Defendants (collectively, London) petition for reconsideration of our decision in ZRZ Realty v. Beneficial Fire and Casualty Ins.,
The parties are well aware of the procedural history of this case, and we will not recount more than is necessary for purposеs of this opinion. Our most recent decision, ZRZ Realty VI, was an effort to address those issues that were before us on remand after the Supreme Court’s decision in ZRZ Realty v. Beneficial Fire and Casualty Ins.,
We ultimately concluded that the trial court had erred in awarding attorney fees for work performed regarding London’s duty to indemnify Zidell, and we therefore “remand [ed] with respect to the initial attorney fee award, which was included in the general judgment, for the trial court to reconsider the apportionment and award of attorney fees in light of that error.”
“As for attorney fees, we conclude, based оn London’s eighth assignment of error, that the initial attorney fee award in the judgment must be remanded because it includes fees for work performed concerning the duty to indemnify, a matter оn which Zidell was not entitled to fees. On remand, the trial court also can consider, in setting a reasonable attorney fee award, the amounts that Zidell received for attorney fees from settling insurers; but, as Zidell correctly argued in its fifth assignment of error on cross-appeal, London is not necessarily entitled to a set off for those amounts. We reject Lоndon’s ninth assignment of error regarding the billing rates used to calculate a reasonable fee award. And, finally, we reject London’s tenth assignment of error — its challenge to the supplemental award of fees.”
In its petition for reconsideration, London asks us to clarify our disposition regarding the supplemental judgment, which was not specifically mentioned in the tag line. In London’s view, because we reversed the general judgment as to attorney fees, we necessarily reversed the supplemental judgment as well, because the twо were interrelated— that is, the supplemental judgment was based on the award of attorney fees in the general judgment. See ORS 20.220(3) (“When an appeal is taken from a judgment under ORS 19.205 to which an аward of attorney fees or costs and disbursements relates: (a) If the appellate court reverses the judgment, the award of attorney fees or costs and disbursements shall be deemed reversed * * *.”). London asks that we make explicit that aspect of our disposition.
Zidell reads our decision differently. According to Zidell, our “opinion makes clear thаt it affirmed the supplemental attorney fee award” and that, “rather than an outright reversal of the initial attorney fee award, [this court] remanded the attorney fee award to the trial court for reapportionment.” “This distinction is significant,” Zidell argues, “because there is no question that, on remand, Zidell will receive a substantial attorney fee award associated with establishing London’s duty to defend.” Thus, “given that Zidell will recover a substantial award of attorney fees regardless of the proceedings on remand, the trigger to the award of suрplemental attorney fees will not be disturbed.”
Although our opinion was not as explicit as it should have been on this point, we did not intend to affirm the supplemental judgment. As London correctly observes, the legal effect of reversing the underlying attorney fee award in the general judgment was to reverse the supplemental judgment for attorney fees as well, because that supplemental judgment was predicated on the initial award — i.e., the appeal of the initial award was an appeal “to which [the supplemental] award of attorney fees or costs and disbursements relates” under ORS 20.220(3)(a).
The parties’ understandable confusion stems from the fact that, after holding that the underlying attorney fee award was to be remanded for “the trial court to reconsider the apportionment and award of attorney fees,”
As Zidell correctly points out, it will still receive a substantial award of attorney fees on remand for work performed on the duty to defend. That does not mean, as Zidell contends, that “the trigger to the award of supplemental attorney fees will not be disturbed” for purposes of ORS 20.220(3). The “trigger” was disturbed when we reversed and remanded the underlying attоrney fee award. Now, the amount of attorney fees to be awarded — both on the duty to defend and for time spent recovering those fees — is a matter for the trial court to сonsider on remand. It may be that the trial court will again award $268,988.15 for the time spent preparing the initial petition for attorney fees, for the same reasons that it initially awarded thоse fees, but, in light of ORS 20.220(3), this court cannot assume as much.
For those reasons, we allow London’s petition for reconsideration, clarify that the supplemental judgment was deemed reversed under ORS 20.220(3)(a), and adhere to our opinion as clarified.
Reconsideration allowed; former opinion clarified and adhered to as clarified.
Notes
London also seeks reconsideration of our decision with respect to London’s third assignment of error, suggesting that we misunderstood the “factual and procedural backdrop of that assignment.” Respectfully, we did not misunderstand London’s assignment; we disagreed with it. We decline to revisit the same arguments that we previously addressed and rejected.
The trial court’s findings and conclusions in supрort of the supplemental award demonstrate the interrelationship between the initial and supplemental awards:
“ [Zidell’s] Initial Statement presented an appropriate request for fees, and, to the extent this court’s award of supplemental fees depends on [Zidell’s] initial right to recover fees and the appropriateness of its Initial Stаtement, this court confirms [the earlier trial judge’s] decision to overrule [London’s] objections to [Zidell’s] Initial Statement and confirms [the earlier trial judge’s] decision that [Zidell is] entitled to attorney fees in this case as set forth in the Initial Award.”
The trial judges who decided attorney fee issues in this case are no longer on the bench, and a different judge will address attorney fеe issues on remand.
Our opinion couched our treatment of London’s tenth assignment of error in terms of “rejecting] London’s argument,”
It is at least conceivable that, if the court on remand were to reduce the attorney fees that Zidell can recover on its initial petition, the court would also conclude that the reаsonable amount of attorney fees for the time spent preparing that initial petition should be something less than $268,988.15. Our opinion is neither intended to require, nor to foreclose, such a result; rather, it is our intent to leave the amount of the attorney fees to the trial court’s discretion.