Walker / Washburn v. Progressive Universal Ins. Co.

No. 781 August 19, 2026 287 IN THE COURT OF APPEALS OF THE STATE OF OREGON Matthew WALKER, Plaintiff-Appellant, v. PROGRESSIVE UNIVERSAL INSURANCE COMPANY, Defendant-Respondent. Multnomah County Circuit Court 23CV31115; A185819 (Control) Matthew WASHBURN, Plaintiff-Appellant, v. PROGRESSIVE UNIVERSAL INSURANCE COMPANY, Defendant-Respondent. Multnomah County Circuit Court 23CV27813; A185820 Judith H. Matarazzo, Judge. (General Judgment filed October 15, 2024) Peter O. Tuenge, Judge pro tempore. (General Judgment filed October 21, 2024) Argued and submitted June 3, 2026. Travis Eiva argued the cause for appellants. Also on the briefs was Rachel Jennings. Katie D. Buxman argued the cause for respondent. Also on the brief was Alexander J. Brunino. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. POWERS, J. Reversed and remanded. 288 Walker / Washburn v. Progressive Universal Ins. Co. Cite as 352 Or App 287 (2026) 289 POWERS, J. In this consolidated appeal, plaintiffs challenge the trial court’s dismissal of their claims against defendant, Progressive Universal Insurance Company. In separate acci- dents, plaintiffs were injured by an underinsured driver while driving motorcycles, resulting in injuries greater than their motorcycle Uninsured/Underinsured (UM/UIM) bene- fits. In addition to their motorcycle insurance, plaintiffs had Progressive auto policies that covered other vehicles that were not involved in the accident. Plaintiffs sought additional UIM coverage under their auto policies, and defendant denied those claims, asserting that the “regular use” exclusion applied. Plaintiffs sued for breach of contract, arguing that the auto policy “regular use” exclusion was unenforceable because the application of that exclusion provided less favorable coverage than the Oregon model policy described in statute, which sets forth the minimum coverage requirements. Defendant maintained that a proper coverage-to-coverage analysis did not require the trial court to void policy provisions based on hypothetical facts and that, here, plaintiffs’ arguments are hypothetical because plaintiffs would each be denied cover- age under the model policy. On cross-motions for summary judgment, the trial court agreed with defendant’s argu- ments, granted defendant’s motion for summary judgment, and denied plaintiffs’ motion.1 As explained below, because the facts do implicate the exclusion and the application of the auto policy exclusion results in less favorable coverage than the model policy requires, we reverse and remand. In reviewing cross-motions for summary judgment, we view the record for each motion in the light most favor- able to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether either party is entitled to judgment as a matter of law. O’Kain v. Landress, 299 Or App 417, 419, 450 P3d 508 (2019). The relevant facts are few and undisputed. Walker and Washburn (collectively, plaintiffs) were separately injured in motorcycle accidents caused by underinsured drivers but 1 Although plaintiffs’ cases were separate and they filed separate motions for summary judgment, we generally refer to only a single motion because they present identical issues. 290 Walker / Washburn v. Progressive Universal Ins. Co. present parallel UIM claims. At the time of each of the acci- dents, plaintiffs had motorcycle insurance policies in addi- tion to a separate Progressive auto policy, which included UIM coverage. Plaintiffs sustained injuries greater than their motorcycle UIM benefits. Plaintiffs sought additional coverage and submitted claims for the UIM benefits pursu- ant to their auto policy. Defendant denied the claims based on the “regular use” exclusion. That exclusion provided: “Coverage under this Part III will not apply: “1. to bodily injury sustained by any person while occupying or being struck by a motor vehicle that is owned by or furnished for the regular use of you, a relative, or a rated resident. “This exclusion does not apply to a covered auto that is insured under this part III * * *.” (Boldface in original.) The auto policy included a definition explaining that a “covered auto” means, in part, “any addi- tional auto” and “any replacement auto.”2 The policy defined “additional auto” as “an auto you become the owner of during the policy period that does not permanently replace an auto shown on the declarations page[,]” provided that the addi- tional conditions are met. A “replacement auto” is defined as “an auto that permanently replaces an auto shown on the declarations page[.]” The policy further defined “auto” to mean a “land motor vehicle * * * with at least four wheels[.]” After defendant denied plaintiffs’ claims based on that “regular use” exclusion, plaintiffs sued for breach of contract. As noted, the parties