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From the Desk of Jeff Eberhard: Claims against bars, taverns and even social hosts come in several varieties, one of which occurs when an intoxicated driver is involved in an accident causing injuries to the passenger.  But if the passenger played a role in the driver’s intoxication, will the passenger have a claim against the bar, tavern or social host for serving the intoxicated driver? Read on to find out.

Content Types Archives: Case Updates

Jeff Eberhard Managing Partner

Court of Appeals Enforces the Complicity Doctrine in Liquor Liability Suits: Holds Passenger May Not Sue Bar Claiming Over Service to Driver

From the Desk of Jeff Eberhard: Claims against bars, taverns and even social hosts come in several varieties, one of which occurs when an intoxicated driver is involved in an accident causing injuries to the passenger.  But if the passenger played a role in the driver’s intoxication, will the passenger have a claim against the bar, tavern or social host for serving the intoxicated driver? Read on to find out.

Claims Pointer: A common factual scenario encountered by bar and tavern owners is where friends go together or meet at a bar, drink together and at the end of the night, leave together, with one of the intoxicated friends driving and the other riding as a passenger.  In cases where the passenger is injured while traveling with the intoxicated driver and the injured passenger brings a claim against the bar or tavern, Oregon’s Liquor Liability Statute, ORS 471.565, requires the passenger to prove that they did not substantially contribute to the driver’s intoxication. Our firm represented the bar that served the alcohol.  The trial court granted our summary judgment motion.  The Oregon Court of Appeals found that the plaintiff failed to submit evidence to show that he did not substantially contribute to the driver’s intoxication, and confirmed that the trial court properly granted summary judgment in favor of our client.

Mason v. BCK Corporation, 292 Or App 580 (2018).

Plaintiff Mathew Mason (“Plaintiff”) was at BCK Corporation dba Duffy’s Irish Pub (“Duffy’s Irish Pub”) when he ran into a family friend, Jolene Mullenix (“Mullenix”).  Mullenix was with her fiancé, Hidaro, and the three of them bought drinks for each other, staying at Duffy’s Irish Pub from 9:00 p.m. until about 2:00 a.m.  During the course of the night, they consumed multiple rounds of drinks– perhaps as many as 10...

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Jeff Eberhard Managing Partner

Oregon Case Law Update: Court of Appeals Reaffirms Position on Noneconomic Damages

From the Desk of Jeff Eberhard: If the jury awards plaintiff $10,500,000 in noneconomic damages, will the court find that applying the statutory $500,000 noneconomic damages cap violates the remedy clause of the Oregon Constitution? For now, the answer is yes. Read on to find out why that answer may change.

Claims Pointer: Because the Oregon Court of Appeals found that to ORS 31.710(1) violated the remedy clause in Vasquez and Rains, the Court of Appeals’ ruling, in this case, was somewhat expected.  It is likely that in the meantime, the Court of Appeals will continue to invalidate the statutory cap on noneconomic damages.  As such, the next opportunity for clarification will come from the Oregon Supreme Court, which could take over a year to render a decision.  The Oregon Supreme Court has accepted a petition for review of the Vasquez decision.  The petitioners and respondents in Vasquez have filed their respective briefs on the merits, and six parties filed amicus curiae briefs.  Petitioners will have until August 2, 2018 to file a reply brief, unless extensions are provided, and the Oregon Supreme Court is set to hear oral argument on September 14, 2018.

Busch v. McInnis Waste Systems, Inc. 292 Or App 820 (2018).

Plaintiff Scott Busch (“Plaintiff”) was crossing the street on his way to work when he was struck by a garbage truck owned by Defendant McInnis Waste Systems, Inc. (“Defendant”).  Plaintiff suffered severe injuries, leading to the amputation of his leg above the knee.  Plaintiff filed suit against Defendant.  Defendant admitted liability and the case proceeded to trial on the issue of damages.  At trial, the jury found that Plaintiff was entitled to $3,021,922 in economic damages and $10,500,000 in noneconomic damages.  Defendant moved to reduce the noneconomic damages award to $500,000, pursuant to 31.710(1).  The trial court awarded the motion...

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Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: Bar Owner Brings Suit against Police Alleging Harassment of Patrons and Staff

From the desk of Kyle D. Riley: Taverns and bars are subject to routine inspections and monitoring by police officers and other government officials; however, if those officers conduct multiple inspections in a day and have a history of arresting patrons and employees, will a bar owner succeed in her claims for infliction of emotional distress and interference with a business expectancy? Read on to find out.

