A settlement offer addressing PIP reimbursement is interpreted according to the reasonable understanding of an insured; any ambiguities are construed against the drafter. Trapp v. Hodges, 334 Or App 302 (2024); Egan, J. The plaintiff was represented by Will Merkel. The plaintiff suffered injury to person and property in a motor vehicle collision caused by the defendant. Prior to filing suit, the plaintiff’s attorney sent an ORS 20.080 demand letter to the defendant demanding $10,000 new money. The defendant’s insurer offered to settle the matter for $3,900, “inclusive of all liens, plus PIP owed to State Farm,” referring to State Farm’s lien of $2,684. A jury awarded the plaintiff $2,500. The plaintiff petitioned for attorney fees pursuant to ORS 20.080, which requires the award of attorney fees in an action pleading $10,000 or less where demand has been made on the defendant at least 30 days prior to filing and the defendant has not made an offer within that time that meets or exceeds the amount recovered at trial. The trial court denied the petition for attorney fees because it found the defendant’s settlement offer “was unambiguous and the $3,900 excluded plaintiff’s PIP lien[,]” and therefore exceeded the $2,500 the plaintiff recovered at trial. The plaintiff appealed, arguing the defendant’s offer was for $3,900 less any liens, including the $2,684 PIP lien, leaving a net offer of only $1,215. The defendant argued the offer was for defendant to pay $3,900 to the plaintiff and, in addition, to reimburse PIP. The Court of Appeals determined the defendant’s offer was ambiguous from the perspective of an insured and should accordingly be construed against the drafter. In doing so, the Court of Appeals noted that rules of grammar are not determinative when interpreting communications between private parties. Accordingly, the plaintiff was entitled to his reasonable attorney fees pursuant to ORS 20.080 because he recovered damages in excess of the defendant’s offer. Mooney, J., wrote a concurring opinion and Aoyagi, J., wrote a dissenting opinion. An arbitration agreement is not enforceable unless it is signed by a person with legal authority to do so; without more, a “designated representative” lacks such authority. Durany v. Marjorie House McMinnville, LLC, 335 Or App 501 (2024); Joyce, J. The Plaintiff was represented by Faith Morse. Emily Teplin Fox filed an amicus brief on behalf of OTLA. The plaintiff, as personal representative for the estate of her mother, brought suit against the defendant, a residential care facility, for negligence and wrongful death. The defendant moved to compel arbitration based upon an arbitration agreement the plaintiff signed as part of her mother’s admission to the care facility. The trial court denied the defendant’s motion based upon OAR 411-054-0027(1)(p), which provides for a “Residents’ Bill of Rights” including the right to “be free of any written contract or agreement language with the facility that purports to waive their rights or the facility’s liability for negligence.” The defendant filed an interlocutory appeal, arguing the Federal Arbitration Act preempts OAR 411-054-0027(1)(p), mandating enforcement of the arbitration agreement. The plaintiff argued the agreement was unenforceable because the plaintiff lacked the authority to enter into an arbitration agreement on her mother’s behalf. The Court of Appeals held the arbitration agreement was unenforceable. At the time of signing, the plaintiff was neither power of attorney nor guardian, nor conservator over her mother’s affairs. Assuming the plaintiff was authorized to act as her mother’s “designated representative” pursuant to OAR 411-054-0005(27) for the purposes of facilitating care and treatment, that authority did not encompass the ability to act as a legal representative; therefore, the plaintiff lacked the authority to waive her mother’s right to a jury trial. Between the Sheets continued from p. 57 “[T]he Court of Appeals noted that rules of grammar are not determinative when interpreting communications between private parties.” 58 Trial Lawyer | Winter 2025
RkJQdWJsaXNoZXIy Nzc3ODM=