FILED: March 26, 2008
IN THE COURT OF APPEALS OF THE STATE OF OREGON
FARMERS INSURANCE COMPANY OF OREGON,
and JAMES P. DWYER,
Washington County Circuit Court
Nancy W. Campbell, Judge.
Argued and submitted December 5, 2007.
Margaret H. Leek Leiberan argued the cause for appellant. With her on the opening brief was Mason & Associates. On the reply brief were Mason & Associates and Craig O. West.
Kathryn M. Pratt argued the cause and filed the brief for respondents.
Before Haselton, Presiding Judge, and Armstrong and Rosenblum, Judges.
This case is procedurally and substantively identical in all material respects to Mid-Century Insurance Co. v. Turner, ___ Or App ___, ___ P3d ___ (Mar 26, 2008). That is, after its insured settled with the tortfeasor's insurance carrier for the limits of the tortfeasor's policy, plaintiff Farmers Insurance Company initiated an action against its insured to recover personal injury protection (PIP) benefits that it had paid out pursuant to its insured's policy. In that action, plaintiff did not invoke any of the statutory methods prescribed for recovery of PIP payments but, instead, alleged claims for breach of contract, money had and received, breach of settlement agreement, and breach of fiduciary duty. Because the pleadings and legal theories are the same in both cases, we reject plaintiff's arguments on appeal in the present case for the reasons explained in Mid-Century Insurance Co.