# Doss v. Farmers Ins. Co.

> Court of Appeals of Oregon · June 24, 2026 · 350 Or. App. 831

URL: https://www.frixlaw.com/law-library/cases/11347289

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** June 24, 2026
- **Citations:** 350 Or. App. 831
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Kistler, S. J.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11347289

## How later opinions describe it (automated extraction)

- describing the insurer’s affirma- tive defense

## Opinion text

No. 572 June 24, 2026 831

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

Rachel DOSS,
Plaintiff-Appellant,
v.
FARMERS INSURANCE COMPANY OF OREGON,
a corporation,
Defendant-Respondent.
Multnomah County Circuit Court
21CV13865; A186254

Angela F. Lucero, Judge.
Argued and submitted March 4, 2026.
Willard E. Merkel argued the cause for appellant. Also
on the opening brief was Merkel & Associates. Also on the
reply brief was Merkel & Conner, LLC.
Thomas M. Christ argued the cause for respondent. Also
on the brief was Sussman Shank LLP.
Before Egan, Presiding Judge, Pagán, Judge, and Kistler,
Senior Judge.
KISTLER, S. J.
Reversed and remanded.
832 Doss v. Farmers Ins. Co.

KISTLER, S. J.
This is the second appeal in this case. Initially,
plaintiff appealed the general judgment and challenged the
trial court’s denial of her attorney fee request. We affirmed
the judgment, reasoning that the attorney fee ruling plain-
tiff challenged was not final when the trial court entered
the general judgment and thus was not before us. See Doss
v. Farmers Insurance Company, 334 Or App 826 (2024) (Doss
I) (nonprecedential memorandum opinion). After we issued
our decision, plaintiff returned to the trial court and filed a
motion asking the court to either amend the general judg-
ment or enter a supplemental judgment resolving her attor-
ney fee request. The trial court entered an order denying
that motion, which plaintiff now appeals. We reverse and
remand.
We state the facts consistently with our decision
in Doss I. Plaintiff was injured in an automobile accident.
After settling with the tortfeasor, plaintiff brought this
action against her insurer (defendant) to recover underin-
sured motorist benefits under defendant’s policy. The case
was tried to a jury, which found that plaintiff had sustained
approximately $350,000 in damages. That verdict exceeded
the tortfeasor’s policy limits and allowed plaintiff to recover
underinsured motorist benefits from defendant. The trial
court signed a general judgment on January 19, 2023, which
reflected the verdict.
Later, plaintiff filed a request to recover her attor-
ney fees under ORS 742.061(1). Defendant responded that a
“safe harbor” provision in ORS 742.061(3) shielded it from
liability for plaintiff’s attorney fees. Specifically, defendant
noted that it had given plaintiff timely written notice that it
“accepted coverage,” that “the only issues are the liability of
the uninsured or underinsured motorist and the damages
due the insured,” and that defendant “consented to submit
the case to binding arbitration.” See ORS 742.061(3) (identi-
fying those prerequisites for coming within the safe harbor).
Plaintiff, for her part, did not dispute that defen-
dant’s written notice brought it within the safe harbor
that ORS 742.061(3) provides. She argued, however, that
Cite as 350 Or App 831 (2026) 833

