Opinion
C 89-0777; CA A72430
On respondent's petition for reconsideration filed September 1, reconsideration allowed; opinion ( 122 Or. App. 77, 857 P.2d 158) modified and adhered to as modified October 6, petition for review denied December 14, 1993 ( 318 Or. 171)
Appeal from Circuit Court, Benton County.
Frank D. Knight, Judge.
Michael A. Lehner and Lehner, Mitchell Rodrigues, Portland, for petition.
Before Deits, Presiding Judge, and Riggs and Durham, Judges.
RIGGS, J.
Reconsideration allowed; opinion modified and adhered to as modified.
Plaintiff petitions for review of our opinion reversing a summary judgment. 122 Or. App. 77, 857 P.2d 158 (1993). Treating the petition as one for reconsideration, we allow it and modify our former opinion. ORAP 9.15(1).
Plaintiff insured a chrome plating facility that contaminated groundwater in Corvallis. Both the chrome plating facility and city are liable for clean-up costs. City gave notice to and sought indemnity from plaintiff. Plaintiff sought a declaratory judgment that it was not liable due to tardy and inadequate notice. Its motion for summary judgment was granted, and city and chrome plating facility appealed. We held that summary judgment was inappropriate because questions of fact remained concerning the adequacy of the notice.
In our opinion, we mistakenly referred to city as "the insured." City was, in fact, not a named insured, and therefore we modify our opinion by removing the language that named city as an insured. The modification does not alter our analysis. Plaintiff admits that a party other than an insured can give notice as long as the purpose of the notice requirement is satisfied. Lusch v. Aetna Cas. and Surety Co., 272 Or. 593, 599, 538 P.2d 902 (1975).
Reconsideration allowed; opinion modified and adhered to as modified.