Kentner v. Gulf Ins. Co.

23 Citing cases

  1. Vasquez v. Double Press Mfg., Inc.

    288 Or. App. 503 (Or. Ct. App. 2017)   Cited 9 times
    Reducing $4,860,000 in noneconomic damages to 10% of original amount violated the remedy clause

    In contending that plaintiff was required to raise his arguments in his answering brief for the arguments to be considered by us, defendant points to cases in which we and the Supreme Court have said that we will not consider arguments raised for the first time on reconsideration. See, e.g. , State v. Leistiko , 352 Or. 622, 624, 292 P.3d 522 (2012) (declining to address argument raised for first time in defendant's petition for reconsideration); Kentner v. Gulf Ins. Co. , 298 Or. 69, 74, 689 P.2d 955 (1984) (noting that "purpose of rehearing is not to raise new questions or rehash old arguments, but to allow the court to correct mistakes and consider misapprehensions"); Rogers v. RGIS, LLP , 232 Or.App. 433, 435, 222 P.3d 710 (2009), rev. den. , 348 Or. 291, 231 P.3d 795 (2010) (declining to consider argument for modifying opinion that was raised by amicus curiae for first time in support of reconsideration petition); State v. Schneider , 204 Or.App. 710, 713, 131 P.3d 842, rev. den. , 341 Or. 392, 143 P.3d 544 (2006) (rejecting defendant's new argument on reconsideration attempting to disavow concession made on appeal in light of new case law); Coast Range Conifers v. Board of Forestry , 192 Or.App. 126, 130, 83 P.3d 966 (2004), rev'd , 339 Or. 136, 117 P.3d 990 (2005) (stating that the state may not assert an unpreserved argument on appeal "much less for the first time in a petition for reconsideration"); Kinross Copper Corp. v. State of Oregon , 163 Or.App. 357, 360, 988 P.2d 400 (199

  2. Fleming v. United Services Automobile Association

    330 Or. 62 (Or. 2000)   Cited 15 times
    Holding that provisions restricting the rights of an insured that are not preceded by such a title will be ignored in construing the policy

    The better practice is for a party to identify any issue that might require remand following this court's review. See Kentner v. Gulf Ins. Co., 298 Or. 69, 74, 689 P.2d 955 (1984) (discussing policy of promoting finality of appellate court decisions and conserving judicial time). Nonetheless, USAA is correct that our earlier decision did not dispose of those four assignments of error and that we should remand this case to the Court of Appeals for further proceedings.

  3. Rains v. Stayton Builders Mart, Inc.

    289 Or. App. 672 (Or. Ct. App. 2018)   Cited 9 times
    Holding that a wife's loss of consortium claim stemming from her husband's physical injuries was considered an injury to the wife's person that was protected under the remedy clause of the Oregon Constitution

    Id. (quoting United States v. Castillo , 179 F.3d 321, 326 (5th Cir. 1999) ). Weyerhaeuser also relies on an Oregon Supreme Court case, Kentner v. Gulf Ins. Co , 298 Or. 69, 73-74, 689 P.2d 955 (1984), which is based on similar considerations. Kentner states "the general rule that a contention not raised on the original hearing will not be considered on a petition for rehearing."

  4. Valdez v. Nationwide Ins. Co. of Am.

    632 F. Supp. 3d 1201 (D. Or. 2022)

    And as to whether defendant had a "legal right" to rely on the plaintiff's representations in his application, Oregon law does not impose any duty on an insurer "to investigate an application." Kraus v. Prudential Ins. Co. of Am., 799 F.2d 502, 504 (9th Cir. 1986); see also Kentner v. Gulf Ins. Co., 297 Or. 470, 476, 686 P.2d 339 (1984), modified on reh'g, 298 Or. 69, 689 P.2d 955 (1984) ("[T]he clear and convincing standard of proof . . . in fraud cases does not apply to proof of misrepresentation under O.R.S. § 743.612 . . . [T]he purpose of this statute is to discourage insurance fraud, and the purpose would be thwarted . . . if we were to adopt a scienter element that is more difficult to prove.").

