NAKAMOTO, J.
In this action to recover uninsured motorist benefits, arising out of plaintiff's injury in an automobile accident with an uninsured driver, defendant Farmers Insurance Company appeals from a general judgment entered after a jury's verdict on damages. The judgment awarded plaintiff $48,122.87 in economic damages and $275,000.00 in noneconomic damages. Defendant also appeals from a supplemental judgment awarding plaintiff attorney fees under ORS 742.061. We conclude that, as defendant asserts, the trial court erred in rejecting its request to poll the jurors individually to determine whether the same nine jurors agreed on economic and noneconomic damages, as required in this case for a valid verdict. As a result, we reverse and remand for a new trial. We also reverse the award of attorney fees and, because the issue is likely to arise on remand, hold that an award of fees was not authorized because defendant met the requirements to come within the safe harbor of ORS 742.061(3).
We address first the jury polling issue and set forth the material facts related to that issue. Plaintiff was injured in an automobile accident with an uninsured driver. She filed a claim with her own insurer, defendant, alleging that the uninsured driver was at fault and that defendant was liable for her damages. Defendant admitted that the uninsured driver was at fault and that defendant was liable for plaintiff's damages. The case went to trial only on the issue of damages.
As noted, the jury returned a verdict for plaintiff, finding that she had suffered economic damages of $48,122.87 and noneconomic damages of $275,000.00. However, the
In civil cases, each party has an absolute privilege to request a poll of the jury to ensure that the verdict is correct. ORCP 59 G(3); Eisele v. Rood, 275 Or. 461, 468, 551 P.2d 441 (1976). In light of its uncertainty that the same nine jurors had agreed on both economic and noneconomic damages, defendant asked the court to poll the jury. The court polled the jurors collectively on each type of damages. First the court asked for a show of hands in support of the finding of economic damages. By raising their hands, nine jurors indicated that they had agreed with the finding on economic damages, and three jurors indicated that they had voted no. The court then asked the jurors about the finding of noneconomic damages. By a show of hands, eight jurors indicated that they had agreed with the findings and four indicated that they had disagreed. Counting only eight jurors in support of the finding on noneconomic damages, the court announced that the verdict was not legal and that it intended to send the jury back to deliberate further. At that point, plaintiff requested that the judge poll the jury again. The court agreed to do so and once again asked the jurors for a show of hands on each type of damages. That time, the court counted nine votes in favor of the economic damages verdict and nine votes in favor of the noneconomic damages verdict.
The court did not discharge the jurors, but sent them back to the jury room and asked the parties whether they objected to receiving the verdict and discharging the jury. Defendant's counsel expressed the concern that, even though nine jurors had supported each type of damages, they were not the same nine jurors: "[J]uror number two was yes on the economic, no on the non-economic. Juror number eleven was reversed the same way." Plaintiff's counsel disagreed, stating that he thought he had seen the same nine jurors vote "yes" on economic and noneconomic damages. Defense counsel then stated:
The court rejected defense counsel's request and declined to individually poll the jurors. The court explained that it was not certain that the same nine jurors needed to agree on the different types of damages. In any event, the court said that, because there was nothing on the verdict form itself that indicated that the same nine jurors had to agree on both types of damages, there was "an issue of waiver." The court entered judgment on the verdict.
On appeal, defendant argues that, as it requested and as a matter of right, defendant was entitled under ORCP 59 G(3) to have the jurors polled individually to ensure that the same nine jurors agreed that plaintiff was entitled to both economic and noneconomic damages and that the verdict therefore was proper. Under ORCP 59 G(3),
Although the rule's statement that "the jury may be polled" suggests that whether or not to poll the jury is a matter within the trial court's discretion, in fact, this court and the Supreme Court have said that, unless waived, a party's right upon request to have the jury polled in a civil case is absolute. In Freeman v. Wentworth & Irwin, Inc., 139 Or. 1, P.2d 796 (1932), the Supreme Court considered whether Oregon Code, title II, ch 3, § 2-319 (1930), which is similar to ORCP 59 G(3) and which stated in part that "[w]hen a verdict is given, and before it is filed, the jury may be polled on the request of either party," provided a right to polling, id. at 20, 7 P.2d 796, and whether the right had been waived, id. at 20-24, 7 P.2d 796. The court held that "our statute does not make the polling of the jury discretionary with the judge but, in harmony with the general rule * * *, grants this privilege as an absolute right." Id. at 20, 7 P.2d 796 (citations omitted); accord Eisele, 275 Or. at 468, 551 P.2d 441 (citing Freeman); Brummett v. Parson, 49 Or.App. 588, 588, 619 P.2d 1355 (1980) (citing Eisele).
