Portland General Electric Co. v. Ebasco Services, Inc., 263 Or. App. 53

Plaintiff settled a personal-injury action and then sued insurers over indemnification, including a policy with up to $5 million excess coverage and defendant Lexington's exposure at 16% ($800,000).
The complaint did not specify damages or attorneys’ fees; it also did not specify the amount sought from defendant.
Plaintiff served the amended complaint (adding a request for attorney fees) on Lane Powell, but Lane Powell did not file an answer for defendant and did not alert Lexington; the amended complaint was unserved on Lexington.
In 2009, plaintiff moved for default; the court granted a limited default judgment based on the original complaint, not the amended one, and awarded $800,000 damages and $26,165.50 in attorney fees.
Defendant moved to set aside the default for excusable neglect six months later, submitting affidavits but no employee affidavits from Lexington or its insured; the trial court denied relief.
The Supreme Court on remand held the trial court had jurisdiction to enter judgment on the original complaint and did not err in denying the motion to set aside.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the default judgment was void due to lack of service on the amended complaint	Original complaint governs; amended not served, so not superseding.	Amended complaint superseded original; unserved, so default invalid for excess damages.	Original judgment valid; no supersedure.
Whether excusable neglect supports setting aside the default	Mendes & Mount followed procedures; no negligence by defendant at fault.	Evidence showed failure to explain who made the decision and why; not excusable.	Trial court did not abuse its discretion; no excusable neglect.
Whether the trial court had jurisdiction to enter damages on the original complaint when the amended complaint sought additional relief	ORCP 23 A preserves original claims unless served with new relief.	Amended complaint seeking attorney fees supersedes for default purposes; unserved.	Trial court had jurisdiction to enter judgment on the original complaint.
Whether the Amended Complaint, filed but not served, affected the default judgment	ORCP 23 A allows judgment on original prayer if amended does not seek additional relief.	Amended complaint seeks additional relief; changes default status.	Amended complaint not served; original judgment remained valid.

PGE v. Ebasco Services, Inc., 353 Or 849 (Or. 2013) (PGE II; ORCP 67 C issue; authority to deny relief for void judgment)
PGE v. Ebasco Services, Inc., 248 Or App 91 (Or. App. 2012) (PGE I; original holding that judgment void for lack of damages)
Wood v. James W. Fowler Co., 168 Or App 308 (Or. App. 2000) (excusable neglect focuses on conduct of responsible person)
Johnson v. Sunriver Resort Limited Partnership, 252 Or App 299 (Or. App. 2012) (totality of responsible persons' actions in excusable neglect)
Knox v. GenX Clothing, Inc., 215 Or App 317 (Or. App. 2007) (procedures and level of responsibility in excusable neglect)
Alliance Corp. v. HBE Corp., 149 Or App 593 (Or. App. 1997) (counsel's failure to calendar deadline as exception to excusable neglect)
Burke v. Rachau, 262 Or 323 (Or. 1972) (focus on insurer/adjuster failure as excusable neglect)
Mount v. Massachusetts Mutual Life Ins. Co., 103 Or App 156 (Or. App. 1990) (corporate-misconduct context; not excusable neglect where memory unreliable)
Int'l Controls Corp. v. Vesco, 556 F.2d 665 (2d Cir. 1977) (amended complaint service timing; inchoate state until served)
Lowe v. Institutional Investors Trust, 270 Or 814 (Or. 1974) (lack of explanation defeats excusable neglect)
Hiatt v. Congoleum Industries, 279 Or 569 (Or. 1977) (established procedures can establish excusable neglect)