the
brief was John R. Bachofner.
Robert K. Udziela, Beaverton, filed a brief on behalf of
amicus curiae Oregon Trial Lawyers Association.
DE MUNIZ, C. J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, 	and the case is
remanded to the circuit court for further proceedings.
* Appeal from Multnomah County Circuit Court, Marilyn Litzenberger,
Judge. 213 Or App 351, 161P3d944 (2007).

148 	Scott v. State Farm Mutual Auto. Ins.
DE MUNIZ, C. J.
Plaintiff brought this action against defendant State
Farm Mutual Automobile Insurance Company (State Farm),
alleging that State Farm had not paid uninsured motorist
(UM) benefits owed to her after a car accident, and asserting
that she was entitled to recover her reasonable attorney fees
pursuant to ORS 742.061. That statute allows an insured to
recover reasonable attorney fees if, among other things, "set-
tlement is not made within six months from the date proof of
loss is filed with an insurer." The statute contains a corollary
provision providing that a UM and underinsured (UIM)
insurer is not subject to attorney fees if it provides written
acceptance of coverage and consent to binding arbitration
"not later than six months from the date proof of loss is filed
with the insurer."
All of plaintiffs claims against State Farm were set-
tled except for her claim for attorney fees. State Farm then
filed a motion for partial summary judgment on that claim,
asserting that plaintiff had failed to provide an adequate
"proof ofloss" more than six months before it accepted cover-
age and consented to binding arbitration. The trial court
granted State Farm's motion and dismissed plaintiffs claim
for attorney fees. The Court of Appeals affirmed the trial
court judgment. Scott v. State Farm Mutual Auto. Ins., 213
Or App 351, 161P3d944 (2007). Petitioner sought review in
this court, asserting that she had provided the statutorily
required "proof ofloss" when she filled out an application for
benefits on a form provided by State Farm. We allowed
review and now reverse the decision of the Court of Appeals
and the judgment of the trial court.
On review of a grant of summary judgment, we view
the facts and all reasonable inferences that may be drawn
from them in favor of the nonmoving party-in this case,
plaintiff. Jones v. General Motors Corp., 325 Or 404, 408, 939
P2d 608 (1997). Summary judgment is appropriate ifthere is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter oflaw. ORCP 4 7 C.

Cite as 345 Or 146
The Court of Appeals adequately describes the facts as
follows:
"Plaintiff was involved in a car accident on January 8, 2002.
She was insured by State Farm, and the other driver was
uninsured. On January 11, Sally Hess, a claim representa-
tive who worked on uninsured/underinsured motorist (UM/
UIM) claims for State Farm, contacted plaintiff, informed
her of the various types of coverage available to her, and
took her recorded statement. According to Hess, plaintiff
said that she was not sure whether she would pursue UM
bodily injury coverage. Plaintiff does not directly contradict
that assertion, but emphasizes that she never said that she
was not bringing a UM claim. Plaintiff told Hess that she
was receiving medical treatment, and Hess referred plain-
tiff to the personal injury protection (PIP) department for
coverage of her ongoing treatment.
"The adjuster for plaintiffs PIP claim provided her with
a form entitled 'application for benefits.' Plaintiff completed
and submitted that form around January 20. State Farm
used that form exclusively for PIP claims, although it did
not have a separate proof of loss form for UM/UIM claims.
According to plaintiff, State Farm never furnished her with
any other forms, and she understood that the application
for benefits form was an application for all benefits, includ-
ing PIP and UM benefits. The completed application
included a description of the accident and the resulting
injury to plaintiff, as well as contact information for the doc-
tor who treated her. Nearthe top of the form was printed, in
all capital letters, 'The information provided will enable
us to determine if you are entitled to benefits under the
policyholder's insurance contract.' (Uppercase omitted.)
The form also included an authorization for plaintiffs
health care providers to provide information to State Farm.
"State Farm separated processing of PIP and UM/UIM
claims and did not allow UM/UIM claim representatives to
see PIP file materials without authorization. Accordingly,
in keeping with State Farm's usual practice, plaintiffs
application for benefits form was not sent to the UM
department.
"On January 25 and 30, Hess left telephone messages
asking plaintiff to call about a possible bodily injury claim.
On February 27, Hess and plaintiff spoke by telephone and,