Claims Pointer: In this case arising out of a bar owner’s suit against police officers and city officials, the Washington Court of Appeals held that the bar owner could not prevail on her claim for negligent infliction of emotional distress because the bar owner failed to identify a duty owed by the police officers.  In addition, because Washington’s statute permitted police officers to inspect businesses that sell liquor, at any time, the bar owner could not prevail on a claim for tortious interference with a business expectancy.

Barker v. Town of Ruston, et. al., No. 77745-9-I, Washington Court of Appeals Div. I (May 7, 2018).

Kye Barker (“Plaintiff”) owner of Unicorn Sports Bar (“Unicorn”), filed suit against the Town of Ruston, the police department, mayor, police chief and other officers (“Defendants”).  The lawsuit alleged that Defendants “unlawfully intimidated and harassed Unicorn customers and employees to drive the Unicorn out of business.”  When deposed, one of the officers testified to conducting “business checks” at Unicorn, sometimes more than once during his shift, citing Plaintiff for noise disturbance, arresting Unicorn patrons, and once arresting a Unicorn bartender for serving alcohol to an intoxicated individual.  Other officers also testified to conducting periodic “bar checks” and “business checks.”

According to Plaintiff’s accountant, Unicorn incurred approximately $100,000 in lost profits...

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Attorney Profile Case Update Template - Josh

Oregon Case Law Update: Insurer’s Safe Harbor Letter Insufficient to Express Consent to Binding Arbitration

From the Desk of Joshua P. Hayward: ORS 742.061(1) entitles a first-party plaintiff to attorney fees if the plaintiff’s ultimate recovery exceeds the amount previously tendered by the insurer.  However, in the context of UM/UIM claims, ORS 742.061(3) provides that the insurers can protect themselves from exposure to attorney fees by sending the first-party plaintiff a “safe harbor” letter, which accepts coverage and agrees to binding arbitration on liability and damages.  Read on to see how courts determine whether a “safe harbor” letter complies with the statutory requirements set out in ORS 742.061(3).

Claims Pointer: In this case arising out of an accident with an uninsured motorist, the Oregon Court of Appeals determined that the insurer’s letter was insufficient to invoke the “safe harbor” protection because the letter merely instructed the plaintiff that he could ask to have his claim be submitted to an arbitrator.  This case serves as a reminder of the importance of erring on the side of caution by using a letter that mimics the precise wording set out in ORS 742.061(3).

Lizama v. Allstate Fire and Casualty Ins. Co., 292 Or App 611 (2018)

Plaintiff Luis Munoz Lizama (“Plaintiff”) was injured in a car accident with an uninsured driver.  Following the accident, Plaintiff sought UM/UIM from his insurer, Allstate Fire and Casualty Insurance Company (“Allstate”).  In response, Allstate sent Plaintiff a safe harbor letter, which included the following paragraph:

Once we have sufficient information that supports your client’s claim, we will make every attempt to reach a fair agreement on the amount of Uninsured or Underinsured Motorist benefits due under the policy. If for some reason we are not able to reach an agreement on the amount due, your client may request that [defendant] submit the claim to a third-party...

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Attorney Katie Buxman

Washington Case Law Update: Use of Maximum Medical Improvement Limitation in PIP Policy Violates Regulation

From the Desk of Katie D. BuxmanInsurers operating in Washington are governed by numerous statutes and regulations, including Washington Administrative Code (“WAC”) 284-30-395(1), which contains a list of permissible limitations on PIP benefits.  If an insurer’s policy limits PIP benefits to treatment that is essential to achieving “maximum medical improvement,” will the policy be in violation of WAC 284-30-395(1)? Read on to find out.

Claims Pointer: In this case arising out of an automobile accident, the Washington Supreme Court made it clear that it favors full compensation of medical benefits to injured motorists.  In response to its first certified question, the Court answered that a policy that limits medical benefits to those that only achieve “maximum medical improvement,” violate WAC 284-30-395(1).  For the second question, the Court answered that the term “maximum medical improvement” is not consistent with the definition of “reasonable” or “necessary,” as set out in WAC 284-30-395(1).

Durant v. State Farm, No. 94771-6, Washington Supreme Court (June 7, 2018).

After suffering injuries in a car accident, Plaintiff Bret Durant (“Durant”) sought PIP benefits from his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”).  In turn, State Farm provided Durant with a “coverage letter,” which noted:

The policy provides coverage for reasonable and necessary medical expenses that are incurred within three (3) years of the accident. Medical services must also be essential in achieving maximum medical improvement for the injury you sustained in the accident.

(emphasis added).  Durant sought treatment with a chiropractor.  Four months after the accident, State Farm sent the chiropractor a letter asking if Durant reached maximum medical improvement (“MMI”), and if not, what the target date...