filed cross-motions for sum- mary judgment. Defendant continued its assertion that it properly denied plaintiffs’ claims, maintaining that the facts must implicate the provision and that the court was not required to strike a provision based on hypothetical 2 The complete definition of “Covered auto” provides: “5. ‘Covered auto’ means: “a. any auto or trailer shown on the declarations page for the cover- ages applicable to that auto or trailer; “b. any additional auto; “c. any replacement auto; or “d. a trailer owned by you.” (Boldface in original.) Cite as 352 Or App 287 (2026) 291 facts or an abstract theory of coverage. Plaintiffs asserted that the coverage-to-coverage analysis required under Vega v. Farmers Ins. Co., 323 Or 291, 918 P2d 95 (1996), does not require consideration of the facts, and that because the exclusion was less favorable than Oregon’s model policy, which sets forth the minimum coverage requirements and is discussed in depth below, the exclusion was unenforceable and should be stricken from the contract. See Vega, 323 Or at 299 (explaining “that the validity of a challenged UIM provi- sion must be tested, not by a direct comparison between the challenged provision with an individual statutory provision but, instead, by a comparison between coverage offered by the policy containing the challenged provision and the cov- erage offered by a hypothetical policy containing the provi- sions set out at ORS 742.504(1) to (12)” (emphases omitted)). In absence of that exclusion, plaintiff maintains, defendant had no basis to deny UM/UIM coverage to plaintiffs. Because the cases presented identical legal ques- tions, the trial court held a consolidated hearing on the cross-motions for summary judgment, at which the parties disputed whether the exclusion should be stricken from the policy as inconsistent with Oregon’s model policy. See id. (describing coverage-to-coverage comparison between a challenged insurance provision with the statutory provision). Plaintiffs argued that defendant’s exclusion provided less favorable coverage than the model policy coverage requires in two ways. Plaintiffs explained that, first, the auto pol- icy preserves coverage for only a “covered auto,” defined as having “at least four wheels,” even if owned by or furnished for the regular use of the insured, whereas the model policy requires the preservation of coverage for “an insured vehi- cle,” which includes two- and three-wheeled vehicles.3 The 3 ORS 742.504(2) provides, in part: “(d) ‘Insured vehicle,’ except as provided in paragraph (e) of this provi- sion, means: “(A) The vehicle described in the policy or a newly acquired or substitute vehicle, as each of those terms is defined in the public liability coverage of the policy, insured under the public liability provisions of the policy; or “(B) A nonowned vehicle operated by the named insured or spouse if a resident of the same household, provided that the actual use thereof is with the permission of the owner of the vehicle and the vehicle is not owned by nor furnished for the regular or frequent use of the insured or any member of the same household.” 292 Walker / Washburn v. Progressive Universal Ins. Co. second difference, plaintiffs argued, is that the model policy requires the exclusion to preserve coverage for substitute vehicles, which the auto policy does not include. Plaintiffs argued that, because the auto policy exclusion is narrower than the statute requires, it provides less favorable coverage and must be stricken from the policy. In response, defendant asserted that the coverage- to-coverage analysis described in Vega requires consider- ation of the facts of the claims. Defendant remonstrated that plaintiffs’ arguments are hypothetical and abstract, because plaintiffs would each be denied coverage under the model policy. In defendant’s view, the correct analysis for interpreting the UIM statute under Vega is to determine what the legislature intended, and the legislature did not intend for claimants who pay to insure one vehicle to have UIM coverage for all of their owned vehicles under that vehicle’s policy. At the conclusion of the hearing, the trial court noted that the question before the court was, in essence, “whether the facts need to implicate the provisions at issue or not,” and decided to take the case under advisement. Ultimately, the court granted defendant’s motion and denied plaintiffs’ motions for summary judgment, explaining that the facts must implicate the challenged insurance policy provision at issue, which they do not in this case. Plaintiffs timely appealed. The parties reprise their arguments on appeal. Plaintiffs renew their argument that the policy exclusion results in less favorable coverage than the coverage required under the model policy set forth in ORS 742.504(4)(b). At oral