defendant had left the safe harbor because its answer
raised issues beyond those that ORS 742.061(3) permits. On
January 27, 2023, the trial court held a hearing on plain-
tiff’s attorney fee request, which it denied. The court entered
a general judgment on the morning of February 1, 2023, and
signed an order denying plaintiff’s fee request that day. On
February 3, plaintiff filed a notice of appeal from the general
judgment. On February 10, 2023, the trial court entered an
order denying plaintiff’s fee request.
Plaintiff appealed, assigning error to the trial
court’s ruling denying her fee request. We did not reach the
merits of that ruling. We observed that we “ ‘can address
issues related to attorney fees only on appeal from a judg-
ment that is final as to the matter of attorney fees, including
a determination of any fee amount.’ ” Doss I, 334 Or App at
827 (quoting Lehman v. Bielenberg, 257 Or App 501, 511, 307
P3d 478 (2013); emphasis added in Doss I). We explained
that a “judgment is ‘final’ as to attorney fees when it resolves
all issues regarding [a party’s] request for attorney fees.” Id.
at 827-28 (quoting Petersen v. Fielder, 170 Or App 305, 310,
13 P3d 114 (2000); brackets added in Doss I). We noted, how-
ever, that the general judgement did “not resolve any issues
regarding [plaintiff’s] attorney fee request.” Id. at 828.
Because the trial court’s fee ruling was not final when the
court entered the general judgment, we affirmed the court’s
judgment. Id.
Five days after we issued our decision, plaintiff
returned to the trial court and asked it to do one of two
things, each of which rests on a different view of the record.
Initially, plaintiff asserted that the trial court had finally
resolved her fee request before it entered the general judg-
ment, and she asked the trial court to amend the general
judgment to reflect that fact. Alternatively, she argued that,
if the trial court’s denial of her fee request was not final
before the trial court entered the general judgment, then the
court should have entered a supplemental judgment rather
than an order denying her fee request. Plaintiff argued that,
under either view of the record, she could not appeal the
denial of her fee request unless the court first entered either
an amended general judgment or a supplemental judgment.
834 Doss v. Farmers Ins. Co.

The trial court declined plaintiff’s request, and she appeals
from that order.
Plaintiff renews both requests on appeal. We begin
with her request to amend the general judgment. That
request is based on the proposition that the trial court’s rul-
ing denying attorney fees was final before the court entered
the general judgment. Plaintiff’s initial request is at odds
with our decision in Doss I. In that decision, we held that the
trial court’s fee ruling was not final when the court entered
the general judgment. See id. at 827-28. It was for that rea-
son that plaintiff’s appeal from the general judgment did
not include the attorney fee ruling she sought to challenge
in Doss I. Id.
Defendant notes that, under the “law of the case”
doctrine, our first decision is controlling. We agree. See
State v. Pratt, 316 Or 561, 569, 853 P2d 827 (1993) (holding
that an earlier appellate ruling that a warrantless arrest
was constitutional precluded reconsidering that issue on the
defendant’s second appeal). As the court reaffirmed in Pratt:
“ ‘It is a general principle of law and one well recognized
in this state that when a ruling or decision has been once
made in a particular case by an appellate court, while it
may be overruled in other cases, it is binding and conclu-
sive both upon the inferior court in any further steps or
proceedings in the same litigation and upon the appellate
court itself in any subsequent appeal or other proceeding
for review.’’’
Id. (quoting Simmons v. Wash. F. N. Ins. Co., 140 Or 164,
166, 13 P2d 366 (1932)). Plaintiff identifies no reason why
that doctrine does not apply here. We accordingly follow our
decision in Doss I and conclude that the premise on which
plaintiff’s initial argument rests—that the trial court’s rul-
ing denying attorney fees was final before the court entered
the general judgment—is not well taken.
We turn to plaintiff’s alternative request. That
request starts from the proposition that, as we held in Doss I,
the court’s ruling denying plaintiff’s fee request was not final
when the court entered the general judgment on February
1, 2023. Relying on ORCP 68 C(5)(b)(i), plaintiff argues that
the trial court was required to enter its post-judgment fee
Cite as 350 Or App 831 (2026) 835

ruling as a supplemental judgment.1 Plaintiff contends that,
unless and until the court entered its ruling as a supple-
mental judgment, she could not appeal it pursuant to ORS
19.205(1).2
As we understand defendant’s response, defendant
argues that there is no material difference between the sup-
plemental judgment that plaintiff asked the court to enter
on remand and the order denying plaintiff’s request for
attorney fees that the court entered on February 10, 2023.
Relatedly, defendant argues that plaintiff could and should
have appealed the February 10 order pursuant to ORS
19.205(3), and that her failure to do so effectively disposes of
her current appeal.3
Defendant’s argument is at odds with the terms
of House Bill (HB) 2646 (2003), which “comprehensively
revised the statutes governing judgments.” See Garcia
v. DMV, 195 Or App 604, 606, 99 P3d 316 (2004); see also
Galfano v. KTVL-TV, 196 Or App 425, 102 P3d 766 (2004).
As we explained in Garcia, “[w]ith the new statutory scheme
[enacted in HB 2646], the legislature parted company with
past practice by devising a more formal and seemingly intri-
cate scheme of judgment subcategories or ‘types.’ ” Id. at 609.
Central to that new, “more formal” scheme are a series of
definitions and rules set out in ORS chapter 18. See Galfano,
196 Or App at 432-37 (carefully working through the defini-
tions in ORS 18.005 in concluding that an incorrectly cap-
tioned judgment document was appealable).
For example, we explained in Galfano that, even
though it was clear that the trial court had intended to enter
an appealable supplemental judgment, the court had incor-
rectly captioned the judgment document as a “supplemental

