DURKEE v. STATE FARM AUTOMOBILE INS. CO., 105 Or. App. 625 (1991)

805 P.2d 699

Tracey DURKEE Appellant, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Respondent.

A8904-02092; CA A62939Oregon Court of Appeals.
Determination of appealability and for dismissal filed January 26, 1990, Motion to determine appealability allowed; motion to dismiss denied; Judgment vacated; remanded with instructions to enter order abating Action pending arbitration February 13, 1991

Appeal from Circuit Court, Multnomah County, Lee Johnson, Judge.

Paul L. Roess and Acker, Underwood, Norwood Hiefield, Portland, for the motion.

Scott M. Supperstein and Doblie Associates, Portland contra.

Before Rossman, Presiding Judge, and Newman and Edmonds, Judges.

PER CURIAM

Motion to determine appealability allowed; motion to dismiss denied; judgment vacated; remanded with instructions to enter order abating action pending arbitration.

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PER CURIAM

Plaintiff sued to recover uninsured motorist benefits under a policy issued by defendant. The trial judge allowed defendant’s motion to compel arbitration and entered a judgment dismissing the action. Plaintiff appeals from the judgment of dismissal. Defendant has moved for summary determination of appealability and to dismiss the appeal. We determine that we have jurisdiction and deny the motion to dismiss.

This court has jurisdiction, because a notice of appeal was timely filed from a judgment dismissing the action. ORS 19.010; Austin Mutual Ins. Co. v. Madril, 94 Or. App. 219, 221, 764 P.2d 1378 (1988). However, it was error for the trial court to enter a judgment of dismissal. ORS 36.315[1] requires that an action be abated rather than dismissed while arbitration proceeds, in order to prevent entry of an appealable judgment before completion of arbitration. 94 Or App at 222.

Motion to determine appealability allowed; motion to dismiss denied; judgment vacated; remanded with instructions to enter an order abating the action pending arbitration.

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