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Cooksley v. Lofland

Court of Appeals of Oregon

November 29, 2017

Panayiota COOKSLEY, Plaintiff-Appellant,
v.
Lauree LOFLAND, Defendant-Respondent.

          Argued and submitted May 25, 2017.

         Multnomah County Circuit Court 14CV06526 Michael A. Greenlick, Judge.

          Willard E. Merkel argued the cause for appellant. With him on the briefs was Merkel & Associates.

          Thomas M. Christ argued the cause for respondent. With him on the brief was Cosgrave Vergeer Kester LLP.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Plaintiff appeals a judgment entered against defendant for personal injuries that plaintiff sustained in an automobile accident. After the judgment was entered, defendant fled a motion for partial satisfaction of the judgment, pursuant to ORS 31.555, in which she sought to reduce the amount of the judgment by the amount that her insurance carrier had previously provided to plaintiff in personal-injury-protection (PIP) benefits. The trial court granted defendant's motion. On appeal, plaintiff assigns error to that ruling. Held: The trial court did not err in granting defendant's motion for partial satisfaction of the judgment. The verdict form did not indicate whether the jury considered the PIP reimbursement in awarding damages, and plaintiff's proposed verdict form, had it been used, would not have eliminated that resulting ambiguity.

         Affirmed.

         [289 Or.App. 104] TOOKEY, J.

         In this case, a judgment was entered against defendant for personal injuries that plaintiff sustained in an automobile accident. After the judgment was entered, defendant filed a motion for partial satisfaction of the judgment, pursuant to ORS 31.555, in which she sought to reduce the amount of the judgment by the amount that her insurance carrier had previously provided to plaintiff in personal-injury-protection (PIP) benefits. The trial court granted defendant's motion for partial satisfaction of the judgment, and plaintiff appeals, assigning error to that ruling. For the reasons that follow, we affirm.

         Plaintiff filed an action against defendant for personal injuries sustained in an automobile accident. Following the accident, plaintiff received $15, 000 in PIP benefits from plaintiffs insurer, Progressive Universal Insurance Company (Progressive). Subsequently, pursuant to ORS 742.534, [1] defendant's insurer, Farmers Insurance Company of Oregon (Farmers), reimbursed Progressive for the $15, 000 in PIP benefits that Progressive had paid plaintiff.

         Plaintiff and defendant submitted proposed verdict forms to the trial court. Plaintiffs proposed verdict form asked the jury to determine whether defendant was at fault in causing the automobile accident and whether defendant's negligence caused plaintiff's injuries; plaintiff's proposed verdict form then asked the jury to determine separately plaintiffs economic and noneconomic damages. On the morning of trial, the trial court permitted defendant to amend her answer to admit liability; as a result, the only issue for the jury to decide was the amount of plaintiffs damages. The trial court submitted a verdict form asking the jury to determine separately the amount of plaintiff's economic and [289 Or.App. 105] noneconomic damages.[2] The jury awarded plaintiff $50, 000 in economic damages and $50, 000 in noneconomic damages.

         After a general judgment was entered on the verdict, defendant moved under ORS 31.555(2) for partial satisfaction of the judgment in the amount of $15, 000-the amount that Farmers had previously reimbursed Progressive in PIP benefits. The trial court granted defendant's motion, explaining that, because the verdict form did not segregate damages into "past or future categories" and "simply asked the jury to determine economic damages and noneconomic damages, " the court could not determine whether the economic damages awarded to plaintiff "overlapped" with the PIP reimbursement payment. The trial court further explained that plaintiffs proposed verdict form would not have cured that ambiguity because plaintiff had also proposed a nonsegregated verdict form. The court then entered a corrected judgment reflecting defendant's partial satisfaction of the judgment.

         On appeal, plaintiff argues that the trial court erred in granting defendant's motion for partial satisfaction under ORS 31.555. First, plaintiff argues that ORCP 19 B[3]"requires a defendant who has made an advance payment toward damages that [a] plaintiff is seeking to recover at trial to plead as an affirmative defense and prove at trial that such a payment has been made." Second, plaintiff argues that ORS 31.555 is inapplicable because "defendant was responsible for the use of an unsegregated verdict form [that created] an ambiguity by which it cannot be determined whether damages awarded overlapped with PIP benefits." In response, defendant argues that the trial court [289 Or.App. 106] did not err in granting her motion for partial satisfaction of the judgment, because defendant was entitled to that relief under ORS 31.555(2).

         Reviewing for legal error, Wade v. Mahler,167 Or.App. 350, 352, 1 P.3d 485, rev den,331 Or. 334 (2000), we conclude that the trial court did not err in granting defendant's motion for partial satisfaction of the judgment. We first reject without discussion plaintiff's assertion that defendant was required to raise ...


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