ZRZ Realty Co. v. Beneficial Fire & Casualty Insurance, 249 P.3d 111

Oregon Supreme Court, sitting en banc, granted reconsideration of its 2010 decision in ZRZ Realty v. Beneficial Fire & Casualty Ins. to modify the opinion and adhere to it as modified.
The case concerns express fortuity insurance policies and the allocation of burden of production and persuasion for damages.
The remand instruction in the original opinion directed the trial court to decide whether the record should be supplemented and how findings would be affected if the burden shifted on remand.
Defendants argue the remand should foreclose live testimony and require only the existing record; plaintiffs contend the remand guidance allows live testimony if appropriate.
The court clarifies that on remand the trial court may hear live testimony when discretion so permits, and may rely on the existing record as well as supplemented evidence.
The modified decision adheres to the prior rule, but explicitly permits live testimony on remand where credibility or other issues warrant it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of remand for live testimony	ZRZ contends remand may include live testimony if appropriate.	Beneficial argues remand should rely on the existing record without live testimony.	Remand may include live testimony where appropriate.
Weight of evidence on remand when findings may change	Record may support different findings if new evidence or credibility considerations arise.	Remand should not automatically alter findings; record should be re-evaluated with burden considerations.	Remand may require different findings and adjustments of allocations when appropriate.

ZRZ Realty Co. v. Beneficial Fire & Casualty Ins. Co., 349 Or. 117 (2010) (prior ruling on burden in express fortuity and remand guidance)