author: OPINION BY KEITH RAPP, JUDGE:

text:
    TEXASFILE, LLC, Plaintiff/Appellant, v. Jeannie BOEVERS, in Her Capacity as Kingfisher County Clerk, Defendant/Appellee, and Lori Fulks, in Her Capacity as Garvin County Clerk, Intervenor/Appellee.
    Case No. 116,852
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED: August 29, 2018 Mandate Issued: March 27, 2019
    William K. Elias, Wyatt D. Swinford, ELIAS, BOOKS, BROWN, & NELSON, P.C., Oklahoma City, Oklahoma, and Henry J. Hood, HENRY J. HOOD, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant
    Mike Fields, KINGFISHER COUNTY DISTRICT ATTORNEY, John M. Salmon, Eric Epplin, ASSISTANT DISTRICT ATTORNEYS, Kingfisher, Oklahoma, for Defendant/Appellee
    Randall J. Wood, April D. Kelso, PIERCE COUCH HENDRICKSON, BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma and Greg Mashburn, GARVIN COUNTY DISTRICT ATTORNEY, Carol Price Dillingham, ASSISTANT DISTRICT ATTORNEY, Norman, Oklahoma, for Intervenor/Appellee
   OPINION BY KEITH RAPP, JUDGE:

¶ 1 Trial court plaintiff, TexasFile, LLC, (TexasFile) appeals the trial court's Journal Entry of Judgment denying the summary judgment motion of TexasFile and granting summary judgment in favor of defendant, Jeannie Boevers, in her capacity as Kingfisher County Clerk, and Intervenor, Lori Fulks, in her capacity as Garvin County Clerk. This accelerated appeal proceeds pursuant to Okla.Sup.Ct.R. 1.36(c), 12 O.S. Supp. 2017, ch. 15, app. 1.

BACKGROUND

¶ 2 TexasFile is a company that provides remote access to images of county land records to its subscribers via the Internet. TexasFile does business in Texas, New Mexico and a few counties in Oklahoma. TexasFile has contracts with officials from Blaine County, Logan County, Oklahoma County, and Grady County to receive digital land records for its business. TexasFile receives copies of available digital land records and allows their subscribers to access the images of these public land records.

¶ 3 On May 6, 2016, TexasFile requested, pursuant to the Oklahoma Open Records Act, a "complete electronic copy of all the Kingfisher County land records that are currently available in electronic format." TexasFile did not request the associated tract index. TexasFile specifically requested all records that were currently available on OKcountyrecords.com. TexasFile also requested the fee and timeline for providing the requested scanned records in electronic form. The County Clerk of Kingfisher County did not respond to the May 6, 2016, request.

¶ 4 TexasFile made a second request for the electronic copy of the land records on January 11, 2017. TexasFile also acknowledged they had recently made similar requests to Oklahoma, Blaine, and Logan Counties and those counties had complied with the requests. TexasFile had entered into a formal agreement to receive electronic copies of the land records with each of those counties.

¶ 5 On May 15, 2017, Jeannie Boevers, as County Clerk of Kingfisher County, responded to TexasFile's request per the Oklahoma Open Records Act and denied TexasFile's request. Boevers explained:

This is to inform you that your request does not fall within the provisions of the Act as interpreted by the Oklahoma Supreme Court in County Records, Inc. v. Armstrong , 2012 OK 60, 299 P.3d 865. Neither the tract index nor the data (land records) inextricably linked to the computer software can be provided for resale. Commercial use or dissemination of these records is prohibited. You are welcome to come to my office like all other persons to inspect and copy documents.

¶ 6 TexasFile filed this declaratory judgment and mandamus action against Jeannie Boevers in her capacity as County Clerk of Kingfisher County asking the trial court to enter an order determining TexasLink was entitled to an electronic copy of the Kingfisher County public land records maintained by the County Clerk, pursuant to the Oklahoma Open Records Act, and compelling the County Clerk of Kingfisher County to make available the land records of the Kingfisher County Clerk's office in an electronic format at a reasonable fee.

¶ 7 After filing an Answer in the litigation, Boevers, in her capacity as Kingfisher County Clerk, and joined by Lori Fulks, in her capacity as Garvin County Clerk, (collectively referred to as County Clerks) filed a Motion to Consolidate Cases and Supporting Brief. County Clerks alleged TexasFile filed an identical action as the present action again Lori Fulks, in her capacity as Garvin County Clerk. County Clerks further alleged TexasFile sought a declaratory judgment that it was entitled to electronic copies of the public land records of Garvin County for a reasonable fee under the Oklahoma Open Records Act. County Clerks further alleged the legal issues in the Kingfisher County and the Garvin County actions are identical. The County Clerks also asserted:

[a] number of County Clerks of the State of Oklahoma ... seek a uniform judicial determination of the legal issue raised by TexasFile, LLC. Specifically, does the Open Records Act require the County Clerk's office to empty its electronic files into the hands of the Plaintiff so that the Plaintiff may then resell these records to customers in a commercial enterprise?

The County Clerks argued several factors favored consolidation - consolidation would prevent resolution of this important legal issue in a piecemeal fashion; concerns of judicial economy; and uniformity in a decision. In addition, County Clerks argued the Garvin County action was in its early stages of litigation.

¶ 8 On October 20, 2017, TexasFile filed a Motion for Summary Judgment and Brief in Support arguing there were no material facts in dispute and it was entitled to judgment as a matter of law. TexasFile argued Boevers, as County Clerk of Kingfisher County, had a statutory duty to maintain land records in Kingfisher County and to provide electronic copies of these land records to those making a request for the records. TexasFile relies on Title 19 O.S. § 286 and the Oklahoma Open Records Act for its premise that Boevers is bound to provide TexasFile with electronic copies of the Kingfisher County land records.

¶ 9 TexasFile argues that, under Section 286, the county clerk is required to maintain all instruments filed in the clerk's office and to make these records, including computerized records, available for viewing and copying. TexasFile contends "[t]he undisputed material facts show that TexasFile is entitled to downloaded copies of the land records maintained in electronic format under Section 286."

¶ 10 TexasFile also argues that the Open Records Act provides TexasFile the right to access and obtain downloaded copies of the electronic land records of Kingfisher County. TexasFile concedes the Open Records Act prohibits the copying of the tract index if the purpose is to sell the information, but states TexasFile did not request a copy of the tract index. In addition, TexasFile argues the policy of the Open Records Act -- "to guarantee the public's right to access and reproduce the public records of the state and its entities" - supports its request for copies of the electronic land records.

¶ 11 TexasFile asserts the case relied on by Boevers, County Records, Inc. v. Armstrong , 2012 OK 60, 299 P.3d 865, is inapplicable to the present case. TexasFile alleges Armstrong is distinguishable because it involved a request for the tract index, which is statutorily prohibited. Here, TexasFile did not request the tract index. In addition, TexasFile argues the Armstrong court relied on the Abstractors Act, which is not involved in the present action.

¶ 12 Finally, TexasFile argues the fees charged by the County Clerk of Kingfisher County are illegal and unreasonable because the fees do not reflect the actual cost of providing the electronic copies. According to TexasFile, the fees charged by the County Clerk are more appropriate for providing hard copies of the land records and not the electronic copies.

¶ 13 On October 30, 2017, TexasFile filed its opposition to the Motion to Consolidate. The trial court entered a Court Minute on November 3, 2017, ruling that it was treating the Motion to Consolidate as a motion to intervene and granting the Motion to Intervene. The Court Minute further stated that the "[p]arties agree to stay Garvin County case pending resolution of Kingfisher County case."

¶ 14 County Clerks filed a joint response to TexasFile's summary judgment motion. County Clerks agreed there were no material facts in dispute and the motion presented an important question of law: "[A]re the county clerks required to comply with TexasFile's request for land record information so that TexasFile can then sell the same for a profit[?]" County Clerks argued the Oklahoma Supreme Court decided this issue in Armstrong holding that a county clerk is prohibited "from providing any documents and data from the land records for the intentional sale of that information." Armstrong , 2012 OK 60 ¶ 11, 299 P.3d at 868. County Clerks also argued the Open Records Act prohibits the County Clerk from satisfying TexasFile's request.

¶ 15 After hearing arguments, the trial court denied TexasFile's summary judgment motion and granted summary judgment in favor of County Clerks pursuant to District Court Rule 13. The trial court entered a Journal Entry of Judgment memorializing its ruling, filed on February 13, 2018. TexasFile appeals.

STANDARD OF REVIEW

¶ 16 Whether the trial court's grant of summary judgment was proper is a question of law, which this Court reviews de novo . Manley v. Brown , 1999 OK 79, ¶ 22, 989 P.2d 448, 455. In a de novo review, the appellate court has the "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hosp. Auth. , 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. This Court will examine the parties' pleadings and evidentiary materials to determine if there is a disputed material fact or whether reasonable minds could draw different conclusions from undisputed facts. Harmon v. Cradduck , 2012 OK 80, ¶ 11, 286 P.3d 643, 648. This Court views the facts and reasonable inferences in the light most favorable to the non-moving party. Id .

¶ 17 "Permissive intervention is left to the sound legal discretion of the trial court based upon the nature of the controversy and the facts and circumstances of each case. The trial court's determination will not be reversed on appeal absent an abuse of that discretion." Tulsa Rock Co. v. Williams , 1982 OK 10, ¶ 5, 640 P.2d 530, 532.

