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Strader v. Grange Mutual Insurance Company1/30/2002
Argued and submitted December 20, 2001.
Affirmed on appeal and cross-appeal.
Plaintiffs brought this action against their insurer, Grange Mutual Insurance Company defendant , for breach of contract and for personal injury . The trial court granted defendant's motion for partial summary judgment on the personal injury claim. The breach of contract claim went to trial, where plaintiffs prevailed and were awarded damages plus prejudgment interest but not attorney fees. Plaintiffs appeal the adverse rulings on their personal injury claim and their claim for attorney fees. Defendant cross-appeals the award of prejudgment interest. The three issues are whether plaintiffs could base a personal injury claim on conduct that was a breach of contract; whether defendant is immune from liability for attorney fees because it is a "patrons of husbandry" organization; and whether plaintiffs' damages were readily ascertainable at an identifiable time and could therefore support an award of prejudgment interest. Reviewing for errors of law, we affirm on the appeal and cross-appeal.
Defendant, recognizing that, on appeal from a grant of summary judgment, we view the record in the light most favorable to the nonmoving party, Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997); ORCP 47 C, accepts the following facts derived from plaintiffs' account of events.
Plaintiffs bought a home in Milwaukie in September 1995 and insured it under a homeowners' policy issued by defendant. Three months later, a windstorm stripped shingles off the roof, causing extensive water damage to the house and its contents. Defendant arranged for temporary repairs, which did not succeed in preventing further water damage or in allowing the existing moisture to evaporate. Permanent repairs to the roof were finished a year after the storm, in December 1996, but defendant and plaintiffs could not agree on the amount due under the policy.
During the winter after the roof was sealed, plaintiff Kathy Strader began having health problems. Her physician told her that the cause was asthma aggravated by an allergy to mold spores and advised her to reduce exposure to her home. Plaintiffs informed defendant of this diagnosis and showed one of defendant's executives the still-moist areas of the house where mold flourished. Defendant continued its refusal to pay plaintiffs the amount requested to rectify the water damage, including the mold. This litigation ensued.
In their complaint, plaintiffs alleged breach of the insurance contract, maintaining that defendant had not met its obligation under the policy to pay compensation sufficient to cover repair of the roof and water damage. As a separate claim, they alleged that defendant's "unreasonable delays in repairing the roof and its failure to correct the moisture problem and provide funds to adequately remove the mold or replace items contaminated with mold" foreseeably caused Kathy Strader's personal injury. The trial court granted summary judgment to defendant on the personal injury claim. The case went to trial on the breach of contract claim, and the jury awarded plaintiffs $195,500 in damages. After verdict, the parties disputed whether plaintiffs were entitled to prejudgment interest and attorney fees. Defendant maintained that it could not be taxed for attorney fees because, as a "patrons of husbandry association," it was exempt under ORS 731.032(4), and that prejudgment interest was inappropriate because the exact amount of damages was not easily ascertainable. Tifft v. Stevens, 162 Or App 62, 82, 987 P2d 1 (1999), rev den 330 Or 331 (2000). The trial court awarded plaintiffs $43,672.50 in prejudgment interest but disallowed
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