  5. Allianz Glob. Risks US Ins. Co. v. ACE Prop. & Cas. Ins. Co.

    368 Or. 229 (Or. 2021)   Cited 4 times

    To the extent that Con-Way raises what might be considered new arguments—such as the possible distinction between what it calls "partial fronting agreements" and "full fronting agreements"—those arguments were not raised below and we decline to consider them at this point. Kentner v. Gulf Ins. Co. , 298 Or. 69, 74, 689 P.2d 955 (1984) ("The purpose of a rehearing is not to raise new questions or rehash old arguments, but to allow the court to correct mistakes and consider misapprehensions."). In any event, those newly raised arguments would not lead to a different analysis or result, at least on the facts here.

  6. PERRINE v. E.I. DU PONT DE NEMOURS

    Nos. 34333, 34334 and 34335 (W. Va. Jun. 2, 2010)

    The basic purposes are to promote the finality of appellate courts' decisions and to conserve judicial time." Kentner v. Gulf Ins. Co., 689 P.2d 955, 957 (Or. 1984) (citations omitted). See also OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 747 (Tex. Ct. App. 2007) ("A motion for rehearing does not afford a party an opportunity to raise new issues after the case has been briefed, argued, and decided on other grounds, unless the error is fundamental.

  7. Perrine v. E.I. Du Pont De Nemours & Co.

    225 W. Va. 482 (W. Va. 2010)   Cited 101 times
    Finding that the defendant was entitled to remittitur based on mitigating evidence

    The basic purposes are to promote the finality of appellate courts' decisions and to conserve judicial time." Kentner v. Gulf Ins. Co., 298 Or. 69, 689 P.2d 955, 957 (1984) (citations omitted). See also OAIC Commercial Assets, L.L.C. v. Stonegate VilL, L.P., 234 S.W.3d 726, 747 (Tex.Ct.App. 2007) ("A motion for rehearing does not afford a party an opportunity to raise new issues after the case has been briefed, argued, and decided on other grounds, unless the error is fundamental.

  8. State v. Dominguez-Coronado

    345 Or. 396 (Or. 2008)   Cited 3 times

    In my view, nothing in that wording confines the Court of Appeals' reconsideration to arguments that already had been made to that court, but which had acquired new legitimacy due to changes in statute or case law. See Kentner v. Gulf Ins. Co., 298 Or 69, 75, 689 P2d 955 (1984) (court chose to reconsider prior opinion on basis of moving party's argument never advanced until petition for reconsideration). It thus appears to me that the Court of Appeals' view that there is no legal basis for reconsidering these defendants' petitions for review is probably incorrect. That said, however, I concur with this court's choice not to allow any of the three petitions for review. I take that view because, unlike the situation in Birchfield (the case on which the petitioners rely), none of the petitioners in the three cases now before us objected to the admissibility of the laboratory report as hearsay or notified the state that he wanted the state to produce the criminalist at trial.

  9. State v. Keller

    315 Or. 273 (Or. 1993)   Cited 75 times
    Holding that a trial witness's testimony as to the credibility of another witness was prejudicial error

    Defendant did not "solicit" the subject of coaching during examination of a witness or otherwise "introduce" it in evidence. Cf. Hall v. Banta, 283 Or. 387, 390, 583 P.2d 1139 (1978) (after subject was "solicited" by one party on cross-examination, other party could develop that subject); Kentner v. Gulf Ins. Co., 298 Or. 69, 73, 689 P.2d 955 (1984) (party cannot introduce evidence in trial court and then claim on appeal that the same evidence is inadmissible). Neither did defendant later offer that same evidence himself for another reason.

  10. Kelly v. State Farm Fire & Cas. Co.

    312 Or. App. 361 (Or. Ct. App. 2021)   Cited 1 times

    The purpose of ORS 742.208 is to discourage insurance fraud. McBride , 295 Or. at 407, 667 P.2d 494 (stating that the enactment of former ORS 743.612, renumbered as ORS 742.208 (1989), "evinces a general public policy to discourage insurance fraud"); Kentner v. Gulf Ins. Co. , 66 Or. App. 15, 23, 673 P.2d 1354 (1983), aff'd , 297 Or. 470, 686 P.2d 339, on reh'g , 298 Or. 69, 689 P.2d 955 (1984) ("The objective of ORS 743.612 is to discourage insurance fraud."). That includes discouraging "false claims concerning the amount of loss or the circumstances of the fire and false statements that prevent or hamper investigation of the claim."