STEWART TITLE GUARANTY COMPANY, a Texas corporation, Plaintiff-Respondent,
STATE OF OREGON, acting by and through the Department of Consumer and Business Services, Defendant-Appellant
Argued and Submitted November 6, 2014
11C16094. Marion County Circuit Court. Vance D. Day, Judge.
Marilyn J. Harbur, Senior Assistant Attorney General, argued the cause for appellant. With her on the briefs was Ellen F. Rosenblum, Attorney General.
Jon W. Monson argued the cause for respondent. With him on the brief were G. Kevin Kiely and Cable Huston Benedict Haagensen & Lloyd LLP.
Scott G. Seidman and Tonkon Torp LLP filed the brief for amicus curiae National Association of Insurance Commissioners.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[272 Or.App. 140] DEVORE, J.
In this case, we decide whether issue preclusion barred the state's claims
against Stewart Title Guaranty Company (Stewart Title). The Department of Consumer and Business Services (DCBS or department) sought to assess " retaliatory taxes" under ORS 731.854 for tax years 2009, 2010, and 2011. In an action for declaratory relief, Stewart Title argued, in part, that issue preclusion barred the tax claims because DCBS had previously and unsuccessfully brought those same claims against Stewart Title for tax years 1997 and 1998. The trial court granted summary judgment to Stewart Title based on issue preclusion. DCBS appeals, assigning error to the court's judgment. " We review for legal error the question whether the evidence was sufficient to establish the necessary requisites for the doctrine to apply." City of Portland v. Huffman, 264 Or.App. 312, 315, 331 P.3d 1105 (2014). We affirm.
The facts are undisputed and predominantly procedural. In a prior case, DCBS filed a complaint in 1999, seeking to recover " retaliatory taxes" and " transition taxes" from Stewart Title, a corporation domiciled in Texas, for the 1997 and 1998 tax years. Central to the dispute was the interpretation and application of ORS 731.854(1). [272 Or.App. 141] DCBS alleged that Stewart Title was a " foreign" insurer, as defined in ORS 731.082(2), and that, pursuant to ORS 731.854(1), it owed retaliatory taxes for premiums collected and retained by its Oregon-based insurance agents. ORS 731.859 (applying retaliatory provisions to foreign insurers). DCBS alleged that Stewart Title " failed and refused to pay the taxes, interest, and penalties due" for those years.
DCBS and Stewart Title filed cross-motions for summary judgment. Stewart Title argued, in part, that DCBS erred by imposing a retaliatory tax based on the mistaken impression that Texas law imposes a premium tax on title insurers. Under a correct interpretation of Texas law ...