Grisby v. Progressive Preferred Insurance

225 P.3d 101, 233 Or. App. 210, 2010 Ore. App. LEXIS 5
CourtCourt of Appeals of Oregon
DecidedJanuary 6, 2010
Docket030505057; A140175
StatusPublished
Cited by16 cases

This text of 225 P.3d 101 (Grisby v. Progressive Preferred Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grisby v. Progressive Preferred Insurance, 225 P.3d 101, 233 Or. App. 210, 2010 Ore. App. LEXIS 5 (Or. Ct. App. 2010).

Opinion

HASELTON, P. J.

Plaintiff appeals from a judgment and supplemental judgment awarding him attorney fees of $20,925 and costs of $2,426, pursuant to ORS 742.061(1),1 arguing that the trial court erroneously exercised its discretion under ORS 20.075(2) in determining the amount of recoverable fees. Plaintiff contends, inter alia, that the trial court reduced fees from the amount requested, $58,860, based, in part, on a materially erroneous understanding and recitation of the parties’ settlement history. See ORS 20.075(l)(f) (in determining a prevailing party’s discretionary entitlement to statutory attorney fees, and the amount of such fees, the court shall consider “[t]he objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute”). We agree with plaintiff and, consequently, vacate the attorney fee award and remand for reconsideration.

The circumstances material to our analysis and disposition are undisputed. Plaintiff was injured in an auto accident, and defendant was his insurer. A dispute ensued regarding whether defendant was obligated, under its personal injury protection (PIP) coverage, to pay for certain chiropractic treatments that plaintiff had received. Plaintiff filed this action, seeking recovery of the disputed chiropractic expenses and attorney fees, and the matter was referred to court-annexed arbitration pursuant to ORS 36.405(l)(a). The central issue before the arbitrator was whether plaintiffs need for the disputed chiropractic treatment was related to the accident. The arbitrator ruled for defendant, and plaintiff [213]*213timely appealed, ORS 36.425(2)(a), requesting a trial de novo before a jury. After the arbitrator’s award and before the trial de novo, the parties unsuccessfully attempted to settle their dispute.2

Before trial, plaintiff successfully moved in limine to exclude, inter alia, evidence of the extent of damage to his car, estimates of the cost to repair that damage, and evidence that plaintiff had not had his car repaired. Thereafter, and notwithstanding the court’s exclusion of that evidence, plaintiff himself referred to defendant’s employee tendering a check for “[$]1200-something” to him for “damages [to his] car.” Defendant did not object to that testimony. Defense counsel subsequently elicited testimony from a defense witness, Dr. Duncan, that plaintiff had told him that he had not had his car repaired because the damage was “not that bad.”

In closing argument to the jury, defense counsel, in disputing any causal connection between the accident and the disputed chiropractic services, referred to Duncan’s recounting of plaintiffs “not that bad” description of the damage to his car. In rebuttal closing, in an attempt to counter that argument, plaintiffs counsel referred on three separate occasions to defendant being willing to pay plaintiff “[$]1,200 and something” for the damages to his car. Defendant objected to the first two references as being “outside the scope of the evidence,” and the court sustained those objections, meeting with counsel in chambers off the record before ruling on the second objection. Immediately thereafter, plaintiffs counsel made his third reference in closing to the amount of damage to plaintiffs car as “[$]1,200 and something,” and the court again sustained defense counsel’s objection.

After the case was submitted to the jury, defense counsel told the trial court that, because of the resources already expended in trying the case, he had not moved for a mistrial based on plaintiffs counsel’s “improper” conduct, but, if the jury returned a verdict for plaintiff, defendant would seek a reduction of plaintiffs requested attorney fees because of that conduct. Plaintiffs counsel responded that, although he recognized that the court had “admonished me [214]*214three times,” he did not understand the reason for those rulings because he believed that his references corresponded to evidence that had been admitted without objection and his argument fairly responded to defense counsel’s implication that the extent of damage to plaintiffs car belied any causal connection between the accident and the disputed chiropractic treatments.

The jury returned a verdict for plaintiff. Plaintiff then petitioned, under ORS 742.061(1), for an award of attorney fees of $49,626. That amount represented, generally, the product of the hours devoted to the case multiplied by counsel’s regular billing rate of $250 per hour “enhanced” to $400 per hour.

Defendant objected, contending that plaintiff had no entitlement to fees under ORS 742.061(1), because the circumstances of this case fell within the exception to fee recovery described in ORS 742.061(2). Defendant further argued that, even if plaintiff were entitled to recover some fees, the amount sought should be reduced for a variety of reasons, including that (a) any enhancement of plaintiffs counsel’s regular hourly rate was unwarranted; (b) counsel’s “improper” argument warranted a substantial reduction; and (c) plaintiffs rejection of defendant’s settlement offers had been unreasonable.

In support of the last contention, pertaining to the reasonableness of the parties’ settlement-related conduct, defendant submitted the affidavit of David Orme, defendant’s adjuster assigned to plaintiffs case. The content of Orme’s uncontroverted averments describing the parties’ negotiations is critical to this appeal; consequently, we set out those averments verbatim:

“5. On June 16, 2004,1 called attorney Dean Heiling, Mr. Grisby’s attorney, and offered $4,042 to settle Mr. Grisby’s claim because of the cost of litigation. This was after Progressive had already won the arbitration that had taken place on April 8, 2004 before arbitrator Richard Spier. During our conversation, Mr. Heiling told me that he would take the offer to his client, but stated that he did not think $4,042 would settle the case due to Mr. Heiling’s belief that he was entitled to attorney fees.
[215]*215“6. On August 11,2004,1 again spoke with Mr. Heiling about settlement and asked him if the case could be settled for a few thousand dollars more than the disputed amount of $4,042. (At the trial in this matter, Mr. Heiling amended this amount a slight bit to account for massage therapy billings that had not been included in the original complaint.) In response, Mr. Heiling told me that he would settle the case for $9,750. Mr. Heiling indicated that this amount included a sum for his attorney fees. Mr. Heiling told me that he felt he could get a jury mad enough at Progressive to award money to his client. The case did not settle.”

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Cite This Page — Counsel Stack

Bluebook (online)
225 P.3d 101, 233 Or. App. 210, 2010 Ore. App. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grisby-v-progressive-preferred-insurance-orctapp-2010.