Trapp v. Hodges

302                  August 14, 2024                No. 558

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                   Walter TRAPP, Jr.,
                   Plaintiff-Appellant,
                             v.
                   Annika HODGES,
                 Defendant-Respondent.
             Multnomah County Circuit Court
                  20CV25735; A180665

  En Banc
  Chanpone P. Sinlapasai, Judge.
   Argued and submitted December 5, 2023; resubmitted
en banc April 23, 2024.
   Willard E. Merkel argued the cause for appellant. Also
on the opening brief was Merkel & Associates. Also on the
reply brief was Merkel & Conner.
   Thomas M. Christ argued the cause for respondent. Also
on the brief was Sussman Shank LLP.
  Before Lagesen, Chief Judge, and Ortega, Egan, Tookey,
Shorr, Aoyagi, Powers, Mooney, Kamins, Pagán, Joyce,
Hellman, and Jacquot, Judges.
  EGAN, J.
  Reversed and remanded.
  Egan, J., filed the opinion of the court in which Lagesen,
Tookey, Mooney, Kamins, Pagán, and Jacquot, JJ., joined.
  Mooney, J., concurred and filed an opinion in which
Lagesen, Ortega, Kamins, Joyce and Hellman, JJ., joined.
  Aoyagi, J., dissented and filed an opinion in which Shorr
and Powers, JJ., joined.
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 (2024)   303
304                                                        Trapp v. Hodges

            EGAN, J.
         In this action seeking damages for personal injuries
and property damages arising out of an automobile accident,
plaintiff appeals from a general judgment awarding him
damages of $2,500, challenging the trial court’s denial of
his petition for attorney fees under ORS 20.080,1 which provides a right to fees to plaintiffs who prevail in a tort action
seeking $10,000 or less in damages, if they made a pre-suit
demand on the defendant for payment, and if the amount
of damages recovered is not less than the amount offered
by the defendant before the action began. The trial court
denied plaintiff’s petition based on the trial court’s conclusion that defendant’s pretrial offer exceeded the amount
awarded in damages. For the reasons explained below, we
agree with plaintiff that the trial court erred and therefore
reverse the trial court’s order and remand for consideration
of plaintiff’s attorney fee request.
         The material facts are undisputed and mostly procedural. This action arose out of an automobile collision
between plaintiff and defendant on February 20, 2019, that
caused plaintiff physical injury and property damage. After
being declared medically stationary by his health care providers, plaintiff made a written demand on defendant on
June 20, 2019. In relevant part, that demand stated:
   “Our settlement evaluation of this claim is $10,000 ‘new
   money.’ This amount does not include PIP subrogation reimbursement owed State Farm because reimbursement is the
   State Farm’s separate claim. Please let us know during the

   1
       ORS 20.080(1) provides:
        “In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 or less, and the
   plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as
   attorney fees for the prosecution of the action, if the court finds that written
   demand for the payment of such claim was made on the defendant, and on the
   defendant’s insurer, if known to the plaintiff, not less than 30 days before the
   commencement of the action or the filing of a formal complaint under ORS
   46.465, or not more than 30 days after the transfer of the action under ORS
   46.461. However, no attorney fees shall be allowed to the plaintiff if the court
   finds that the defendant tendered to the plaintiff, prior to the commencement
   of the action or the filing of a formal complaint under ORS 46.465, or not more
   than 30 days after the transfer of the action under ORS 46.461, an amount
   not less than the damages awarded to the plaintiff.”
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   next 30 days whether we might conclude this matter on the
   basis proposed. Please consider this to be a 30 day pre-suit
   notice issued pursuant to ORS 20.080.”
Defendant’s insurance carrier acknowledged the demand
and tendered its offer on July 6, 2019. The offer stated:
   “We’ve evaluated your client’s claim based on the information presented and are prepared to resolve their injury
   claim for $3,900 (Three Thousand Nine Hundred Dollars),
   inclusive of all liens, plus PIP owed to State Farm.”
It is undisputed that the personal injury protection (PIP)
carrier, State Farm Insurance, had paid plaintiff benefits in
the amount of $2,684.36.
        Plaintiff filed a complaint against defendant alleging that he was injured due to defendant’s negligence.
Defendant’s answer admitted liability but denied the extent
of damages sought by plaintiff. Plaintiff amended his complaint at trial, to reduce his alleged damages for personal
injury by $894.92, and to add an allegation of property damage in that same amount, so that the total amount of damages claimed remained at $10,000.
         Following a jury trial, plaintiff was awarded $2,000
for personal injury and $500 for economic loss. Plaintiff then
sought attorney fees in the amount of $31,960, and he outlined his compliance with ORS 20.080(1). Plaintiff argued
that the jury’s award exceeded defendant’s effective pretrial
tender of $1,215.64, after the deduction of State Farm’s PIP
lien of $2,684.36.
        In its order denying the request, the trial court
explained:
      “6. The Court finds the pretrial offer extended on
   behalf of defendant on July 6, 2020, was unambiguous and
   the $3,900.00 excluded plaintiff’s PIP lien.
      “7. Defendant’s pretrial offer of $3,900.00 exceeded
   plaintiff’s jury award of $2,500.00. Pursuant to ORS
   20.080, Plaintiff is not entitled to attorney’s fee[s].”
        We review the trial court’s attorney-fee ruling for
errors of law. Callais v. Henricksen, 