ANALYSIS

¶ 18 The issue presented on appeal is whether a county clerk is required to provide an entity with an electronic copy of the county land records maintained by the county clerk when the copies will be used for commercial purposes. TexasFile maintains the trial court erred in denying its summary judgment motion, thereby denying its request for an electronic copy of all the land records, excluding the tract index, currently available in electronic format.

¶ 19 The Oklahoma Supreme Court addressed this issue in a factually similar case, County Records, Inc. v. Armstrong , 2012 OK 60, 299 P.3d 865. In Armstrong , the Court was presented with the issue of whether a real estate database company that provides land records to on-line subscribers, County Records, Inc., was entitled to access to electronic copies of a county's official public land records, including an electronic copy of the official tract index of county land records, when the web business sought to resell the records for profit. County Records sought a declaratory judgment to compel production of an electronic version of the county land records, including the official tract index, at a reasonable fee. The County Clerk had previously denied County Records request for the official tract index based on her belief she was "legally prohibited from providing it to [County Records] for its intended commercial sale of the information." Id . ¶ 4, 299 P.3d at 866.

¶ 20 The Oklahoma Supreme Court in Armstrong held that the express language of the Open Records Act prohibited the County Clerk from complying with the request for land records of the technology company, County Records, Inc. The Court stated:

A special provision of the Open Records Act applies to the county land records:
The land description tract index of all recorded instruments concerning real property required to be kept by the county clerk of any county shall be available for inspection or copying in accordance with the provisions of the Oklahoma Open Records Act; provided, however, the index shall not be copied or mechanically reproduced for the purpose of sale of the information.
[ 51 O.S. § 24A.5(4) ]. The purpose of this provision is understood when it is considered with the provisions of the Oklahoma Abstractors Act, Okla. Stat. tit.1, §§ 20 - 43 (2011). Pursuant to the Act, abstractors are provided "free access to the instruments of record affecting real property." Id ., § 36(A)(1). However, "[a]ccess to instruments of record shall be for immediate and lawful abstracting purposes only. The sale of the instruments of record for profit to the public either on the internet or any other such forum by any company holding a permit to build an abstract plant is prohibited." Id. § 36(E)....
When the Open Records Act is read with the Abstractors Act, the legislative intent becomes apparent. Production of the official tract index for inspection and copies of the official tract index and instruments of record affecting real estate are not limited unless the request for information from the county records is for the sale of that information. The tract index provision in the Open Records Act extends the prohibition on sale of the county land record information to any person who intends to profit from such a sale.
The policy underlying the restriction on production of the official tract index is the prevention of the sale of the public records for private profit. It recognizes that the county clerk recoups part of the costs of the personnel and equipment necessary to produce, record, and maintain the land records from the sale of copies of land instruments. This is true whether the information is stored electronically or on paper.
The [County Clerk] was correct to refuse Plaintiff's request for an electronic copy of the tract index based on the tract index restriction contained in the Open Records Act. However, the mandate of that restriction is broader; it prohibits a county clerk from providing any documents and data from the land records for the intentional sale of that information.

Id . ¶¶ 8-11, 299 P.3d at 867-68 (footnotes omitted) (emphasis added).

¶ 21 Based on the rationale of the Oklahoma Supreme Court in Armstrong , this Court finds the trial court did not err in denying TexasFile's request for the county land records of the County Clerks. Thus, the trial court did not err in denying TexasFile's motion for summary judgment. The trial court's Journal Entry of Judgment denying the summary judgment motion of TexasFile and granting summary judgment in favor of defendant, Jeannie Boevers, in her capacity as Kingfisher County Clerk, and Intervenor, Lori Fulks, in her capacity as Garvin County Clerk, is affirmed.

¶ 22 TexasFile next argues the trial court erred in treating the Motion to Consolidate as one to intervene and in granting the Motion to Intervene. TexasFile argues the Garvin County Clerk did not comply with the intervention procedure.

¶ 23 Application of the intervention statute requires a balancing of four countervailing interests:

1) the interest of the plaintiff in controlling the scope and extent of his cause of action and in not having new claims or parties complicate and confuse the determination of his case; 2) the interest of the defendant in having all parties and claims joined in the same action to prevent vexatious suits and to prevent possible inconsistent judgments; 3) the interest of third parties in having access to a forum when there is a possibility that stare decisis, res judicata or collateral estoppel may subsequently prevent them from seeking redress if not made a party to the original action; and 4) the general policy of this Court to apply joinder and intervention statutes liberally in the interests of justice and judicial economy by having the full subject matter of any controversy settled in one action.

Gettler v. Cities Serv. Co. , 1987 OK 57, ¶ 7, 739 P.2d 515, 517. Here, allowing the County Clerk of Garvin County to intervene in the present action was a matter of judicial economy. Otherwise, the identical issue could potentially be raised in each county of the State. Furthermore, TexasFile has not shown how it was prejudiced by the trial court allowing the County Clerk of Garvin County to intervene thereby allowing TexasFile to litigate the issue in one county. This Court finds the trial court did not abuse its discretion in allowing the County Clerk of Garvin County to intervene in the present litigation.

CONCLUSION

¶ 24 The trial court's Journal Entry of Judgment denying the summary judgment motion of TexasFile and granting summary judgment in favor of defendant, Jeannie Boevers, in her capacity as Kingfisher County Clerk, and Intervenor, Lori Fulks, in her capacity as Garvin County Clerk, is affirmed.

¶ 25 AFFIRMED .

BARNES, P.J., and GOODMAN, J., concur.

      Appellees' Motion for Leave to Submit Appellate Briefs is denied.


source: Caselaw Access Project

license: Public Domain

text:
    Marcella AYISI, Petitioner, v. SEQUEL YOUTH & FAMILY SERVICES, LLC, Travelers Indemnity Co., and the Workers' Compensation Commission, Respondents.
    Case No. 117,348
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED: February 28, 2019 Mandate Issued: March 27, 2019
    Bob Burke, Oklahoma City, Oklahoma and Jeffrey M. Cooper, Oklahoma City, Oklahoma, for Petitioner
    Mia C. Rops, AYIK & ASSOCIATES, St. Paul, Minnesota, for Respondents
   OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶ 1 This is the second appeal in this case. The first appeal -- Sequel Youth & Family Services LLC v. Ayisi , 2018 OK CIV APP 7, 412 P.3d 107 -- arose from an order of the Workers' Compensation Commission affirming the order of an Administrative Law Judge (ALJ) who found Marcella Ayisi (Claimant) sustained compensable injuries to both of her knees arising out of the course and scope of her employment. As explained at greater length in the prior appeal, Claimant fell on August 26, 2015, while working as a residential counselor for Sequel Youth & Family Services, LLC. She "land[ed] directly on both knees." 2018 OK CIV APP 7, ¶ 2, 412 P.3d 107. The medical evidence generated after the accident revealed that the primary injury or condition in Claimant's knees is osteoarthritis.

¶ 2 As explained in the prior appeal, the pertinent statutory provisions are found in 85A O.S. Supp. 2014 § 2, and provide as follows:

9. a. "Compensable injury" means damage or harm to the physical structure of the body ... caused solely as the result of either an accident, cumulative trauma or occupational disease arising out of the course and scope of employment. ...
....
b. "Compensable injury" does not include:
...
(5) any strain, degeneration, damage or harm to, or disease or condition of, the eye or musculoskeletal structure or other body part resulting from the natural results of aging, osteoarthritis, arthritis, or degenerative process including, but not limited to, degenerative joint disease, degenerative disc disease, degenerative spondylosis /spondylolisthesis and spinal stenosis, or
(6) any preexisting condition except when the treating physician clearly confirms an identifiable and significant aggravation incurred in the course and scope of employment.

¶ 3 Regarding the exclusion of conditions "resulting from the natural results of aging, osteoarthritis, arthritis, or degenerative process," set forth in § 2(9)(b)(5), we explained that under both the Workers' Compensation Code and the Workers' Compensation Act such conditions were also excluded except where "the employment is a major cause of the deterioration or degeneration and is supported by objective medical evidence[.]" Ayisi , ¶ 14 (citing 85 O.S. Supp. 2010 § 3(13)(d) ; 85 O.S. 2011 § 308(10)(c) ). We explained, among other things, that "legislative silence is rarely to be taken as clear legislative intent to abrogate an established construction," Ayisi , ¶ 14, and we explained that an alternative construction requiring that such injuries, in effect, be "caused solely" by the employment in order to be compensable would "be untenable in light of the statute as a whole," id. ¶ 21. We concluded, in pertinent part, that Claimant's osteoarthritis -- which we explained was defined as a condition caused by the damage or breakdown of the protective joint cartilage between bones -- is therefore compensable under § 2(9)(b)(5) if her employment is found to be the major cause of her osteoarthritis. Ayisi , ¶ 14 n.2. We stated in the prior appeal that "it is the legislative intent that, in this case, Claimant's osteoarthritis, if resulting from the natural results of aging, is not compensable unless it is found that the employment is the major cause of the deterioration or degeneration and such a finding is supported by objective medical evidence." Id. ¶ 27. We stated that this test "applies to both of Claimant's knees." Id. Following the issuance of the first appeal, neither party filed a petition for rehearing or a petition for certiorari. Mandate issued.

