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Berger v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Oregon

February 28, 2018

Douglas BERGER, Plaintiff-Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant-Respondent.

          Argued and submitted January 5, 2017

         Multnomah County Circuit Court 130304315; Youlee Y. You, Judge.

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

          Carl R. Rodrigues argued the cause for respondent. On the brief were Michael A. Lehner and Lehner & Rodrigues, P. C .

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary:

         Plaintiff, 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).

          [290 Or. 486] EGAN, C. J.

         Plaintiff 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.

         Plaintiff 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.[1] Plaintiffs UM coverage limits were $250, 000.

         Plaintiff 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 arbitration."[2]

         Plaintiff 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.

         In July 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 ...

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