1
ORCP 68 C(5)(b)(i) provides that “[i]f any issue regarding attorney fees * * *
is not decided before entry of a general * * * judgment, any award or denial of
attorney fees * * * shall be made by supplemental judgment.”
2
ORS 19.205(1) provides that, “[u]nless otherwise provided by law, a lim-
ited judgment, general judgment or supplemental judgment, as those terms are
defined by ORS 18.005, may be appealed as provided in this chapter.”
3
ORS 19.205(3) provides that “[a]n order that is made in the action after a
general judgment is entered and that affects a substantial right, including an
order granting a new trial, may be appealed in the same manner as provided in
this chapter for judgments.”
836 Doss v. Farmers Ins. Co.

general judgment.” 196 Or App at 431. In determining
whether the judgment reflected in that document could be
appealed, we undertook an extensive examination of the
definitions set out in ORS 18.005 before concluding that the
substance of the ruling qualified as a “supplemental judg-
ment” and that the judgment document included the min-
imum formal requirements that ORS chapter 18 specifies.
See id. at 432-37. Defendant’s argument does not focus on
the formal requirements that the 2003 Legislature enacted
in HB 2646. Rather, its argument is reminiscent of what we
described in Garcia as the “past practice” of looking at the
trial court’s intent without regard to matters of form.
Of course, our conclusion that defendant’s argument
is directed at the wrong target does not necessarily mean
that plaintiff correctly argues that the February 10, 2023,
order was not appealable. However, as we explain below, the
definitions set out in ORS 18.005, read in light of our deci-
sion in Galfano, establish that an attorney fee ruling that
is not final before entry of the general judgment must be
entered as a supplemental judgment; it may not be entered
as an order; and it must, at a minimum, be labeled as a
judgment. Because the court’s February 10, 2023, order did
not meet those prerequisites, we agree with plaintiff that
she could not have appealed it.
We explain the bases for our conclusion briefly. ORS
18.005(17) provides that “ ‘[s]upplemental judgment’ means
a judgment that may be rendered after a general judgment
pursuant to a legal authority.” As we explained in Galfano,
that definition requires that a ruling must qualify initially
as a “judgment” and additionally as a “supplemental judg-
ment.” 196 Or App at 432. A judgment is “the concluding
decision of a court on one or more requests for relief in one or
more actions, as reflected in a judgment document.” See ORS
18.005(8) (defining “judgment”). We concluded in Galfano
that a fee ruling that becomes final after the entry of a gen-
eral judgment is a “judgment.” 196 Or App at 432-35.
Moreover, an attorney fee ruling that becomes final
after a general judgment is entered constitutes a “supple-
mental judgment” for the purposes of ORS 18.005(17); that
is, ORCP 68 C(5)(b)(i) is a “legal authority” that permits
Cite as 350 Or App 831 (2026) 837