Plaintiff does not dispute that general rule but offers three responses, the first two of which avoid the question of the sufficiency of the jury poll: (1) defendant waived the right to a verdict in which the same nine jurors agreed on economic and noneconomic damages;
Plaintiff first contends that, by failing either to include a requirement in the verdict form or to request an instruction that the same nine jurors must agree as to each component of damages, defendant waived the right to have the same nine jurors decide both types of damages. Because of the constitutional implications of the failure to receive a three-fourths verdict, Or. Const., Art. VII (Amended), § 5(7), it is not by any means clear that a party waives the right to have the same nine jurors agree on all parts of the verdict when a jury instruction concerning the verdict or the verdict form may lack specificity regarding the requirements for a valid verdict. See Shultz v. Monterey, 232 Or. 421, 425, 375 P.2d 829 (1962) ("A verdict concurred in by less than three-fourths of the jury is invalid, and the failure to object thereto before the verdict is received and filed does not constitute a waiver of such invalidity."); Clark, 212 Or. at 368, 319 P.2d 940 (when faced with a verdict of less than the constitutionally required number, the court must send the jury out for further deliberation). In any event, we reject plaintiff's contention as a factual matter and conclude that there was no waiver in this case, because the trial court ended up instructing the jury that the same nine jurors must agree on damages.
The verdict form, which defendant prepared, had only one question:
(Emphasis in original.) Although there was only one question, there were two parts to be answered: the amount of economic damages and the amount of noneconomic damages. And, although the verdict form specified that at least nine jurors must agree on "the answer to question 1," it did not specifically state that the same nine jurors must agree on each of the two parts of the answer.
The court and the parties spent a few minutes discussing the verdict form in the
That part of the instruction told the jury that nine must agree on "the answer," but it did not specifically tell the jury that the same nine must agree on both types of damages. However, the court instructed the jury further: "Nine or more of you must agree on the verdict. * * * If the verdict is for the plaintiff, at least the same nine jurors must also agree on the amount of damages." (Emphasis added.) Indeed, two times further, the jury heard the court say that at least the same nine jurors who said that plaintiff was entitled to a verdict must agree on the amount of damages.
Thus, not only did the court instruct the jurors that nine of them had to agree on "the answer," which had two components; the jurors also heard from the court that the same nine jurors who agreed that plaintiff was entitled to a verdict must also agree as to the amount of damages. The "amount of damages" necessarily encompassed both types of damages — economic and noneconomic. That is, the same nine jurors who agreed that plaintiff was entitled to a verdict had to agree as to both economic damages and noneconomic damages. In light of the trial court's instructions to the jury and the parties' agreement with those instructions, we reject plaintiff's argument that defendant waived the right to have the same nine jurors who found that plaintiff should have the verdict agree as to both types of damages.
(Emphasis added.)
Second, plaintiff contends that defendant was not legally entitled to a verdict with the same nine jurors agreeing on both economic and noneconomic damages, because the two types of damages are not interrelated. See Verberes, 92 Or.App. at 381, 759 P.2d 279 (the same nine jurors do not need to agree on separate and independent questions involving separate claims); Davis v. Dumont, 52 Or.App. 73, 627 P.2d 907, rev. den., 291 Or. 309, 634 P.2d 1346 (1981) (same nine jurors need not agree on questions relating to separate defendants). Defendant asserts three arguments in reply, contending first that economic and noneconomic damages are indeed interrelated questions on which the jurors must agree, because, despite the verdict form's separation of damages into different types, juries tend to view the amount of the verdict as a unit. Defendant notes further that in Shultz, 232 Or. at 425, 375 P.2d 829, the Supreme Court implicitly determined that the types of damages awarded in a personal injury action — such as economic or noneconomic — are "elements of damages" on which the same nine jurors must agree.
