Brus v. Goodell

Decision Date31 March 1993
Citation849 P.2d 552,119 Or.App. 74
PartiesLisa BRUS, Respondent, v. Edward GOODELL, Appellant, and Charles McCoy, Defendant. 16-90-07396; CA A71643.
CourtOregon Court of Appeals

Joel S. DeVore, Eugene, argued the cause for appellant. With him on the briefs were Louis L. Kurtz and Luvaas, Cobb, Richards & Fraser, P.C., Eugene.

Michael V. Philips, Eugene, argued the cause for respondent. With him on the brief was Johnson, Clifton, Larson & Bolin, P.C., Eugene.

Before RICHARDSON, C.J., and DEITS and DURHAM, JJ.

DEITS, Judge.

Plaintiff was injured in a motor vehicle accident with defendant Goodell (defendant). 1 The jury awarded plaintiff damages in the ensuing negligence action, and judgment was entered. Defendant then moved, pursuant to ORS 18.510(2) and (3), to reduce the judgment by the amount of PIP benefits that plaintiff's insurer had paid her and for which defendant's insurer agreed to reimburse plaintiff's insurer. The trial court denied the motion. Defendant appeals, and we affirm.

Plaintiff argues that the judgment should not be reduced, because it can be affirmatively determined from the record in the personal injury trial that none of the damages that the jury awarded applied to losses for which she had been compensated by the PIP payments. Defendant disagrees with that proposition, and also argues that it is irrelevant. He appears to understand ORS 18.510, and our interpretation of it in Dougherty v. Gelco Express Corp., 79 Or.App. 490, 719 P.2d 906 (1986), as requiring the reduction, regardless of whether there is actual overlap in the losses for which PIP payments were made and those for which damages were awarded.

The question of whether there actually was an overlap in damages is easily resolved. The trial court's order on the post-judgment motion recites that the "jury was specifically instructed not to include any award of damages for medical expenses or lost wages," the losses for which plaintiff received PIP payments, and that plaintiff "was permitted to plead and prove such damages," but "clearly chose not to do so." That is a finding of fact, and there is evidence to support it. It follows that there was no actual overlap between the PIP compensation and the damages awarded.

The more difficult question is whether the fact that there actually was no overlap affects defendant's right to a reduction. ORS 18.510 provides, in material part:

"(2) If judgment is entered against a party who is insured under a policy of liability insurance against such judgment and in favor of a party who has received benefits that have been the basis for a reimbursement payment by such insurer under ORS 742.534, the amount of the judgment shall be reduced by reason of such benefits in the manner provided in subsection (3) of this section.

" * * * * *

"(b) The amount of any benefits referred to in subsection (2) of this section, diminished in proportion to the amount of negligence attributable to the party in favor of whom the judgment was entered and diminished to an amount no greater than the reimbursement payment made by the insurer under ORS 742.534, may be submitted by the insurer which has made the reimbursement payment, in the manner provided in ORCP 68 C. (4) for the submission of disbursements." (Emphasis supplied.)

Defendant argues that the words "judgment shall be reduced by reason of such benefits" mean that, if the conditions specified in the statute are met, it is immaterial whether the PIP benefits that were paid and the damages that were awarded cover the same losses, and the amount of the PIP payments must be subtracted from the judgment. Defendant also finds the same meaning in Dougherty v. Gelco Express Corp., supra, where we said:

"The only legislative purpose we discern behind ORS 18.510(2) is that of preventing the injured party from receiving payments from the PIP insurer and the negligent party's insurer that together would be greater than the injured party's proven damages.

" * * * * *

"ORS 18.510(2) requires an offset, if a successful plaintiff has received PIP benefits. ORS 18.510(3)(b) provides that the defendant's insurer may submit an amount equal to the PIP benefits, diminished in proportion to the plaintiff's negligence, but that the amount shall not exceed the amount...

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5 cases
  • Koenig v. State Farm Mut. Auto. Ins. Co.
    • United States
    • Oregon Court of Appeals
    • October 6, 2021
    ...of medical bills (those paid by PIP), then State Farm would not have succeeded in offsetting PIP payments. See Brus v. Goodell , 119 Or. App. 74, 76-78, 849 P.2d 552 (1993).7 Hence, evidence of PIP benefits was not necessary for plaintiff to prove as a means to avoid a PIP offset.We also re......
  • York v. Paakkonen
    • United States
    • Oregon Court of Appeals
    • October 30, 2013
    ...to PIP benefits,” the court must reduce the damage award under ORS 31.555. Wade, 167 Or.App. at 356, 1 P.3d 485. In Brus v. Goodell, 119 Or.App. 74, 849 P.2d 552 (1993), on the other hand, we determined that the record showed that there was no overlap in the damages awarded by the jury and ......
  • Hughes v. City of Portland
    • United States
    • Oregon Court of Appeals
    • February 13, 2013
    ...action against a third-party tortfeasor because the insured has already recovered any losses through PIP benefits”); Brus v. Goodell, 119 Or.App. 74, 78, 849 P.2d 552 (1993) (noting the plaintiff's “tactical choice not to plead and prove those damages”). In other words, the injured person's......
  • Wade v. Mahler
    • United States
    • Oregon Court of Appeals
    • May 17, 2000
    ...injuries subject to PIP benefits, the defendant is not entitled to a reduction of the judgment under ORS 18.510(2). Brus v. Goodell, 119 Or.App. 74, 78, 849 P.2d 552 (1993). In Brus, we stated that the purpose of the statute was not to halve what makes the plaintiff whole. Id. Last, in Mitc......
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2 books & journal articles
  • §18.6 Personal Injury Protection Coverage (pip)
    • United States
    • Torts (OSBar) Chapter 18 Automobile Insurance
    • Invalid date
    ...that were paid by PIP benefits, then the judgment will not be reduced by reason of PIP reimbursement. Brus v. Goodell, 119 Or App 74, 76, 849 P2d 552 (1993). The Brus decision involved interinsurer reimbursement under ORS 742.534. Nothing in ORS 742.534 requires that a plaintiff include PIP......
  • § 7.3 Pleading, Discovery, and Proof
    • United States
    • Damages (OSBar) Chapter 7 Medical Expenses
    • Invalid date
    ...(acknowledging plaintiff is free to include or exclude PIP benefits from its economic-damages claim); Brus v. Goodell, 119 Or App 74, 78, 849 P2d 552 (1993). NOTE: In Schmitz, the Oregon Court of Appeals was faced with a situation in which the plaintiff elected to include all medical bills ......

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