Opinion
A168067
05-04-2022
Susann M. THOENS, Plaintiff-Respondent, v. SAFECO INSURANCE COMPANY OF OREGON, Defendant-Appellant.
Thomas M. Christ and Sussman Shank LLP for petition. Shenoa Payne for response.
Multnomah County Circuit Court 091116530; Marilyn E. Litzenberger, Judge.
On appellant's petition for reconsideration fled March 9, 2022, and respondent's response fled March 15, 2022. Opinion fled February 24, 2022. 317 Or.App. 727, __P.3d__.
Thomas M. Christ and Sussman Shank LLP for petition.
Shenoa Payne for response.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
PER CURIAM.
Defendant Safeco Insurance Company of Oregon petitions for reconsideration of our opinion in Thoens v. Safeco Ins. Co., 317 Or.App. 727, __P.3d__(2022). Although we adhere to our disposition of the case, we allow reconsideration and modify the text of our prior opinion to address defendant's contention that our ruling on defendant's second assignment of error was "based on a misunderstanding of defendant's argument."
Defendant also asks that we reconsider our conclusion, related to defendant's second assignment of error, that the evidence supported the referee's fee award, because, defendant argues, our ruling was based on "a misunderstanding of the evidence." We decline to reconsider that aspect of our decision.
Specifically, we add the below text as a footnote, placed at the end of the partial paragraph at id. at 744, following the text, "defendant cites no law that supports its point":
"To the extent that defendant is instead arguing that the referee's statutory fee award was unreasonable as a matter of law because it was based on a lodestar calculation instead of a percent-of-recovery calculation, we also reject that argument. As we explained above, defendant cites no support for its contention that a lodestar-based statutory fee award is inherently unreasonable where the prevailing plaintiffs contingent fee agreement also entitles her attorneys to all court-awarded fees. Again, we find no authority for that contention either. And, as we will explain, the court's fee award was reasonable and supported by the evidence."
As described in the above modifications, we adhere to our previous disposition.
Reconsideration allowed; former opinion modified and adhered to as modified.