,

 (2021). As an initial matter, defendant argues
306                                                          Trapp v. Hodges

that plaintiff cannot recover attorney fees, because defendant’s pre-suit demand did not meet the requirements set
out in ORS 20.080.2 Defendant argues that when plaintiff
amended his complaint to include an allegation of property
damage and reduce the alleged personal injury damages to
keep the total damages under $10,000, the pre-suit demand
was no longer adequate, as the demand fundamentally
changed, and plaintiff’s original demand therefore became
void. Essentially, defendant argues that plaintiff failed to
show that “written demand for the payment of such claim
was made on the defendant, and on the defendant’s insurer,
if known to the plaintiff, not less than 30 days before the
commencement of the action or the filing of a formal complaint” in accordance with ORS 20.080(1).
         We reject defendant’s argument. Plaintiff’s pre-suit
demand was straightforward and did not make any distinction between personal injury and property damage. The
demand’s only qualifiers were that it did not include State
Farm’s PIP subrogation and that it was under the $10,000
cap set forth in ORS 20.080. In contrast, defendant’s tender specifically referenced only damages for personal injury.
Defendant attempts to recast plaintiff’s demand as an offer
to settle only damages for personal injury when the demand
    2
      ORS 20.080(1) is, first and foremost, a consumer protection statute.
Oregon’s appellate courts have repeatedly announced the fundamental purpose
of ORS 20.080(1):
    “ ‘The purpose of the [statutorily required] notice is to give the defendant an
    opportunity to settle the case. …
    “ ‘The purpose of the statute is to coerce tortfeasors and their insurance companies into settling small, legitimate claims where it is impracticable for the
    offended party to employ an attorney to prosecute his claim.’ ”
Fresk v. Kraemer, 

, 

 (2003), aff’d, 

, 

 (2004) (quoting Landers v. E. Texas Motor Frt. Lines, 

,

 (1973)); see also Heen v. Kaufman, 

, 

 (1971)
(“The obvious purpose of the statute is to encourage the settlement of damage
claims where the amount involved is not large.”); Johnson v. White, 

, 

 (1968) (statute’s purpose is “to prevent insurance companies and others having liability for torts from refusing to settle and pay just
claims therefor. … The statute is in the nature of a warning to plaintiffs not to
inflate small claims beyond just amounts, in order that the tort-feasor may in good
faith make settlement of such claims without resorting to the courts”); Troute v.
Aero Mayflower Transit Co., 

