Wallach v. Allstate Insurance

180 P.3d 19, 344 Or. 314, 2008 Ore. LEXIS 157
CourtOregon Supreme Court
DecidedMarch 20, 2008
DocketCC 99-3671-L4(7); CA A124340; SC S053702
StatusPublished
Cited by43 cases

This text of 180 P.3d 19 (Wallach v. Allstate Insurance) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallach v. Allstate Insurance, 180 P.3d 19, 344 Or. 314, 2008 Ore. LEXIS 157 (Or. 2008).

Opinions

[316]*316KISTLER, J.

Plaintiff suffered injuries in three separate automobile accidents. During the trial on the first accident, the court instructed the jury that it could hold defendant Allstate Insurance Co., responsible for any “enhancement or aggravation of plaintiffs injuries caused by the subsequent accident [s]” if the enhancement or aggravation would not have occurred but for the first accident. On appeal, the Court of Appeals held that the trial court erred in giving that instruction, reversed the trial court’s judgment, and remanded for a new trial. Wallach v. Allstate Ins. Co., 206 Or App 137, 135 P3d 404 (2006). We allowed plaintiffs petition for review and now affirm the Court of Appeals decision.

Plaintiff purchased automobile insurance from defendant Allstate. Afterwards, plaintiff was involved in three automobile accidents. The first accident occurred on October 24, 1997. An unidentified truck (referred to as a “phantom vehicle” in Allstate’s policy) caused plaintiffs vehicle to swerve, injuring plaintiff. Because the person driving the truck was unidentified and thus unavailable, plaintiff sought to recover his damages from Allstate under both the uninsured motorist (UM) provision1 and the personal injury protection (PIP) provision2 of his policy. Allstate denied liability under both provisions, and plaintiff filed this action against Allstate on October 22, 1999, alleging that Allstate had breached those provisions.

The second accident occurred on August 6, 1999, a few months before plaintiff filed this action. Plaintiff had stopped at a red light when another car “rear-ended” his car. The third accident occurred on August 2, 2002, before the trial on this action began. Plaintiff had stopped at a red light when yet another car “rear-ended” his car.

[317]*317At the trial on the first accident, plaintiff contended that Allstate was liable for the injuries resulting from the first accident and also for any aggravation of those injuries resulting from the second and third accidents.3 Plaintiff submitted a special jury instruction to that effect,4 and Allstate filed a written objection. Among other things, Allstate contended that the trial court should not give plaintiffs requested instruction because “the subsequent motor vehicle accidents are not accidents which would have occurred but for the original injury” and also because it was “not foreseeable that a plaintiff would meet with subsequent motor vehicle accidents.” Finally, Allstate argued that plaintiffs requested instruction would make it “liable for injuries attributable to the second motor vehicle accident for which [it] is not liable.”

Despite that objection, the trial court gave an instruction that repeats, in substantial part, the special jury instruction that plaintiff had requested. The trial court instructed the jury:

“The contract entered into by the plaintiff and the defendant sets forth that the defendant will provide coverage for all the natural!,] direct and proximate consequences of the wrongful acts of the driver of the phantom vehicle.
“If you find that the plaintiff was injured by those acts in the accident of October 24th, 1997 and then had a subsequent accident in which the plaintiff suffered further injury which would not have occurred, but for the original injury, the defendant may then be held liable for the enhancement [318]*318or aggravation of plaintiffs injuries caused by the subsequent accident.
“The defendant’s liability would apply only to the injuries you attribute to the accident of October 24th, 1997 and to any enhancement or aggravation of those injuries, not to any new injuries suffered by plaintiff in any subsequent accident.”

After the court gave that instruction, Allstate excepted to it, reasoning that “this is not the type of case where the first accident caused the second and third accidents; and, therefore, that instruction should not have been given[.]” The jury returned a verdict awarding plaintiff $50,000 in damages for Allstate’s breach of the UM provision and $25,000 in damages for Allstate’s breach of the PIP provision.

Allstate appealed from the resulting judgment, arguing, among other things, that the trial court erred in instructing the jury that Allstate was liable to the extent that the second and third accidents aggravated any injuries that plaintiff sustained in the first accident. The Court of Appeals agreed that the instruction was erroneous. It reasoned that the instruction was either confusing or incorrect because it appeared to permit the jury to award damages for injuries arising out of the second and third accidents if the jury found “but for” causation only. Wallach, 206 Or App at 144. The court also noted that the instruction referred to proximate cause when it should have referred to foreseeability. Id. Because the court concluded that those errors were not harmless, it reversed the trial court’s judgment and remanded for further proceedings. Id. at 145.

On review, plaintiff argues that the Court of Appeals erred in three respects. He contends initially that Allstate failed to preserve its objection to the instruction. Plaintiff recognizes that Allstate objected to the instruction. He contends, however, that Allstate did not object on the grounds on which the Court of Appeals relied. As noted above, however, Allstate filed a written memorandum objecting to plaintiffs special requested jury instruction on the ground, among other things, that the second and third accidents were not foreseeable. As also noted, the trial court’s instruction tracked in substantial part the special requested instruction [319]*319to which Allstate objected, and Allstate renewed its objection when it excepted to the instruction that the trial court gave. Allstate preserved the issues that it has raised on appeal and on review. See Beall Transport Equipment Co. v. Southern Pacific, 335 Or 130, 137, 60 P3d 530 (2002) (describing preservation requirements for jury instructions).

Having concluded that Allstate preserved its objections to the instruction, we turn to the question whether that instruction correctly stated the law. The instruction consists of three sentences. The first sentence purports to recite the terms of the insurance contract under which plaintiff s claims against Allstate arise.5 The second sentence sets out the operative legal principle; it tells the jury what it must find before Allstate “may * * * be held liable.” That sentence provides:

“If you find that the plaintiff was injured by those acts in the accident of October 24th, 1997 and then had a subsequent accident in which the plaintiff suffered further injury which would not have occurred, but for the original injury, the defendant may then be held liable for the enhancement or aggravation of plaintiffs injuries caused by the subsequent accident.”

The third sentence limits the second. It clarifies that Allstate is liable for the injuries resulting from the first accident and for “any enhancement or aggravation of those injuries, [but] not [for] any new injuries suffered by plaintiff in any subsequent accident.”

The trial court’s instruction is erroneous in two separate but related respects.

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Cite This Page — Counsel Stack

Bluebook (online)
180 P.3d 19, 344 Or. 314, 2008 Ore. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallach-v-allstate-insurance-or-2008.