ZRZ Realty v. Beneficial Fire and Casualty Ins.ZRZ Realty v. Beneficial Fire and Casualty Ins.
Bruce L. Campbell, Miller Nash LLP, Portland, filed the resрonse to the petition for reconsideration for petitioners on review.
Thomas W. Sondag, Lane Powell PC, Portland, filed thе petition for reconsideration and reply in support for respondents on review. With him on the petition and reply werе John Folawn and Folawn Alterman & Richardson LLP.
KISTLER, J.
The petition for reconsideration is allowed. The former opinion is adhered to as modified.
Defendants seek reconsideration of our opinion in ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117, 241 P3d 710 (2010). We allow their petition for reconsideration, modify our earlier opinion, and adhere to that opinion, as modified.
Defendants seek reconsideration on three grounds. We reject without discussion the first two grounds that defendants raise and writе to address the third ground regarding the scope of the remand. In ZRZ Realty, we determined that, for the purposes of the express fortuity policies, the trial court had erred in placing the burden on defendants to prove that damages were neither expected nor intended. Id. at 132. In remanding for a retrial on that issue, the opinion stated:
“In retrying that issue, the trial court must determine initially whether it is necessary to supplement the record; that is, if neither party can establish a specific basis for saying that the recоrd would have been different if the trial court had placed the burden of production and persuasion initially on [plaintiffs], then the trial court may find, based on the existing record, what [plaintiffs] expected or intended for the purposes of the relevаnt express fortuity policies. If, on either the existing or a supplemented record, the trial court makes the same findings on remand that the trial court did initially, then it presumably can reenter the judgment, with any appropriate adjustment for attorney feеs. Conversely, if the trial court reaches a different conclusion on remand as to when [plaintiffs] expected or intended property damage for the purposes of the express fortuity policies, then the court also will presumably have to adjust the findings allocating responsibility for remediating the damage between [defendants and plaintiffs].”
Id. at 148 (footnote omitted).
In their petition on reconsideration, defendants note that the trial judge who heard this case has died. Defendants observe that our opinion cоuld be read to foreclose the trial judge who hears this case on remand from hearing live testimony, even on issues on which сredibility matters. Defendants ask us to clarify our opinion in that respect. Plaintiffs
The petition for reconsideration is allowed. The former opinion is adhered to as modified.