argument, plaintiffs further asserted that the statute requires that “[e]very policy * * * shall provide uninsured motorist coverage that in each instance is no less favorable in any respect[,]” and that “instance” means instance of cov- erage, rather than a specific claim. Plaintiffs contend that, at minimum, “instance” is ambiguous and that the court reads ambiguous terms in favor of the insured. Defendant argues, as it did below, that the facts must implicate the exclusion and that plaintiffs present an abstract theory of coverage. Defendant also points to Sheppard v. Progressive Cite as 352 Or App 287 (2026) 293 Classic Ins. Co., 375 Or 262, 273, 590 P3d 958 (2026), argu- ing that the Oregon Supreme Court recently held that the same Progressive exclusion is consistent with the model policy. Oregon law requires that “[e]very motor vehicle liability policy” provide “uninsured motorist coverage” and “underinsurance coverage.” ORS 742.502(1)(a), (5). UIM coverage is insurance against the loss that occurs when an insured suffers “bodily injury or death” related to a motor vehicle accident for which another person is at fault and the at-fault person has insufficient liability insurance to pay the damages that the injured person would have been “legally entitled to recover” in a civil action against the at-fault per- son. ORS 742.502(5); ORS 742.504(1)(a). The legislature has set forth a comprehensive model policy of UM/UIM coverage. ORS 742.504; see also Vega, 323 Or at 302 (so describing). The model policy requires that all automobile insurance policies “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 fol- lowing provisions were set forth in the policy.” ORS 742.504. The comprehensive UM/UIM model policy “represents the minimum coverage; that is, an actual policy must provide coverage at least as favorable to the insured as the model.” Sheppard, 375 Or at 273; accord Rogers v. Farmers Ins. Co., 349 Or App 691, 694, 591 P3d 1205 (2026). Therefore, to determine the enforceability of a provision for UIM cover- age, we must compare the coverage provided in the chal- lenged policy with the coverage provided by the provisions set forth in ORS 742.504. Vega, 323 Or at 299. When a policy provision is less favorable than the model policy requires, that provision is unenforceable and stricken from the policy, and the court does not replace it with the comparable model policy provision. See Erickson v. Farmers Ins. Co., 331 Or 681, 687-88, 21 P3d 90 (2001) (explaining that, where UM exclusions were unenforceable because they provided less favorable coverage than the model policy required, and the remaining policy terms provided coverage, “there [was] no reason to replace the unenforceable provisions that denied [the] plaintiff coverage with the statutory provisions”). 294 Walker / Washburn v. Progressive Universal Ins. Co. When a question of statutory interpretation arises in an insurance coverage dispute, we “apply our familiar method of statutory interpretation, seeking to determine the legislature’s intent, of which the statutory text and con- text are the best evidence.” Sheppard, 375 Or at 274 (citing State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009)). We begin by concluding that the exclusion is nei- ther irrelevant to the facts of this case nor a hypothetical or abstract theory of coverage. As noted above, ORS 742.504 requires that “[e]very policy * * * shall provide uninsured motorist coverage that in each instance is no less favorable in any respect[.]” Here, the application of the “regular use” exclusion in the auto policy is the reason that plaintiffs were denied coverage. That is, but for the “regular use” exclu- sion being applied to those specific facts, plaintiffs would have coverage under the auto policy and defendant would have to pay the UIM benefits. Because the facts trigger the application of the “regular use” exclusion within the auto policy, and that exclusion, according to plaintiffs, provides less favorable coverage than the model policy requires, the “regular use” exclusion is the dispositive provision at issue and relevant to plaintiffs’ cases. Accordingly, we need not determine whether instance refers to a claim or coverage. We proceed, then, under the Vega framework by comparing the coverage of the Progressive auto policy with the coverage of the model policy in the statute. Plaintiffs assert that the “regular use” exclusion in the auto policy provides less favorable coverage. In their view, the auto policy preserves coverage for only a “covered auto,” defined as having “at least four wheels,” whereas the model policy requires the preservation of coverage for “an insured vehi- cle,” which includes two- and three-wheeled vehicles. We agree with plaintiffs’ argument. Under ORS 742.500(3)(a), a “motor vehicle” includes “every