15 Trial Lawyer • Winter 2024 See No Safe Harbor p 16 some of her treatment as unnecessary only two months after the crash. It then cut off her PIP coverage entirely after two years even though they had paid for three years of coverage. After we filed suit, USAA gave no reason for failing to at least pay PIP benefits. Yet it waited two more years before confessing judgment for the remaining PIP benefit amount following a series of incrementally increasing offers to which we did not respond. The PIP attorney fee proceeding was stayed pending trial of the UIM claims. Jaime and John’s UIM claims went to trial on July 11, 2022. Kirkpatrick and I represented them at trial, with Aaron Denton representing USAA and the Hon. Celia Howes presiding. A different judge had denied a motion to amend to add a negligence per se claim in the run up to trial and Judge Howes precluded us from discussing any of USAA’s poor treatment of the plaintiffs. Happily, the jury believed Jaime and John, their treating providers and our experts and returned a $500,000 verdict for Jaime and $100,000 for John. Attorney fees The case resumed over attorney fees. USAA conceded liability for fees on the PIP claim but argued that reasonable fees were minimal in this type of case. USAA’s concession on entitlement was unsurprising in light of its PIP claim missteps, which plainly took it outside the ORS 742.061(2) safe harbor. The statute allows insurers to contest only one issue if they wish to use its safe harbor: “the amount of benefits due the insured[.]” Accordingly, an insurer leaves the PIP safe harbor if it, for example, denies the reasonableness or necessity of any medical services, as opposed to merely contesting the amounts the providers charged for those services. Berger v. State Farm Mut. Auto. Ins. Co., 290 Or App 485, 489–90, 415 P3d 77 (2018) (“in the context of a PIP claim, the assertion that medical services are not reasonable and necessary brings the dispute outside of the safe harbor”). Here, USAA recognized that it did not qualify for the safe harbor with respect to the plaintiffs’ PIP claims.1 USAA did, however, contest the amount of reasonable fees for the PIP claim. It argued that, “[t]ypically, the plaintiff in a PIP case will not claim attorneys’ fees of more than $15,000 unless the case proceeds to some form of hearing or trial.” The judge disagreed, applying a 1.5 fee multiplier in light of USAA’s PIPrelated misconduct and awarding $144,642 in attorney fees for work on the PIP claims. In contrast, USAA contested both our entitlement to and the reasonable amount of attorney fees on Jaime’s UIM claim. USAA relied on Zimmerman v. Allstate Prop. and Cas. Ins. Co., 354 Or 271, 311 P3d 497 (2013) for the proposition that “proof of loss for a UIM claim must include information to put the insurer on notice that the insured’s potential damages will exceed the at-fault driver’s liability limits” (citing 354 Or at A jury verdict helped compensate Jaime and John for their injuries when a head-on collision caused their car to rollover. Their attorneys were able to enhance the jury verdict with a smart motion on attorney fees.
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