and submitted January 5, 2017
County Circuit Court 130304315; Youlee Y. You, Judge.
Willard E. Merkel argued the cause for appellant. With him on
the briefs was Merkel & Associates.
R. Rodrigues argued the cause for respondent. On the brief
were Michael A. Lehner and Lehner & Rodrigues, P. C .
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
who prevailed in his action to recover personal injury
protection (PIP) and uninsured motorist (UM) benefits under
an automobile insurance policy with defendant State Farm,
appeals from a judgment rejecting his request for attorney
fees under ORS 742.061(1), after the trial court concluded
that State Farm had complied with the
“safe-harbor” provisions on each claim. Held: The
trial court correctly concluded that State Farm had complied
with the safe-harbor provision on plaintiff's UM claim;
but the trial court erred in concluding that State Farm had
complied with the safe-harbor provision on plaintiff's
PIP claim. Because State Farm asserted that additional
medical services were not “reasonable and necessary,
” the PIP claim dispute did not fall within the safe
harbor. See Grisby v. Progressive Preferred Ins.
Co., 343 Or 175, 182-83, 166 P.3d 519, adh'd to as
modified on recons, 343 Or 394, 171 P.3d 352 (2007).
Or. 486] EGAN, C. J.
Douglas Berger prevailed in this action to recover personal
injury protection (PIP) and uninsured motorist (UM) benefits
under an automobile insurance policy with defendant State
Farm. Plaintiff appeals from a judgment rejecting his request
for attorney fees under ORS 742.061(1), after the trial court
concluded that State Farm had complied with the
"safe-harbor" provisions, ORS 742.061(2) (PIP); ORS
742.061(3) (UM), on each claim. We review the trial
court's ruling relating to attorney fees for legal error,
Robinson v. Tri-Met, 277 Or.App. 60, 61, 370 P.3d
864 (2016), rev den, 361 Or. 886 (2017), conclude
that the trial court erred in rejecting plaintiffs request
for attorney fees on the PIP claim, and therefore reverse and
remand for an award of attorney fees.
owned a motor vehicle insurance policy issued by State Farm
that provided statutorily required PIP and UM coverage.
Plaintiff's PIP benefits under the policy provided for
payment of up to $15, 000 in medical expenses and a
percentage of lost wages. Plaintiffs UM coverage limits were
was injured in an accident with a hit-and-run vehicle on
February 6, 2012. Plaintiff notified State Farm of his
injuries and, on February 7, 2012, State Farm sent plaintiff
a letter accepting coverage of a UM claim:
"Since your injuries were caused by an uninsured
motorist, we have accepted coverage and you have the right to
make a claim for uninsured motorist benefits under your
policy, with liability and damages being the remaining issues
to be resolved. As provided by your policy, State Farm
consents to the submission of your uninsured claim to binding
received treatment from a chiropractor and sought benefits
for medical expenses and lost wages under [290 Or. 487] the
PIP provisions of his policy. State Farm sent plaintiff a
letter on February 9, 2012, acknowledging the PIP claim and
describing plaintiffs benefits. State Farm paid plaintiff PIP
benefits of $12, 296.57 for medical expenses and $15, 271.86
for lost wages.
2012, at State Farm's request, plaintiff was examined by
Dr. Williams, a neurosurgeon, and Dr. Moore, a
chiropractor/naturopath, both of whom opined that plaintiff
did not have any signs or symptoms of ongoing injury. On July
11, 2012, State Farm notified plaintiff by letter that it
would no longer pay PIP benefits:
"Dr. Williams and Dr. Moore concluded that you have
reached maximum medical improvement for your care related to
the 2/6/12 motor vehicle accident; therefore we are unable to
pay for any additional treatment/wage loss under your PIP
coverage as of 7/11/12.
"Should you disagree with our position, you have the
option to request arbitration in accordance with Oregon's
personal injury protection statute (ORS 742.520). If you do
not want to resolve the dispute through ...