Bates v. Bankers Life and Casualty Co. ( 2018 )


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  • No. 2	                        January 19, 2018	337
    IN THE SUPREME COURT OF THE
    STATE OF OREGON
    Lorraine BATES,
    Charles Ehrman Bates, Eileen Burke,
    Jaci Evans, as Successor Personal Representative
    for the Estate of Thomas Marier, and
    Dalla Francis, as Personal Representative for
    the Estate of George Alexander,
    Plaintiffs,
    v.
    BANKERS LIFE AND CASUALTY COMPANY,
    an Illinois insurance company and
    CNO Financial Group, INC.,
    a Delaware corporation,
    Defendants.
    (US District Court No. 3:13-CV-00580-PK;
    US Court of Appeals No. 14-35397; SC S064742)
    On certified question from the United States Court
    of Appeals for the Ninth Circuit; certified order dated
    February 24, 2017; certified question accepted March 21,
    2017; argued and submitted November 7, 2017.
    Rachele R. Selvig, Cauble Cauble & Selvig, LLP, Grants
    Pass, argued the cause and filed the briefs for the plaintiffs.
    Adam J. Kaiser, Alston & Bird LLP, New York, New York,
    argued the cause and filed the brief for the defendants. Also
    on the brief were John M. Aerni, New York, New York, and
    Vicki L. Smith, Lane Powell PC, Portland.
    Erin K. Olson, Law Office of Erin Olson, PC, Portland,
    filed the brief for amicus curiae Oregon Trial Lawyers
    Association. Also on the brief was Emily Teplin Fox, Portland.
    Before Balmer, Chief Justice, and Kistler, Walters,
    Nakamoto, Flynn, and Duncan, Justices.*
    ______________
    *  Landau, J., retired December 31, 2017, and did not participate in the deci-
    sion of this case. Nelson, J., did not participate in the consideration or decision of
    this case.
    338	                       Bates v. Bankers Life and Casualty Co.
    BALMER, C. J.
    The certified question is answered.
    Case Summary: The Ninth Circuit certified a question to the Oregon
    Supreme Court: Does a plaintiff state a claim under ORS 124.110(1)(b), which
    prohibits the financial abuse of a vulnerable person, for “wrongful withholding
    of money or property where it is alleged that an insurance company has in bad
    faith delayed the processing of claims and refused to pay benefits owed under an
    insurance contract?” Held: Plaintiffs did not state a claim because they alleged
    that defendants failed to pay out required insurance benefits to vulnerable insur-
    ance beneficiaries, but under ORS 124.110(1)(b), a plaintiff must allege that a
    defendant wrongfully “continues to hold” “money or property * * * acquired” from
    the plaintiff. That requirement was not met here, the Court explained, because
    an insured’s contractual right to insurance benefits are not “money or property”
    that the insurance company “acquired” in the context of ORS 124.110(1).
    The certified question is answered.
    Cite as 362 Or 337 (2018)	339
    BALMER, C. J.
    This case is before the court on a certified ques-
    tion from the United States Court of Appeals for the Ninth
    Circuit under ORS 28.200 and ORAP 12.20. See generally
    Western Helicopter Services v. Rogerson Aircraft, 311 Or
    361, 811 P2d 627 (1991) (discussing factors court considers
    in exercising discretion to accept certified questions). The
    certified question relates to claims under ORS 124.110
    for financial abuse of “vulnerable persons”—here, elderly
    persons—who purchased long-term care insurance from
    defendant Bankers Life & Casualty Co. (Bankers) and
    sought to receive insurance benefits under their policies.1
    The Ninth Circuit certified to this court, and we accepted,
    the following question:
    “Does a plaintiff state a claim under Oregon Revised
    Statutes 124.110(1)(b) for wrongful withholding of money
    or property where it is alleged that an insurance com-
    pany has in bad faith delayed the processing of claims and
    refused to pay benefits owed under an insurance contract?”
    Bates v. Bankers Life & Cas. Co., 849 F3d 846, 847 (9th Cir
    2017).