150 	Scott v. State Farm Mutual Auto. Ins.
according to Hess, plaintiff'indicated for the first time that
she might pursue a UM/UIM claim. As a result, I advised
that I would send her a [m]edical [a]uthorization for her to
sign and return for State Farm to obtain records and infor-
mation.' That same day, Hess wrote to the other driver and
informed him that plaintiff was making a claim for UM ben-
efits and asked him to inform State Farm if he in fact did
have insurance. Both parties apparently agree that plain-
tiff returned the medical authorization form on March 6,
although that form is not in the record.
"Nearly six months later, in a letter dated August 28,
2002, plaintiffs counsel wrote to Hess, asserting that State
Farm had received notice of plaintiffs claim more than six
months before and that plaintiff 'has not received any writ-
ten notice from State Farm containing the written language
approved in ORS 742.061.' The letter warned that if the
claim did not settle, plaintiff would have the right to recover
attorney fees. State Farm responded with a letter dated
August 30 accepting coverage and consenting to binding
arbitration."
Scott, 213 Or App 353-55 (emphasis and brackets in original;
footnotes omitted).
Plaintiff later brought this action against State
Farm, alleging that it had not paid UM benefits owed to her
and that she was entitled to recover her reasonable attorney
fees pursuant to ORS 742.061. As noted, all other aspects of
the case eventually settled, except for plaintiff's attorney fees
claim. State Farm moved for partial summary judgment dis-
missing plaintiff's claim for attorney fees, asserting that
plaintiff had failed to provide "proof of loss" more than six
months before it accepted coverage and consented to binding
arbitration. According to State Farm, "proof ofloss" requires
a "written submission containing full particulars regarding
the accident, claimed injuries and treatment," as well as writ-
ten notice of the intent to claim UM benefits. Plaintiff filed a
cross-motion for partial summary judgment on the same
issue. Because State Farm accepted coverage and consented
to binding arbitration on August 30, 2002, plaintiff's right to
attorney fees under ORS 746.061 hinged on whether she had
submitted the statutorily required "proof of loss" more than
six months earlier, or prior to February 28, 2002. State Farm
argued that she had not submitted proof of loss of her UM

Cite as 345 Or 146
claim until at least March 6, 2002, when she turned in the
medical 	authorization 	fonn 	provided by 	Hess. 	Plaintiff
argued that she had filed her proof of loss on January 20,
2002, when she completed the application for benefits on the
form provided by State Farm. After a hearing, the trial court
granted defendant's summary judgment motion and denied
plaintiff's. The trial court then issued a judgment dismissing
plaintiff's action.
Plaintiff appealed, asserting that she had submitted
a sufficient "proof ofloss" under ORS 742.061, as that tenn
was explained in Dockins v. State Farm Ins. Co., 329 Or 20,
985 P2d 796 (1999), when she submitted the application for
benefits on the form provided by State Fann. She argued
that, because defendant had only one application fonn for
benefits, she "did all she needed to do by January 20, 2002
[the day she completed the application for benefits] to advise
State Fann of sufficient facts for it to investigate her UM
claim." The Court of Appeals, however, concluded that plain-
tiff was required to submit a written claim sufficiently stat-
ing her intention to pursue a UM claim, and that she had not
done so before February 28, 2002. According to the Court of
Appeals, "[a]lthough State Fann apparently at least recog-
nized the potential for a UM claim, it had nothing in writing
from plaintiff indicating her intention to pursue such a
claim." Scott, 213 Or App at 358.
On review, plaintiff reiterates her argument that
she submitted the statutorily required "proof of loss" when
she completed the application for benefits provided by State
Farm around January 20. She contends that the Court of
Appeals 	decision 	conflicts 	with 	this 	court's 	decision 	in
Dockins, and that the Court of Appeals incorrectly equated
the term "proof of claim" in ORS 742.504(5)(a) with the term
"proof of loss" in ORS 742.061. We turn to that question.
ORS 742.061(1) provides, in part:
"Except as otherwise provided in subsections (2) and (3)
of this section, 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 plaintiff's recovery
exceeds the amount of any tender made by the defendant in