We agree with defendant's last argument and do not reach the first two. Whether or not, as a general rule, the agreement of the same nine jurors would be required on both economic and noneconomic damages, in this case, the court instructed the jurors, without objection, that at least the same nine of them who had agreed that the verdict was for plaintiff must agree on the amount of damages. As we have explained, that required that at least the same nine jurors agree on the amount of both types of damages. Because the judge's instructions to the jury became the law of the case, Fulton Ins. v. White Motor Corp., 261 Or. 206, 223 n. 5, 493 P.2d 138 (1972); Columbia Co. v. Ross Island Co., 145 Or. 96, 108-09, 25 P.2d 911 (1933); Mays v. Vejo, 224 Or.App. 426, 198 P.3d 943 (2008), rev. den., 346 Or. 213, 208 P.3d 963 (2009), we conclude that the same nine jurors were required to agree on both elements of damages in this case.
That leads us to the primary issue that defendant raises on appeal — whether the jury poll was inadequate. In plaintiff's view, the court satisfied the requirement to poll the jury by twice asking jurors for a show of hands on the different components of damages. Plaintiff, however, does not assert that it is patent on the record that the same nine jurors agreed on both economic and noneconomic damages. We agree with plaintiff that the trial court has some discretion in determining how the jury is polled. See, e.g., Aronson v. Fagan, 278 Or. 135, 138, 562 P.2d 974 (1974) (holding that court's explanation to jury that "of course, those of you that say `yes' have to agree with each of the answers in the several questions," was clear and unequivocal and plaintiff was not prejudiced by the court's remark (emphasis in original)). In this case, though, the trial court's request for a collective show of hands does not meet the requirement of ORCP 59 G(3) that "each juror shall be asked whether the verdict is the juror's verdict." Sandford v. Chev. Div. Gen. Motors, 52 Or.App. 579, 586-87, 629 P.2d 407 (1981), aff'd, 292 Or. 590, 642 P.2d 624 (1982).
As both this court and the Supreme Court explained in Sandford, the rule requires an individual poll of each juror in a manner that demonstrates whether each juror agreed with the entire verdict. In that case, after the jury had been deadlocked "eight-four" for hours, the foreperson told the court that the jury had reached a verdict with nine jurors. Yet, when the court polled the jury, all twelve jurors answered "yes" to the question, "Is this your verdict?" 52 Or. App. at 586-87, 629 P.2d 407. Thus, it appeared that some jurors had construed the question as asking whether there was a nine-to-three split vote. The trial court denied the defendants' request for a poll to determine whether at least nine jurors had voted similarly on the questions required for the verdict. Id. at 587, 629 P.2d 407.
We described the purpose and requirements of a jury poll under ORCP 59 G(3) in Sandford.
52 Or.App. at 587-88, 629 P.2d 407 (emphasis added). The Supreme Court generally agreed with this court's description, but clarified further:
Sandford, 292 Or. at 613 n. 22, 642 P.2d 624. In sum, Sandford required the trial court to determine whether the same nine jurors agreed with each part of the verdict upon a request for a jury poll.
In this case, the trial court's failure to poll the jurors individually after the showing of hands, as defendant requested, was not harmless and is reversible error because the trial court's chosen method for polling the jury failed to establish conclusively whether the same nine jurors agreed with each part of the damages verdict. The record reflects that there was confusion regarding whether the same nine jurors agreed on both economic and noneconomic damages in the two showings of hands. If defendant is correct that the nine who agreed on economic damages were not the same nine who agreed on noneconomic damages, then the verdict is invalid. See Clark, 212 Or. at 364, 367, 319 P.2d 940 (holding verdict was invalid when same nine jurors failed to agree on both liability and damages). As the Supreme Court explained in Sandford, the right to have the jury polled "is designed to demonstrate that the announced result represents a valid verdict." 292 Or. at 614, 642 P.2d 624. As in Sandford, under the circumstances, not knowing the outcome of an individualized poll, it is impossible to say that the absence of a correct poll of the divided jury was harmless error. See id.
The remaining question on this issue is whether the trial court's error requires a remand for retrial on all damages or only on one type of damages but not both. Plaintiff contends that any retrial should concern only economic damages. However, having concluded that the same nine jurors were required to agree on both types of damages in this case, we conclude, further, that the verdict was invalid and that the case must be retried on both types of damages.