    For the reasons that follow, we answer in the neg-
    ative: Allegations that an insurance company, in bad faith,
    delayed the processing of claims and refused to pay bene-
    fits owed to vulnerable persons under an insurance contract
    do not state a claim under ORS 124.110(1)(b) for wrongful
    withholding of “money or property.”2
    We take the facts from the Ninth Circuit’s certifica-
    tion order, supplemented by the federal court pleadings. The
    certification order states:
    “Plaintiffs are elderly Oregonians or their successors
    who purchased long-term healthcare insurance policies
    sold by [Bankers and its parent company]. These policies
    1
    For convenience, we refer to plaintiffs’ claim under ORS 124.110 as a claim
    for “elder financial abuse.”
    2
    It should go without saying that we express no opinion as to what other
    claims plaintiffs may or may not have against Bankers based on the allegations
    in this case. Plaintiffs asserted other claims in the federal court litigation, but
    none are before us, and our opinion is limited to the issue of whether plaintiffs
    have stated a claim under ORS 124.110(1)(b).
    340	                   Bates v. Bankers Life and Casualty Co.
    are designed to provide health services for elderly people
    who can no longer care for themselves and are intended to
    cover expenses for in-home care providers, assisted living
    facilities, and nursing homes.
    “Plaintiffs allege that Bankers developed onerous pro-
    cedures to delay and deny insurance claims. Examples of
    these procedures include failing to answer phone calls,
    losing documents, denying claims without notifying policy-
    holders, denying claims for reasons that did not comport
    with Oregon law, and paying policyholders less than what
    they were owed under their policies. Bankers allegedly col-
    lected premium payments and, without good cause, delayed
    and denied insurance benefits to which Plaintiffs were enti-
    tled under their policies.”
    Bates, 849 F3d at 847.
    The federal district court dismissed plaintiffs’ elder
    financial abuse claim for failure to state a claim, concluding
    that Oregon’s elder financial abuse statute applies only in
    the “bailment or trust scenarios expressly referenced in the
    statutory language.” Bates v. Bankers Life and Cas. Co., 993
    F Supp 2d 1318, 1345 (D Or 2014). Plaintiffs appealed the
    judgment dismissing the elder financial abuse claim, and
    the Ninth Circuit, after briefing and argument, certified the
    question set out above.
    Because the certified question asks us to consider
    whether plaintiffs have stated a claim under ORS 124.110
    (1)(b), we accept as true the well-pleaded factual allegations
    in the complaint and construe them in the light most favor-
    able to plaintiffs. Philibert v. Kluser, 360 Or 698, 700, 385
    P3d 1038 (2016). Under that standard, we accept the factual
    assertions in the complaint, including plaintiffs’ allegations
    that Bankers failed to act in good faith and intentionally
    adopted practices that would hinder policyholders in obtain-
    ing benefits to which they were contractually entitled. The
    issue before us, then, is the legal question whether Bankers’
    alleged conduct constitutes elder financial abuse under ORS
    124.110(1)(b).
    ORS 124.110 provides, in part:
    “(1)  An action may be brought under ORS 124.100 for
    financial abuse in the following circumstances:
    Cite as 362 Or 337 (2018)	341
    “* * * * *
    “(b)  When a vulnerable person requests that another
    person transfer to the vulnerable person any money or prop-
    erty that the other person holds or controls and that belongs
    to or is held in express trust, constructive trust or result-
    ing trust for the vulnerable person, and the other person,
    without good cause, either continues to hold the money or
    property or fails to take reasonable steps to make the money
    or property readily available to the vulnerable person when:
    “(A) The ownership or control of the money or property
    was acquired in whole or in part by the other person or
    someone acting in concert with the other person from the
    vulnerable person; and
    “(B)  The other person acts in bad faith, or knew or
    should have known of the right of the vulnerable person
    to have the money or property transferred as requested or
    otherwise made available to the vulnerable person.”
    (Emphasis added.) The successful plaintiff in an elder finan-
    cial abuse action can recover three times the plaintiff’s eco-
    nomic and noneconomic damages, as well as attorney fees.