self-propelled device in, upon or by which any person or property is or may be transported or drawn upon a public highway.” ORS 742.504(2)(m) provides that “vehicle” means “every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, but does not include devices moved by human power or used Cite as 352 Or App 287 (2026) 295 exclusively upon stationary rails or tracks.” By those terms, both the statutory definition of “motor vehicle” and “vehicle” include two- and three-wheeled devices, including motorcy- cles. In contrast, the auto policies preserve coverage for a “covered auto,” which includes an “additional auto,” mean- ing “an auto you become the owner of during the policy period,” and “replacement auto,” meaning “an auto that per- manently replaces an auto shown on the declarations page.” The auto policy further defines the term “auto” to include a land motor vehicle “with at least four wheels.” Thus, the defi- nition in defendant’s policy materially narrows the coverage available when compared to the model policy in which the legislature defined vehicle in ORS 742.502(2)(m) to include motorcycles. Accordingly, we conclude that defendant’s pol- icy provides less favorable coverage than required by ORS 742.504. See Cantu v. Progressive Classic Ins. Co., 325 Or App 184, 193, 528 P3d 1187 (2023) (similarly concluding that by limiting the definition of “auto” to devices having “at least four wheels,” the defendant provided less favorable cov- erage to the plaintiff than required by the model statute). We turn to plaintiffs’ second argument, asserting that the auto policy fails to provide coverage for substitute vehicles, which the model policy requires. ORS 742.504(2)(d) defines “insured vehicle” to include “the vehicle described in the policy or a newly acquired or sub- stitute vehicle[.]” The auto policy, in contrast, preserves the required coverage for “additional auto[s]” and “replacement auto[s],” which, by defendant’s definitions, require ownership or permanency, but it does not extend preservation of cov- erage to “substitute vehicles.” Plaintiffs, therefore, received less favorable coverage during the life of the policy because they were entitled to coverage for substitute vehicles under the model policy, but did not receive such coverage based on the language contained in the auto policy exclusion. Defendant asserts that a “temporary” substitute vehicle cannot be furnished for regular use. In support, defendant points to Wallace Co. v. State F. M. Auto. Ins. Co., 220 Or 520, 526, 349 P2d 789 (1960), in which the court noted that “it seems obvious that the [furnished-for-regular-use] clause implies a restriction upon the use of automobiles over 296 Walker / Washburn v. Progressive Universal Ins. Co. which the insured has a rather permanent right of control.” Id. Since the parties submitted their briefs, the Oregon Supreme Court issued Sheppard, in which the court clar- ified that, when determining whether a vehicle has been furnished for regular use, “the central focus of that inquiry must be on the insured’s right to use the vehicle; the manner or extent to which the insured actually exercised that right is not dispositive.” 375 Or at 280. The court explained that a “vehicle made available only on an ‘infrequent’ basis would fall outside the exclusion, whereas one that an insured has the right to use ‘often’ would fall within it[,]” but it expounded that permanency or “de facto ownership” was not required. Id. at 281-83 (noting that, “[a]lthough [Wallace] did mention ‘permanent’ when discussing what would trig- ger the exclusion, it summarized its understanding of ‘fur- nished for regular use’ more broadly, without referring to permanent control, much less to an insured’s ability to add another vehicle to their insurance policy[ ]”). Accordingly, the auto policy provides less favorable coverage, because the auto policy requires ownership or permanency. Moreover, to the extent that defendant relies on the Supreme Court’s comments in Sheppard that the exclusion at issue here is permissible, that question was neither presented nor argued before the court in that case. Ultimately, the auto policy exclusion at issue is unenforceable and should be stricken because its applica- tion would provide less favorable coverage than the model policy requires. See Sheppard, 375 Or at 273 (“If any policy term is less favorable to the insured than the model policy, then that term is unenforceable.”); Erickson, 331 Or at 687- 88 (explaining that when an insurance policy provision is less favorable than the model policy requires, that provision is unenforceable and stricken from the policy). Accordingly, because plaintiffs are entitled to UIM coverage, the trial court erred by granting defendant’s motion for summary judgment and denying plaintiffs’ motions. Reversed and remanded.