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ZRZ Realty Co. v. Beneficial Fire and Casualty Insurance Co.
Court of Appeals of Oregon
June 19, 2013
ZRZ REALTY COMPANY, an Oregon corporation, for itself and as trustee of the ZIDELL REMEDIATION FUNDING TRUST, an Oregon trust; ZIDELL MARINE CORPORATION, a Washington corporation; TUBE FORGINGS OF AMERICA, INC., an Oregon corporation; and PON EXPLORATION, INC., a Delaware corporation, fka Zidell Explorations, Inc., an Oregon Corporation, Plaintiffs-Respondents, Cross-Appellants,
BENEFICIAL FIRE AND CASUALTY INSURANCE COMPANY, succeeded in interest by J.C. Penney Life Insurance Company, et. al., Defendants, and CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, and CERTAIN LONDON MARKET INSURANCE COMPANIES, aka "Lloyds", including the following defendant companies: ASSICURAZIONI GENERALI S.P.A., INSURANCE COMPANY OF NORTH AMERICA (UK) LTD., COMMERCIAL UNION ASSURANCE COMPANY, PLC, EDINBURGH ASSURANCE COMPANY, LTD., OCEAN MARINE INSURANCE COMPANY, LTD., WORLD AUXILIARY INSURANCE CORPORATION, LTD., CORNHILL INSURANCE COMPANY, LTD., DOMINION INSURANCE COMPANY, LTD., EAGLE STAR INSURANCE COMPANY LTD, THE THREADNEEDLE INSURANCE COMPANY LTD., EXCESS INSURANCE COMPANY LTD., LONDON & EDINBURGH GENERAL INSURANCE COMPANY LTD., NEW ZEALAND INSURANCE COMPANY, LTD., ROAD TRANSPORT & GENERAL INSURANCE COMPANY, LTD., SOUTH BRITISH INSURANCE COMPANY, LTD., ULSTER MARINE INSURANCE COMPANY, LTD., THE UNITED SCOTTISH INSURANCE COMPANY, LTD., YORKSHIRE INSURANCE COMPANY, LTD., HANSA RE & MARINE INSURANCE COMPANY (UK) LTD., LA REUNION FRANCAISE (UK) LTD., ECONOMIC INSURANCE COMPANY LTD., NORWICH UNION FIRE INSURANCE SOCIETY, LTD., FIREMEN'S INSURANCE COMPANY OF NEWARK NEW JERSEY, SWISS UNION GENERAL INSURANCE COMPANY, LTD., LEADENHALL INSURANCE COMPANY, LTD., BISHOPGATE INSURANCE COMPANY, LTD., HOME INSURANCE COMPANY, NIPPON FIRE & MARINE INSURANCE COMPANY (UK) LTD., SWITZERLAND GENERAL INSURANCE COMPANY, LTD., RIVER THAMES INSURANCE COMPANY, LTD., ROYAL INSURANCE COMPANY LTD., BRITISH FIRE INSURANCE COMPANY, LTD., BRITISH & FOREIGN INSURANCE COMPANY, LTD., NATIONAL PROVINCIAL INSURANCE COMPANY, LTD., THE SCOTTISH LION INSURANCE COMPANY, LTD., SKANDIA MARINE INSURANCE COMPANY (UK), LTD., DRAKE INSURANCE COMPANY, LTD., SPHERE INSURANCE COMPANY, LTD., SPHERE DRAKE INSURANCE COMPANY PLC, ALLIANCE ASSURANCE COMPANY, LTD., BRITISH LAW INSURANCE COMPANY, LTD., and CONTINENTAL ASSURANCE COMPANY OF LONDON, LTD., LIVERPOOL MARINE & GENERAL INSURANCE COMPANY, LTD., PHOENIX ASSURANCE COMPANY LTD., FINE ART & GENERAL INSURANCE COMPANY, LTD., ANGLO-FRENCH INSURANCE COMPANY, LTD., BALOISE MARINE INSURANCE COMPANY, LTD., BALTICA INSURANCE COMPANY (UK) LTD., FUJI FIRE & MARINE INSURANCE COMPANY (UK), LTD., R.W. GIBBON GROUP, LA PRESERVATRICE GROUP, SWITZERLAND GENERAL INSURANCE COMPANY (LONDON) LTD., YASUDA FIRE & MARINE INSURANCE COMPANY, LTD., IRON TRADES MUTUAL INSURANCE COMPANY, LTD., MINSTER INSURANCE COMPANY LTD., RELIANCE INSURANCE COMPANY, SIRIUS (UK) INSURANCE PLC, INDEMNITY MARINE ASSURANCE COMPANY, LTD., LONDON & HULL MARITIME INSURANCE COMPANY, LTD, AND ASSOCIATED COMPANIES, C.A. PARR AGENCIES, LTD., SUN INSURANCE OFFICE, MARINE INSURANCE COMPANY, LIMITED, and SUMITOMO MARINE & FIRE INSURANCE COMPANY, LIMITED, Defendants-Appellants, Cross-Respondents.
