Daniels v. Allstate Fire & Cas. Co.
Daniels v. Allstate Fire & Cas. Co.
Opinion of the Court
*699Plaintiff was injured in a car accident. After settling his tort claim against the motorist who caused the accident, he brought this action for underinsured motorist (UIM) benefits against his insurer, defendant Allstate Fire and Casualty Company. The case went to trial and the jury returned a verdict of $162,484.35 in plaintiff's favor. Pursuant to ORS 31.555, the trial court offset personal injury protection (PIP) benefits that defendant previously paid to plaintiff against the verdict and entered judgment for plaintiff in the amount of $57,521.78. Later, the court denied plaintiff's request for attorney fees, concluding that defendant was entitled to the statutory "safe harbor" protection of ORS 742.061(3). Plaintiff appeals, assigning error to (1) the trial court's denial of his attorney fees request and (2) the trial court's decision to offset PIP benefits against the damages awarded by the jury. We agree with plaintiff as to the attorney fees but not as to the *251offset. We therefore reverse and remand for reconsideration of plaintiff's request for attorney fees but otherwise affirm.
We start with the issue of attorney fees. The trial court denied plaintiff's request for fees based on its conclusion that defendant had sent a letter to plaintiff that was adequate to invoke the statutory safe harbor from attorney fees afforded to insurers by ORS 742.061(3).
"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 issues are the liability of the *** underinsured motorist and the damages due the insured; and *700"(b) The insurer has consented to submit the case to binding arbitration."
See generally Kiryuta v. Country Preferred Ins. Co. ,
Here, the trial court erred. ORS 742.061(3) is unequivocal. To invoke the safe harbor, an insurer must have, in writing, "accepted coverage and the only issues are the liability of the *** underinsured motorist and the damages due the insured." ORS 742.061(3) (emphasis added). Although an insurer's written communication need not necessarily recite the statutory wording, it must demonstrate that the statutory prerequisites for the safe harbor protection are met. See, e.g. , Grisby v. Progressive Preferred Ins. Co. ,
Defendant's letter in this case did not do that. In particular, the letter did not limit the issues on the table to "only" the liability of the underinsured motorist and damages. Instead, the letter stated that those issues were defendant's current "focus": "We will now focus our efforts on liability issues and damages related to this claim." The word "focus," in the way used by defendant, ordinarily means "to cause to be concentrated." Webster's Third New Int'l Dictionary 881 (unabridged ed. 2002). ORS 742.061(3) demands more from an insurer wishing to invoke the safe harbor. An insurer's commitment to concentrate on the issues of liability and damages is not enough; the insurer must commit that those are the only issues, to the exclusion of all other issues-that is, if the insurer wishes to secure *701the benefit of the safe harbor.
The remaining question presented by this appeal is whether the trial court *252erred when it offset PIP benefits paid to plaintiff by defendant against the jury's verdict under ORS 31.555.
Defendant responds that it was plaintiff's obligation to submit a segregated verdict form that would enable the trial court to determine whether the jury's award of damages overlapped with the PIP benefits paid by defendant under Dougherty v. Gelco Express Corp .,
Under our recent decision in Cooksley v. Lofland ,
Reversed and remanded as to attorney fees; otherwise affirmed.
Defendant in its brief states that plaintiff conceded the issue of the adequacy of the safe harbor letter. Having reviewed the record, we reject that contention. Although plaintiff did not contest the adequacy of the letter during summary judgment proceedings, plaintiff clearly contested the adequacy of the letter post-trial, which was when the court resolved the issue of its adequacy.
An insurer is always entitled to reserve and raise issues other than liability and damages in a UIM action-the limitation on issues imposed by ORS 742.061(3) applies only to those insurers seeking to avoid application of the ORS 742.061(1) attorney fee provision.
In his reply brief, plaintiff raises several additional arguments as to why the trial court's offset was in error. Those arguments were not raised until plaintiff's reply brief, and we reject them for that reason. Federal National Mortgage Association v. Goodrich ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.