(indeed requires) entering the post-judgment fee ruling as
a “supplemental judgment.” See Galfano, 196 Or App at 437.
As we explained in Galfano, the 2003 Legislature “intended
ORCP 68 to be consistent with the new types of judgments
[set out in ORS 19.205] and understood the references in
ORCP 68 C(5)(b) to a ‘supplemental judgment’ for attorney
fees to be consistent with the term ‘supplemental judgment’
as defined in [former] ORS 18.005(15) [(2003), renumbered
as ORS 18.005(17) (2005)].” 196 Or App at 434-35. Reading
the definitions in ORS 18.005 together with Galfano, we con-
clude that an attorney fee ruling that becomes final after
the entry of a general judgment is a supplemental judgment.
It is not an order.4
A judgment must be included in a judgment doc-
ument that, at a minimum, is “plainly titled ‘judgment.’ ”
Galfano, 196 Or App at 435 (quoting ORS 18.038(1) and ORS
18.005(8)); see Garcia, 195 Or App at 613. If a ruling that
constitutes a judgment is not plainly titled as a judgment,
it is not appealable. Galfano, 196 Or App at 436; Garcia,
195 Or App at 609. Given our decision in Doss I, we agree
with plaintiff that the February 10, 2023, order denying
her attorney fee request was not appealable. The trial court
erred in denying plaintiff’s motion to enter a supplemental
judgment.5
The question that remains is whether the trial
court also erred in denying plaintiff’s attorney fee request.
The parties have briefed that issue twice, once in Doss I and
4
We recognize that ORS 18.029 provides that “[t]he provisions of this chap-
ter do not impose any requirement that a court use a judgment for the court’s
concluding decision on a request for relief if a legal authority allows or requires
that the court decide that request for relief by order or other means.” However,
defendant does not identify any legal authority that allows an attorney fee rul-
ing that becomes final after the entry of a general judgment to be entered as an
order. Rather, ORCP 68 C(5)(b)(i) provides that such a ruling must be entered as
a judgment.
5
Defendant argues that plaintiff “clearly waived” any objection to the form
of the February 10, 2023, order by not objecting when the court entered it. We
note that, in both the briefing and oral argument in Doss I, both parties assumed
that the trial court’s fee ruling was final before entry of the general judgment. It
was not until after we issued our decision in Doss I that either party reasonably
became aware of the procedural problem we identified in Doss I. Five days after
we issued Doss I, plaintiff asked the trial court to enter its attorney fee ruling
as a supplemental judgment. On this record, we disagree with defendant that
plaintiff waived her objection to the form of the order.
838 Doss v. Farmers Ins. Co.

again in this appeal. The issue is almost certain to arise on
remand, and we conclude that it is appropriate to resolve the
issue now. See Westwood Construction Co. v. Hallmark Inns,
182 Or App 624, 639, 50 P3d 238, rev den, 335 Or 42 (2002)
(addressing attorney fee dispute likely to arise on remand);
cf. State v. Savage, 305 Or App 339, 470 P3d 387 (2020) (gen-
erally recognizing that authority). We accordingly turn to
the merits of plaintiff’s fee claim.
ORS 742.061(1) provides that a person seeking
underinsured motorist benefits from their insurer “is enti-
tled to recover reasonable attorney fees if [a] timely settle-
ment is not made and the plaintiff’s recovery exceeds the
[insurer’s] tender.” See Kiryuta v. Country Preferred Ins. Co.,
360 Or 1, 3, 376 P3d 284 (2016) (describing ORS 742.061(1)).
In this case, defendant does not dispute that plaintiff’s dam-
ages exceeded defendant’s tender, which ordinarily would
entitle her to recover her attorney fees. Defendant, however,
invoked ORS 742.061(3), which shields insurers from paying
attorney fees “when the insurer, in [a timely] writing, has
accepted coverage; the only issues are ‘the liability of the
uninsured or underinsured motorist’ and ‘the damages due
the insured,’ and the insurer has consented to submit the
case to binding arbitration.” Id. (quoting ORS 742.061(3)).
As noted, plaintiff does not dispute that defendant
sent her a timely letter that complied with the terms of ORS
742.061(3). The only question is whether defendant raised
issues beyond those that ORS 742.061(3) permits and thus
lost the protection that ORS 742.061(3) provides. On that
question, plaintiff notes that defendant’s answer denied,
among other things, paragraphs six and nine of her com-
plaint. Paragraph six alleged that the tortfeasor “was an
underinsured motorist because the automobile liability
benefits available to her [under the tortfeasor’s policy] were
inadequate to pay all of the damages” that plaintiff sus-
tained. Paragraph nine alleged that:
“Plaintiff has in all things conformed to and observed and
performed according to the policy and the conditions thereto
annexed, including obtaining Defendant’s permission and
consent to her settlement with [the] tortfeasor [and the
tortfeasor’s insurer], and including all requirements of the
Cite as 350 Or App 831 (2026) 839

