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Wade v. Mahler5/17/2000
should not have been ordered in this case. She appears to acknowledge that on the verdict form used in this case the trial court would be required to speculate about the basis of the jury's award of damages, namely whether and to what extent the jury's award of damages included losses subject to PIP benefits. Plaintiff argues, however, that that speculation is attributable to defendant and that, consistent with our reasoning in Dougherty, defendant should not benefit by the ambiguity.
In particular, plaintiff points out that she requested a verdict form that segregated the economic damages into past and present medical bills, past wage loss, loss of opportunity and loss of earning capacity, and future wage loss, loss of opportunity and loss of earning capacity. She argues that if the trial court had permitted the jury to use her verdict form, the jury could have specified what amount of economic damages were not attributable to PIP benefits, namely the future wage loss, loss of opportunity and loss of earning capacity. The trial court then could have reduced the damage award for medical bills and past losses by reason of the PIP benefits and maintained the damage award for future losses without any speculation.
We do not address whether the statute would permit us to forbid the trial court from reducing the damages award in this situation. But see Dougherty, 79 Or App at 495-96 (we are not permitted to read into the statute a provision that reduces the offset amount when it cannot be determined whether the jury actually awarded the plaintiffs damages already compensated for by the PIP payments). Instead, we conclude that plaintiff has failed to establish her underlying premise, that her proposed special verdict form would have eliminated any speculation on the part of the trial court. For example, ORS 742.524(1)(b) provides that PIP benefits may, under certain circumstances, consist of "loss of income from work during the period of the injured person's disability until the date the person is able to return to the person's usual occupation." Under limited circumstances, this could include future wage losses, and plaintiff has failed to designate where in the record she can demonstrate that the future losses category is entirely precluded from PIP benefits. See York, 159 Or App at 348. Accordingly, Dougherty controls, and the trial court did not err in reducing plaintiff's judgment by reason of the PIP reimbursement.
We last consider plaintiff's argument that, because that reduction diminishes plaintiff's judgment to zero, the reduction should operate as a full satisfaction of the judgment and plaintiff should be considered the prevailing party. Plaintiff is correct. The trial court here ordered a reduction in plaintiff's award and by reason of that reduction considered defendant the prevailing party and entered final judgment in favor of defendant. However, ORS 18.510 provides for "payment as satisfaction of judgment." The statute permits the reduction of an entered judgment by reason of PIP reimbursement as partial or full satisfaction of that judgment. ORS 18.510(2),(3)(c); see Dougherty, 79 Or App at 492 (considering the trial court's partial "satisfaction" of the judgment). Indeed, even defendant filed a "Motion for Partial (or Total) Satisfaction of Judgment." (Emphasis added.) Nowhere does ORS 18.510 permit the trial court to reduce the jury verdict and, by reason of the PIP reimbursement reduction, prevent entry of judgment in favor of plaintiff. The trial court erred in entering final judgment for defendant.
ORCP 68 B provides that costs and disbursements shall be allowed to the "prevailing party" unless the court otherwise directs. That statute does not define "
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