¶ 4 On remand, the ALJ determined Claimant's employment was not the major cause of her osteoarthritis in her knees and, therefore, denied compensation. Claimant sought review by the Commission which affirmed the ALJ's order. The issue arose whether Claimant should at least be found to have sustained a compensable injury to her right knee as a result of an aggravation of a preexisting condition under § 2(9)(b)(6). As articulated by the Commission, however, this Court, in the prior appeal, "expressly held that Claimant's osteoarthritis is compensable only if her employment is the major cause of the degeneration in her knees. Because Claimant failed to seek relief from that decision, [that] determination is now the settled law of the case and cannot be relitigated."

¶ 5 We take this opportunity to clarify that § 2(9)(b)(6) is applicable to cases involving preexisting conditions where "the treating physician clearly confirms an identifiable and significant aggravation [of that preexisting condition] incurred in the course and scope of employment." Any implication to the contrary in the prior appeal regarding the effect of § 2(9)(b)(6) is in error.

¶ 6 With regard to Claimant's left knee, however, we explained in the prior appeal that the ALJ concluded there was no "preexisting condition as defined in the AWCA[.]" Ayisi , ¶ 15. Thus, we concluded, at least impliedly, that the lower court erred in awarding compensation for the left knee under § 2(9)(b)(6). We further concluded that Claimant could still receive compensation for her left knee under § 2(9)(b)(5) if the major cause of her osteoarthritic condition in her left knee was her employment. Because the trial court's determination on remand that the major cause of Claimant's osteoarthritis is not work-related is supported by substantial evidence, we conclude compensation for Claimant's left knee was appropriately denied on remand. See Gillispie v. Estes Exp. Lines, Inc. , 2015 OK CIV APP 93, ¶ 15, 361 P.3d 543 (On fact questions, this Court will review the record to determine if there is substantial evidence to support the decision.).

¶ 7 The trial court also determined on remand that the major cause of Claimant's condition in her right knee is not work-related, and this determination is also supported by substantial evidence. However, the ALJ previously determined that, regarding the right knee, Claimant suffered an aggravation of a preexisting condition. The finding that there was a preexisting condition in Claimant's right knee at the time of the accident is based on the fact that Claimant had an anthroscopic procedure performed on her right knee approximately sixteen years before the accident. Regardless of the distance in time between the accident and this procedure, however, the findings that Claimant had a "preexisting condition" in her right knee at the time of the accident, and that this is the condition for which treatment was provided, are supported by substantial evidence.

Moreover, it is undisputed the treating physician confirmed an identifiable and significant aggravation occurred to that condition in the course and scope of Claimant's employment. Consequently, regarding Claimant's right knee, the ALJ appropriately found that, under § 2(9)(b)(6), Claimant sustained a compensable injury. To the extent the prior appeal is at odds with this analysis, that portion of the prior appeal is overruled. Although Claimant failed to file a petition for rehearing or a petition for certiorari following this Court's issuance of the prior appeal, we conclude that a failure to reverse course would "result in a gross or manifest injustice." Acott , 2011 OK 56, ¶ 11, 260 P.3d 1271.

¶ 8 For these reasons, we sustain that portion of the Commission's order finding Claimant did not suffer a compensable left knee injury, but we vacate that portion of the Commission's order finding Claimant did not sustain a compensable injury to her right knee. We remand this case to the ALJ for further proceedings consistent with this Opinion.

¶ 9 SUSTAINED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS .

WISEMAN, V.C.J., and THORNBRUGH, J. (sitting by designation), concur.

      The Oklahoma Supreme Court has explained:
      The doctrine of the settled law of the case ... provides that issues which are litigated and settled on appeal, or which could have been settled in that appeal, may not be the subject of further litigation between the parties in that case and are deemed settled. It is a rule of judicial economy designed to prevent an appellate court from twice having to deal with the same issue.
      Acott v. Newton & O'Connor , 2011 OK 56, ¶ 10, 260 P.3d 1271 (internal quotation marks omitted) (citations omitted). The Acott Court explained there is an
      exception to the rule when the prior decision is palpably erroneous and ... failure to reverse it will result in a gross or manifest injustice. ... Thus, under the settled law of the case doctrine, an issue may not be asserted on remand, or in a second or subsequent appeal, if the issue (1) was addressed in the first appeal, (2) could have been raised in the first appeal, or (3) the issue asserted was determined by implication in the first appeal.
      Id. ¶ 11 (internal quotation marks omitted) (citations omitted).

      As quoted above, § 2(9)(b)(6) provides that the term "compensable injury" does not include "any preexisting condition except when the treating physician clearly confirms an identifiable and significant aggravation incurred in the course and scope of employment." (Emphasis added.) See also Stiles v. Okla. Tax Comm'n , 1987 OK 85, ¶ 13, 752 P.2d 800 ("In Oklahoma[,] disability resulting from the aggravation of a pre-existing disease or condition is compensable." (footnote omitted) ); ITT Continental Baking Co. v. Ware , 1980 OK 167, ¶ 8, 620 P.2d 1308 ("[I]t has long been recognized in this jurisdiction that aggravation of a pre-existing condition or disease is compensable." (footnote omitted) ). See generally Okla. City v. Schoonover , 1975 OK 52, 535 P.2d 688 ; Marlar v. Marlar , 1960 OK 110, 353 P.2d 17.

      We also explained in the prior appeal that "the term 'preexisting condition' has a limited definition in the AWCA -- it 'means any illness, injury, disease, or other physical or mental condition, whether or not work-related, for which medical advice, diagnosis, care or treatment was recommended or received preceding the date of injury[.]' 85A O.S. Supp. 2014 § 2(36)." Ayisi , ¶ 15.

      We explained in the prior appeal:
      Claimant testified she was not having any problems with her knees prior to the accident, though she testified she had knee surgery performed on her right knee -- a "right knee arthroscopic procedure" -- in the year 2000. Claimant testified she was released "full duty" soon after that surgery, and she testified she had been working for sixteen years prior to the fall and had never been placed on any form of restrictions for her right knee.
      Ayisi , ¶ 3. The past treatment to Claimant's right knee satisfies the limited definition of preexisting condition if the condition which she claims was aggravated by the accident was in fact the "condition ... for which" the right knee arthroscopic procedure in 2000 was performed -- i.e., the "condition ... for which medical advice, diagnosis, care or treatment was recommended or received preceding the date of injury[.]" 85A O.S. § 2(36). The record indicates the past procedure was actually a right knee "meniscus repair," and the January 2016 medical report of Kevin W. Hargrove, M.D., states that Claimant "is likely now having some potential loose fragment that has developed, or possibly a recurrent or progressive lateral meniscus tear. However, her primary and obvious problem is osteoarthritis." This would appear to suggest that the surgery may have been for a condition distinguishable from the osteoarthritic condition present at the time of the accident, as does the following language found in the medical report of Lance E. Rosson, D.O., in which Dr. Rosson states he "suspect[s] that [Claimant] has MRI-documented meniscal tears and/or chondral injury and/or loose bodies along with aggravation of" the osteoarthritis in her right knee. (Emphasis added.) However, in the "Oklahoma Diagnostic Imaging" report regarding the MRI on Claimant's right knee, it is stated that "[t]here is degenerative blunting along the inner margin of the medial meniscus but otherwise no acute medial meniscus tear. There is complex degeneration and tearing throughout the lateral meniscus with peripheral extrusion of the meniscus body. ..." This evidence supports the inference, which the ALJ endorsed, that the meniscus repair procedure was related to a long-term osteoarthritic condition in the right knee rather than an unrelated injury. See also Angela Lange et al., Degenerative meniscus tears and mobility impairment in women with knee osteoarthritis , 15 Osteoarthritis and Cartilage 701, 701 (2007), www.sciencedirect.com/science/article/pii/S1063458406003232 ("Meniscus tears are often presumed to be associated with a traumatic event, but they can also occur as a result of the cartilage degeneration process in osteoarthritis (OA) of the knee."); Carol Eustice & Grant Hughes, Meniscal Tears and Osteoarthritis (2018), https://www.verywellhealth.com/meniscal-tears-and-osteoarthritis-2552038 ("[A] meniscal tear can lead to knee osteoarthritis," and it is also true that "knee osteoarthritis can lead to a spontaneous meniscal tear through breakdown and weakening (degeneration) of the meniscus. A degenerative meniscal lesion observed on MRI is suggestive of early osteoarthritis.").

      Although the record indicates the osteoarthritis"with valgus deformities" is present in both of Claimant's knees, and our analysis leads to the conclusion that Claimant sustained a compensable injury only to her right knee, we note that the medical evidence also indicates the "right knee [is] much more advanced than [the] left," and Claimant reported in September 2015, for example, that her "left knee is significantly better" and she "is having no pain in that knee, but the right knee is still tender" with "increasing pain in the right knee ...."

      We note that our determination in this appeal does not substantially thwart the interest of judicial economy which underpins the doctrine of settled law of the case. In this regard, the majority of this Court's analysis in Ayisi , 2018 OK CIV APP 7, 412 P.3d 107 -- in particular, our analysis of § 2(9)(b)(5) -- remains unaffected by this decision, the remand of this case in the prior appeal was appropriate, and our resolution of this appeal requires no further adjudication of the underlying issues.