, 

 (1986) (statute’s
purpose is “the prompt settlement of small but well-founded claims”). At its core,
ORS 20.080(1) was designed to mitigate the systematic leveraging of litigation
costs against consumers in the settlement of low value claims.
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was not cast in those terms or limited to personal injury.3
Therefore, we conclude that plaintiff’s pre-suit offer met the
requirements of ORS 20.080(1).
          The remaining question is whether defendant’s pre-trial offer exceeded the damages awarded by the jury, which,
in turn, depends on whether defendant’s offer, which stated
that it was “inclusive of all liens, plus PIP owed to State
Farm,” included the amount owed to State Farm for its PIP
payments. Plaintiff argues that defendant’s pretrial tender
was reasonably interpreted as “inclusive” of the amount
paid by the PIP carrier—that is, that it included the amount
subject to State Farm’s PIP lien. Defendant argues that the
only plausible interpretation of the tender was that all liens
were included in the tendered amount but that the tender
did not include the PIP subrogation claim, which would be
paid or negotiated by defendant outside of the tender.
         In interpreting an offer letter, the court will first
determine whether the provision at issue is ambiguous.
See Allianz Global Risks v. ACE Property & Casualty Ins.
Co., 

, 

, adh’d to as modified on
recons, 

, 

 (2021). In doing so, the court
applies “any definitions contained in the policy and otherwise giv[es] words their plain, ordinary meanings.” See Fred
Shearer & Sons, Inc. v. Gemini Ins. Co., 

,

 (2010), rev den, 

, 

 (2011).
For potentially ambiguous terms, “the court considers the
context in which the term appears and then the context of
the policy as a whole.” Allianz, 

. “[I]f ambiguity
remains, the term is construed against the drafter.” 

         The terms of a tender letter are ambiguous if those
terms are capable of having two or more meanings. See
Coelsch v. State Farm Fire and Casualty Co., 

, 

 (2019) (“ ‘A term is ambiguous …
only if two or more plausible interpretations of that term
withstand scrutiny, i.e., continue[ ] to be reasonable.’ ” (quoting Hoffman Construction Co. v. Fred S. James & Co., 

, 

 (1992) (emphasis in Hoffman;
brackets in Coelsch); Batzer Const., Inc. v. Boyer, 

      Defendant makes no argument that plaintiff’s demand was ambiguous on
this particular issue.
308                                                Trapp v. Hodges

309, 313, 

, rev den, 

 (2006) (A term
is ultimately ambiguous “if it has no definite significance
or if it is capable of more than one sensible and reasonable
interpretation.”)).
         Defendant’s tender stated:
   “We’ve evaluated your client’s claim based on the information presented and are prepared to resolve their injury
   claim for $3,900 (Three Thousand Nine Hundred Dollars),
   inclusive of all liens, plus PIP owed to State Farm.”
(Emphases added.) Defendant argues that there is no ambiguity when the tender is read with the rules of grammar
and syntax in mind. Specifically, defendant states that “plus
is a conjunctive that means the same as and[.]” (Emphases
in original.) Defendant further argues that the commas
around “inclusive of all liens” signify that one parenthetical phrase is ending, and another is beginning, such that
“inclusive of all liens” is separate from “plus PIP owed to
State Farm.” In her answering brief, defendant states:
       “Plaintiff’s reading of the letter also ignores the two
   commas between ‘$3,900’ and ‘plus.’ … In Farmer’s letter, the commas before ‘inclusive’ and after ‘liens’ mark the
   start and finish of the parenthetical phrase – i.e., ‘inclusive
   of all liens’ – that modifies the first of the two objects of the
   preposition for. The first object is ‘$3,900 (Three Thousand
   Nine Hundred Dollars).’ The second is ‘PIP owed to State
   Farm.’ The offer, then, was for both things - $3,900 and the
   PIP owed to State Farm. … Plaintiff’s contention that the
   offer was for $3,900 less the PIP owed to State Farm is an
   implausible interpretation of the letter as punctuated.”
(Emphases in original.) Defendant argues that the rules of
grammar restrict our interpretation and that, when the tender is read with the proper grammar, there can only be one
plausible interpretation of the tender. In defendant’s view,
the only plausible interpretation of the tender is that defendant offered $3,900.00, less any liens, plus $2,684.36, the
amount owed to State Farm for its PIP payments.
         Plaintiff argues that the pre-trial offer letter was
ambiguous, and that it was reasonable for plaintiff to understand the offer as including State Farm’s PIP subrogation
lien. First, plaintiff argues that because, in defendant’s own
Cite as 

