Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lizama v. Allstate Fire and Casualty Insurance Co.

Court of Appeals of Oregon

July 5, 2018

Luis Munoz LIZAMA, Plaintiff-Appellant,
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, an Illinois corporation, Defendant-Respondent.

          Argued and submitted August 2, 2017

          Multnomah County Circuit Court 15CV05358 Richard Maizels, Judge pro tempore.

          Emery Wang argued the cause and fled the brief for appellant.

          Ryan J. Hall argued the cause for respondent. Also on the brief was Cole, Wathen, Leid, Hall, P.C.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Plaintiff appeals a judgment of dismissal, challenging the trial court's grant of summary judgment to defendant on plaintiff's request for attorney fees related to his claims for uninsured motorist (UM) and personal injury protection (PIP) benefts.

         Held:

         The court erred in granting summary judgment to defendant on plaintiff's request for attorney fees on his UM claim because defendant's "safe harbor" letter was ineffective under ORS 742.061(3) to exempt defendant from payment of those fees. Because there was a genuine issue of material fact as to whether plaintiff remained obligated to pay his medical-services provider for his treatment-notwithstanding an agreement between that provider and defendant that the bills were being waived for PIP purposes- the court also erred in granting summary judgment to defendant on plaintiff's request for attorney fees associated with his PIP claim.

         Reversed and remanded.

         [292 Or.App. 612] DEVORE, J.

         This appeal involves a dispute over attorney fees in an action on an automobile insurance policy. Plaintiff sued defendant for personal injury protection (PIP) and uninsured motorist (UM) benefits under his automobile insurance policy with defendant after he was involved in a motor vehicle accident with an uninsured driver. The only issues remaining in the case after court-annexed arbitration and a subsequent settlement between the parties as to damages concerned plaintiff's claims for attorney fees under ORS 742.061.[1] The trial court granted summary judgment to defendant on those claims and dismissed the case.

         On appeal, plaintiff challenges the trial court's rulings that (1) plaintiff was not entitled under ORS 742.061(2) to attorney fees on his PIP claim because of an agreement between defendant and plaintiff's treating medical provider, Accident Care Specialists (ACS), in which ACS reportedly agreed to waive plaintiffs medical bills with respect to any potential PIP claim; and (2) plaintiff was not entitled under ORS 742.061(3) to attorney fees on his UM claim because defendant's "safe harbor" letter was [292 Or.App. 613] sufficient to exempt it from payment of fees. We agree with plaintiff that the court erred in both respects. Accordingly, we reverse and remand.

         I. FACTS

         The pertinent historical and procedural facts are undisputed. Plaintiff was injured in a motor vehicle accident with an uninsured driver on June 20, 2014. At the time of the accident, plaintiff was insured by defendant under an Oregon automobile policy that provided statutorily required PIP and UM coverage. On July 2, 2014, after receiving notice of the accident, defendant sent plaintiff's counsel a letter stating that it had "accepted coverage" for plaintiff's UM claim, that it would "now focus [its] efforts on liability issues and damages related to this claim," and instructing plaintiff of the steps he needed to take to submit a claim. The letter also included the following paragraph:

"Once we have sufficient information that supports your client's claim, we will make every attempt to reach a fair agreement on the amount of Uninsured or Underinsured Motorist benefits due under the policy. If for some reason we are not able to reach an agreement on the amount due, your client may request that [defendant] submit the claim to a third-party arbitrator who can determine the amount of benefits to which your client is entitled. Keep in mind that the arbitrator's decision is final and cannot be disputed or appealed."

(Emphasis added.)

         Plaintiff sought medical treatment for his injuries at ACS and incurred medical expenses totaling $6, 530.65. Defendant did not pay those expenses. On September 23, 2014, defendant sent a letter to plaintiff's counsel, acknowledging plaintiff's treatment at ACS and stating, in part:

"You are advised that [defendant] and [ACS] (including its owner, Alexis Lee) have reached an agreement that will resolve any potential PIP claim associated with bills issued to your client by [ACS] associated with your client's care related to this motor vehicle accident. [ACS] maintains that any and all treatment that has or will be performed will be reasonable, necessary, and proper. However, [ACS] [292 Or.App. 614] will not submit these bills for payment by [defendant] as part of any PIP claim. Moreover, [ACS] will take no collection action against your client for payment of bills associated with this claim."

         Plaintiff subsequently filed an action against defendant in circuit court; in his amended complaint, he alleged a claim for PIP benefits in the amount of $6, 530.65 for the medical expenses he incurred with ACS, and a claim for UM benefits, which included the same medical expenses, as well as noneconomic damages not to exceed $10, 000, and lost wages in the amount of $3, 284.40. He also sought attorney fees pursuant to ORS 742.061. The court ordered the case transferred to arbitration, where plaintiff recovered damages, as well as costs and attorney fees.[2] Defendant appealed the arbitration award, seeking trial de novo on all issues of law and fact. The parties subsequently reached a settlement agreement as to damages, leaving the attorney fee issues to be resolved by the trial court.

         Defendant then filed a motion for summary judgment on the question of plaintiffs entitlement to attorney fees as to both his PIP and UM claims.[3] With respect to PIP, defendant argued that, because plaintiff's PIP claim only included medical bills from ACS and, pursuant to an agreement between ACS and defendant, those medical bills "were completely waived with respect to any PIP claim," plaintiff's PIP claim did not provide a basis for attorney fees under ORS 742.061(2). In support of that argument, defendant included as exhibits its September 23, 2014, letter described above and a declaration from Lee, ACS's owner. Lee's declaration stated, in part:

"For purposes of any potential PIP claim associated with this loss, the medical bills for the treatment rendered by ACS for [plaintiff] is being waived for reasons unrelated to the subject litigation. Although bills will be issued and provided to Plaintiff for services, ACS is electing as its sole [292 Or.App. 615] and exclusive remedy to recover amounts from the tortfea-sor and/or his/her insurance carrier."

         As to attorney fees associated with plaintiff's UM claim, defendant argued that, although that claim remained viable (because ACS had waived its medical bills only for purposes of a PIP claim), plaintiff was not entitled to fees because defendant timely provided plaintiff with a "safe harbor" letter-referring to its July 2, 2014, letter ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.