un[der]insured motorist coverage of the aforesaid insur-
ance policy and the UM/UIM statutory provisions found at
ORS 742.504 et seq.”
Finally, plaintiff notes that defendant denied her request
to admit that plaintiff “has sustained all of the obligations
required of [her] in order to be eligible for the payment of
[UIM] benefits” under defendant’s policy.
Plaintiff argues that each of those denials took
defendant out of the safe harbor that ORS 742.061(3) pro-
vides. We need not decide whether defendant’s answer deny-
ing paragraph six took it out of the safe harbor. Even if it did
not, defendant’s answer denying paragraph nine did.
ORS 742.061(3) provides that the safe harbor is
available only if the insurer “accept[s] coverage.” In deny-
ing paragraph nine, defendant did not accept coverage. It
denied it. If defendant had accepted coverage, it would have
admitted paragraph nine; that is, it would have admitted
that plaintiff had complied with all the applicable terms and
conditions of its policy. Substantively, denying paragraph
nine of plaintiff’s complaint does not differ materially from
the affirmative defense the insurer alleged in Kiryuta—that
the insured’s eligibility to recover uninsured motorist ben-
efits was “subject to all [the] terms and conditions of the
policy of insurance, including UIM/UM limits and ‘other
clauses.’ ” See 360 Or at 4 (describing the insurer’s affirma-
tive defense). The court held in Kiryuta that alleging that
defense took the insurer out of the safe harbor. Defendant’s
denial of paragraph nine had the same effect here.6
Defendant advances three arguments why, despite
its denial of paragraph nine, it stayed within the safe harbor.
We begin with defendant’s broadest argument. Defendant
contends that “an insurer’s reference in its pleading to an

6
Defendant’s denial in this case and the insurer’s affirmative defense in
Kiryuta differ procedurally, but they do so in a way that places a greater burden on
plaintiff. In Kiryuta, the burden of production and persuasion was on the insurer
to prove its affirmative defense. In this case, defendant’s denial of paragraph nine
left the burden of production and persuasion on plaintiff to prove the allegations
in that paragraph. Ultimately, however, what matters in determining, at least
initially, whether an insurer remains within the safe harbor that ORS 742.061(3)
provides is whether the insurer’s pleadings put substantive issues in play that go
beyond what ORS 742.061(3) permits. See Kiryuta, 360 Or at 5.
840 Doss v. Farmers Ins. Co.

issue beyond damages and the liability of the underinsured
motorist does not itself take the case outside of the ORS
742.061(3) safe harbor if, as it turns out, the parties don’t
actually litigate the extraneous issue at trial.” (Emphasis in
original.) Defendant notes that its trial memorandum only
disputed the damages due plaintiff and that the sole issue
that ended up being litigated at trial was one that ORS
742.061(3) permits. It follows, defendant concludes, that it
stayed within the safe harbor.
Defendant’s argument is at odds with both our and
the Supreme Court’s opinions in Kiryuta. In our opinion,
we noted that the insurer argued that, even if its plead-
ings asserted issues that went beyond what ORS 742.061(3)
permits, “no issues other than the damages due [the] plain-
tiff were litigated in the arbitration” hearing. See Kiryuta
v. Country Preferred Ins. Co., 273 Or App 469, 473-74, 359
P3d 480 (2015), aff’d, 360 Or 1, 376 P3d 284 (2016) (describ-
ing the insurer’s arguments). For that reason, the insurer
contended that it stayed within the safe harbor that ORS
742.061(3) provides.
We reached a different conclusion. We explained
that the “fact that [the insurer] may not have followed
through with [its] litigation strategy at the arbitration pro-
ceeding makes no difference.” Id. at 474. The insurer had not
amended its pleadings to eliminate the affirmative defense,
and the insured “had to be prepared at the arbitration hear-
ing to meet any proof that [the insurer] might offer consis-
tent with its pleadings.” Id. at 474-75. We concluded that,
in those circumstances, the insurer’s last-minute change of
heart was not sufficient to keep it within the safe harbor. Id.
In reaching that conclusion, we did not foreclose the possibil-
ity that an insurer could “amend[ ] its pleadings in a timely
way or otherwise demonstrat[e] that only the issues of liabil-
ity and damages are in dispute so as to conform them to the
requirements of ORS 742.061(3).” Id. at 475 n 1. The insurer
had not done that, however.
The Supreme Court affirmed our decision in
Kiryuta. See 360 Or at 8. Focusing on the pleadings, the
court reasoned that, “[w]hen, as framed by the pleadings,
the ‘issues’ for arbitration are not limited to ‘the liability of
Cite as 350 Or App 831 (2026) 841

