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Delcastillo v. Norris1/19/2005
the "ends of justice." See Dorn v. Wilmarth, 254 Or 236, 239, 458 P2d 942 (1969) (trial courts have inherent power to require physical examinations whenever it appears that the "ends of justice" would be promoted by doing so). Enhanced by that definition, ORCP 44 A allows the court to exercise its discretion to order a physical examination for a cause or reason based on equity or justice or one that would motivate a reasonable person under all the circumstances. ORCP 44 A; Webster's at 978. A reasonable person under these circumstances could be motivated to order a medical examination where, as here, a plaintiff has asserted unresolved medical complaints. Although the trial court was not obligated to grant defendant's motion, it acted within its discretion in doing so.
Next we examine whether plaintiff received "a more favorable judgment" than defendant's settlement offer before trial. We examine the trial court's construction of ORCP 54 E for errors of law. Wade v. Mahler, 167 Or App 350, 352, 1 P3d 435, rev den, 331 Or 334 (2000).
If a plaintiff fails to obtain a judgment at trial "more favorable" than a settlement offer, the plaintiff is entitled only to costs incurred up to the time the offer was made. ORCP 54 E. The trial court concluded that, because the jury's verdict ($6,991.22) was less than the offer of judgment ($8,950.00), the offer of judgment was more favorable and, thus, operated to cut off plaintiff's entitlement to costs incurred after the date of that offer. Plaintiff argues that, because the entire offer of judgment amount would have been used to offset her PIP lien and she was able to retain $1,500.00 in non-economic damages awarded by the jury, the result at trial was "more favorable" to her than was the offer of judgment, even though the total amount was less.
We reject that argument, which rests on the faulty premise that a PIP reimbursement reduces the judgment amount. As we have stated elsewhere, PIP reimbursements "do not reduce the verdict award but satisfy the judgment entered on that verdict." Wade, 167 Or App at 358 (emphasis in original).
Likewise, in Quality Contractors, Inc. v. Jacobsen, 154 Or App 343, 349, 963 P2d 30 (1998), we rejected the notion that a $2,000 offset of a jury award, resulting from an earlier settlement with a co-defendant insurance carrier, could be taken into account in determining whether the plaintiff obtained a "more favorable judgment" at trial than it would have been obtained if the plaintiff had accepted the defendant's offer of compromise.
To accept plaintiff's argument would be to impose on trial courts an obligation to look behind the dollar amount of a judgment to determine its actual benefit to a plaintiff. Such a requirement finds support in neither the language of the rule nor in our case law, which treats the judgment amount as unaffected by offsets (such as PIP reimbursement or settlements) that are not part of resolution of the merits of the action. Moreover, PIP reimbursement under ORS 742.536 occurs at the election of the insurer and is designed to prevent an injured party from receiving double recovery from the PIP insurer and the negligent party's insurer. Kessler v. Weigandt, 68 Or App 180, 186, 685 P2d 425 (1984), aff'd, 299 Or 38, 699 P2d 183 (1985). Plaintiff's obligations to her PIP insurer are merely part of her claimed damages; she may not use them to support the amount of judgment she seeks to recover and then subtract them from the amount of her judgment for purposes of ORCP 54 E. See Wade, 167 Or App at 358.
Accordingly, we determine whether plaintiff received a more favorable judgment by comparing defendant's offer of judgment--$8,950.00, which included cos
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