OTLA Trial Lawyer Winter 2022

53 Trial Lawyer • Winter 2022 See Sheets 54 (2021); Powers, P.J. The plaintiff was represented by Kevin Lucey. The plaintiff was injured in a threecar motor vehicle collision. Before filing a personal injury action arising out of the collision, the plaintiff sent separate $10,000 demands to each of the two defendants. In response, one defendant made an offer of $5,017.88, and the other defendant made an offer of $4,983.60. Neither of the defendants’ offers referred to the other defendant’s offer. The plaintiff later filed a complaint against both the defendants. The case ultimately settled, which resulted in a judgment that provided the plaintiff “shall have judgment against [the defendants] jointly and severally” for $10,000 in damages. The plaintiff then sought attorney fees under ORS 20.080(1). The trial court denied the request for attorney fees, concluding the respective settlement offers could be aggregated. The plaintiff appealed, arguing the trial court erred in aggregating each of the defendant’s separate prefiling offers to settle the case into a single prefiling tender and comparing that aggregated amount with the amount of damages the plaintiff recovered. The Court of Appeals agreed and reversed the trial court’s judgment. The court held when each of two defendants makes a separate settlement offer, independent of the other defendant, and when the defendants are jointly and severally liable for the full amount of damages that are awarded to the plaintiff, those separate settlement offers are not aggregated for purposes of determining an award of reasonable attorney fees. Article VII (Amended), section 3, of the Oregon Constitution protects a jury’s verdict only in an action at law tried to the jury, but it does not preclude a court from making different findings on a different claim tried to the court in equity. Walker v. State, 315 Or App 14 (2021); Armstrong, P.J. The plaintiff was represented by Luke Reese. The plaintiff was discharged as the chief executive officer of Oregon Travel Experience, a semi-independent state agency. She sued for violations of ORS 659A.203(1), the whistleblowing statute, and for common-lawwrongful discharge. The trial court submitted the plaintiff ’s wrongful discharge claim to a jury, which found the plaintiff had been wrongfully discharged and awarded her $1.2 million in damages. The statutory whistleblowing claim, which was tried to the court, was rejected. In her initial appeal, the Court of Appeals held the trial court erred in submitting the wrongful discharge claim to the jury. Because of its conclusion on the wrongful discharge claim, the Court of Appeals did not reach the plaintiff ’s argument the trial court had erred in rejecting her statutory claim. On review, in Walker v. State, 367 Or 761 (2021), the Supreme Court held the Court of Appeals erred in reversing the trial court’s judgment on the wrongful discharge claim. The Supreme Court then remanded the case to the Court of Appeals to consider the plaintiff ’s argument the trial court erred in rejecting her claim that she was discharged for “whistleblowing” in violation of ORS 659A.203(1). On remand in the Court of Appeals, the plaintiff argued the trial court violated article VII (Amended), section 3, of the Oregon Constitution, in making findings on the statutory claim that deviated from the jury’s findings on the wrongfuldischarge claim, on which the plaintiff had prevailed. The Court of Appeals disagreed, holding the statutory claim “sound[ed] in equity” and was to be tried to the court. The court explained that Article VII (Amended), section 3, protects a jury’s verdict only in an action at law tried to the jury, but does not preclude a court from making different findings on a different claim tried to the court in equity. PIP benefits for lost wages under injured passenger’s State Farm policy must “stack” with PIP benefits paid by driver’s insurer. Padilla v. State Farm Mut. Auto. Ins. Co., 314 Or App 300 (2021), James, J. Alexander Pletch and Emily Shack represented the plaintiff. The plaintiff was severely injured in an automobile collision, leaving her unable to work for more than 86 weeks. She received wage-loss benefits from the driver’s insurer for 52 weeks, the “maximum payment period” allowed under ORS 742.524. When she sought to obtain wage loss benefits under her own State Farm policy as excess coverage, the insurer argued the plaintiff ’s entitlement to PIP wage loss had been exhausted. On the parties’ cross-motions for summary judgment, the trial court concluded the statutorily prescribed 52-week time period applicable to both the primary and the excess PIP coverages applicable to the plaintiff ’s claim ran concurrently and the wage-loss benefit had, therefore, been exhausted. The plaintiff appealed. The parties agreed on appeal the plaintiff ’s PIP coverage under her State Farm policy operated as “excess” coverage to the driver’s “primary” coverage of the plaintiff ’s wage-loss. The Court of Appeals first noted it had previously determined the statutory $3,000 maximum wage amount benefit applied to a single policy. When multiple PIP policies applied as primary and excess coverages for a plaintiff ’s wage-loss claim, the $3,000 maximum amount available in each policy may be stacked. After construing the same statutory provisions respecting primary and excess coverage of the 52week maximum time period, the Court of Appeals concluded there was “no sound textual reason to conclude that ‘[t]his benefit’ is subject to a per-policy $3,000 limitation [which can be stacked] but a collective 52-week limitation that runs concurrently for all [primary and excess] policies.” Accordingly, the court reversed the trial court’s decision.