Kessler v. Weigandt

• Decision Date: 11 May 1984
• Parties: Vaughn KESSLER, Respondent-Cross-Appellant, v. Yale R. WEIGANDT, Defendant, United Services Automobile Association, Appellant-Cross-Respondent. A8010-05643; CA A24652. . On Respondent-Cross-Appellant's Petition for Attorney Fees
• Court: Oregon Court of Appeals

Page 574

697 P.2d 574

73 Or.App. 48

Vaughn KESSLER, Respondent-Cross-Appellant, v. Yale R. WEIGANDT, Defendant United Services Automobile Association, Appellant-Cross-Respondent.

A8010-05643; CA A24652.

Court of Appeals of Oregon.

On Respondent-Cross-Appellant's Petition for Attorney Fees May 11, 1984 On Appellant-Cross-Respondent's Objections to Petition for Attorney Fees May 25, 1984 Decided April 3, 1985 Reconsideration Denied May 24, 1985.

Ben C. Fetherston and Haugh & Foote, Portland, for petition.

Mildred J. Carmack, J.P. Graff and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, appeared contra.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Plaintiff, the prevailing party in Kessler v. Weigandt, 68 Or.App. 180, 685 P.2d 425, rev. allowed 297 Or. 601 (1984), petitions for an award of attorney fees for work done both in the trial court and in this court after the date when defendant United Services Automobile Association (USAA) became a party. He bases his claim on ORS 743.114. We deny the petition for work in the trial court. We allow the petition for work in this court, provided that plaintiff files an amended affidavit in support of the petition within 14 days after the effective date of this decision.

Plaintiff was seriously injured in an automobile accident in which defendant Weigandt was the other driver. After negotiations, plaintiff and USAA agreed to settle the claim for the $100,000 limits of USAA's policy insuring Weigandt. However, plaintiff and USAA were unable to agree about whether either the advance payments which USAA had made to plaintiff or the amount of personal injury protection plaintiff had received, and for which USAA was required to reimburse plaintiff's insurer, should be deducted from USAA's policy limits. Plaintiff and USAA therefore stipulated that the court could resolve this issue, and USAA paid plaintiff the undisputed amounts. The trial court ruled that USAA could deduct the advance payments, but not the personal injury protection, from its policy limits and granted judgment accordingly. After the trial court's ruling, USAA was added as a defendant as of the date on which the stipulation was filed. On appeal and cross-appeal, we affirmed the trial court. Kessler v. Weigandt, supra.

ORS 743.114 provides in part:

"If settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiff's recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon."

It is clear that USAA did not settle the case within six months from the date of proof of loss and that plaintiff's recovery exceeded USAA's tender. The issue is whether the action is "upon any policy of insurance * * *." A judgment creditor that successfully sues its judgment debtor's insurer is entitled to attorney fees under ORS 743.114. N.W. Marine Iron v. Western Casualty, 45 Or.App. 269, 272-73, 608 P.2d 199, rev. den. 289 Or. 209 (1980); Rowley v. Dairyland Ins. Co., 44 Or.App. 333, 338-39, 605 P.2d 1356 (1980). Here the settlement, the stipulation and the addition of USAA as a party defendant changed the action from one between the injured party and the tortfeasor to one between the injured party and the tortfeasor's insurance company.

The issue plaintiff and USAA presented to the trial court was the extent of USAA's obligation under the insurance contract. USAA agreed to pay its policy limits; at trial and on appeal it argued only about what those policy limits were. After the settlement, the dispute became one "upon [a] policy of insurance," and plaintiff, as the prevailing party, is entitled to his...