the uninsured or underinsured motorist’ and ‘the damages
due the insured,’ the insurer is not entitled to the protec-
tion of ORS 742.061(3).” 360 Or at 5. The court noted the
possibility, as we had, that the insurer might have stayed
within the safe harbor if it had amended its pleadings in a
timely way to limit the disputed issues to those that ORS
742.061(3) permits; however, it had not done so. Id. at 8 n 5.
The court accordingly rejected, as we had, the argument
that an insurer can stay within the safe harbor if it waits
until shortly before the arbitration hearing begins to limit
the issues raised by its pleadings.
In this case, defendant filed its answer denying
paragraph nine in mid-April. Defendant did not narrow the
issues raised by its pleadings until it filed its trial memoran-
dum on December 9, three days before trial began. It follows
from both our opinion and the Supreme Court’s opinion in
Kiryuta that defendant’s first argument fails.
Defendant’s second argument is a narrower version
of its first argument. Specifically, defendant relies on our
decision in Robinson v. Tri-Met, 277 Or App 60, 370 P3d 864
(2016), rev den, 361 Or 886 (2017), which we issued three
months before the Supreme Court’s decision in Kiryuta. In
Robinson, we distinguished our decision in Kiryuta, but
we could not and did not consider whether our reasoning
in Robinson was consistent with the Supreme Court’s later
decision in Kiryuta.7 With that preface, we turn to our deci-
sion in Robinson.
In Robinson, we described two categories of plead-
ings that raise issues that go beyond what ORS 742.061(3)
permits: (1) pleadings that “generally reserv[e] the prospect
to deny coverage” and (2) pleadings that raise only what
we described as a “nonissue.” See 277 Or App at 71-73. We
explained that the pleadings in Kiryuta were an example
of the first type of pleadings—pleadings that “effectively
7
We note the point because the Supreme Court described the issues raised
by the insurer’s affirmative defense in Kiryuta more narrowly than we did.
Compare Kiryuta, 360 Or at 8 (interpreting the affirmative defense in light of the
insurer’s admissions in its answer), with Kiryuta, 273 Or App at 481 (describing
the affirmative defense only by its title “Contractual Compliance”). Arguably, the
Supreme Court’s more specific description of that defense could call into question
the way that Robinson distinguished our decision in Kiryuta.
842 Doss v. Farmers Ins. Co.

reserve[ed] all coverage defenses.” Id. at 71. Focusing on
the first category of pleadings, we reaffirmed our holding in
Kiryuta that “an insurer cannot qualify for the fee exemp-
tion by seeming to accept coverage in the ‘safe harbor’ letter
while generally reserving the prospect to deny coverage.”
Id. That was so even if the insurer limited the issues liti-
gated at the arbitration hearing or trial to the issues ORS
742.061(3) permits.
We described the second category of pleadings as
ones that allege a “nonissue.” Id. at 73. We identified two
characteristics of pleadings that allege a “nonissue.” First,
the pleading alleges an undisputed policy term that is
directed at an issue, such as an offset, that arguably bears
on the damages due the insured. Id. (identifying offsets as
the sort of policy term that potentially could “affect the cal-
culation of sums to be paid”). Second, a nonissue involves
“no actual dispute between the parties about the existence,
meaning, or enforceability of an undisputed provision.” Id.
We explained that, when the pleadings allege only a nonis-
sue, a court may look to the “whole of the case,” including
the issues actually litigated at trial or arbitration, to deter-
mine whether an insurer has left the safe harbor that ORS
742.061(3) provides. Id. We followed Robinson in Berger
v. Safeco Ins. Co., 305 Or App 380, 386-87, 470 P3d 420,
rev den, 367 Or 290 (2020).
As we understand defendant’s second argument, it
rests on the proposition that any issues raised by its denial
of paragraph nine were at most “nonissues,” as Robinson
defined that term. It follows, defendant reasons, that we can
and should look to the issues actually litigated at the trial in
this case to determine whether defendant stayed within the
safe harbor. In considering defendant’s second argument,
we need not decide whether there is any tension between
our reasoning in Robinson and the Supreme Court’s deci-
sion in Kiryuta. Even if we assume that our reasoning in
Robinson is consistent with the court’s decision in Kiryuta,
defendant’s second argument still fails.
In this case, defendant broadly denied coverage
when its answer denied that plaintiff had “in all things con-
formed to and observed and performed according to the policy
Cite as 350 Or App 831 (2026) 843