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words, “plus is a conjunctive that means the same as and,”
the phrase “inclusive of all liens” includes the PIP amount
owed to State Farm. Second, because plaintiff’s pre-suit
settlement demand specifically excluded a claim for PIP subrogation, interpreting defendant’s pretrial tender stating
that it was “inclusive” of all liens to include the amount paid
by the PIP carrier was reasonable, because interpreting the
provision otherwise would mean that defendant made a settlement offer on a claim that plaintiff did not own and did
not assert.
         A court interprets the terms of an insurance policy according to what the court perceives to be the understanding of the ordinary purchaser of insurance. Totten v.
New York Life Ins. Co., 

, 

(1985) (language in the policy should be given its common
and ordinary meaning). Here, that principle is helpful in
framing our interpretation of the offer’s ambiguity because
defendant’s insurance carrier drafted the tender, and plaintiff, an ordinary purchaser of insurance, was presented
with the tender. We agree with plaintiff that the tender is
ambiguous, because, from the perspective of the ordinary
purchaser of insurance, and giving the text its common and
ordinary meaning, the offer is “capable of more than one
sensible and reasonable interpretation.” Batzer Const., Inc.,
204 Or App at 313. Given the relevant context, that plaintiff’s settlement demand specifically excluded PIP reimbursement, interpreting defendant’s pre-trial offer letter as
inclusive of the PIP subrogation claim was reasonable.
         The issue is not, as defendant argues and the dissenting opinion concludes, whether the tender, as written,
is grammatically correct.4 As Judge Mooney’s concurrence
reflects, the grammatical rules for the usage of commas
are themselves unsettled, something that counsels against
applying them rigidly—at least when it comes to commas. 

-13 (Mooney, J., concurring). That is

    4
      The dissent argues that we cannot find that the offer was ambiguous
because we would be assuming the possibility of a grammatical mistake to create
an ambiguity. 334 Or App at 316-17 (Aoyagi, J., dissenting). However, we are not
concluding that the offer was grammatically incorrect or making any conclusions
about the sentence’s grammatical usage, but rather that, as written, there exist
two plausible interpretations of the offer.
310                                                         Trapp v. Hodges

particularly so here, where we are called upon to evaluate
whether the writing of a private party—not a legislative or
judicial body—reasonably can be read more than one way. It
may be reasonable to apply grammatical rules to the work of
legislatures and courts, especially where such bodies have
announced that they adhere to a particular style manual
or set of grammatical rules, although the Supreme Court
has cautioned against mechanical reliance on grammar in
interpreting statutes. Lake Oswego Preservation Society v.
City of Lake Oswego, 

, 

 (2016)
(“[W]hile grammatical ‘rules’ are helpful in statutory interpretation, they are often subject to qualification and should
not be applied mechanically in seeking to discern the meaning of a provision. Rather, because the legislature sometimes
expresses itself in unusual ways, the best reading of a statute is not necessarily the most obvious one, grammatically
speaking.”) Such caution is even more imperative when it
comes to construing the writings of private parties, who are
unlikely to have consulted each other, or reached consensus,
on principles of grammar and style.
         So the question is not whether the tender was grammatically correct. Rather, the question is whether the use
and placement of the comma distinctly delineate whether
the PIP amount is part of or separate from the $3,900 for
all reasonable readers. They do not, and, as a result, give
rise to an ambiguity as to whether PIP was included from,
or excluded from, the offer. As a general rule, ambiguous
language is construed against the drafter. Hoffman, 

. Applying that rule here, we resolve the ambiguity against defendant, interpreting defendant’s tender
$3,900.00 offer as a net offer to plaintiff of $1,215.64, after
deduction of the PIP lien of $2,684.36.5
        The jury awarded plaintiff $2,000 for personal injuries and $500 in economic damages. The award exceeded
respondent’s tender, which effectively offered plaintiff
$1,215.64. Thus, plaintiff’s award at trial “beat” defendant’s
    5
      On appeal, the parties do not contend that there is any extrinsic evidence
that would aid in resolving the meaning of the ambiguous term in defendant’s
tender. Therefore, it is appropriate for us to construe the term as a matter of law.
See Cryo-Tech, Inc. v. JKC Bend, LLC, 