152 	Scott v. State Farm Mutual Auto. Ins.
such action, a reasonable amount to be fixed by the court as
attorney fees shall be taxed as part of the costs of the action
and any appeal thereon."
In Dockins, this court was required to discern the
meaning of the term "proof of loss" as used in a prior version
of ORS 742.061 (1997). The court observed that the prior
statute, by its terms, applied to "any policy of insurance of
any kind or nature," whether or not the policy included a spe-
cific proof ofloss requirement. Dockins, 329 Or at 26 (empha-
sis added). Relying on prior cases in which this court had con-
sidered the adequacy of an insurance claimant's attempt to
comply with a policy provision requiring proof of loss, the
court concluded that
"an event or submission is adequate, both for purposes of
collecting on the policy itself and for obtaining attorney fees
under ORS 742.061, ifit accomplishes the purpose of a proof
of loss. That purpose is to afford the insurer an adequate
opportunity for investigation, to prevent fraud and imposi-
tion upon it, and to enable it to form an intelligent estimate
of its rights and liabilities before it is obliged to pay.
"* * * * *
"Indeed, our cases suggest that, at least where ORS
742.061 is concerned, a plaintiffs burden, if anything, may
be even lighter. In Heis [u. Allstate Insurance Co., 248 Or
636, 644-45, 436 P2 550 (1968)), in particular, this court
placed insurers under a duty of inquiry, holding that, even
if a submission is insufficient to allow the insurer to esti-
mate its obligations, it will be deemed sufficient if the
insurer could accomplish that purpose through a reason-
able investigation."
Dockins, 329 Or at 28 (emphasis in original; internal quota-
tion marks and citations omitted). The court concluded that
"the meaning of the statutory term 'proof of loss' is clear:
Any event or submission that would permit an insurer to
estimate its obligations (taking into account the insurer's
obligation to investigate and clarify uncertain claims) qual-
ifies as a 'proof ofloss' for purposes of the statute."
Id. at29.

Cite as 345 Or 146
In 1999, the same year that Dockins was decided,
the legislature amended ORS 742.0611 to add two new sub-
sections regarding PIP and UM claims:
"(2) 	Subsection (1) of this section does not apply to
actions to recover personal injury protection benefits if, in
writing, not later than six months from the date proof of
loss is filed with the insurer:
"(a) 	The insurer has accepted coverage and the only
issue is the amount of benefits due the insured; and
"(b) 	The insurer has consented to submit the case to
binding arbitration.
"(3) 	Subsection (1) of this section does not apply to
actions to recover uninsured or underinsured motorist ben-
efits if, in writing, not later than six months from the date
proof ofloss is filed with the insurer:
"(a) 	The insurer has accepted coverage and the only
issues are the liability of the uninsured or underinsured
motorist and the damages due the insured; and
"(b) 	The insurer has consented to submit the case to
binding arbitration."
Those provisions created the corollary provision
referred to above that shields PIP and UM/UIM insurers
from the imposition of attorney fees if they provide written
acceptance of coverage and consent to binding arbitration
"not later than six months from the date proof of loss is filed
with the insurer." The legislature's use of the same term,
"proof of loss," in all three of the statute's subsections indi-
cates that the legislature intended the term to have the same
meaning throughout the statute. See PGE u. Bureau ofLabor
and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (stating
that "use of the same term throughout a statute indicates
that the term has the same meaning throughout the stat-
ute"). The legislature did not otherwise modify the term
"proof ofloss" in any part of the statute. The foregoing history
notwithstanding, we now must determine whether the Court
1 ORS 742.061 was also amended in 2003. Or Laws 2003, ch 794, § 328. That
amendment has no effect on our analysis of this case.

154 	Scott v. State Farm Mutual Auto. Ins.
of Appeals correctly concluded that the legislature intended
some other meaning of the term "proof of loss" in the UM
context.
In reaching its conclusion that the application for
benefits submitted by plaintiff was not statutorily sufficient,
the Court of Appeals relied in part on one of its prior cases,
Mosley v. Allstate Ins. Co., 165 Or App 304, 996 P2d 513
(2000). 	In 	Mosley, 	the 	Court 	of Appeals 	distinguished
Dockins, noting that that case dealt with a homeowner's
insurance policy and that there was "no applicable statutory
definition of the term 'proof of loss' " applicable to the
homeowner's insurance coverage in that case. Mosley, 165 Or
App at 310-11. Here, the Court of Appeals noted that, in con-
trast, in order to receive UM benefits, a claimant had to meet
the additional requirements imposed by ORS 742.504(5)(a),
which sets out the requirements for a "proof of claim."2 The
court stated that,
"[b]ecause ORS 742.061 specifies the prerequisites for
recovery of attorney fees for all types of insurance policies
and because the legislature used the term proof of claim to
describe the initiation of the UM claims adjustment proc-
ess, it has obviously chosen to use the terms inter-
changeably."
165 Or App at 311. According to the Court of Appeals, in the
UM context, "proof of loss" in ORS 742.061 is synonymous
with "proof of claim" in ORS 742.504(5)(a) and, consistent
with that statute, a "proof ofloss" must be a written submis-
sion including the" 'full particulars' of the nature and extent
of the insured's injuries, treatment and other material
details." Id. For the reasons that follow, we find the Court of
Appeals' analysis unpersuasive.
2 ORS 742.504(5)(a) provides:
"As soon as practicable, the insured or other person making claim shall
give to the insurer written proof of claim, under oath if required, including full
particulars of the nature and extent of the injuries, treatment and other details
entering into the determination of the amount payable hereunder. The insured
and every other person making claim hereunder shall submit to examinations
under oath by any person named by the insurer and subscribe the same, as
often as may reasonably be required. Proof of claim shall be made upon forms
furnished by the insurer unless the insurer fails to furnish the forms within 15
days after receiving notice of claim."

