County Circuit Court 1204679CV Marci Warner Adkisson, Judge.
respondents' petition for reconsideration fled January 9,
2018, and appellant's response to petition for
reconsideration fled January 12, 2018. Opinion fled December
28, 2017. 289 Or.App. 454, 410 P.3d 327.
W. Kelly for petition.
D. Nelson and Bullivant Houser Bailey PC for response.
DeVore, Presiding Judge, and Lagesen, Judge, and Garrett,
Summary: Plaintiffs petition for reconsideration of the Court
of Appeals' opinion in Morgan v. Valley Property and
Casualty Ins. Co., 289 Or.App. 454, 410 P.3d 327 (2017).
Plaintiffs ask that, if the judgment must be reversed,
plaintiffs' claim on their insurance policy should be
remanded for trial on damages only. They also contend that
the Court of Appeals erred in concluding that plaintiffs'
inventory spreadsheet was inadmissible hearsay rather than a
business record within the meaning of OEC 803(6).
Held: The Court of Appeals allows reconsideration to
clarify that the scope of a new trial on remand remains a
matter that should be left to the discretion of the trial
court who can better determine whether the issues of breach
of contract or the affirmative defenses were affected by
evidentiary error. The Court of Appeals, however, declines to
revisit the merits of the prior decision.
allowed; former opinion clarified and adhered to as
Or.App. 596] DEVORE, P. J.
petition for reconsideration, seeking clarification of the
disposition of this case and suggesting that this court erred
on the merits. Morgan v. Valley Property and Casualty
Ins. Co., 289 Or.App. 454, 410 P.3d 327 (2017)
(reversing and remanding due to admission of inadmissible
hearsay evidence). Specifically, plaintiffs ask that, if the
judgment must be reversed, plaintiffs' claim on their
insurance policy should be remanded for trial on damages
only. On the merits, plaintiffs contend that this court erred
in concluding that plaintiffs' principal proof of
damages-an inventory spreadsheet of lost properties and their
values- was inadmissible hearsay rather than a business
record within the meaning of OEC 803(6). Defendant opposes
reconsideration, arguing that defendant is entitled to a new
trial on all issues, including affirmative defenses and
breach of contract. Defendant contends that this court did
not err in concluding that the inventory spreadsheet was
inadmissible. In order to clarify the disposition of this
case, we allow reconsideration. Because, however, the
evidence issue has been fully argued and considered
previously, we do not revisit the merits of our prior
opinion. See ORAP 6.25(1) (grounds for
clarify our disposition of this case, we describe the limited
nature of our prior decision. We determined "that the
spreadsheet was not admissible as a business record because
its information about dollar values originated from outside
sources who were not under a duty to report such information
to the adjusters" who prepared the spreadsheet. 289
Or.App. at 455, 461 (citing State v. Cain, 260
Or.App. [290 Or.App. 597] 626, 632-34, 320 P.3d 600 (2014)).
The problem was that plaintiffs' adjuster employed
Connell, who had relied on sources outside of the
adjusters' business-sources ranging from the internet to
telephone conversations with vendors. Those sources were not
part of the adjusters' business entity, which had
prepared the inventory spreadsheet, and those outside sources
had provided the critical replacement cost values.
Id. at 463. Because those outside sources were not
under a requisite "duty to report, " their outside
information could not be treated as part of the business
records of the adjusters. Id. at 463-64. The result
was that the inventory spreadsheet could not be admitted as
an ordinary business record under OEC 803(6). Id. at
decision in this case is a narrow question of the
admissibility of an exhibit under the terms of the Oregon
Evidence Code as construed by case law that interposes a
"duty to report" requirement. Id. at 461.
We decided no more. We were not asked to decide any issue
directed to the affirmative defenses or breach of contract.
Our decision reversed and remanded, but we did not expressly
state whether the remand was limited to a trial on damages
the parties to an appeal raise one issue, they may address
whether determination of an error on that one issue should
mean a limited trial or a full new trial on all issues. When
the parties brief the relationship of an error on damages as
to other issues, this court, being thus informed, may
determine that no more than a limited trial on damages is
necessary. See, e.g., Jessen v. Colton, 134 Or.App.
327, 895 P.2d 354 (1995) (directing new trial on damages
only). However, that did not happen here. We lack familiarity
with the interrelationship of the issues, if any,
that the trial court has after having observed the original
petition to reconsider, plaintiffs ask us to make such a
determination belatedly. Plaintiffs observe that, by
implication, our decision did no more than require plaintiffs
to prove damages anew. Plaintiffs reason that defendant's
breach of contract-the failure to pay plaintiffs'
loss-was not impugned by any evidentiary error that happened
to occur later at trial. Plaintiffs stress that, with a
special verdict form, the jury specifically rejected the
three [290 Or.App. 598] affirmative defenses that concerned
plaintiffs' conduct before trial. Plaintiffs conclude
that those rejected defenses were the only way to have
avoided finding defendant in breach of contract. The jury
found that plaintiffs did not fail to cooperate with
defendant's investigation of the loss; that plaintiffs
did not file suit before performing all duties on their part
to be performed; and that plaintiffs did not conceal or
misrepresent any fact related to the claim. Nonetheless,
defendant responds that a trial on all issues is necessary
because the inventory spreadsheet was "intertwined"
with those affirmative defenses and a finding of breach of
contract. Defendant argues that admission of the spreadsheet
colored the jury's consideration of the affirmative
defenses. Defendant complains that, due to a recording error,
no transcript of the parties' closing arguments is
available to show how the spreadsheet was used in arguments
about breach of contract or the affirmative defenses.
imperfect record, we conclude that the scope of a new trial
remains a matter that should be left to the discretion of the
trial court who can better determine whether the issues of
breach of contract or the affirmative defenses were affected
by evidentiary error. That is, the trial court will know
better whether evidentiary error at trial logically
related to, or prejudiced, the jury's ...