, 

 (2021),
rev den, 

 (2022).
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net offer by $784.36. Therefore, under ORS 20.080, plaintiff
is entitled to reasonable attorney fees for his noneconomic
damages.
           Reversed and remanded.
           MOONEY, J., concurring.
        I agree that this matter should be sent back to
the trial court for consideration of plaintiff’s attorney fee
request. I write separately to address the question of grammar and, in particular, the comma.
         There are rules of grammar. There are canons of
grammar. There is even a grammar canon: “The doctrine
that words are to be given the meaning that proper grammar and usage would assign them … .” Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 430 (2012). Whatever you call them, rules of grammar
are seldom absolute. And like language itself, they evolve
over time. We have a Style Manual, used daily by Court of
Appeals clerks, staff attorneys, and judges, that devotes an
entire section to grammar. That section is presented as a
“guide,” and it begins with this statement:
       “This section addresses issues of word treatment, grammar, punctuation, and usage that arise frequently in opinion drafting. It is not exhaustive. Grammar and usage are
    not exact sciences; there are many questions of style about
    which reasonable minds can differ. To promote consistency,
    however, the courts generally follow the conventions outlined below.”
Oregon Appellate Courts, Style Manual 66 (2023), https://
w w w.c ou r t s .o r e g o n . g o v/ p u bl i c a t io n s / D o c u m e nt s /
UpdatedStyleManual2002.pdf.
         When we are called upon to determine what a writing means, we often focus our inquiry on what the author
intended the writing to mean. That is our focus when we
construe statutes. See ORS 174.020(1)(a) (courts “shall pursue the intention of the legislature if possible”); State v.
Gaines, 

, 

 (2009) (the goal when
construing a statute is to discern legislative intent). And
that is our focus when we construe contracts and written
agreements. See, e.g., ORS 42.240 (“In the construction of
312                                           Trapp v. Hodges

an instrument the intention of the parties is to be pursued
if possible[.]”); Bo and Lia Holdings LLC v. 2021 Morrison
LLC, 

, 

 (2021), rev den, 

 (2022) (explaining that “the intent of the parties to
a contract controls a court’s interpretation of it” (internal
quotation marks omitted)).
         The writing in question is not a statute. It is not a
contract. It is a letter. The letter is on Farmers Insurance
letterhead, and it is signed by a “Field Claims Representative.”
Farmers insures the at-fault driver—defendant. The letter
was addressed to the injured party’s attorney, and it was
sent in response to their pre-litigation settlement demand.
Our job is to determine what Farmers meant when it sent
that letter. The record does not contain any testimony—
written or oral—from the Farmers representative who
wrote the letter, and, thus, we are left to examine the words
in the letter in the context in which they were written to
determine what he meant. In doing so, we consider the circumstances under which the letter was written, including
the letter writer’s relationship to Farmers, and the relationships among and between all the parties and key players.
ORS 42.210 - 42.250. The goal is to determine, if reasonably
possible, what offer Farmers intended to make through that
letter.
         The way in which the words are structured into
phrases and sentences certainly helps us understand what
was written, but we examine the letter as a panel of judges
and not as “a panel of grammarians.” Flora v. United States,

