Berger v. State Farm Mutual Automobile Insurance Company

Under ORS 742.061(2), the assertion that medical services are not reasonable and necessary brings the dispute outside of the safe-harbor. Under ORS 742.061(3), subsequent pleadings will not forfeit safe-harbor protection.

Plaintiff appealed judgment rejecting his request for attorney fees for his PIP claim under ORS 742.061(2) and UM claim under ORS 742.061(3). Plaintiff assigned error to the trial court's determination that State Farm had met the safe-harbor provisions regarding the PIP and UM claim, which provided exceptions to the award of attorney fees. On appeal, Plaintiff argued that the letters sent by State Farms were not sufficient to bring State Farms within the safe-harbor because it denied outright further PIP benefits and subsequent pleadings removed the safe-harbor's protection. In response, State Farm argued that the letters fell within the exceptions under ORS 742.601(1). In PIP litigation, ORS 742.061(2) relates to issues concerning dollar value for a claim and not the insurer's denial of a particular claim for services and a UM insurer does not lose safe-harbor protection by including in its pleadings allegations about particular issues that are not actually in disputes (Robinson 277 Or App at 73). The Court of Appeals held that in the content of a PIP claim, the assertion that medical services are not reasonable and necessary brings the dispute outside of the safe-harbor that State Farm met the safe-harbor provision despite subsequent pleadings. Remanded for an award of attorney's fees on Plaintiff's PIP claim; otherwise affirmed.