      Claimant has raised additional arguments on appeal. However, those arguments are either rendered moot by our resolution of this appeal, or constitute arguments which either were raised and rejected, at least impliedly, in the prior appeal, or which could have been, but were not, raised in the prior appeal. Acott , ¶¶ 10-11. For these reasons, we will not address Claimant's additional arguments in this second appeal.


text:
    John S. FOOTE, Mary Elledge, and Deborah Mapes-Stice, Plaintiffs-Respondents, v. STATE of Oregon, Defendant-Appellant.
    CC 17CV49853 (SC S065883)
    Supreme Court of Oregon.
    Argued and submitted September 13, 2018. March 28, 2019
    Benjamin Gutman, Solicitor General, Salem, argued the cause and filed the briefs for appellant. Also on the briefs was Ellen F. Rosenblum, Attorney General.
    Thomas M. Christ, Sussman Shank LLP, Portland, argued the cause and filed the brief for respondents.
    Margaret S. Olney, Portland, filed the brief on behalf of amici curiae Partnership of Safety and Justice, Oregon Students Association, Latino Network, Ecumenical Minis-tries of Oregon, YWCA of Greater Portland, Urban League, Pathfinders of Oregon and Red Lodge Transition Services.
    Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, filed the brief on behalf of amici curiae American Civil Liberties Union of Oregon Foundation, Inc., and Oregon Justice Resource Center.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.
    WALTERS, C. J.
    The State of Oregon appeals from a circuit court's declaratory judgment invalidating a 2017 sentencing statute on the ground that it was enacted in violation of Article IV, section 33, of the Oregon Constitution. Among other things, the state contends that plaintiffs lacked standing to bring the underlying declaratory judgment action. For the reasons that follow, we agree that plaintiffs lacked standing, and we therefore vacate the declaratory judgment and remand the case to the circuit court with instructions to dismiss the action.
    Plaintiffs in this case are Clackamas County District Attorney John Foote and two individuals, Mary Elledge and Deborah Mapes-Stice, who identify themselves as both crime victims and voters. Together, plaintiffs brought an action against the state in Clackamas County Circuit Court, seeking a declaration that H.B. 3078 (2017), which amended ORS 137.717 (2015) to reduce the presumptive sentences provided therein for certain property crimes, was enacted in violation of Article IV, section 33, of the Oregon Constitution, and therefore was invalid. Article IV, section 33, which was adopted by the voters in 1996 as Ballot Measure 10, provides that a two-thirds majority in both houses of the legislature is necessary "to pass a bill that reduces a criminal sentence approved by the people under [ Article IV, section 1, of the Oregon Constitution ]." In their action, plaintiffs took the position that the longer presumptive prison sentences set out in ORS 137.717 (2015) had been "approved by the people" in 2008, when Ballot Measure 57 was adopted, and could not lawfully be reduced by the simple majorities that H.B. 3078 had garnered to amend the statute.
    The state moved to dismiss the action, arguing that plaintiffs lacked standing and that the constitutional issue that they were attempting to raise would more appropriately be resolved in an ordinary criminal appeal. Plaintiffs responded to the motion to dismiss, arguing that (1) plaintiff Foote, at least, had standing as a district attorney who was adversely affected by H.B. 3078, insofar as it caused him to be uncertain about what sentences to recommend for persons convicted of the property crimes that it addressed; and (2) given that the Attorney General had indicated that she would not contest the validity of H.B. 3078 under any circumstances, the issue of that statute's validity would never be properly litigated in an ordinary criminal appeal. Plaintiffs also moved for judgment in their favor on the pleadings, and the state responded with a cross-motion of its own for judgment on the pleadings.
    The circuit court ultimately rejected the state's motion to dismiss for lack of standing. It held that, although plaintiff Foote lacked standing in his capacity as a sitting district attorney, all three plaintiffs had standing to bring the action in their capacities as electors who had voted for Measure 57 and Measure 10. In regard to the latter point, the court opined that plaintiffs were "substantially affected" by H.B. 3078 because enactment of that bill by a simple majority had deprived them of the "safety that they were entitled to under [Measure 57]" and the "enhanced protection from governmental process that they were entitled to under Article IV, § 33, of Oregon's Constitution [ (Measure 10) ]." After also rejecting the state's alternative argument, the circuit court considered the merits of plaintiffs' complaint and ultimately concluded that H.B. 3078 had been enacted in violation of Article IV, section 33. The court therefore granted plaintiffs' motion for judgment on the pleadings, denied the state's cross-motion, and issued a judgment declaring H.B. 3078 to be invalid.
    The state filed a timely notice of appeal in the Court of Appeals, but, in accordance with a special jurisdictional statute enacted to expedite final resolution of the validity of ORS 137.717 (2015), the Court of Appeals transferred the appeal to this court. The case was consolidated for purposes of oral argument with State v. Vallin , 364 Or. 295, 434 P.3d 413 (2019), a criminal defendant's certified appeal from a trial court's sentencing decision that had relied on an assumption that H.B. 3078 was enacted in violation of Article IV, section 33. Vallin thus raised the same ultimate issue that this case raises, but without the standing issue that this case presents.
    This court recently issued its decision in Vallin : We held that H.B. 3078 was validly enacted and that the trial court in that case had erred in declining to sentence the defendant in accordance with the reduced presumptive sentences that it provided. Vallin , 364 Or. at 311, 434 P.3d 413. If the validity of H.B. 3078 were the only issue in the present case, the holding in Vallin likely would control its resolution. But, as noted, this case presents at least one additional issue-whether plaintiffs had standing to bring their declaratory judgment action in the first place-that we are required to resolve before proceeding to the merits. See Couey v. Atkins , 357 Or. 460, 469, 355 P.3d 866 (2015) ("to maintain a declaratory judgment action, a plaintiff must establish at the outset that he or she satisfies the statutory requirements for standing") (emphasis added). If plaintiffs did not have standing to bring this action, the action should have been dismissed. See Gortmaker v. Seaton , 252 Or. 440, 442, 450 P.2d 547 (1969) (when party seeking declaratory relief lacked standing, his or her action "must be dismissed without a decision on the merits").

      Kistler, J., retired December 31, 2018, and did not participate in the decision of this case.

      Oregon Laws 2018, chapter 120, section 14, confers jurisdiction on this court under specified conditions "to determine whether chapter 673, Oregon Laws 2017 [i.e. , H.B. 3078 (2017) ], violates any provision of the Oregon Constitution." It also directs this court to expedite its disposition of such appeals.

   Before we consider whether these particular plaintiffs have standing to bring the declaratory judgment action that is before us, we describe the relevant analytical framework. Whether a plaintiff has standing to bring a particular kind of action "largely depends on the statute under which the plaintiff seeks relief." MT & M Gaming, Inc. v. City of Portland , 360 Or. 544, 553, 383 P.3d 800 (2016). Here, plaintiffs seek declaratory relief under ORS 28.020, which provides:

"Any person * * * whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder."

In MT & M Gaming , this court identified three showings that must be made by a plaintiff who seeks declaratory relief under that statute. 360 Or. at 554-55, 383 P.3d 800. First, ORS 28.020 requires that a plaintiff show that he or she is a "person" and that he or she has some "right, status or other legal relation" that is affected by the challenged provision. The term "right, status or other legal relation" in ORS 28.020 encompasses any "interest," as long as it is one that is "legally recognized"-that is, recognized under some statute, constitutional provision, regulation, local ordinance, or historical or evolving principle of common law. Id. at 554, 562-63, 383 P.3d 800. When a plaintiff's interest is not a "right, status or other legal relation," but, instead, is "an abstract interest in the correct application or the validity of a law," the plaintiff does not have standing under ORS 28.020. Morgan v. Sisters School District #6 , 353 Or. 189, 195, 301 P.3d 419 (2013).

Second, ORS 28.020 requires a showing that the identified rights, status, or other legal relations are "affected" by the targeted statute or provision. This court has held that the effect of the targeted statute or provision "must be real or probable, not hypothetical or speculative." Morgan , 353 Or. at 195, 301 P.3d 419. Although that requirement is more closely tied to general notions of justiciability than to the wording of ORS 28.020, it nonetheless has been treated as part of the standing analysis. MT & M Gaming , 360 Or. at 555, 383 P.3d 800.

A third requirement, when deciding whether declaratory relief is available, and similarly tied to general principles of justiciability, is that "the court's decision must have a practical effect on the rights that the plaintiff is seeking to vindicate * * *[, i.e. , t]he relief that the plaintiff seeks, if granted, must redress the injury that is the subject of the declaratory judgment action." Morgan , 353 Or. at 197, 301 P.3d 419.

With those principles in mind, we turn to the question of whether any or all of the three named plaintiffs had standing to bring the declaratory judgment action at issue. Here, there are two theories of standing on offer.

