Hamilton v. Paynter

129 P.3d 203, 204 Or. App. 119, 2006 Ore. App. LEXIS 112

• Court: Court of Appeals of Oregon
• Decided: February 1, 2006
• Docket: 03CV0551; A125029
• Status: Published

Opinions

PER CURIAM

Plaintiff appeals in this personal injury case after the trial court ruled under ORCP 21 that her claim was barred by the statute of limitations in ORS 12.110(1). On appeal, plaintiff argues that the statute was tolled by a $1,000 payment made by defendant Paynter during the period of limitations, invoking the provisions of ORS 12.155. In Minisce v. Thompson, 149 Or App 746, 945 P2d 582 (1997), we held that ORS 12.155 was applicable only when an advance payment is made by a third-party insurer, relying on Duncan v. Dubin, 276 Or 631, 556 P2d 105 (1976), Ben Rybke Co. v. Royal Globe Insurance Co., 55 Or App 833, 640 P2d 620, aff'd, 293 Or 513, 651 P2d 138 (1982), and our review of the legislative history, as discussed in those cases. In explaining how our decision in Ben Rybke Co. led to our conclusion in Minisce, we observed,

“In affirming, we quoted extensively from Duncan and determined that the whole thrust of the legislative history recited in Duncan, as well as the court’s discussion of that history was that ‘the statute was designed to protect third-party payees and liability insurers, while at the same time encouraging payments in advance of the determination of the extent of ultimate liability, if any.’ 55 Or App at 839 (emphasis in original). Indeed, we found Duncan and the legislative history quoted there ‘demonstrate [ ] that the legislature was designed with only the insurer third-party situation in mind.’ 55 Or App at 840.”

Minisce, 149 Or App at 755-56.

We adhere to our reasoning in Minisce in this case.

Affirmed.