Multnomah County Circuit Court 970806226 Ellen F. Rosenblum, Judge. (Judgment and Supplemental Judgment)
On appellants-cross-respondents' petition for reconsideration filed April 17, 2013, and respondents-cross-appellants' response to petition for reconsideration filed April 24, 2013. March 6, 2013, 255 Or.App. 524, ___ P.3d ___.
Thomas W. Sondag and Lane Powell PC, and John Folawn and Folawn Alterman & Richardson LLP for petition.
Bruce L. Campbell and Miller Nash LLP for response.
Before Wollheim, Presiding Judge, and Sercombe, Judge, and Nakamoto, Judge.
WOLLHEIM, P. J.
Defendants (collectively, London) petition for reconsideration of our decision in ZRZ Realty v. Beneficial Fire and Casualty Ins., 255 Or.App. 524, ___ P.3d ___(2013) (ZRZ Realty VI). We allow the petition in order to clarify our disposition as it relates to the supplemental judgment for attorney fees.
The parties are well aware of the procedural history of this case, and we will not recount more than is necessary for purposes of this opinion. Our most recent decision, ZRZ Realty VI, was an effort to address those issues that were before us on remand after the Supreme Court's decision in ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117, 241 P.3d 710 (2010) (ZRZ Realty III), modified on recons, 349 Or 657, 249 P.3d 111 (ZRZ Realty IV). Among those issues were assignments of error concerning attorney fees awarded to plaintiffs (collectively, Zidell) by way of a general judgment, and an assignment of error concerning additional fees that Zidell was awarded, by way of a supplemental judgment, for time spent preparing the initial fee petition.
We ultimately concluded that the trial court had erred in awarding attorney fees for work performed regarding London's duty to indemnify Zidell, and we therefore "remand[ed] with respect to the initial attorney fee award, which was included in the general judgment, for the trial court to reconsider the apportionment and award of attorney fees in light of that error." 255 Or.App. at 553. We then considered London's tenth assignment of error, which challenged the trial court's supplemental award of attorney fees for time spent preparing the initial petition. We disagreed with London's contentions under that assignment of error and concluded that, "even if block billing complicated the efforts of Zidell's attorneys, we cannot say that the trial court, in light of all the factors it considered, abused its discretion in awarding Zidell $268, 988.15 in supplemental attorney fees."
The final paragraph of our decision summarized our conclusions concerning attorney fees:
"As for attorney fees, we conclude, based on London's eighth assignment of error, that the initial attorney fee award in the judgment must be remanded because it includes fees for work performed concerning the duty to indemnify, a matter on which Zidell was not entitled to fees. On remand, the trial court also can consider, in setting a reasonable attorney fee award, the amounts that Zidell received for attorney fees from settling insurers; but, as Zidell correctly argued in its fifth assignment of error on cross-appeal, London is not necessarily entitled to a set off for those amounts. We reject London's ninth assignment of error regarding the billing rates used to calculate a reasonable fee award. And, finally, we reject London's tenth assignment of error--its challenge to the supplemental award of fees."
255 Or.App. at 559. The tag line of the opinion, which followed that paragraph, stated, "On appeal and on cross-appeal, reversed in part and remanded for further proceedings."
In its petition for reconsideration, London asks us to clarify our disposition regarding the supplemental judgment, which was not specifically mentioned in the tag line. In London's view, because we reversed the general judgment as to attorney fees, we necessarily reversed the supplemental judgment as well, because the two were interrelated--that is, the supplemental judgment was based on the award of attorney fees in the general judgment. See ORS 20.220(3) ("When an appeal is taken from a judgment under ORS 19.205 to which an award of attorney fees or costs and disbursements relates: (a) If the appellate court reverses the judgment, the award of attorney fees or costs and disbursements shall be deemed reversed * * *."). London asks that we make explicit that aspect of our disposition.
Zidell reads our decision differently. According to Zidell, our "opinion makes clear that it affirmed the supplemental attorney fee award" and that, "rather than an outright reversal of the initial attorney fee award, [this court] remanded the attorney fee award to the trial court for reapportionment." "This distinction is significant, " Zidell argues, "because there is no question that, on remand, Zidell will receive a substantial attorney fee award associated with establishing London's duty to defend." Thus, "given that Zidell will recover a substantial award of attorney fees regardless of ...