The first theory, advanced by the circuit court but not by plaintiffs themselves, is that Foote, Elledge, and Mapes-Stice all had standing as electors who had voted for Measure 57 (which was approved by the voters and, prior to its amendment by the legislature, provided certain presumptive sentences for persons convicted of certain property crimes) and Measure 10 (i.e. , Article IV, section 33, which provides that the legislature must obtain a two-thirds majority to pass a bill that reduces any sentence that was approved by the voters). As noted above, 364 Or. at 561, 437 P.3d at 222-23, the circuit court concluded that plaintiffs had standing because, when the legislature enacted H.B. 3078, thereby amending ORS 137.717 (2015) and reducing the sentences for certain property crimes, all three plaintiffs, as voters, were "deprived" of "benefits": (1) the "safety" that comes from longer prison sentences, to which they were entitled under Measure 57; and (2) "enhanced protection from governmental process" to which they were entitled under Article IV, § 33 (Measure 10). The circuit court likened those deprivations to those that the Court of Appeals found to exist, in deParrie v. State of Oregon , 133 Or. App. 613, 893 P.2d 541 (1995), for residents and electors of two cities whose ordinances prohibiting any grant of "special rights" on the basis of sexual orientation had been nullified by a state statute prohibiting enactment and enforcement of such ordinances. The circuit court explained that, in deParrie , the Court of Appeals had recognized that electors of the two cities had standing to seek a declaration invalidating the state statute because it had deprived them of the benefits of their own ordinance. The circuit court suggested that voter-plaintiffs in the present case were likewise being deprived of the benefits of statutory and constitutional provisions that they had supported and in which they had a legally recognized interest: Plaintiffs' standing thus rested, in the circuit court's view, on the idea that H.B. 3078 deprived them of benefits conferred by Measure 57 and Article IV, section 33 (Measure 10).

The cited case, deParrie , is not binding on this court, and we need not decide whether we agree with its holding. In deParrie , the Court of Appeals concluded that, by virtue of the fact that they lived in cities whose local ordinances had been or would be nullified by the targeted statute, the voter-plaintiffs had an interest-other than an abstract interest in the correct application of the law-that was affected by the statute. Here, plaintiffs do not assert any interest that is even arguably distinct from the abstract interest in the correct application or the validity of a law that any other voter in the state might have. As persons who voted for Measure 57, plaintiffs may have a stronger desire to oppose H.B. 3078 than other citizens, in order to maintain the longer sentences prescribed in the measure, but strong feelings are not relevant in this context. Cf. Eacret et ux. v. Holmes , 215 Or. 121, 124-25, 333 P.2d 741 (1958) (parents of murdered man may have stronger feelings about death penalty for murderers than other members of the general public, but the constitutional provision providing governor with power to commute death sentences does not affect them differently from other citizens, such that they would have standing to seek declaration limiting governor's exercise of that power). What is relevant is whether the amendment of ORS 137.717 (2015) in H.B. 3078 had an actual effect on a "legally recognized" interest of plaintiffs as voters. It did not.

The second theory of standing, which the circuit court rejected but which plaintiffs nevertheless advance in this court, pertains only to plaintiff Foote. Plaintiffs assert that Foote, in his official capacity as the district attorney of Clackamas County, has standing to seek a declaration that H.B. 3078 is invalid. Plaintiffs explain that, as a district attorney, Foote is charged by statute and under the Oregon Constitution with prosecuting crimes within his county. ORS 8.660 (district attorney shall conduct on behalf of the state all prosecutions of public offenses within the district attorney's county). Plaintiffs suggest that a duty to make sentencing recommendations in accordance with the relevant criminal statutes (including H.B. 3078) is subsumed within that charge. Plaintiffs also observe that Foote has a sworn duty as a district attorney to uphold the state and federal constitutions, including by using his discretion in making sentencing recommendations in a way that is constitutionally sound. Plaintiffs contend that, insofar as Foote is aware that a conflict exists between those two obligations with respect to the presumptive sentences set out in H.B. 3078, he suffers from "uncertainty" about where his duty lies. In plaintiffs' view, the fact that, as a result of H.B. 3078, Foote is "affected by" that uncertainty gives him standing to seek a judicial declaration as to that statute's validity.

The state contends, however, that that "uncertainty" theory, as a basis for standing under ORS 28.020, was squarely rejected in Gortmaker , 252 Or. 440, 450 P.2d 547. In Gortmaker , a district attorney sought declaratory relief under ORS 28.020 regarding the meaning of certain drug statutes, claiming to be in "doubt" as to their meaning and arguing that he had a substantial interest that was affected by the statutes because he could be sued if he prosecuted someone based on an incorrect understanding of their meaning. Id. at 442, 450 P.2d 547. This court rejected that argument, explaining that

"[a]ny district attorney in the state can make the same assertion about any criminal law on the books. These allegations are mere conclusions, highly speculative, hypothetical, and, as statements of law, open to serious question."

Id . at 443, 450 P.2d 547. Thus, we concluded, the district attorney was "not a party whose rights, within the meaning of ORS 28.020, could be affected by judicial construction of the drug statutes." Id. at 442, 450 P.2d 547.

Rather than directly confronting that argument, plaintiffs respond by pointing to another declaratory judgment case, Brown v. Oregon State Bar , 293 Or. 446, 648 P.2d 1289 (1982), which was decided some 13 years after Gortmaker . In Brown , this court considered the justiciability of an action by the Attorney General seeking a declaration, under ORS 28.020, regarding his duty to provide legal advice to state agencies that engaged in contested case proceedings. The issue arose after two assistant attorneys general, at the request of the director of the Land Conservation and Development Commission (LCDC), met with the director and an LCDC hearings officer regarding a contested case that was before the commission, and did so without the participation of or notice to the litigants. The hearings officer was uncomfortable about the ex parte meeting and filed a complaint with the Oregon State Bar (Bar). After taking the complaint under advisement, the Bar asked the Attorney General to weigh in on the question of whether the described conduct was within the authority of the Attorney General's office. The Attorney General issued an opinion that concluded that, in a contested case proceeding before a governmental agency's hearings officer, the Attorney General has a statutory duty to give advice, when requested, to the agency and its hearings officers, and may give such advice without the knowledge and participation of other parties-at least in certain specified circumstances. The Bar concluded, nonetheless, that an attorney general's ex parte meeting with an agency's hearings officer would violate the rules of professional conduct governing lawyers, and it issued an advisory opinion to that effect. 293 Or. at 448-49, 648 P.2d 1289.

The Attorney General then sought a declaration under ORS 28.020 that his authority to give agencies involved in contested case proceedings advice upon request was as he had described it in his opinion and that any conduct that fell within that authority would not violate the rules of professional conduct. The Bar moved for summary judgment, arguing, among other things, that the case was not justiciable "because it involve[d] only advisory ethics opinions [and did] not involve present facts." Id. at 450, 648 P.2d 1289. The trial court agreed with the Bar that the case was not justiciable and granted the Bar's motion for summary judgment. The Court of Appeals reversed, as did this court on review, holding that the question of the Attorney General's authority to advise agencies involved in contested cases was justiciable. Id. at 449, 648 P.2d 1289. We explained that,

"[w]hile the controversy arises from advisory opinions, the substance of the controversy concerns the interpretation of a statute. The court is requested to consider a specific set of facts-whether plaintiff may give advice upon request to agencies in contested cases where plaintiff's office is not involved in the case, agency rules do not prohibit the conduct and the recipient does not have authority to issue binding orders. The controversy involves present facts, the plaintiff's existing statutory duty."

Id. at 450, 648 P.2d 1289.

In the present case, plaintiffs read the foregoing explanation from Brown as a broadly applicable statement of law-that public officials may use declaratory judgment actions to resolve their own uncertainties about the duties of their offices. And plaintiffs purport to find support for that reading of Brown in TVKO v. Howland , 335 Or. 527, 73 P.3d 905 (2003). In TVKO , this court described Brown as "stand[ing] for the unremarkable proposition that, when state officers seek judicial declarations regarding their duties, the statutory responsibilities of their office provide the present facts necessary for a justiciable controversy and, when such a controversy is present, a court only has limited discretion to decline to adjudicate it." Id. at 536, 73 P.3d 905. Notably, plaintiffs do not articulate how Brown , a case that, at least on its face, is about general notions of justiciability rather than standing, and TVKO , a case in which even general notions of justiciability are peripheral, provide a rule of standing under ORS 28.020 that could be determinative here. They apparently see Brown as giving legal recognition to the interest that any public official would have in resolving uncertainty about where his or her duty lies, and Foote's asserted interest in certainty about the lawfulness of his sentencing recommendations as falling within that broad proposition. Carrying forward the analysis, plaintiffs' argument would be that Foote's "legally recognized" interest in certainty was "affected by" the enactment of H.B. 3078 and that he therefore has standing to seek declaratory relief.

If that is plaintiffs' point, it is not well taken. Even assuming that the general discussion of justiciability in Brown reasonably can be understood as a rule that is of assistance in determining the class of persons who have standing to bring declaratory judgment actions, the resulting rule would not be helpful to plaintiff Foote here. At best, Brown could be cited for the proposition that a public official who has taken a specific action that the official deems to be within his or her statutory authority and who intends to take similar action in the future, but whose action has been challenged, subjecting the official to potential adverse consequences, has a legally recognized interest in knowing whether he or she has legal authority to act. The interest that plaintiffs ascribe to Foote in no way fits that description: Although plaintiffs couch their arguments in terms of Foote's "uncertainty" about his professional duties, the asserted "uncertainty" is ultimately about an everyday question of criminal law-how a particular statute that may limit his sentencing recommendations should be interpreted. Nothing in Brown suggests that, for purposes of standing under ORS 28.020, a district attorney has a "legally recognized interest" in knowing the answer to such a question before testing it in the ordinary course of a prosecution.

