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Wade v. Mahler5/17/2000
g did defendant argue that the injuries were the same, and the trial court gave no indication that it considered whether that prerequisite was satisfied before it concluded that defendant was "entitled" to an offset. To the contrary, plaintiff pleaded different injuries resulting from the different accidents, and the jury was instructed to consider the issues remaining between plaintiff and defendant, see UCJI 21.04. Those issues are framed by the amended complaint, and we can discern no overlap in the injuries from the two accidents. The trial court therefore erred as a matter of law in offsetting plaintiff's award by the amount of her settlement with Neal. See York v. Bailey, 159 Or App 341, 347-48, 976 P2d 1181, rev den 329 Or 287 (1999) (appealing party bears burden to designate record sufficient to demonstrate prejudicial error).
Plaintiff next assigns error to the offset of her judgment by the PIP reimbursement payment. We conclude that, although the reduction on account of the PIP reimbursement was proper as a satisfaction of the judgment, the court erred in reducing the amount of plaintiff's recovery via an "offset" before the entry of judgment. ORS 18.510(2) provides:
"If judgment is entered against a party who is insured under a policy of liability insurance against such judgment and in favor of a party who has received benefits that have been the basis for a reimbursement payment by such insurer under ORS 742.534, the amount of the judgment shall be reduced by reason of such benefits in the manner provided in subsection (3) of this section." (Emphasis added.)
In Dougherty v. Gelco Express Corp., 79 Or App 490, 495-96, 719 P2d 906 (1986), we explained that, when the plaintiff pleads and proves damages subject to PIP benefits and when the plaintiff submits a verdict form from which the cannot tell whether the damages award includes losses subject to PIP benefits, the court must reduce the damages award by reason of the PIP benefits. We reasoned that the legislative purpose of ORS 18.510(2) is to "prevent the injured party from receiving payments from the PIP insurer and the negligent party's insurer that together would be greater than the injured party's proven damages." Id. at 495. Accordingly, when the plaintiff created the ambiguity in the verdict form, we will not permit the plaintiff to defeat the legislative purpose by reducing the offset amount on account of the ambiguity. Id. at 497. On the other hand, we have explained that, when there is no question that the verdict did not award damages for injuries subject to PIP benefits, the defendant is not entitled to a reduction of the judgment under ORS 18.510(2). Brus v. Goodell, 119 Or App 74, 78, 849 P2d 552 (1993). In Brus, we stated that the purpose of the statute was not to halve what makes the plaintiff whole. Id.
Last, in Mitchell v. Harris, 123 Or App 424, 430-31, 859 P2d 1196 (1993), we noted that, where the trial court could not determine from the verdict form that the jury did or did not include an adjustment of PIP benefits, it would be mere speculation to draw any conclusions about how the jury actually calculated the plaintiff's damages. Accordingly, the trial court could not "refuse to reduce the judgment by the amount of PIP benefits received based on speculation about the basis of a jury's award of damages." Id. at 431.
In this case, plaintiff did plead and prove damages subject to PIP benefits. Those benefits consist of "payments for expenses, loss of income and loss of essential services as provided in ORS 742.524." ORS 742.520(3). Unlike in Mitchell, plaintiff argues not that the jury verdict already had reduced her judgment by reason of the PIP benefits, but that a reduction
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