, 

, 

, reh’g den, 

 (1960). I agree with the majority of my colleagues
who conclude that the question “is not whether the tender
was grammatically correct.” 334 Or App at 310. The injured
party’s request for attorney fees does not, and should not,
turn on the presence or absence of a comma in Farmers’
letter. Many things have been said about the comma over
time. Indeed, the significance of commas has been the subject of rigorous debate among lawyers, newspaper editors,
and educators. We devote more pages of our Style Manual
to the comma than to any other punctuation mark. Lynne
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Truss devoted an entire chapter to the comma in her best
seller Eats, Shoots & Leaves. She mused that,
   “When it comes to improving the clarity of a sentence, you
   can nearly always argue that one should go in; you can
   nearly always argue that one should come out.”
Lynne Truss, Eats, Shoot & Leaves: The Zero Tolerance
Approach to Punctuation 80 (2003). Indeed, whether reading
a letter, a contract, or a text message, I can almost always
identify a comma to remove or a place to insert one.
         I take no issue with the view that commas serve
different functions, for different reasons, at different times.
I agree that some commas are more necessary than others.
But I do not view this as a case where the placement of a
comma was so clearly required or that its presence was so
grammatically correct that it rendered Farmers’ offer unambiguous as a matter of law. There is nothing about the placement of commas around the phrase “inclusive of all liens”
and the use of the word “plus” that rings the bell of textual
certainty to the point of an unambiguously clear tone.
          The use of the “inclusive” and “plus” phrasing in
Farmers’ offer is, frankly, odd. It should come as no surprise that the majority and dissenting opinions read that
sentence differently. I reject the notion that fidelity to the
“normal rules of grammar” elevates one reading over the
other. 334 Or App at 315 (Aoyagi, J., dissenting). Moreover, I
am not convinced that characterizing the phrase “inclusive
of all liens” as a “nonrestrictive adjectival phrase” is correct.
Id. Whether the offer included or excluded liens was essential to understanding the offer because it impacted how
much cash plaintiff would actually receive had he accepted
it. And given that the letter was written in response to a
pre-litigation demand made under ORS 20.080, it was also
essential to understand what the comparator number would
be if, as happened here, a need arose down the road to compare it to the verdict. I would characterize “inclusive of all
liens” as a restrictive adjectival phrase which, according to
the rules of grammar, means that commas should not have
been used.
314                                            Trapp v. Hodges

         If I was an English teacher, I would probably give
the Farmers representative a C- for his use of grammar in
the letter. But I am not an English teacher, and this is not
an academic exercise. Entirely ordinary and reasonable people, perhaps not unlike the majority and dissenting judges,
would read Farmers’ offer in more than one way. That means
that the offer is ambiguous. The commas do not eliminate
that ambiguity; they help create it. We must construe the
letter against its drafter—Farmers. I concur.
       Lagesen, C. J., and Ortega, Kamins, Joyce, and
Hellman, JJ., join in this concurrence.
        AOYAGI, J., dissenting.
         The trial court did not err when it applied ORS
20.080(1) to deny attorney fees and costs to plaintiff, based
on plaintiff having turned down a pre-suit offer more favorable than the trial verdict. The majority concludes that the
pre-suit offer was ambiguous and, on that basis, reverses
the trial court’s ruling and requires an award of attorney
fees and costs to plaintiff. The offer was unambiguous, however, so I would affirm the trial court’s ruling. Accordingly,
I respectfully dissent.
         Plaintiff and defendant were involved in an automobile accident. Plaintiff sent a pre-suit notice to defendant,
stating, in relevant part:
      “Our settlement evaluation of this claim is $10,000 ‘new
   money.’ This amount does not include PIP subrogation reimbursement owed State Farm because reimbursement is the
   State Farm’s separate claim. Please let us know during the
   next 30 days whether we might conclude this matter on the
   basis proposed. Please consider this to be a 30 day pre-suit
   notice issued pursuant to ORS 20.080.”
Defendant’s insurer responded:
   “We’ve evaluated your client’s claim based on the information presented and are prepared to resolve their injury
   claim for $3,900 (Three Thousand Nine Hundred Dollars),
   inclusive of all liens, plus PIP owed to State Farm.”
Plaintiff rejected the offer and proceeded to trial. A jury
awarded plaintiff $2,500. The trial court denied attorney fees
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to plaintiff under ORS 20.080(1), because plaintiff had turned
down a pre-suit offer more favorable than the verdict received.
         The majority reverses that ruling, holding that
defendant’s offer was ambiguous. Like a contract provision,
an offer is ambiguous if it is susceptible to more than one
plausible interpretation. Frost v. Jacobs, 