And Gortmaker , on which the state relies, confirms that, for purposes of standing, the law does not recognize such an interest. As described above, Gortmaker held that a district attorney who was uncertain about the meaning of certain drug laws and the circumstances in which he could prosecute under them was not a party whose "rights, status, or other legal relation" had been "affected by" the laws within the meaning of ORS 28.020. Although the district attorney in Gortmaker did not articulate the specific claim of "duty" that plaintiffs claim for Foote in the present case, he held the same public office as Foote, and his circumstances were in every relevant sense the same as those of Foote in the present case. Yet this court held that he lacked standing to seek a declaration under ORS 28.020 regarding the statute that was causing him uncertainty. That holding appears to constitute a complete answer to the issue of Foote's standing, as a district attorney, to seek a declaration to resolve his uncertainty about H.B. 3078.

Plaintiffs argue, however, that Gortmaker is not controlling on the issue of standing because that case was not decided on the basis of standing. They insist that the decision in Gortmaker was driven primarily, if not solely, by concerns about the use of a declaratory judgment action to obtain an advisory opinion when the parties are not true adversaries. Accordingly, plaintiffs argue that the holding from Gortmaker that we have described-that a district attorney's interest in resolving personal doubts about the meaning of a criminal statute is not one that can confer standing under ORS 28.020 -has no relevance where, as here, the parties take opposing positions.

We disagree with plaintiffs' characterization of Gortmaker . Although it is true that that case includes a discussion of whether the proceeding was sufficiently adversarial, nothing in the opinion suggests that the court's analysis of standing was subordinate to that issue of adversity. In fact, the opinion succinctly and separately addresses the issue of standing, first stating that, to bring a declaratory judgment action, the plaintiff must allege a "substantial interest" in the matter, then explaining that the district attorney's allegations did not satisfy that requirement, and finally stating-in a clear and separate holding-that the facts that the district attorney had alleged did not give him standing to bring his action. Gortmaker , 252 Or. at 443, 450 P.2d 547.

Plaintiffs argue that, in any event, the "substantial interest" requirement stated in Gortmaker has been relaxed in a way that supports a conclusion that District Attorney Foote had standing to bring the present action under ORS 28.010. They point to MT & M Gaming , 360 Or. at 564-65, 383 P.3d 800, in which this court recognized that, to establish standing to seek a declaration about a statute's validity, meaning, or effect, a plaintiff need only show that he or she has an interest that is recognized by some source of law-and need not show that the targeted statute itself is the source of the legally recognized interest. Plaintiffs contend that, under that more relaxed standard, Foote's "dut[y] to enforce the criminal laws while also supporting the constitution's limitations on enacting them" constitutes a legally recognized interest that supports standing.

Plaintiffs' appeal to MT & M Gaming is inapt for a number of reasons. First, they are wrong to suggest that MT & M Gaming reflects a relaxation of the "substantial interest" standing requirement as stated and applied in Gortmaker. The court in MT & M Gaming was presented with a theory that, to establish standing to seek a declaration under ORS 28.020 regarding the meaning or validity of a law, a plaintiff must be "subject to" the law or at least be within the "zone of interests" that the law seeks to protect. 360 Or. at 546-47, 383 P.3d 800. After examining the cases cited by the parties, the court concluded that that theory, although prevalent in federal standing analysis, had not been incorporated into Oregon law either as a general standing rule or as a requirement particular to the declaratory judgment act. 360 Or. at 561-65, 383 P.3d 800. The clear implication of that holding is that Oregon never has had a rule limiting standing in declaratory judgment actions to plaintiffs who are "subject to" the statute at issue. Accordingly, MT & M Gaming could not have eliminated or relaxed such a rule.

To the extent that plaintiffs are suggesting that Gortmaker itself was decided on the basis of the type of rule that MT & M Gaming rejected, they are mistaken. In the single paragraph of Gortmaker that discusses the standing issue, there is nothing that indicates any concern with whether the district attorney's asserted interest was within the zone of interests that the laws at issue sought to protect. The court simply concluded that a district attorney's interest in avoiding erroneous prosecutorial decisions and the potential consequences thereof was insufficiently distinct. See 252 Or. at 443, 450 P.2d 547 ("Any district attorney in the state can make the same assertion about any criminal law on the books.").

We conclude that Gortmaker remains good law and that it controls the resolution of plaintiffs' claim that Foote has standing to bring this action in his capacity as the district attorney for Clackamas County. Foote lacks standing as a district attorney to seeks a declaration regarding the validity of H.B. 3078 for the same reason that the district attorney in Gortmaker lacked standing to seek a declaration regarding the meaning of certain criminal laws: Foote's asserted interest in certainty about his prosecutorial duties with respect to the effect of a criminal statute is not an interest that can confer standing under ORS 28.020.

Plaintiffs have not established that they have standing to bring the present declaratory judgment action. The circuit court's conclusion that plaintiffs did have standing was in error. Because the circuit court should have dismissed the action rather than deciding it on its merits, its decision on the merits must be vacated.

The judgment of the circuit court is vacated, and the case is remanded to the circuit court to dismiss the complaint.

      See, e.g. , Brown v. Oregon State Bar , 293 Or. 446, 449, 648 P.2d 1289 (1982) (for court to entertain action for declaratory relief, the complaint must present a justiciable controversy, meaning, among other things, that "the controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue.").

      TVKO ultimately was a challenge to the scope of a declaratory judgment issued by the Oregon Tax Court and only tangentially dealt with the justiciability issue decided in Brown . See 335 Or. at 530-38, 73 P.3d 905 (discussing justiciability of declaratory judgment action that seeks interpretation of statute setting out public official's duties in the broader context of an argument about whether, when a plaintiff brings what is in effect a facial challenge to a statute under ORS 28.020, the court must issue a declaratory judgment that is comparably broad in scope).


text:
    STATE v. PITTMAN, Catrice Cherrelle
    A164588(S066446)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    STATE v. STEWART, Keith John
    A164135 S066339
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    STATE v. TRAN, Linh Thi Minh
    A166004(S066461)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    TRAN v. STAN THE HOT WATER MAN
    A165790(S066380)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    BREECE, Eric Vaughn v. AMSBERRY
    A166606(S066466)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. G. V./G. L. V.
    S066407
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    DONOHUE v. HATHAWAY
    A166246(S066372)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    KASHUBA, Kenneth R. v. STATE of Oregon
    A165129(S066472)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    OLSON, Maureen Mae v. PERSSON
    A164518(S066337)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    SILVA, Jose Perez v. CAIN
    A163842(S066338)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Santiago Maximo VALLIN, aka Santiago Vallin, Defendant-Appellant.
    CC 17CR35704 (SC S065957)
    Supreme Court of Oregon, En Banc.
    March 28, 2019
    Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, filed the petition for reconsideration for appellant.
    No appearance contra.
    WALTERS, C. J.
    In State v. Vallin , 364 Or. 295, 434 P.3d 413 (2019), this court agreed with defendant that the trial court had erred in imposing a sentence under ORS 137.717(1)(b) (2015). We concluded that the 2017 version of that statute, Or. Laws 2017, ch. 673, § 5, governed defendant's sentence. Accordingly, the dispositional "tag line" of the opinion remanded the case for resentencing.
    Although he prevailed on the merits, defendant has petitioned for reconsideration of our opinion. He specifically seeks modification of the tag line in light of his conditional plea below, which he is permitted to withdraw on remand. See 364 Or. at 298-99, 434 P.3d 413 (setting out factual background); ORS 135.335(3) (effect of conditional plea is to reserve right to appeal specific adverse pretrial determination; defendant who prevails on appeal may withdraw earlier plea). The state has not filed a response in opposition to defendant's petition. We allow defendant's petition for reconsideration and modify our earlier tag line, to remand the case for further proceedings as follows:
    "The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings."
    The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified.


text:
    STATE v. ALEXEEV, Boris Nicholas
    A163767(S066333)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


text:
    STATE v. BROUSSARD, Daylon Suiyobi
    A164994(S066292)
    Supreme Court of Oregon.
    February 22, 2019
    Review Denied.


author: ARMSTRONG, P. J.

text:
    OREGON MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. THOSE CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER OROAKG2-CNE, Defendant-Respondent.
    A158240
    Court of Appeals of Oregon.
    Argued and submitted April 11, 2016. January 30, 2019
    Todd S. Baran argued the cause for appellant. Also on the briefs was Todd S. Baran, PC.
    Christopher T. Carson, Portland, argued the cause for respondent. Also on the brief were Candice R. Broock and Kilmer, Voorhees & Laurick, P.C.; Samuel B. Rainey and McCullough, Campbell & Lane LLP.
    Before Armstrong, Presiding Judge, and Hadlock, Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

Plaintiff Oregon Mutual Insurance Company (Oregon Mutual) brought this contribution action against defendant Those Certain Underwriters at Lloyd's London Subscribing to Policy Number OROAKG2-CNE (Lloyd's), asserting that Lloyd's was responsible as a co-insurer to pay a pro-rata share of the total amount paid to settle an automobile accident. On cross-motions for summary judgment, the trial court granted summary judgment to Lloyd's, and Oregon Mutual appeals. The question presented on appeal is whether the policy sold by Lloyd's is an excess liability policy under ORS 742.468(2), which provides an exemption for such policies from the Financial Responsibility Law (FRL), ORS 806.010 to 806.300. We conclude that the Lloyd's policy was an excess liability policy and, hence, the trial court did not err. Accordingly, we affirm.

