Thoens v. Safeco Ins. Co. ( 2022 )

450
On appellant’s petition for reconsideration filed March 9,
and respondent’s response filed March 15; reconsideration allowed, former opin-
ion (317 Or App 727, 507 P3d 284) modified and adhered to as modified
May 4, 2022
Susann M. THOENS,
Plaintiff-Respondent,
v.
SAFECO INSURANCE COMPANY
OF OREGON,
Defendant-Appellant.
Multnomah County Circuit Court
091116530; A168067
508 P3d 1001
Marilyn E. Litzenberger, Judge.
Thomas M. Christ and Sussman Shank LLP for petition.
Shenoa Payne for response.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Reconsideration allowed; former opinion modified and
adhered to as modified.
Cite as 319 Or App 450 (2022) 451
PER CURIAM
Defendant Safeco Insurance Company of Oregon
petitions for reconsideration of our opinion in Thoens v.
Safeco Ins. Co., 317 Or App 727, 507 P3d 284 (2022). Although
we adhere to our disposition of the case, we allow reconsid-
eration and modify the text of our prior opinion to address
defendant’s contention that our ruling on defendant’s second
assignment of error was “based on a misunderstanding of
defendant’s argument.”1
Specifically, we add the below text as a footnote,
placed at the end of the partial paragraph at id. at 744, fol-
lowing the text, “defendant cites no law that supports its
point”:
“To the extent that defendant is instead arguing that the
referee’s statutory fee award was unreasonable as a mat-
ter of law because it was based on a lodestar calculation
instead of a percent-of-recovery calculation, we also reject
that argument. As we explained above, defendant cites no
support for its contention that a lodestar-based statutory
fee award is inherently unreasonable where the prevailing
plaintiff’s contingent fee agreement also entitles her attor-
neys to all court-awarded fees. Again, we find no author-
ity for that contention either. And, as we will explain, the
court’s fee award was reasonable and supported by the
evidence.”
As described in the above modifications, we adhere
to our previous disposition.
Reconsideration allowed; former opinion modified
and adhered to as modified.
1
Defendant also asks that we reconsider our conclusion, related to defen-
dant’s second assignment of error, that the evidence supported the referee’s fee
award, because, defendant argues, our ruling was based on “a misunderstanding
of the evidence.” We decline to reconsider that aspect of our decision.