Thompson v. State Farm Mutual Automobile Insurance

25 P.3d 387, 174 Or. App. 208, 2001 Ore. App. LEXIS 632

• Court: Court of Appeals of Oregon
• Decided: May 9, 2001
• Docket: 16-99-06498; A108055
• Status: Published

Opinions

WOLLHEIM, J.

In this underinsured motorist (UIM) coverage dispute, the parties disagree as to how attorney fees and costs incurred in prosecuting a third-party liability action are to be credited against plaintiffs UIM coverage. We dismiss the appeal because we conclude that we lack jurisdiction.

Plaintiff was involved in a motor vehicle accident that occurred during the course and scope of her employment. Plaintiff received workers’ compensation benefits from SAIF in the amount of $28,261.24. Plaintiff also received a $30,000 settlement in a third-party tort action against the driver of the other vehicle in the accident. Of that $30,000, attorney fees and costs in the amount of $10,755.74 were paid to plaintiff and her attorney pursuant to ORS 656.593.¹ One-third of the remaining amount ($6,414.75) was paid to plaintiff and two-thirds of the remaining amount ($12,829.51) were paid to SAIF. ORS 656.593.

Plaintiff had a motor vehicle insurance policy with defendant. That policy had a $50,000 limit on UIM coverage. The parties were unable to agree as to the amount of UIM benefits remaining after the $50,000 limit was reduced by the workers’ compensation benefits and tort settlement received by plaintiff. To resolve this legal issue, the parties filed motions for summary judgment. Defendant argued that both under its policy regarding reduction of UIM limits and under ORS 742.504(7),² it was entitled to deduct from the $50,000 limit the $17,170.49 received by plaintiff and her attorney from the tort settlement and also the $28,261.24 plaintiff received in workers’ compensation benefits, leaving $4,568.27 on plaintiffs UIM coverage. Plaintiff agreed with defendant that defendant was entitled to deduct the amount of workers’ compensation benefits she received, but she disagreed with defendant regarding the $10,755.74 from the tort settlement. Rather, she argued that, of the $17,170.49 from the tort settlement, $10,755.74 was paid to her attorney and only $6,414.75 was paid to her. Thus, only $6,414.75 should have been deducted from the policy limits, leaving $15,324.01.³

The trial court denied plaintiffs motion and granted defendant’s motion, ruling that defendant was entitled to offset $45,431.73 against its UIM limits leaving a balance of $4,568.27. The parties then stipulated to entry of judgment in favor of plaintiff in the amount of $4,568.27. The trial court signed and entered the stipulated judgment. That stipulated judgment provides:

“Having received the Court’s Order Allowing Defendant’s Motion for Summary Judgment herein, the parties hereby stipulate that judgment for Plaintiff and against Defendant shall be entered in the amount of $4,568.27 together with costs and disbursements in the amount of $445.00 and attorney fees, if any, to be determined pursuant to ORCP 68C. The Court is now fully advised.

“IT IS NOW HEREBY ORDERED AND ADJUDGED that judgment be and the same hereby is entered in favor of Plaintiff and against Defendant in the amount of $4,568.27, together with costs and disbursements in the amount of $445.00

“DATED this 21 day of September, 1999.

“[/s/ Lyle C. Velure]

Hon. Lyle C. Velure Circuit Judge

“IT IS SO STIPULATED:

“[Signature of Counsel for plaintiff]

“[Signature of Counsel for defendant]”

Plaintiff appeals from that stipulated judgment, arguing that the trial court erred when it concluded that the $10,755.74 in attorney fees and costs from the tort settlement were deductible from the UIM limits.

No appeal may be taken from a stipulated judgment. Rauda v. Oregon Roses, Inc., 329 Or 265, 269, 986 P2d 1157 (1999) (a stipulated judgment is not appealable under ORS 19.245 (1997)). A stipulated judgment “is a judgment entered with the consent of both the party against whom the judgment is entered and the party in whose favor the judgment is entered.” Russell v. Sheahan, 324 Or 445, 450, 927 P2d 591 (1996) (emphasis in original).