The facts relevant to the appeal are undisputed. RSVP-SCP of Clackamas County (RSVP) is a nonprofit organization that, among other things, coordinates the work of volunteers to transport people to medical appointments. Schabert, a "registered volunteer" for RSVP, was acting in that capacity for RSVP when she arrived in her own vehicle at Saint's home to transport Saint to a medical appointment. As Saint was getting into Schabert's car, Saint slipped, fell, and fractured her leg. Saint released her claims against Schabert for a payment of $180,000.

Oregon Mutual, which provided a primary automobile insurance policy to Schabert, paid the first $100,000 of the settlement, which was the whole of the per-occurrence limit in Schabert's policy. Lloyd's, which provided a "volunteer excess auto liability" insurance policy for RSVP's "registered volunteers," paid the remaining $80,000 of the settlement.

The Lloyd's policy provided two types of "volunteer excess liability" coverage to registered volunteers of RSVP, who were the "insured" under the policy. RSVP, itself, was not an insured under the policy. Because only the "volunteer excess auto liability" coverage is at issue in this case, we recite only the portions of the policy relevant to that coverage. That coverage provided:

"Volunteer Excess Auto Liability. We will pay all sums in excess of the 'retained limit' that the insured becomes legally obligated to pay as damages because of 'Bodily injury', 'property damage' or 'personal injury' to which this insurance applies. The amount we will pay is limited as described in SECTION III-LIMITS OF INSURANCE."

The excess auto liability coverage had a $500,000 per accident limit and applied to "bodily injury," "property damage," or "personal injury" arising out of "the insured's volunteer service on behalf of [RSVP]" and caused by an "accident under the volunteer excess auto liability." The policy defined "retained limit" as

"the greater of:
"1. An amount equal to the applicable limits of insurance of any other insurance collectible by the insured; or
"2. An amount equal to the minimum limit of insurance required under the motor vehicle financial responsibility law of the state or province in which the 'accident' occurs or $50,000 or whichever is less."

The policy also had an exclusion for "[a]ny obligation under any uninsured or underinsured motorists law, 'no-fault' law, basic reparations benefit law, and any law requiring personal injury protection coverage, or any similar law." RSVP paid an annual premium of $513 for the Lloyd's policy. In contrast, Schabert paid an annual premium of $803 for the Oregon Mutual primary policy to cover her one vehicle.

Oregon Mutual brought this contribution lawsuit against Lloyd's, arguing that Lloyd's was a co-insurer, and not an excess insurer, that was responsible to pay a full pro-rata share of the settlement amount, under the doctrine set out in Lamb-Weston, Inc. v. Ore. Auto. Ins. Co. , 219 Or. 110, 341 P.2d 110, reh'g den. , 219 Or. 130, 346 P.2d 643 (1959).

Lloyd's argued that the policy that it provided to RSVP was an excess liability policy that is not subject to the Lamb-Weston doctrine. See Liberty Mut. Ins. v. Truck Ins. , 245 Or. 30, 36-37, 420 P.2d 66 (1966) (excess carriers are not required under Lamb-Weston to pay part of loss before first layer of coverage is exhausted). The trial court agreed with Lloyd's, concluding that the Lloyd's policy was an excess liability policy. The court accordingly granted Lloyd's motion for summary judgment and denied Oregon Mutual's motion for summary judgment. On appeal, Oregon Mutual assigns error to both of those rulings.

"When, as here, the facts are not in dispute, we review rulings on cross-motions for summary judgment to determine whether either party is entitled to judgment as a matter of law." Busch v. Farmington Centers Beaverton , 203 Or. App. 349, 352, 124 P.3d 1282 (2005), rev. den. , 341 Or. 216, 140 P.3d 1133 (2006). The issue presented in this appeal is a purely legal question.

On appeal, Oregon Mutual reprises the arguments that it made below. The chain of Oregon Mutual's argument is that ORS 742.450(2) requires every automobile liability insurance policy to meet the requirements of the FRL. "Excess liability policies" are exempt from those requirements, under ORS 742.468(2). Because Oregon Mutual concludes, as set out below, that the Lloyd's policy cannot be an excess policy, it also concludes that the Lloyd's policy must be construed to be a primary policy as required by the FRL, and, in turn, subject to the Lamb-Weston doctrine. Thus, for purposes of this appeal, the question we must answer is whether the Lloyd's policy qualifies as an exempt excess liability policy under ORS 742.468(2).

As to that question, Oregon Mutual relies on Hanson v. St. Paul Fire and Marine Ins. Co. , No. CV 10-1161-PK, 2011 WL 1086528 (D. Or. Mar. 22, 2011), an unpublished Oregon federal district court case that examined the meaning of "excess liability policies" in ORS 742.468, and concluded that that exemption applies only to "true" excess policies. Oregon Mutual argues that, based on the discussion in Hanson , to be a "true" excess policy, a policy must meet three conditions: (1) the policy must be written with the underlying primary policy in mind and acknowledge the underlying policy; (2) the policy must require maintenance of the underlying policy and identify its specific limits; and (3) the policy must be purchased and maintained by the same insured that holds the underlying primary policy. See id . at *12-13 (applying those features to the policy at issue in that case to determine if it was a "true" excess policy). Because the Lloyd's policy does not have any of those three features, Oregon Mutual concludes that it is not an excess liability policy under ORS 742.468.

Lloyd's responds that the policy that it issued to RSVP to cover its registered volunteers is a "true" excess liability policy. Lloyd's asserts that what constitutes an excess liability policy should be governed by the intention of the contracting parties, based on the terms and conditions of the policy. Here, Lloyd's argues, those terms and conditions show that Lloyd's intended to sell and RSVP intended to purchase excess insurance. In particular, Lloyd's points out that the policy does not provide for any "first-dollar" coverage-viz. , it only covers damages in excess of the limits of the underlying policy or, if there is no such policy, damages in excess of the minimum coverage requirements of the FRL-and the policy has a relatively low premium, $513, for a relatively high limit, $500,000. Lloyd's notes that the features of an excess policy discussed in Hanson -features primarily related to identifying a specific underlying primary policy-do not apply here for practical reasons, given the nature of covering volunteers, but argues that that fact does not convert the policy into a primary policy that neither Lloyd's nor RSVP intended.

We begin our analysis by rejecting Oregon Mutual's reliance on Hanson , a nonbinding federal district court case. In Hanson , the court relied on an Oregon Supreme Court case, Maine Bonding v. Centennial Ins. Co. , 298 Or. 514, 693 P.2d 1296 (1985), as a source to identify what the legislature would have understood is required for an excess liability policy. Hanson , No. CV 10-1161-PK, *7-9. However, that reliance by the Hanson court was misplaced. Maine Bonding was not a case in which identifying the necessary characteristics of an excess liability policy was in any way at issue. See Hoffman Construction Co. v. Fred S. James and Co. , 313 Or. 464, 473 n. 5, 836 P.2d 703 (1992) (rejecting a party's reliance on generalized statements about excess insurance in Maine Bonding because that case presented a different issue).

The issue in Maine Bonding was whether a primary insurer owed a duty of care to an excess insurer that had insured the same loss. In examining that issue, the court in Maine Bonding merely stated that the excess policy in that case was a "classic" excess liability policy, such that no issue under Lamb-Weston was implicated. Maine Bonding , 298 Or. at 516 n. 1, 693 P.2d 1296. The court, in setting out the relevant facts to address the issue that was presented, also revealed some of the excess liability policy's terms and conditions and the fact that the insured had purchased both the underlying primary policy and the excess policy. Id. at 516, 520, 693 P.2d 1296. That the excess liability policy in Maine Bonding happened to have the features outlined by the Hanson court, and relied on by Oregon Mutual, does not suggest that the legislature would have intended that "excess liability policies" under ORS 742.468(2) are required to have those features to qualify for the exemption under that statute.

Having rejected Hanson as a guide for our interpretation of ORS 742.468(2), we turn to construing the term "excess liability policies" as used in that statute. In doing so, we employ our usual methodology to determine the legislature's intention in enacting a statute by looking at the text of the statute in context, along with any useful legislative history. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

As noted above, ORS 742.468 exempts three types of liability policies from being considered motor vehicle liability policies for purposes of "statutes mandating kinds or amounts of coverage that motor vehicle liability policies must contain." Those three types are "(1) [c]omprehensive general liability policies," "(2) [e]xcess liability policies," and "(3) [u]mbrella liability policies." ORS 742.468. The statute does not define "excess liability policies;" thus, we apply the plain meaning of that term. In this case, the plain meaning is the one commonly understood in the context of insurance contracts. See, e.g. , State v. Gonzalez-Valenzuela , 358 Or. 451, 461-62, 365 P.3d 116 (2015) (explaining the importance of construing the plain meaning of statutory text in the context of the statute itself; "nuanced connotations may represent the plain meaning of a term in context even though those connotations result from tacit knowledge, accumulated experience, and common sense that are not reflected well-if at all-in dictionary definitions"). We have previously touched upon that meaning in our case law.