    ORS 124.100(2)(a) - (c).
    Plaintiffs qualify as vulnerable persons under the
    statute. See ORS 124.100(1)(e) (“vulnerable person” includes
    an “elderly person”); ORS 124.100(1)(a) (“elderly person”
    means a person 65 years of age or older). They claim that
    in imposing various impediments to their efforts to collect
    insurance benefits due to them Bankers retained “money
    or property” that belonged to plaintiffs. Although plaintiffs
    articulate their claim in several slightly different ways, they
    essentially seek to bring themselves within the words of the
    elder financial abuse statute by arguing that the insurance
    benefits that Bankers was contractually obligated to pay
    them constituted “money or property” that “belong[ed] to”
    them. ORS 124.110(1)(b). As they assert, “[P]laintiffs are
    contractually entitled to the benefits under the long-term
    care policies; hence, that money belongs to them.” When
    Bankers did not pay those benefits in a timely manner, they
    contend, Bankers (in the words of the statute) “without
    good cause, either continue[d] to hold the money or prop-
    erty or fail[ed] to take reasonable steps to make the money
    342	                         Bates v. Bankers Life and Casualty Co.
    or property readily available” to them. 
    Id. Because Bankers
    “act[ed] in bad faith, or knew or should have known of the
    right of [plaintiffs] to have the money or property trans-
    ferred as requested or otherwise made available to [plain-
    tiffs],” ORS 124.110(1)(b)(B), plaintiffs conclude, Bankers
    engaged in elder financial abuse.3
    Plaintiffs are straightforward in asserting that
    ORS 124.110(1)(b) provides a cause of action “against insur-
    ance companies that wrongfully retain benefits that belong
    to vulnerable shareholders.” They argue that the federal
    district court erred in holding that claims under subsec-
    tion (1)(b) require that a vulnerable person allege that the
    other persons have “acquired” the money or property “from
    the vulnerable person” and then refused to return it, thus
    limiting such claims to trust and bailment relationships.
    They point out that the statute is not expressly limited to
    those kinds of relationships, but also covers money or prop-
    erty that “belongs to” the vulnerable person. Responding to
    Bankers’ claim that plaintiffs’ interpretation would allow an
    elder financial abuse action whenever an insurance company
    incorrectly denies an insurance claim, plaintiffs emphasize
    that bad faith is a critical element of a financial abuse action.
    This case, they state, is not about mere denials of insurance
    benefits, “but about a systemic bad faith scheme.”
    Bankers responds that ORS 124.110(1)(b) sim-
    ply does not apply to its insurer-insured relationship with
    plaintiffs. Bankers asserts that it does not “hold” or “control”
    any “money or property” owned by plaintiffs; rather, plain-
    tiffs purchased insurance from Bankers in exchange for the
    3
    In addition to alleging failure to pay benefits, plaintiffs’ complaint also con-
    tains allegations that Bankers improperly required policy holders to continue
    paying premiums—with Bankers sometimes continuing to receive automatic
    withdrawals from plaintiffs’ bank accounts—even though the policies’ “waiver”
    provision suspended premiums while policy holders or their spouses received ben-
    efits. The taking and improper withholding of premiums may present a different
    legal issue under ORS 124.110(1)(a) or (b)(B) than plaintiffs’ central claim that
    Bankers violated that statute by failing to pay policy benefits to which they were
    contractually entitled. However, at oral argument, plaintiffs’ counsel stated that
    plaintiffs were not making a claim regarding the wrongful retention of premium
    payments; in any event, that issue is not raised by the certified question, which
    focuses on whether Bankers “delayed the processing of claims and refused to pay
    benefits owed under [the] insurance contract[s].” Accordingly, we do not address
    those allegations.
    Cite as 362 Or 337 (2018)	343
    payment of premiums. Those payments became Bankers’
    money, and, in return, plaintiffs received insurance policies.
