Harris v. State Farm Fire and Casualty Co. ( 2024 )

No. 570 August 14, 2024 399
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Michael HARRIS,
Plaintiff,
and
Shana HARRIS,
Plaintiff-Appellant,
v.
STATE FARM FIRE AND CASUALTY COMPANY,
Defendant-Respondent.
Washington County Circuit Court
22CV30582; A180640
Erik M. Bucher, Judge.
Argued and submitted July 10, 2024.
Shana Harris, California, argued the cause and filed the
briefs pro se.
Douglas F. Foley argued the cause for respondent. Also on
the brief was Foley Sampson & Lewis, PLLC, Washington.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Balmer,
Senior Judge.
AOYAGI, P. J.
Affirmed.
400 Harris v. State Farm Fire and Casualty Co.
AOYAGI, P. J.
Plaintiff brought this action against defendant for
breach of an insurance contract after defendant denied plain-
tiff’s insurance claim for damage to a rental home. The trial
court granted summary judgment for defendant and dis-
missed the action. The court did so based on a contractual pro-
vision in the policy that provides, “No action shall be brought
unless there has been compliance with the policy provisions
and the action is started within two years after the date of loss
or damage.” (Emphasis added.) That provision was required to
be included in the policy pursuant to ORS 742.240.
Plaintiff assigns error to the summary judgment
ruling, arguing that her action was timely filed.1 It is undis-
puted that the date of loss was July 6, 2020, and that the
present action was filed more than two years later on July 29,
2022. However, plaintiff points to a prior action that she
filed against defendant on November 30, 2021, which was
dismissed on May 26, 2022. She asserts that the prior action
was dismissed on procedural grounds, that she filed this
action 64 days later, and that ORS 12.220 therefore requires
this action to be viewed as relating back to the prior action
for time-limitation purposes. ORS 12.220 provides, in rel-
evant part, that if an action is filed within the statute of
limitations and is then “involuntarily dismissed without
prejudice on any ground not adjudicating the merits of the
action, * * * the plaintiff may commence a new action based
on the same claim or claims against a defendant in the orig-
inal action,” and if the new action is commenced within 180
days of the dismissal of the original action, “the new action
is not subject to dismissal by reason of not having been com-
menced within the time allowed by statute.”
Defendant argues that we should reject plaintiff’s
argument for lack of preservation. See State v. Wyatt, 331
Or 335, 341, 15 P3d 22 (2000) (“Generally, an issue not pre-
served in the trial court will not be considered on appeal.”).
Plaintiff, appearing pro se, represents that she attempted
1
The standard for summary judgment is set forth in ORCP 47 C. On review
of an order granting summary judgment, we view the record in the light most
favorable to the nonmoving party—here, plaintiff—to determine whether the
legal standard for summary judgment in ORCP 47 C was met. Wirth v. Sierra
Cascade, LLC, 234 Or App 740, 745, 230 P3d 29, rev den, 348 Or 669 (2010).
Nonprecedential Memo Op: 334 Or App 399 (2024) 401
to raise ORS 12.220 at the summary judgment hearing.
However, she cannot actually demonstrate preservation
as required by ORAP 5.45(4)—or facts sufficient to excuse
preservation—because the summary judgment hearing was
not transcribed and is not part of the appellate record. See
ORAP 5.45(4)(a)(ii) (“Each assignment of error must set
out pertinent quotations of the record where the question
or issue was raised and the challenged ruling was made,
together with reference to the pages of the transcript or
other parts of the record quoted * * *.”). That alone would
normally be dispositive.
We will assume for present purposes, however, that
the transcript would confirm plaintiff’s representations—
i.e., that it would show either that the issue was preserved
or that preservation should be excused. Even so, plaintiff’s
argument fails on the merits for two reasons.
First, there is nothing in the appellate record to
establish that the prior action was “involuntarily dismissed
without prejudice on any ground not adjudicating the mer-
its of the action.” ORS 12.220(1). Plaintiff represents that,
when the prior action was tried in May 2022, the court made
favorable comments about the merits of plaintiff’s claim and
expressly stated that it was dismissing the claim solely on
procedural grounds relating to the absence of a necessary
party. However, again, we cannot rely on a party’s repre-
sentations, only the actual appellate record and, to a lim-
ited extent, judicial notice. See SAIF v. Calder, 157 Or App
224, 227, 969 P2d 1050 (1998) (describing limited circum-
stances in which judicial notice may be taken). Here, noth-
ing from the prior action has been included in the appellate
record. We take judicial notice of the order of dismissal, as
we understand both parties to request, but it does not help
plaintiff. The order of dismissal states that the “evidence
being insufficient to support the claim, the case is hereby
dismissed.” That language suggests an adjudication on the
merits.
Second, even if plaintiff could establish that the
prior action was dismissed without an adjudication of the
merits, ORS 12.220 still would not apply as a matter of law.
The trial court ruled that plaintiff’s action was untimely
402 Harris v. State Farm Fire and Casualty Co.
based on the contractual two-year time limitation to bring
an action under the policy, not based on a statute of limita-
tions. On its face, ORS 12.220 applies only to statutes of lim-
itation. We disagree with plaintiff that ORS 12.220 reflects
a legislative intent that goes beyond statutes of limitations.
Under existing case law, the policy provision required by
ORS 742.240 is a contractual provision, not a statute of
limitations. In Herman v. Valley Ins. Co., 145 Or App 124,
126, 928 P2d 985 (1996), rev den, 325 Or 438 (1997), we
affirmed the grant of summary judgment for an insurer
and the related dismissal of the plaintiff’s claims, where the
action was not filed within the contractual two-year period
to file claims under the policy. In doing so, we held “that the
statutorily required suit limitation provision in plaintiff’s
insurance policy is a contract condition rather than a stat-
ute of limitations.” Id. at 130. Similarly, in Ben Rybke Co.
v. Royal Globe Insurance Co., 293 Or 513, 517, 651 P2d 138(1982), the court stated regarding the predecessor statute to
ORS 742.240, “This statute is not a statute of limitations.
It is one of a series of sections in the insurance code which
require that various specific provisions be contained in fire
insurance policies[.]”2 Because ORS 12.220 applies only to
statutes of limitations, not contractual provisions, plaintiff’s
argument cannot prevail.
We understand that it is extremely difficult to rep-
resent oneself in civil litigation and that plaintiff may view
holding her to the two-year time limitation in the policy in
these circumstances as a legal technicality. However, the
law generally applies equally to all parties, whether rep-
resented or pro se, and here, as a matter of law, the trial
court did not err in concluding that plaintiff’s action was
untimely and granting summary judgment for defendant on
that basis.
Affirmed.
2
By its terms, ORS 742.240 only applies to fire insurance policies, but this
court has held that the requirement also applies to homeowner policies. See
Herman, 145 Or App at 126 n 1.