In Hoffman Construction Co. , the Supreme Court described three "tiers" of insurance-primary, excess, and umbrella:

"Liability insurance policies frequently are arranged in tiers, with each level of policy designed to 'kick in' when the coverage provided by the lower level of insurance is exhausted. The general nomenclature surrounding this phenomenon labels an insured's basic insurance as the 'primary' insurance, the insured's next level of insurance (that covers risks involving amounts in excess of the primary insurance) as 'excess' insurance, and the insured's final level of insurance (that covers risks only after and to the extent that lower levels do not) as 'umbrella' insurance."

313 Or. at 466 n. 1, 836 P.2d 703 (citing Annotation, Primary Insurer's Insolvency as Affecting Excess Insurer's Liability , 85 ALR 4th 729, 735-36 (1991) ). See also Ind. Finishes & Systems v. Am. Univ. Ins. , 79 Or. App. 614, 618, 720 P.2d 382, adh'd to as modified on recons. , 80 Or. App. 743, 724 P.2d 333 (1986) ("Primary insurance coverage is provided when, under the terms of the policy, liability attaches immediately upon the happening of an occurrence that gives rise to liability, as opposed to excess or secondary coverage, which attaches only after a predetermined amount of primary coverage has been exhausted."). Excess liability policies also have lower relative premiums and higher relative limits than primary policies, in light of the more remote risk of having to pay under the policy. See, e.g. , Liberty Mut. Ins. , 245 Or. at 35, 420 P.2d 66 (so recognizing with respect to the excess policy in that case). That understanding of excess liability coverage is supported by treatises on insurance law. As commonly understood in the insurance context, an excess liability policy is one that provides a specific amount of coverage above an underlying limit of primary insurance, but does not expand the scope of that coverage, viz. , the policy typically will not "drop down" to provide any first-dollar coverage, regardless of whether the insured maintains the primary insurance. See Douglas R. Richmond, 4 New Appleman on Insurance Law Library Edition § 24.02 (2018).

The "true" excess liability policy, described above, is different from a primary policy with an excess "other insurance" clause. An excess "other insurance" clause is a clause that provides that, if other insurance is available to cover the same loss, then the policy will provide only "excess" insurance over the other available insurance. When the legislature enacted ORS 742.468 it had long been understood that a primary policy with an excess "other insurance" clause was not an excess liability policy, but a primary policy. See Maine Bonding , 298 Or. at 516 n. 1, 693 P.2d 1296 (noting that distinction); Ind. Finishes & Systems , 79 Or. App. at 619, 720 P.2d 382 (policy was primary when, in the absence of other insurance, it provided coverage for the entire loss); see also Richmond, 4 Appleman on Insurance Law Library Edition § 24.07[3][b] ("Excess and umbrella policies clearly differ in purpose from primary policies containing excess 'other insurance' clauses[.] * * * Excess and umbrella policies are therefore regarded as true excess coverage over and above all primary policies, including those with excess 'other insurance' clauses."). Thus, whether a policy is an excess liability policy, as that term is commonly understood, turns on the type of coverage that the policy provides, viz. , is that coverage "truly" excess and does not provide first-dollar coverage, as described above, or is it primary insurance that purports to be excess only under certain circumstances. That determination turns on the particular policy at issue.

For purposes of ORS 742.468, there is no indication from the text, context, or legislative history that the legislature would have intended the term "excess liability policies" to mean anything different or more restrictive from how that term is commonly understood and has been discussed in our case law. We decline to adopt a particular "test," such as advocated by Oregon Mutual, for determining whether a policy is a "true" excess liability policy because such policies may be written any number of ways, with different obligations on the insured. The defining feature of a "true" excess liability policy, however, is to provide coverage to an insured that can only ever "kick in" above the limits of primary coverage. Although the features that Oregon Mutual describes may be useful in determining whether a policy is an excess liability policy in a particular case, those features are not required for a policy to be an excess liability policy under ORS 742.468.

Turning to the facts of this case, the Lloyd's policy is an excess liability policy under ORS 742.468(2). As set out above, the Lloyd's "volunteer excess auto liability" coverage only pays sums in "excess" of the "retained limit." In turn, the "retained limit" is the greater of (1) the limits of the insured's collectible insurance or (2) the minimum limit of insurance required by the FRL. The policy also expressly states that the coverage is not for the purpose of meeting any statutory minimum requirements by both setting the floor for the retained limit at the required minimum statutory requirement and by expressly excluding coverage for such statutory requirements. Thus, the policy provides no primary coverage and does not have any "drop down" to provide such coverage. The Lloyd's policy provides only the coverage that excess liability policies are commonly understood to provide; in contrast, the policy has no features of a primary policy with an excess "other insurance" clause. In addition, the Lloyd's policy had a relatively low premium and high limit-a common feature of a "true" excess liability policy. Because the Lloyd's policy was an excess liability policy under ORS 742.468(2), it is not subject to the requirements of the FRL.

Accordingly, the trial court did not err in granting summary judgment to Lloyd's.

Affirmed.

      The Lamb-Weston doctrine provides that,
      "if two or more insurers provide coverage for the same loss, and each attempts to limit the extent of its liability when there is other applicable insurance, if the respective 'other insurance' clauses purport to limit or preclude coverage on the basis of the existence of other coverage, then those clauses are disregarded and the liability of the individual insurers is prorated in the ratio that their respective policy limits bear to the cumulative limit of all of the applicable policies."
      Ind. Finishes & Systems v. Amer. Univ. Ins. , 79 Or. App. 614, 616-17, 720 P.2d 382, adh'd to as modified on recons. , 80 Or. App. 743, 724 P.2d 333 (1986).

      ORS 742.450(2) provides:
      "Every motor vehicle liability insurance policy issued for delivery in this state shall contain an agreement or indorsement stating that, as respects bodily injury and death or property damage, or both, the insurance provides either:
      "(a) The coverage described in ORS 806.070 and 806.080 ; or
      "(b) The coverage described in ORS 806.270."
      The FRL, ORS 806.010 to 806.300, requires automobile policies to cover the minimum limits of coverage provided in the FRL. See ORS 806.080 ; ORS 806.270.

      ORS 742.468 provides:
      "For purposes of statutes mandating kinds or amounts of coverage that motor vehicle liability policies must contain, the following shall not be considered motor vehicle liability policies:
      "(1) Comprehensive general liability policies.
      "(2) Excess liability policies.
      "(3) Umbrella liability policies."

      For example, Couch on Insurance describes the insurance "levels" as follows:
      "The first to kick in is the primary policy which covers any loss over a small deductible, has a relatively small maximum coverage, and requires relatively high premiums, since almost any covered loss will require the insurer to make some payment. The next level of insurance, pure 'excess' insurance, commonly kicks in at the maximum coverage under the primary policy, has a high maximum policy limit, and is purchased with relatively small premiums, since most covered losses will not reach the level at which the policy kicks in, hence the insurer expects to make payments seldom, if at all. A third level may exist, ordinarily consisting of another type of excess insurance commonly called 'umbrella' coverage, which kicks in at the upper limit of the first excess policy and has upper limits of its own that are higher than most insureds will ever need. Since the insurer will rarely be called upon to make payments under such a policy, the premiums are even lower than those for the excess insurance."
      Steven Plitt et al. , 1 Couch on Insurance § 6:35 (3rd ed. 2018) (footnotes omitted; emphasis added).
      The New Appleman on Insurance Law Library Edition describes in more detail the three "layers" of insurance as follows:
      "A primary policy provides the first layer of insurance coverage. Primary coverage attaches immediately upon the happening of an 'occurrence,' or as soon as a claim is made. The primary insurer is responsible in the first instance for defending and indemnifying the insured in the event of a covered or potentially covered occurrence or claim. Because primary insurers are generally obligated to defend their insureds and most losses will fall within the primary policy limits, primary insurers bear a greater risk and charge larger premiums than do excess and umbrella carriers. In contrast, relieved of primary insurance burdens, excess insurers charge relatively low premiums when compared to the amount of risk insured. * * *
      "* * * * *
      "An excess policy provides specific coverage above an underlying limit of primary insurance. A true excess policy does not broaden the underlying coverage. While an excess policy increases the amount of coverage available to compensate for a loss, it does not increase the scope of coverage. * * *
      "* * * * *
      "Many excess policies provide that an insured's failure to maintain its primary coverage will not invalidate the excess policy, but that the excess insurer will only be liable to the same extent that it would have been had the insured maintained the underlying coverage. * * *
      "* * * * *
      "An umbrella policy is similar to an excess policy in that it protects the insured against liability for catastrophic losses that would exceed the limits of affordable primary coverage. * * * An umbrella policy differs from an excess policy in a critical aspect: an umbrella policy typically insures against certain risks that a concurrent primary policy does not cover. * * * By dropping down to fill a gap in primary coverage, an umbrella policy broadens the insured's primary coverage whereas an excess policy does not."
      Douglas R. Richmond, 4 New Appleman on Insurance Law Library Edition § 24.02 (2018) (footnotes omitted; emphases in original).

      We acknowledge that the Lloyd's policy also has an excess "other insurance" clause. However, that clause only applied to amounts over the "retained limit" covered by other insurance. The existence of that clause had no effect on the character of the Lloyd's policy, which is an excess liability policy.