    Bankers’ obligation, it asserts, is to pay the benefits to which
    plaintiffs are entitled under the policy terms, but that does
    not make the amounts that Bankers is contractually obli-
    gated to pay “the money or property” of plaintiffs.
    Bankers also points out that the statute specifically
    refers to circumstances in which a person holds a vulnerable
    person’s money or property “in express trust, constructive
    trust or resulting trust,” and argues that those examples
    indicate that the intent of ORS 124.110(1)(b) is not to autho-
    rize an elder financial abuse claim in connection with an
    ordinary arms-length consumer transaction, such as the
    purchase of insurance, but only when a person is holding
    money that it has “acquired” from and that “belongs to” the
    vulnerable person or is being held by the other person as a
    trustee or bailee on behalf of the vulnerable person.
    Finally, Bankers argues that the use of the article
    “the” in the phrase “the money or property,” which appears
    multiple times in the statute, makes clear that “the money or
    property” that the other person “continue[s] to hold” despite
    the request for its return by the vulnerable person (para-
    graph (1)(b); subparagraph (1)(b)(B)), is “the money or prop-
    erty” that the other person previously had acquired from the
    vulnerable person (subparagraph (1)(b)(A)). In other words,
    Bankers contends, the statute applies only when a vulner-
    able person seeks the return of the same money or property
    that he or she transferred to another person, which is not
    the circumstance in this case.
    To resolve this interpretive dispute, we begin with
    the text of the statute. A careful reading of the financial
    abuse statute supports the interpretation urged by Bankers.
    ORS 124.110(1) provides that an action may be
    brought for “financial abuse” in three different circum-
    stances, only two of which have any relevance to the inter-
    pretive exercise here.4 ORS 124.110(1)(a)—which is not the
    basis for plaintiffs’ claim—allows a financial abuse action
    4
    The third circumstance, set out in ORS 124.110(1)(c), is when a person vio-
    lates a restraining order issued under ORS 124.020 regarding sweepstakes.
    344	                 Bates v. Bankers Life and Casualty Co.
    “[w]hen a person wrongfully takes or appropriates money or
    property of a vulnerable person.” (Emphasis added.) That
    provision’s use of the emphasized words indicates that it
    refers to the improper acquisition by another person of the
    vulnerable person’s money or property—such as by fraud,
    conversion, or theft. See Hoffart v. Wiggins, 226 Or App 545,
    548-49, 204 P3d 173 (2009) (noting that action under sub-
    section (1)(a) requires that any taking must be “wrongful”
    and distinguishing action under subsection (1)(b), which
    does not require initial wrongful taking, but does require
    bad faith refusal to return money acquired from vulnerable
    person when requested).
    Paragraph (1)(b), in contrast, applies to circum-
    stances where the vulnerable person entrusts his or her
    money or property to the other person and later requests its
    return, but the other person in bad faith refuses to return it.
    Under that provision, an action for financial abuse requires
    proof of several elements. The first element in time (although
    it appears in the middle of the provision) is that “[t]he own-
    ership or control of the money or property was acquired in
    whole or in part by the other person * * * from the vulner-
    able person.” ORS 124.110(1)(b)(A). That element does not
    require that there be wrongful conduct in the acquisition of
    the money or property, but it does require that the money
    or property at issue be acquired in whole or in part by the
    person from the vulnerable person. The second element is
    the vulnerable person’s request to the other person that the
    other person “transfer” to the vulnerable person any money
    or property that “belongs to” the vulnerable person, and the
    third element is that the other person “without good cause”
    continue to hold the money or property that “belongs to” the
    vulnerable person. ORS 124.110(1)(b). The fourth element is
    that the other person have acted “in bad faith, or knew or
    should have known of the right of the vulnerable person to
    have the money or property transferred as requested.” ORS
    124.110(1)(b)(B).
