Opinion
Civil No. 01-138-KI.
March 7, 2002
OPINION AND ORDER
Arden E. Shenker, Law Offices of Arden E. Shenker, Portland, Oregon. Robert E.L. Bonaparte, Bonaparte Bonaparte, Portland, Oregon, Attorneys for Plaintiff.
Jonathan S. Morse, pro hac vice, Patrick Bailey, pro hac vice, Bailey Partners, Santa Monica, Ca. John Folawn, Victoria Blachly, Lane Powell Spears Lubersky, LLP, Portland, Oregon, Attorneys for Defendant Indemnity Insurance Company of North America.
KING, Judge:
Before the court is the motion to stay entry of judgment (#162) by defendant Indemnity Insurance Company of North America ("IICNA"). For the reasons set forth below, I deny the motion and enter judgment.
FACTS
Plaintiff Hollywood Entertainment Corporation ("Hollywood") is the lessee of an aircraft commonly referred to as a Gulfstream II. The aircraft sustained damage to its left wing on January 24, 1999. IICNA provided a policy of insurance for the aircraft, which was in effect at the time of the damage. IICNA reimbursed Hollywood for repairs made to the wing.
In this case, Hollywood contended that the damaged wing should have been replaced, rather than repaired, and sought to recover from IICNA the cost to replace the wing. IICNA contended that it was not necessary or appropriate to replace the wing and further contended that Hollywood had no right to recover any additional monies under the insurance policy.
Trial commenced on November 8, 2001 and concluded on November 16, 2001. During pretrial proceedings and trial, Hollywood was portrayed as the owner of the aircraft. The jury returned a verdict of $1.9 million in favor of Hollywood.
IICNA filed its motion to stay entry of judgment on December 19, 2001. IICNA filed the motion after it discovered that the aircraft at issue in the case is actually owned by Heller Financial Leasing Corporation ("Heller") rather than Hollywood (which has leased the aircraft from Heller).
DISCUSSION
At the outset, I note that IICNA does not simply seek to delay entry of judgment in this case. Instead, IICNA argues that judgment cannot be entered on the jury's verdict and that the court should take one of the following alternative courses of action:
(1) Enter an order allowing IICNA to supplement the record to show that Hollywood does not and did not own the aircraft and enter judgment for defendant pursuant to Fed.R.Civ.P. 50; or
(2) Enter an order declaring a mistrial so that the matter may be re-tried on the basis of the true facts regarding the ownership of the aircraft.
See Defendant's Motion to Stay Entry of Judgment, p. 2.
Having reviewed the materials submitted by the parties, I see no need for IICNA to further supplement the record. Any relevant evidence regarding the ownership of the aircraft is now before the court and it appears to be undisputed that Heller, rather than Hollywood, is the owner. Likewise, based on authorities in the context of Fed.R.Civ.P. 59(a), I do not believe that a declaration of a mistrial is warranted. Instead, as explained below, I find that judgment should be entered on the verdict returned by the jury.
One of the grounds on which a court can grant a new trial is the discovery of new evidence. To prevail on a motion for a new trial based on newly discovered evidence, a party must show that (1) it discovered the evidence after trial; (2) it could not have discovered the evidence sooner through the exercise of reasonable diligence; and (3) the new evidence is of such magnitude that it would likely have changed the outcome of the case. Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 998 (9th Cir. 2001).
Although IICNA has satisfied the first of these requirements, it has failed to demonstrate that it could not have discovered the real owner of the aircraft sooner through the exercise of reasonable diligence. A flag should have been raised for IICNA given that each of the four proofs of loss submitted by Hollywood (from November 1999 to February 2000) contains the following statement in the section entitled "OWNERSHIP":
At the time this insurance was effected . . . and at the time of loss, the Insured was the sole, absolute and unconditional owner of the said aircraft and no other person or persons now have or have had any interest therein as mortgagee or otherwise during the currency of this insurance, except as follows: HELLER FINANCIAL
Declaration of Jonathan Morse, Exhs. H-K.
I note that the proofs of loss were not obscure pieces of evidence that IICNA could have easily overlooked. Those documents were at the heart of this case and heavily relied upon by IICNA in its efforts to obtain summary judgment against Hollywood's breach of contract claim (as discussed in my Opinion and Order, dated October 12, 2001 (pp. 5-6)).
I am also not convinced that the fact that Heller is the owner of the aircraft, rather than Hollywood, is of such magnitude that it would likely have changed the outcome of the case. IICNA argues that, if it had shown the jury (through hearsay evidence) that Heller was indifferent to the type of repairs done to the aircraft, the jury would not have decided that wing replacement was necessary. See Morse Decl., Exh. F (consisting of an e-mail between Hollywood employees that includes the statement: "Mike Rice at Heller Financial didn't seem too bothered by the report or much concerned about what kind of repair we chose."). I am not convinced that such evidence, even if admitted, would have been sufficient to change the jury's verdict.
Based on the foregoing, judgment shall be entered in favor of Hollywood. The only issues left to resolve are (1) whether the judgment shall include an award of prejudgment interest; and (2) the date on which the judgment shall be deemed entered. I note that I previously ruled on the first issue (and concluded that prejudgment interest shall not be allowed), but Hollywood's counsel requested in a letter dated February 7, 2002 that I reconsider my ruling.
In response to my earlier ruling regarding the appropriateness of prejudgment interest, counsel for Hollywood submitted, via messenger, a proposed judgment for me to sign. The proposed judgment was received in my chambers on December 18, 2001.
In Strader v. Grange Mutual Ins. Co., 179 Or. App. 329, 338-339, 39 P.3d 903 (2002), the Oregon Court of Appeals reiterated the rule that "a trial court may award prejudgment interest on damages only when the exact amount is ascertained or easily ascertainable by simple computation or by reference to generally recognized standards such as market price and where the time from which interest should run is also easily ascertainable."
Given that the time from which interest would run is not easily ascertainable in this case, I do not change my previous ruling that prejudgment interest shall not be allowed. More importantly, the imprecision of Hollywood's damages claim, and the fact that the jury did not award any of the figures suggested by Hollywood, demonstrate that prejudgment interest is not appropriate in this case.
In regard to the issue of when the judgment should be deemed entered, I agree with IICNA that judgment should not be entered as of the date that the jury returned its verdict. The judgment would have been delayed by Hollywood's request for prejudgment interest and the time necessary for that issue to be fully briefed and decided. Accordingly, I conclude that judgment should be entered as of the date I resolved the issue of prejudgment interest and that Hollywood had submitted a proposed judgment that reflected my ruling (December 18, 2001).
CONCLUSION
Based on the foregoing, the motion to stay entry of judgment (#162) by defendant Indemnity Insurance Company of North America is DENIED. Judgment shall be entered, nunc pro tunc, as of December 18, 2001.
IT IS SO ORDERED.