We asked the parties to show cause why the appeal in this case should not be dismissed for lack of jurisdiction. Plaintiff responded that Rauda is distinguishable and its case “squarely meets the requirements of’ ORS 19.245.⁴ We disagree. The only distinction between Rauda and this case is that in Rauda the parties attempted to reserve a right to appeal the stipulated judgment in the judgment itself. 329 Or at 267. The Supreme Court held that that reservation had no legal effect because a stipulated judgment is not appealable regardless of any attempt to preserve a right to appeal. Id at 272.

Plaintiff also argued that it was a mistake for the parties to label the judgment as “stipulated” in this case. Specifically, plaintiff alleged:

“The judgment was not ‘by stipulation’ as contemplated by ORCP 67 F. Rather, defendant agreed that plaintiffs damages exceeded the UIM policy limits, and the issue to be resolved by the trial court was whether attorney fees taken from the liability settlement applied as an offset against the UIM policy limits. After a contested summary judgment proceeding, the trial court ruled that the UIM policy limits were to be offset by the attorney fees from the liability settlement. There was nothing else to litigate, so the parties agreed to a judgment consistent with the ruling of the trial court. The only ‘stipulation’ was as to the language of the judgment. The document should rightly have been labeled ‘judgment,’ rather than ‘stipulated judgment.’ ”

Regardless of whether the judgment was labeled stipulated, the key to focus upon is whether both parties consented to the entry of judgment.

“[T]his court has never varied from the fundamental principal that a party may not take an appeal from a judgment to which that party consented. Consent to judgment terminates all controversy regarding the correctness of the court’s interlocutory legal rulings before judgment and regarding the adequacy of the relief to which the parties have agreed.” Russell, 324 Or at 454.

The parties in this case consented to a judgment in favor of plaintiff for $4,568.27. That judgment is not appealable.

Appeal dismissed for lack of jurisdiction.

1 ORS 656.593 provides, in part:

“(1) * * * The proceeds of any damages recovered from an employer or third person by the worker or beneficiaries shall be subject to a lien of the paying agency for its share of the proceeds as set forth in this section. * ® * The total proceeds shall be distributed as follows:

“(a) Costs and attorney fees incurred shall be paid * * ®.

“(b) The worker or the beneficiaries of the worker shall receive at least 33-1/3 percent of the balance of such recovery.

“(c) The paying agency shall be paid and retain the balance of the recovery, but only to the extent that it is compensated for its expenditures for compensation, first aid or other medical, surgical or hospital service, and for the present value of its reasonably to be expected future expenditures for compensation and other costs of the worker’s claim under this chapter. * * *

“(d) The balance of the recovery shall be paid to the worker or the beneficiaries of the worker forthwith.”

2 ORS 742.504(7) provides, in part:

“(c) Any amount payable under the terms of this coverage because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by:

“(A) All sums paid on account of such bodily injury by or on behalf of the owner or operator of the uninsured vehicle and by or on behalf of any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under the bodily injury liability coverage of the policy; and

“(B) The amount paid and the present value of all amounts payable on account of such bodily injury under any workers’ compensation law, disability benefits law or any similar law.”

3 For ease, we provide the following plaintiff and defendant’s arguments: mathematical calculations to illustrate

Plaintiff: $50,000 - $ 6,414.75 - $28,261.24 $15,324.01 (UIM limits) (tort settlement received by plaintifO (workers’ compensation benefits) (total UIM benefits remaining)

Defendant: $50,000 - $17,170.49 - $28,261.24 $ 4,568.27 (UIM limits) (tort settlement received by plaintiff plus attorney fees and costs) (workers’ compensation benefits) (total UIM benefits remaining)

4 Plaintiffs response stated that defendant agreed with plaintiff that there is appellate jurisdiction in this case.