    Plaintiffs’ argument that Bankers’ failure to pay
    insurance benefits to them constitutes elder financial abuse
    runs into an initial, and fatal, textual barrier. Plaintiffs’
    position essentially reads out of the statute the first ele-
    ment of the claim—that Bankers have acquired “ownership
    Cite as 362 Or 337 (2018)	345
    or control of the money or property from [plaintiffs].” If, as
    plaintiffs assert, “the money or property” is their contrac-
    tual right to receive insurance benefits under the policies,
    Bankers did not “acquire[ ]” that contractual right “from”
    plaintiffs. Rather, plaintiffs paid insurance premiums to
    Bankers in exchange for insurance policies. Plaintiffs are
    not seeking the return of the money they transferred to
    Bankers in the form of premium payments, but instead the
    contractual benefits they are entitled to under Bankers’
    insurance policies, which are not the same thing. A “pre-
    mium” is “[t]he amount paid at designated intervals for
    insurance; esp., the periodic payment required to keep an
    insurance policy in effect.” Blacks’s Law Dictionary 1371
    (10th ed 2009). “Insurance” is “a contract whereby one
    undertakes to indemnify another or pay or allow a specified
    or ascertainable amount of benefit upon determinable risk
    contingencies.” ORS 731.102(1). Because “the money or prop-
    erty” that plaintiffs transferred to Bankers—premiums—
    is factually and legally different from the insurance pol-
    icy benefits they now claim Bankers is withholding from
    them, plaintiffs are unable to establish the first element of
    their elder financial abuse claim, and that claim fails at
    the threshold. That, of course, was the basis for the federal
    district court’s dismissal of plaintiffs’ elder financial abuse
    claim. Bates, 993 F Supp 2d at 1344-45.
    Before this court, plaintiffs elaborate on several
    arguments in support of their proposed interpretation of
    the elder financial abuse statute that the federal district
    addressed only summarily or not at all. We turn briefly to
    those contentions. Plaintiffs argue that Bankers “acquired”
    the money or property that “belong[ed] to” plaintiffs at the
    time that Bankers failed to pay (and thus “continue[d] to
    hold”) the insurance benefits that were due to plaintiffs.
    But the statutory phrase “acquired * * * from the vulnera-
    ble person” suggests a change in possession that is miss-
    ing from plaintiffs’ reading. Plaintiffs’ interpretation would
    require “acquired” to mean something closer to “retained,” a
    meaning that does not make sense in the context of a stat-
    ute addressing intentional transfers of money or property
    such as trusts. Moreover, the statutory wording “continues
    to hold” confirms that the statute is focused on the wrongful
    346	                 Bates v. Bankers Life and Casualty Co.
    retention of money or property already owned by the vul-
    nerable person, rather than the failure to pay an obligation
    owed to the vulnerable person, which is the gravamen of
    plaintiffs’ allegations here.
    Plaintiffs also argue that the federal district court
    incorrectly interpreted the elder financial abuse statute as
    applying only to money transferred by a vulnerable person
    to another person in “bailment or trust scenarios.” Bates,
    993 F Supp 2d at 1345. In doing so, they seek to expand
    the meaning of the words “money or property” that “belongs
    to” them (and that Bankers wrongfully failed to transfer to
    them) to include the insurance benefits to which they are
    contractually entitled.
    Plaintiffs are correct that the words “money or prop-
    erty * * * that belongs to * * * the vulnerable person” indicate
    that ORS 124.110(1)(b) may apply outside the strict “trust”
    confines specifically identified in the statute and mentioned
    by the district court, but that does not mean that the statute
    applies here. We often apply the interpretive rule noscitur
    a sociis (“it is known by its associates”), see Antonin Scalia
    and Bryan A. Garner, Reading Law: The Interpretation of
    Legal Texts 195 (2012), to help us determine the meaning
    of a word or phrase by considering other words in the same
    sentence or provision. Goodwin v. Kingsmen Plastering, Inc.,
    359 Or 694, 702, 375 P3d 463 (2016). The words “belongs
    to” are immediately followed in the statute by a more spe-
    cific description of circumstances in which the subsection
    applies: “or is held in express trust, constructive trust or
    resulting trust for the vulnerable person.” That context sug-
    gests that by including the words “belongs to” the legisla-
    ture intended the statute to cover circumstances—in addi-
    tion to an express, constructive, or resulting trust—where
    one person refuses pay money to a vulnerable person. But,
    contrary to plaintiffs’ apparent view that the statute covers
    any wrongful failure to pay money owed to a vulnerable
    person, the statute only applies to money or property “that
    the other person holds or controls and that belongs to” the
    vulnerable person, and the trust examples help us under-
    stand that “belongs to” at least must be read to apply in
    trust-like situations—and not simply to any failure to pay a
    Cite as 362 Or 337 (2018)	347
    contractual or other debt owed to a vulnerable person as a
    result of an arms-length consumer transaction.