and the conditions thereto annexed.” That pleading did not
allege a “nonissue.” Rather, it alleged a general denial of cov-
erage, which falls within the first category of pleadings that
Robinson identified. That is, even if Robinson’s distinction
between two categories of pleadings is good law, our decision
in Kiryuta controls, and defendant’s last-minute decision to
narrow the issues for trial does not permit defendant to take
advantage of the protections that ORS 742.061(3) provides.
Defendant’s final argument presents a different
issue. Defendant relies on ORCP 20 A for the proposition
that its answer denying paragraph nine had no appreciable
effect on what plaintiff had to prove at trial. ORCP 20 A
states a rule for pleading conditions precedent. It provides:
“In pleading the performance or occurrence of conditions
precedent, it is sufficient to allege generally that all con-
ditions precedent have been performed or have occurred.
A denial of performance or occurrence shall be made spe-
cifically and with particularity, and when so made the
party pleading the performance or occurrence shall on
the trial establish the facts showing such performance or
occurrence.”
As we understand defendant’s argument, it assumes that
paragraph nine of plaintiff’s complaint alleged only that
plaintiff had complied with all conditions precedent. It fol-
lows from ORCP 20 A, defendant reasons, that its general
denial of paragraph nine meant that plaintiff could recover
under the policy without having to prove at trial that she
had satisfied any specific condition precedent. Apparently,
in defendant’s view, its answer denying paragraph nine, in
effect, admitted it.
One difficulty with defendant’s argument is the
assumption that underlies it. We agree with defendant that
paragraph nine includes an allegation that plaintiff had
complied with all conditions precedent. But that is not all
that paragraph nine alleges. It also alleges that plaintiff
“has in all things conformed to and observed and performed
according to the policy and the conditions thereto annexed.”
The phrase “all things” is broad. It includes but is not lim-
ited to conditions precedent. It follows that, even if ORCP
20 A relieved plaintiff of the obligation to prove that she
844 Doss v. Farmers Ins. Co.

had complied with specific conditions precedent, it did not
relieve her of the obligation to prove that she had complied
with the other policy terms and conditions that defendant’s
denial of paragraph nine put at issue.
The Supreme Court considered a similar argument
in Kiryuta. See 360 Or at 8. The court acknowledged that
the insurer’s answer in that case
“admitted that [the insured] had conformed to all policy
conditions and requirements and had performed all precon-
ditions to the recovery of benefits. However, the admissions
in that paragraph do not address other provisions of the
insurance policy that potentially could preclude coverage of
plaintiff’s losses and therefore do not demonstrate that [the
insurer] accepted coverage. Moreover, the insurer’s ‘con-
tractual compliance’ defense is broadly worded and permits
[the insurer] to invoke any of the ‘terms and conditions’ of
the insurance policy to defeat [the insured’s] claim.”
Id. The court held that, in those circumstances, the insurer
was not entitled to the protection of ORS 742.061(3). Id.
As we understand the Supreme Court’s reasoning in
Kiryuta, it recognized that, even though the insurer admit-
ted that the insured had performed all conditions precedent,
it did not admit that the insured had satisfied other policy
provisions that could potentially preclude coverage.8 See id.
The same reasoning applies here to what defendant per-
ceives is the effect of its denial of paragraph nine, viewed
through the lens of ORCP 20 A. Following the Supreme
Court’s decision in Kiryuta, we hold that defendant is not
entitled to the protections of ORS 742.061(3). We accordingly
reverse the trial court’s order and remand this case for fur-
ther proceedings consistent with this decision.
Reversed and remanded.

8
Moreover, the insurer’s concession in Kiryuta was not limited to conditions
precedent but included all “policy conditions and requirements.” See 360 Or at 8.
The court still concluded that the insurer’s concession left the insured exposed to
“other provisions of the insurance policy that potentially could preclude coverage
of plaintiff’s losses.” Id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11347289. Public record. Not legal advice.