, 76
& n 6, 

 (2024). Here, the trial court read the
offer as unambiguously offering to pay $3,900 to plaintiff,
plus whatever PIP amount was owed to State Farm. The
majority acknowledges that as a plausible interpretation
but posits an alternative interpretation: that the PIP reimbursement to State Farm was to be taken out of the $3,900.
State Farm paid $2,684 in PIP benefits, so, under that reading, defendant offered to pay $1,216 to plaintiff and $2,684
to State Farm.
        The majority’s alternative interpretation is not
plausible, for multiple reasons. The first reason is that it
disregards the grammatical structure of the sentence and
incorrectly treats these two sentences as equivalent:
  •   We are prepared to resolve their injury claim for $3,900,
      inclusive of all liens, plus PIP owed to State Farm.
  •   We are prepared to resolve their injury claim for $3,900,
      inclusive of all liens plus PIP owed to State Farm.
Applying the normal rules of grammar, those two sentences
have different meanings. In the first sentence (the actual sentence used in the offer), “inclusive of all liens” is a nonrestrictive adjectival phrase modifying “$3,900”—with two commas
setting it off as a separate clause—followed by a conjunctive
“plus” linking the two components of the offer, “$3,900” and
“plus PIP owed to State Farm.” If “plus PIP owed to State
Farm” was meant to be part of the adjectival phrase “inclusive
of all liens,” then placing a comma in the middle of it is grammatically incorrect and changes the meaning of the sentence.
         In the second sentence (the hypothetical sentence
posited by the majority), the lack of a comma results in a
single adjectival phrase, “inclusive of all liens plus PIP owed
to State Farm,” which modifies “$3,900.” That is an unusual
way to use the word “plus,” but that is how the majority
imagines the sentence, and, if the offer were actually written
316                                          Trapp v. Hodges

that way, then I would agree that “PIP owed to State Farm”
has to be considered part of what is included in the $3,900.
The offer was not written that way, however, and I reject the
idea that we should disregard proper grammar to create an
ambiguity.
          The first sentence is grammatically correct and has
a singular meaning, so it is unambiguous. The only way
to read it as ambiguous is to posit that the drafter made
a grammatical mistake that resulted in him saying something different from what he meant. Certainly, grammatical errors can lead to ambiguity. See, e.g., Hurst/Van Dusen
v. Rosenblum, 

, 

 (2020) (“The
comma between ‘industry’ and ‘fossil fuels’ makes the first
clause of the caption ambiguous, and that ambiguity could
confuse some voters.”); Wilson v. Dept. of Corrections, 

, 557 n 4, 

 (2013) (“If there were a
comma between ‘material’ and ‘which,’ we would have an
altogether different case, because the rule would imply that
all sexually explicit material is presumed to be harmful.
By using ‘which’ instead of the more grammatically proper
‘that,’ the rulemakers create[d] an ambiguity.” (Emphases
omitted.)). But when a sentence is grammatically correct,
there is no reason to posit a grammatical mistake.
         When drafters use grammatically correct language
that makes sense, we normally assume that they meant
what they said. See generally State v. Webb, 

, 386-
87, 

 (1996) (applying “general grammatical rules”
to interpret a statute, including rules about comma usage as
relevant to the meaning of modifying clauses); Curly’s Dairy
v. Dept. of Agriculture, 

, 

 (1966)
(“Punctuation marks are a proper guide to interpreting a
statute and in ascertaining the legislative intent.”); State v.
Berger, 

, 

 (2017) (recognizing that “the meaning conveyed through the grammar
and structure” of statutory language should be considered
“to ascertain the statute’s plain meaning,” and considering
as part of construing the statutory provision at issue that
the legislature “followed th[e] grammatical rules” (internal
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quotation marks omitted)).6 Accordingly, in this case, we
should assume that the drafter of the offer meant what he
said, rather than positing a grammatical error to create an
ambiguity.
         A second, related reason that the majority’s alternative interpretation of the offer is implausible is that disregarding the drafter’s use of commas has the effect of changing the meaning of “plus” to “minus” or “less,” words with
the opposite meaning. By disregarding the grammar of the
sentence in the offer, the majority creates a situation where
these three sentences would all have the same meaning:
   •   We are prepared to resolve their injury claim for $3,900,
       inclusive of all liens, plus PIP owed to State Farm.
   •   We are prepared to resolve their injury claim for $3,900,
       inclusive of all liens, minus PIP owed to State Farm.
   •   We are prepared to resolve their injury claim for $3,900,
       inclusive of all liens, less PIP owed to State Farm.

