FILED: January 13, 1999

BATZER CONSTRUCTION, INC.,

Appellant,

v.

VALIANT INSURANCE COMPANY,

Respondent.

Appeal from Circuit Court, Jackson County.

Ross G. Davis, Judge.

Argued and submitted January 15, 1998.

John C. DeVoe argued the cause for appellant. With him on the briefs were Thomas H. Tongue and Dunn, Carney, Allen, Higgins & Tongue.

Michael M. Marick argued the cause for respondent. With him on the brief were Bates, Meckler, Bulger & Tilson and Timothy C. Gerking and Brophy, Mills, Schmor, Gerking & Brophy, LLP.

Before De Muniz, Presiding Judge, and Linder and Wollheim,* Judges.

PER CURIAM

Affirmed. Fleming v. United Services Automobile Assn., 144 Or App 1, 925 P2d 140 (1996), rev allowed 327 Or 448 (1998).

*Wollheim, J., vice Leeson, J., resigned.

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