    That conclusion is reinforced by the statute’s use of
    the article “the” in all but one of the references to “money or
    property.” That usage indicates that the money or property
    at issue must be the money or property of the vulnerable
    person that the other person acquired as the first element of
    an elder financial abuse claim, described above—not money
    or property of the other person (here, Bankers) which that
    person may be obligated by contract to pay to the vulnerable
    person. Given the text and context, it is difficult to escape
    the conclusion that the legislature intended ORS 124.110
    (1)(b) to apply only where the other person holds the same
    money or property that the other person acquired from the
    vulnerable person and that still “belongs to” the vulnera-
    ble person. As noted, the insurance benefits plainly are not
    the same “money or property” that Bankers acquired from
    plaintiffs. Depending on the policy terms and the individual
    circumstances of plaintiffs, they may have paid insurance
    premiums and yet be contractually entitled to no benefits at
    all—for example, if they never needed long-term care—or
    they may be entitled to benefits far in excess of the premiums
    they paid. That is the nature of insurance. Plaintiffs make
    no coherent legal argument that the legislature intended
    that the inchoate right to receive contractual benefits in
    certain circumstances—here, benefits under an insurance
    policy—is to be equated with “money” for purposes of ORS
    124.110(1)(b). And while such a contract right might be con-
    sidered “property” in the broadest sense of the word, what
    plaintiffs received in exchange for those premiums were
    insurance policies. Neither those policies, nor plaintiffs’
    contractual right to benefits under those policies, consti-
    tuted “the money or property” that Bankers “acquired” from
    plaintiffs, and Bankers’ failure to pay those benefits under
    the contract terms, even if wrongful, therefore was a not a
    violation of the elder financial abuse statute.5
    5
    In a different federal district court decision involving Oregon’s elder finan-
    cial abuse statute, the court rejected a claim involving an insurance policy on
    similar grounds:
    “Plaintiff’s claim is based on her payment of insurance premiums to State Farm
    and State Farm’s alleged refusal to provide sufficient insurance coverage.
    348	                        Bates v. Bankers Life and Casualty Co.
    Plaintiffs also assert that their complaint states a
    claim under the elder financial abuse statute for the same
    reasons as the plaintiffs’ claim in Hoffart. The Court of
    Appeals’ analysis of the statute in that case is entirely con-
    sistent with our analysis here, but the facts in Hoffart con-
    trast with those here and demonstrate why Hoffart does not
    support plaintiffs’ claim.
    In Hoffart, the Court of Appeals held that the plain-
    tiffs had made out an elder financial abuse claim under ORS
    124.110(1)(b) by alleging that they had entrusted money to
    defendants to invest on their behalf, that the defendants
    had agreed to return “the entire sum of money * * * to plain-
    tiffs upon their request,” and that the defendants in bad
    faith had refused to return the principal amount of the
    plaintiffs’ investment. 226 Or App at 547-48.6 Hoffart illus-
    trates a situation where the defendants held and invested
    money that “belonged to” plaintiffs and had agreed to
    return that money on request. Here, however, plaintiffs
    paid insurance premiums to Bankers in exchange for insur-
    ance policies, which, as noted, are contracts to pay certain
    These allegations do not assert a claim for wrongfully taken or appropriated
    property, as plaintiff paid those premiums in exchange for coverage under an
    insurance policy. Whether State Farm breached the terms of that policy is
    properly brought as a breach of contract rather an elder abuse claim.”
