Dougherty v. Gelco Exp. Corp.

Decision Date21 May 1986
Citation719 P.2d 906,79 Or.App. 490
PartiesMelba DOUGHERTY, Appellant, v. GELCO EXPRESS CORPORATION, an Illinois corporation, and Ralph Garofano, Respondents. 144,449; CA A34306.
CourtOregon Court of Appeals

James D. Vick, Salem, argued the cause for appellant. With him on brief, was Allen and Vick, Salem.

Michael A. Lehner, Portland, argued the cause for respondents. With him on brief were Barry F. Shanks and Mitchell, Lang & Smith, Portland.

Before GILLETTE, P.J. Pro Tem., and VAN HOOMISSEN and YOUNG, JJ.

YOUNG, Judge.

This is a negligence action to recover damages for personal injuries arising out of an automobile accident. A jury determined that defendants were 100 percent at fault and returned a verdict for plaintiff and awarded $20,000 general damages and $7,068.05 special damages. After judgment the trial court decided that, pursuant to ORS 18.510, defendants were entitled to a $14,000 partial satisfaction of the judgment, because Personal Injury Protection (PIP) benefits paid to plaintiff in that amount by her insurer would be reimbursed in full by defendants' insurer. The PIP payments consisted of $5,000 in medical expenses and $9,000 in lost wages. Plaintiff challenges the trial court's entry of the partial satisfaction. We affirm.

We must first determine whether the trial court's order is appealable; if not, we lack jurisdiction. Meyer v. Joseph, 295 Or. 588, 590, 668 P.2d 1228 (1983). Because there is no jurisdiction in this court other than that created by statute, Meyer v. Joseph, supra; J. Gregcin, Inc., v. City of Dayton, 287 Or. 709, 713, 601 P.2d 1254 (1979), we review the pertinent statutes. 1

ORS 18.510(2) provides that, if a judgment is entered against an insured whose insurer has made PIP reimbursement payments under ORS 743.825, the judgment shall be reduced by the amount of those payments "in the manner provided in subsection (3) of this section." Subsection (3)(b) provides that a claim for the reduction of the judgment may be submitted by the insurer that made the reimbursement payment, "in the manner provided in ORCP 68C. (4) for the submission of disbursements." ORCP 68 C(4)(d) provides that, after a hearing on objections, the trial court shall make a statement of the attorney fees, costs and disbursements allowed, "which shall be entered as part of the judgment."

In the present action, after a hearing on plaintiff's objections to defendants' claim for reduction of the judgment, the trial court made a "statement" of partial satisfaction of the judgment in the amount of $14,000 and ordered the court clerk to "enter such partial satisfaction in the record of this action and in the judgment docket of the court." That directive to the court clerk corresponds to the duties of the court clerk under ORS 18.510(3)(c), when there are no objections filed. 2

ORS 19.010 governs, in most instances, the right to appeal in civil proceedings. ORS 19.010(2)(c) provides:

"(2) For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:

" * * *

"(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree."

The underlying judgment in this case is final and the time for appeal has passed. Plaintiff does not challenge the correctness of the judgment. The only question is the legality of the order reducing the amount of the judgment. Because the order affects a substantial right, i.e., reduction of the judgment, we hold that it is appealable under ORS 19.010(2)(c). 3 We turn to the merits.

Plaintiff's amended complaint sought special damages for medical expense in the sum of $7,068.05 and general damages in the sum of $314,200 for permanent injuries and the loss of past and future earning capacity. The jury awarded special damages in the amount of the prayer and general damages in the sum of $20,000. The other essential facts are contained in the trial court's order of partial satisfaction:

"The Court further finds that concurrently and in conjunction with the filing of defendants' claim for partial satisfaction of plaintiff's judgment under ORS 18.510, counsel for defendants, acting as attorney for defendants' liability carrier, formally acknowledged by affidavit the obligation of defendants' liability carrier to make such reimbursement payment to plaintiff's PIP carrier. The Court further finds that in the trial of this action, the plaintiff made claim for and introduced evidence of plaintiff's pre-trial impairment of earning capacity by reason of a loss of income due to plaintiff's injuries, and plaintiff made claim for and introduced evidence of plaintiff's medical expenses for the care of plaintiff's injuries. Plaintiff's claim for recovery on account of plaintiff's pre-trial impairment of earning capacity was submitted to the jury as part of plaintiff's claim of general damages, and plaintiff's claim for recovery of medical expenses was submitted to the jury as plaintiff's claim of special damages. Neither party requested a segregated verdict to reflect the specific amount, if any, awarded to plaintiff as general damages on account of plaintiff's claim of impairment of earning capacity. The jury returned its verdict awarding plaintiff both general and special damages."

The first issue is whether the acknowledgement by defendants' counsel of defendants' insurer's obligation to make a reimbursement payment is a "reimbursement payment" within the meaning of ORS 18.510, which provides, in 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 743.825, the amount of the judgment shall be reduced by reason of such benefits in the manner provided in subsection (3) of this section.

" * * *

"(3)(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 743.825, may be submitted by the insurer which has made the reimbursement payment, in the manner provided in ORCP 68C. (4) for the submission of disbursements." (Emphasis supplied.)

Plaintiff argues that the words "reimbursement payment" are unambiguous and mean actual payment. Defendants, on the other hand, argue that a formal acknowledgement of the obligation to reimburse, filed simultaneously with the claim to reduce the judgment and before the expiration of the 10-day period in ORCP 68 C(4), constitutes a "reimbursement payment" within the meaning of the statute. The trial court agreed with d...

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12 cases
  • Koenig v. State Farm Mut. Auto. Ins. Co.
    • United States
    • Oregon Court of Appeals
    • October 6, 2021
    ...331 Or. 334, 23 P.3d 986 (2000) ; Mitchell v. Harris , 123 Or. App. 424, 430-31, 859 P.2d 1196 (1993) ; Dougherty v. Gelco Express Corp. , 79 Or. App. 490, 495-96, 719 P.2d 906 (1986). But see York v. Paakkonen , 259 Or. App. 276, 285-86, 313 P.3d 332 (2013) (defendant's objection prevents ......
  • York v. Paakkonen
    • United States
    • Oregon Court of Appeals
    • October 30, 2013
    ...in the action after a general judgment is entered and that affects a substantial right” may be appealed); Dougherty v. Gelco Express Corp., 79 Or.App. 490, 492–93, 719 P.2d 906 (1986) (a partial satisfaction order is an order that “affects a substantial right”). Plaintiff argues that the tr......
  • Wade v. Mahler
    • United States
    • Oregon Court of Appeals
    • May 17, 2000
    ...reason of such benefits in the manner provided in subsection (3) of this section." (Emphasis added.) In Dougherty v. Gelco Express Corp., 79 Or.App. 490, 495-96, 719 P.2d 906 (1986), we explained that, when the plaintiff pleads and proves damages subject to PIP benefits and when the plainti......
  • Daniels v. Allstate Fire & Cas. Co.
    • United States
    • Oregon Court of Appeals
    • January 4, 2018
    ...to determine whether the jury's award of damages overlapped with the PIP benefits paid by defendant under Dougherty v. Gelco Express Corp ., 79 Or.App. 490, 719 P.2d 906 (1986), and Wade v. Mahler , 167 Or.App. 350, 1 P.3d 485, rev. den. , 331 Or. 334, 23 P.3d 986 (2000), among other cases.......
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