Lowell E. PATTON, Plaintiff-Respondent,
MUTUAL OF ENUMCLAW INSURANCE COMPANY, a Washington corporation, Defendant-Appellant, and HOPP INSURANCE AGENCY, INC., an Oregon corporation, and Randy W. Hopp, Defendants.
and submitted March 28, 2018.
Multnomah County Circuit Court 031112054 John A. Wittmayer,
M. Christ argued the cause for appellant. Also on the briefs
were Julie A. Smith and Cosgrave Vergeer Kester LLP.
Kathryn H. Clarke argued the cause and fled the brief for
Ortega, Presiding Judge, and Powers, Judge, and Brewer,
case is before the Court of Appeals for a third time. On
appeal, Mutual of Enumclaw Insurance Company (MOE)
challenges, amongst other things, the trial court's award
of prejudgment interest. MOE first asserts that the court
erred in ruling that issue preclusion barred it from
challenging plaintiff's entitlement to prejudgment
interest. Second, MOE argues that the court erred in
concluding that plaintiff was entitled to prejudgment
interest under ORS 82.010(1)(a) because the amount owed and
the date from which interest should run were not easily
on the circumstances [296 Or.App. 267] of this case, the
trial court erred in applying the doctrine of issue
preclusion. Furthermore, because the record does not
establish a readily ascertainable date from which interest
should run, the trial court lacked a basis on this record to
award prejudgment interest.
Or.App. 268] ORTEGA, P. J.
insurance coverage case is before us for a third time. In the
first appeal, we reversed a judgment that awarded plaintiff
damages on his breach of contract claim, and remanded for a
new trial. Patton v. Mutual of Enumclaw Ins. Co.,
238 Or.App. . 101, 242 P.3d 624 (2010), rev den, 349
Or. 654 (2011) (Patton I). In the second appeal, we
reversed and remanded the case again because the trial court
erred in granting a motion for summary judgment by defendant
Mutual of Enumclaw Insurance Company (MOE). Patton v.
Mutual of Enumclaw Ins. Co., 266 Or.App. . 154, 337 P.3d
874 (2014), rev den, 337 Or. 874 (2015) (Patton
II). On that second remand, the case proceeded to trial,
and the jury returned a verdict in favor of plaintiff,
awarding him $2, 556 million in damages. The court entered a
judgment awarding damages in that amount, along with $1, 023
million in prejudgment interest and $1, 382 million in
appeals and raises four assignments of error, all of which
challenge the award of prejudgment interest and attorney
fees. We reject, without written discussion, MOE's third
and fourth assignments of error-that is, its challenges to
the court's award of attorney fees and costs- and write
only to address MOE's first two assignments of error. MOE
first asserts that the trial court erred in ruling that issue
preclusion barred it from challenging plaintiff's
entitlement to prejudgment interest. Second, MOE argues that
the trial court erred in concluding that plaintiff was
entitled to prejudgment interest under ORS 82.010(1)(a)
because the amount owed and the date from which interest
should run were not easily ascertainable. We agree, based on
the circumstances of this case, that the trial court
erroneously applied the doctrine of issue preclusion.
Further, in reviewing the court's award of prejudgment
interest for legal error, Tasaki v. Moriarty, 233
Or.App. . 51, 55, 225 P.3d 68 (2009), we conclude that the
trial court lacked a basis on this record for an award of
prejudgment interest because the record does not establish a
readily ascertainable date from which such interest should
run. Accordingly, we reverse the award of prejudgment
interest and otherwise affirm the judgment.
Or.App. 269] We offer a limited description of the relevant
procedural and background facts for purposes of this appeal,
but a more detailed recitation of the facts can be found in
Patton I and Patton II. Patton I, 238
Or.App. . at 101; Patton II, 266 Or.App. . at 154.
house burned down on November 8, 2001. Patton I, 238
Or.App. . at 105. He notified MOE that he intended to take
advantage of the policy's replacement cost endorsement
and that he was considering rebuilding. Id. That
endorsement stated, in part, that, in the event of loss, MOE
agreed to pay
"not more than the lesser of:
"1. The replacement cost of that part of the building
damaged for like construction and use on the same ...