    Yoakam v. State Farm Fire and Casualty Co., No 6:15-cv-00478-AA, 
    2017 WL 132845
    , at *2 (D Or Jan 11, 2017) (citations omitted). Yoakam apparently involved
    a claim under ORS 124.110(1)(a), rather than ORS 124.110(1)(b), see discussion
    above, 362 Or at 343-44, and thus is not directly relevant here, but its distinction
    between premiums paid for insurance and insurance policy benefits is consistent
    with the discussion in the text.
    6
    As Hoffart implies, the other person’s obligation to return the “money” that
    he or she acquired from the vulnerable person does not mean that the very same
    actual currency or other legal tender must be returned. Because money is fungi-
    ble, the obligation can be met by returning the amount of money that the other
    person “holds or controls and that belongs to” the vulnerable person. Relatedly,
    Hoffart did not address, and we need not decide here, whether interest that
    may have accrued on money held on behalf of the vulnerable person also must
    be returned on request, along with the principal, even though the interest was
    not itself “acquired” by the other person from the vulnerable person under ORS
    124.110(1)(b)(A). We note, however, that paragraph (1)(b) refers to the transfer,
    on request, to the vulnerable person of “any money or property the other person
    holds or controls” on behalf of the vulnerable person, and subparagraph (1)(b)(A)
    describes the money at issue as “the money or property [that] was acquired in
    whole or in part by the other person” from the vulnerable person, suggesting that
    the obligation to return money to the vulnerable person may include interest that
    accrued on the acquired money while it was held or controlled by the other person.
    Cite as 362 Or 337 (2018)	349
    amounts of benefits “upon determinable risk contingencies.”
    ORS 731.102(1). The money plaintiffs paid to Bankers as
    premiums became Bankers’ money; it no longer “belonged
    to” plaintiffs. Bankers comingled that money with premi-
    ums paid by other insurance purchasers, spent some on
    operational expenses, and invested the rest; it continued
    to hold the remainder of the money, either as investment
    assets or in reserve funds to pay future claims. In return,
    plaintiffs received insurance policies that gave them con-
    tractual rights to insurance benefits.
    In sum, plaintiffs’ central argument appears to turn
    on their view that when their circumstances met the policy
    criteria and they became contractually entitled to insur-
    ance benefits under the policies that they had purchased
    from Bankers, that contractual right was “money or prop-
    erty” that belonged to them, and Bankers’ failure, in bad
    faith, to transfer that money or property to them on request
    constituted elder financial abuse. Even if we were to accept
    that premise, plaintiffs cannot show that that same money
    or property had been “acquired” by Bankers from them, as
    plainly required by ORS 124.110(1)(b)(A).
    Finally, we briefly address competing arguments
    raised by plaintiffs and Bankers based on other aspects
    of the financial abuse statute. Plaintiffs note that various
    categories of persons—such as financial institutions, adult
    foster homes, and health care facilities—have statutory
    immunity from civil elder financial abuse claims, and that
    insurance companies do not, ORS 124.115, suggesting that,
    for that reason, we should find that their complaint states a
    claim against Bankers. Bankers, on the other hand, argues
    at length that the comprehensive regulation of insurance
    companies, including those offering long-term care policies,
    demonstrates that the legislature did not intend disputes
    about benefits under long-term care insurance policies to be
    actionable under the elder financial abuse statute. Neither
    plaintiffs nor Bankers, however, identify any specific pro-
    vision of the elder financial abuse statute or the insurance
    code that would affect the application of the statute to the
    allegations here or otherwise cause us to modify the stat-
    utory interpretation set out above. Those arguments may
    have force in other contexts, but because we conclude that
    350	               Bates v. Bankers Life and Casualty Co.
    the allegations in this complaint do not state a claim for
    relief under ORS 124.110(1)(b), we have no occasion to con-
    sider them further in this opinion.
    The certified question is answered.
    

Document Info

Docket Number: S064742

Filed Date: 1/19/2018

Precedential Status: Precedential

Modified Date: 2/12/2018