Cite as 345 Or 146 (2008) 	155
Although ORS 742.061 and ORS 742.504(5)(a) relate
to UM claims, the legislature used two different terms to
describe 	the 	insured's 	submissions, 	indicating 	that 	it
intended two different meanings for each. See PGE, 317 Or at
611 (use of term in one section and not in another section of
the same statute indicates a purposeful omission); State v.
Guzek, 322 Or 245, 265, 906 P2d 272 (1995) ("When the leg-
islature uses different terms in related statutes, we presume
that the legislature intended different meanings."). Nothing
in the text of the statute indicates that the legislature
intended 	that 	the 	definition 	of "proof of loss" 	in 	ORS
742.061(2) and (3) be identical to the definition of "proof of
claim" in ORS 742.504(5)(a). ORS 742.504(5)(a) describes
what is required to recover UM benefits, not attorney fees,
when those benefits are wrongfully withheld. Moreover, ORS
742.061 was originally enacted in 1919 as General Laws of
Oregon, chapter 110, sections 1 and 2. That statute allowed
for the recovery of attorney fees in actions or suits on insur-
ance policies "provided, that settlement is not made within
eight months from the date proof of loss is filed." Although
renumbered and amended various times in the intervening
years, the term "proof ofloss" has remained the same. On the
other hand, the legislature enacted ORS 742.504, which sets
out minimum requirements for UM insurance policies, 3 in
1967. The fact that "proof of claim" postdates "proof ofloss" by
nearly 50 years demonstrates the flaw in the Court of
Appeals' 	determination 	that 	the 	legislature 	somehow
intended "proof of claim" to describe what is required of an
insured in making a "proof ofloss."
In our view, the meaning of "proof of loss" in ORS
742.061 is as the court defined it in Dockins: Any event or
submission that would permit an insurer to estimate its obli-
gations (taking into account the insurer's obligation to inves-
tigate and clarify uncertain claims) qualifies as a "proof of
loss" for purposes of the statute. The legislature has not
3 ORS 742.504 provides, in part:
"Every policy required to provide the coverage specified in ORS 742.502
shall provide uninsured motorist coverage that in each instance is no less
favorable in any respect to the insured or the beneficiary than if the following
provisions were set forth in the policy."

156 	Scott v. State Farm Mutual Auto. Ins.
altered that definition. We turn now to the question whether
plaintiff submitted an adequate proof of loss for UM benefits
before February 28, 2002.
By January 11, State Farm was aware that plaintiff
was receiving medical treatment for injuries sustained in a
car accident with an uninsured motorist. By January 20,
plaintiff had completed and submitted an "application for
benefits," which stated that "[t]he information provided will
enable us to determine if you are entitled to benefits under
the 	policyholder's 	insurance 	contract," and 	included 	an
authorization for plaintiffs health care providers to provide
information 	to 	State Farm. 	The 	application included a
description of the accident and the resulting injury to plain-
tiff, 	as well 	as 	contact information for 	the doctor who
treated her. The form did not indicate that it was an appli-
cation for PIP benefits only and, indeed, State Farm did not
have a separate proof of loss form for UM/UIM claims.
Though it is State Farm's practice to separate processing
of PIP and UM/UIM claims and to not allow UM/UIM claim
representatives to see PIP file materials without authoriza-
tion, there is no evidence in the record that plaintiff was
aware of that practice. We are not aware of any reason why
that knowledge should be imputed to plaintiff or of any rea-
son to permit an insurer's unilaterally imposed corporate
practice to compromise an injured party's right to timely
acceptance of a claim under ORS 742.061. Even if plaintiff
stated on January 11 that she was not sure whether she
would pursue UM coverage, State Farm was aware that
plaintiff 	might 	want 	UM 	benefits, 	and 	State 	Farm
was in the best position to know to which coverage plaintiff
was entitled. Moreover, the letter State Farm sent to the
other driver on February 27, 2002, informing him that plain-
tiff was making a claim for UM benefits, indicates that State
Farm understood that plaintiff was making a UM claim. By
January 20, 	plaintiffs 	written 	submission satisfied 	the
"proof of loss" requirements established in Dockins in that it
was sufficient to enable State Farm to estimate its obliga-
tions regarding plaintiffs UM claim, or to do so after a
reasonable investigation. That is all that is required under
ORS 742.061.

Cite as 345 Or 146 (2008) 	157
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.