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Wade v. Mahler5/17/2000
prevailing party." However, when the underlying action is one in contract, we have adopted the definition in ORS 20.096(5): "the party in whose favor final judgment or decree is rendered." See Selective Services, Inc., 126 Or App at 78. In any context, however, there is no doubt that a party prevails if she receives a verdict in her favor on all of the claims and counterclaims and receives a net damages award. See Newell v. Weston, 156 Or App 371, 965 P2d 1039 (1998), rev den 329 Or 318 (1999). That is the case here.
Plaintiff alleged tortious conduct, defendant did not counterclaim, and the jury verdict awarded plaintiff a net award of $5,300. As explained above, PIP reimbursements are not counterclaims or defenses. They do not reduce the verdict award but satisfy the judgment entered on that verdict. Plaintiff prevailed. Accordingly, judgment should be entered in favor of plaintiff, and plaintiff should be considered the "prevailing party" for purposes of ORCP 68 B. Although the trial court erred as a matter of law in designating defendant rather than plaintiff as the prevailing party, ORCP 68 B gives the trial court discretion in awarding costs to the prevailing party, and we must, therefore, remand for reconsideration of plaintiff's costs. Selective Services, Inc., 126 Or App at 79.
The trial court erred in reducing the judgment by reason of the PIP reimbursement rather than ordering that reduction as a total satisfaction of the judgment. Accordingly, we reverse the money judgment in favor of defendant, and remand for entry of final judgment in favor of plaintiff and for reconsideration of plaintiff's costs.
Reversed; remanded for entry of judgment in favor of plaintiff in amount of jury verdict, for consideration of costs award to plaintiff, and for satisfaction of judgment in amount of verdict but not costs awarded.
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