We turn to the question of whether plaintiff is authorized to receive an award of attorney fees under ORS 742.061, which is likely to arise on remand. That statute governs recovery of attorney fees in actions on insurance policies like this one and provides, in part:
ORS 742.061. Under the statute, a plaintiff who prevails in an action on an insurance policy is entitled to an award of attorney fees in certain circumstances set forth in subsection (1). In the context of uninsured or underinsured motorist benefits, an exception is set out in ORS 742.061(3), also known as the "safe harbor" provision. No attorney fees are due if, within six months after proof of loss, the insurer notifies the insured that (1) it accepts coverage; (2) the only issues are liability of the uninsured or underinsured
In this case, it is undisputed that, within six months of plaintiff's submission of a proof of loss form, defendant's adjuster sent plaintiff's attorney a letter in which defendant accepted coverage generally by acknowledging that plaintiff had a policy in force and consented to submit the issues of liability and damages to binding arbitration. The letter stated, in part:
Plaintiff conceded that the letter, on its face, satisfied the "safe harbor" exception in ORS 742.061(3), which defendant asserted required the trial court to deny plaintiff's fee petition. Plaintiff, though, took issue with the proof of loss form enclosed with the letter.
The proof of loss form called for plaintiff to provide information concerning all of her claimed injuries, medical treatments and expenses, wage loss and loss of earning capacity, and other claimed damages. The first paragraph of that form stated:
(Capitalization and bold face in original.)
Plaintiff contended in the trial court that, although the letter itself was sufficient to invoke the exception in ORS 742.061(3), the statement in the first paragraph of the proof of loss form — that the form would not be accepted as proof of loss until all amounts she intended to claim were stated — nullified the effect of the letter by placing plaintiff's proof of loss in dispute. Plaintiff noted that she had been receiving treatment in the weeks before trial and argued that defendant reserved the right to take the position that, as plaintiff repeatedly amended her proof of loss form due to additional medical bills for ongoing treatment, plaintiff had not yet submitted her proof of loss. Plaintiff, though, did not establish or argue that defendant had ever denied that she had provided it with proof of loss. According to plaintiff, defendant was precluded from relying on the safe harbor exception because the possibility of such a denial placed an additional issue in question besides the issues of damages and liability permitted in ORS 742.061(3)(a).
The trial court overruled defendant's objection to plaintiff's fee petition based on the safe harbor exception. In a supplemental judgment, the court awarded plaintiff all of her requested fees. Defendant's challenge on appeal is directed to whether plaintiff was entitled to fees at all and not to the reasonableness of the dollar amount of the fees requested and awarded.
On appeal, defendant contends that the trial court erred in awarding attorney fees, because defendant's letter complied with ORS 742.061(3) and the statement at the top of the proof of loss form had no bearing on defendant's acceptance of coverage and offer to arbitrate or on what issues were in dispute. We review the question of whether defendant was entitled to the protection of
Defendant asserts that, by including on its proof of loss form a requirement that plaintiff state all the amounts she intended to claim, defendant was simply restating the requirement of ORS 742.504(5) that an insured seeking uninsured motorist benefits "give to the insurer written proof of claim * * * including full particulars of the nature and extent of the injuries, treatment and other details entering into the determination of the amount payable[.]" Plaintiff replies that defendant was surely entitled to require specificity on the proof of loss form, but that, by stating that the proof of loss "will not be accepted" until all amounts were claimed, defendant left open the possibility of disputing the sufficiency of the proof of loss. Relying on Grisby and two cases following it, Badrick and Cardenas v. Farmers Ins. Co., 230 Or.App. 403, 215 P.3d 919 (2009), plaintiff contends that, by reserving for itself the opportunity to reject plaintiff's proof of loss, defendant acted inconsistently with the requirement in ORS 742.061(3)(a) that the only issues in dispute must be liability and the damages due the insured.