Those sentences do not have the same meaning. By putting
a comma after “inclusive of all liens” and using the conjunction “plus,” defendant unambiguously conveyed that the
“PIP owed to State Farm” was in addition to the “$3,900,
inclusive of all liens,” not an amount to be subtracted from
the $3,900.
        A third reason that the majority’s alternative interpretation is implausible is that it disregards the notice
from plaintiff to which defendant was responding. Plaintiff
sought $10,000 in “new money,” not to include “PIP subrogation reimbursement owed State Farm because reimbursement is the State Farm’s separate claim.” In response,
defendant offered $3,900 in new money, plus whatever PIP
reimbursement was owed to State Farm. Both parties thus
treated the PIP reimbursement to State Farm as separate
from what would be paid to plaintiff. That defendant’s offer
tracks plaintiff’s demand reaffirms that the offer means
     6
       Indeed, even when something is awkwardly written, it does not follow that
it is ambiguous. See, e.g., Garcia v. Clark, 

, 464 

(2019) (en banc) (concluding that an awkwardly written will was nonetheless
unambiguous).
318                                         Trapp v. Hodges

exactly what it says. See Frost, 

 (relying in
part on a disconnect between the plaintiff’s demand and the
defendant’s response to explain why the language of a pre-suit offer under ORS 20.080 was ambiguous).
         Finally, I disagree with the notion that the meaning of commas is inherently ambiguous and unknowable—
or, according to the concurrence, knowable only by reference
to the subjective intent of the drafter. Oregon “subscribes to
the objective theory of contracts,” including as to contract
formation. Kabil Developments Corp. v. Mignot, 

, 

 (1977) (internal quotation marks omitted).
“[T]he law of contracts is not concerned with the parties’
undisclosed intents and ideas. It gives heed only to their
communications and overt acts.” Kitzke v. Turnidge, 

, 

 (1957); see also Rudder v. Hosack, 

, 

, rev den, 

 (2022)
(“Issues of contractual intent are determined by the objective manifestations of the parties, not what they subjectively
believe that the terms mean.”). Here, the written offer is
objectively clear, which is the end of the analysis.
          The majority states, “As Judge Mooney’s concurrence reflects, the grammatical rules for the usage of commas are themselves unsettled, something that counsels
against applying them rigidly—at least when it comes to
commas.” 334 Or App at 309 (Egan, J., majority); see also
334 Or App at 312-13 (Mooney, J., concurring). But there
is a critical difference between commas that serve a grammatical purpose and thus affect the meaning of a sentence
(like the comma at issue in this case) and discretionary commas used for readability. See Lynne Truss, Eats, Shoots &
Leaves, 70 (2003) (commas serve “two quite distinct functions,” one of which is “[t]o illuminate the grammar of a sentence,” and the other of which is “[t]o point up—rather in
the manner of musical notation—such literary qualities as
rhythm, direction, pitch, tone and flow”); id. at 27 (“My own
position is simple: in some matters of punctuation there are
simple rights and wrongs; in others, one must apply a good
ear to good sense.”).
       The fact that some commas are discretionary does
not mean that all commas have debatable meaning. Indeed,
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the book Eats, Shoots & Leaves, cited by the concurrence,
emphasizes the importance of using commas intentionally
so as to avoid ambiguity, stating, “More than any other
mark, the comma requires the writer to use intelligent discretion and to be simply alert to potential ambiguity.” Id. at
96. Disregarding grammatical rules regarding commas and
taking a casual approach to them—as the majority does in
this case—wreaks “semantic havoc.” See id. at 82 (“[R]ules
certainly exist for the comma and we may as well examine
some of them. The fun of commas is of course the semantic
havoc they can create when either wrongly inserted (‘What
is this thing called, love?’) or carelessly omitted (‘He shot
himself as a child.’).”).
         As Truss puts it, “The reason to stand up for punctuation is that without it there is no reliable way of communicating meaning.” Id. at 20.
         For those reasons, the trial court did not err in
ruling as it did. Contrary to the majority’s conclusion, the
offer drafter’s use of a comma does in fact “distinctly delineate whether the PIP amount is part of or separate from
the $3,900[.]” 334 Or App at 310 (Egan, J., majority). It
makes clear that it is separate. I would therefore affirm and
respectfully dissent.
        Shorr, and Powers, JJ., join in this dissent.