We conclude that defendant has the better argument. As noted, plaintiff concedes that the letter by itself is sufficient to satisfy the requirement of ORS 742.061(3). We recognize, as plaintiff points out, that the proof of loss form could be a method by which an insured provides "proof of loss" as that term is used in ORS 742.061, i.e., sufficient information for the insurer to investigate and estimate its rights and obligations under the policy. Scott v. State Farm Mutual Auto. Ins., 345 Or. 146, 151-53, 190 P.3d 372 (2008). But, at the same time, the form in this case is "written proof of claim" as required of an insured under ORS 742.504(5)(a),
This case is unlike the Grisby line of cases that plaintiff cites for its contention that defendant left more than the "damages due the insured" at issue as a result of its proof of loss form. In Grisby, the insured was injured in a motor vehicle accident, and his insurer sent him a letter stating that it had "accepted coverage for [personal injury protection (PIP)] benefits" and that, in case of a dispute regarding the amount of benefits due, the insurer was willing to arbitrate. 343 Or. at 177, 166 P.3d 519. However, the letter also said that "we may deny, limit or terminate benefits" if the insured incurred medical expenses that were not in accordance with its
The Supreme Court in Grisby noted that the issue was not whether the words in the letter indicated a statutorily required acceptance of coverage; rather, the question "is whether [the insurer's] acknowledgment that [the insured's] accident came within the scope of the policy means that [the insurer] `accepted coverage' as that term is used in ORS 742.061(2)(a)." 343 Or. at 180, 166 P.3d 519. The court held that an initial written acknowledgment of coverage generally for an accident is insufficient to come within the safe harbor provision for PIP benefits when followed by a dispute over a claim for payment of particular medical treatment, because the legislature contemplated that the insurer would make "an ongoing series of decisions `accepting' or `denying' coverage of particular claims for services rendered by medical providers." Id. at 181, 166 P.3d 519. By denying the claim for PIP benefits for the chiropractic treatment, the insurer in Grisby disputed not the dollar amount of PIP benefits due but, instead, its PIP coverage for the claim for medical services. Id. at 181-84, 166 P.3d 519.
In Badrick, a PIP benefits case like Grisby, the insurer wrote to the insured and advised that "[t]he policy is in force for this loss." 238 Or.App. at 323, 242 P.3d 685. However, similar to what the insurer in Grisby wrote, it stated that it reserved the right to "deny, limit or terminate benefits if we determine the medical and hospital services are not reasonable or necessary, or not related to the accident." Id. Then the insurer failed to pay all of the insured's claims for PIP benefits. Id. Following Grisby, we held in Badrick that the insurer's letter left open the possibility that a claim for benefits might be denied outright and did not allow the insurer to claim the protection of the safe harbor provision. Id. at 327-28, 242 P.3d 685.
In our decision in Cardenas, we applied the rule in Grisby in an uninsured motorist case. In that case, the insurer paid the insured, who was unrepresented by counsel and who did not speak, write, or read English, $800 in exchange for a release of claims related to her injuries in a hit-and-run accident. 230 Or.App. at 405-06, 215 P.3d 919. She eventually retained counsel and demanded payment of an additional amount of damages from the insurer. The insurer objected to the insured's further recovery of uninsured motorist benefits based on the release but then sent the insured a letter in which it noted that there were "no issues as to the existence of [uninsured motorist] coverage" and offered to arbitrate. Id. After the parties litigated the validity of the release, the insured recovered additional amounts due to her injuries and, ultimately, obtained an attorney fee award under ORS 742.061. Id. at 406-07, 215 P.3d 919.
Upon the insurer's appeal, we held in Cardenas that the "safe harbor" requirement in ORS 742.061(3)(a) for uninsured motorist cases — that the only issues in dispute "are the liability of the uninsured or underinsured motorist and the damages due the insured" — is parallel to the requirement in ORS 742.061(2)(a) for PIP cases. We explained that the provision regarding PIP coverage does not refer to liability or "damages due" and instead refers to "benefits due" as the sole disputed issue, as a result of the nature of PIP coverage. 230 Or.App. at 411-12, 215 P.3d 919. Because the insurer in Cardenas had contested its obligation to make any payment of further benefits, like the insurer in Grisby, it was not entitled to immunity from liability for its insured's attorney fees. Id. at 412, 215 P.3d 919.
Here, in contrast, defendant's letter expressly accepted coverage and did not reserve the right to deny coverage, as occurred
Reversed and remanded.