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Oregon Case Update: Oregon Court of Appeals Issues Decision on Expert Witness Qualifications  

From the Desk of Ryan McLellan: Can a chiropractor qualify as an expert in the areas of biomechanical engineering and accident reconstruction? Read on to see how courts analyze the expert’s knowledge, skill, experience, training, and education to determine if the expert is qualified to testify in their respective field.

Claims Pointer: In this case arising out of an automobile accident, plaintiff offered a chiropractor to testify as an expert on issues relating to biomechanical engineering and accident reconstruction. The Oregon Court of Appeals reviewed the expert’s qualifications and found that the expert’s certifications, hours of training, and previous expert qualifications were “more than sufficient to qualify him as an expert” in those fields under OEC 702.

Mall v. Horton, 273 Or App 319 (June 6, 2018).

Plaintiff Sukhdev Mall (“Plaintiff”) was injured when his car was struck by a pickup truck driven by Defendant Andrew Horton (“Defendant”).  Plaintiff filed suit for injuries alleged to be caused by the accident.  Before trial, the court held a hearing to determine whether Plaintiff’s expert witness, Dr. Jonathan McClaren, a chiropractor by profession, was qualified to testify as an expert in biomechanical engineering and accident reconstruction.

The trial court first considered Dr. McClaren’s credentials with respect to biomechanical engineering.  At the hearing, Dr. McClaren testified that he held a certification in “spinal biomechanical engineering, along with an advanced certification in whiplash biomechanics and injury traumatology.”  The certifications required several online courses and in-person courses.  Dr. McClaren testified that he had not published or taught any courses on the subject, but was previously qualified to testify in Washington County as an expert on biomechanical engineering.  The trial court determined...

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Washington Legislative Update: Washington’s New Law Restricts Access to Medical Records in Discrimination Suits

From the desk of John Kreutzer: Once a lawsuit is filed, the parties engage in discovery, where they exchange records and documents that are relevant to their respective claims and defenses. Recently, Washington’s legislature passed a law to prevent defendants from being able to obtain a plaintiff’s medical records related to the plaintiff’s noneconomic damages claim in suit brought under the Washington Law Against Discrimination (“WLAD”). Read on for a discussion on the new law that went into effect on June 7, 2018.

SB 6027 was first introduced on December 5, 2017. After being passed by both the House and the Senate, the bill was delivered to Washington’s Governor who signed the bill on March 15, 2018. The law provides that a plaintiff “does not place his or her health at issue or waive any health care privilege,” by seeking noneconomic damages in a discrimination suit under the WLAD.

The bill does provide three exceptions to this new rule. The first exception is applicable if the plaintiff alleges to suffer from a “specific diagnosable physical or psychiatric injury,” such as PTSD. The second exception applies if the plaintiff wishes to rely on the medial records or retains a health care provider or expert to testify. The third exception applies if the plaintiff is alleging discrimination on the basis of the disability or a failure to accommodate the disability.

Even when one of the three exceptions is found to apply, SB 6027 continues to restrict the defendant’s access to those records with two limitations. The first limitation provides that access to the records is limited to records that were either created or occurred in the time period that begins “two years before the first alleged unlawful act and [ends] on the last date for which the plaintiff seeks damages (absent exceptional circumstances).” The second...

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Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: Wrongful Death Claim Invalid After Survivorship Claim Against Same Defendants

From the desk of Kyle D. Riley: Washington’s wrongful death statute creates a cause of action for the beneficiaries of the deceased.  Where the deceased initially brought a personal injury claim against the defendant, will the deceased’s beneficiaries and estate be barred from bringing a subsequent wrongful death claim against the defendant?  Read on to find out.

Claims Pointer: Prior to her death, the decedent brought claims against the defendant for personal injuries related to asbestos exposure.  The decedent died during trial and the case was amended to be a survivorship action.  After her death, the personal representative of the decedent’s estate brought a wrongful death suit, naming the defendant who was named in the previous lawsuit and additional defendants who were not named in the initial lawsuit.  The Washington Court of Appeals held that the wrongful death claims were barred against the defendant named in the decedent’s previous suit, but that the wrongful death claims were not barred against the other defendants.

Brandes v. Brand Insulations, Inc., et. al., No. 74554-9-I, Washington Court of Appeals Div. I (May 29, 2018) (unpublished).

After being diagnosed with mesothelioma, Barbara Brandes (“Barbara”) brought suit for personal injuries against Brand Insulations Inc. (“Brand”) and other defendants.  In her complaint, Barbara alleged that Brand was negligent in selling and installing asbestos productions at a refinery where her husband had worked, resulting in her exposure to “take home” asbestos fibers.  On the second day of trial, Barbara settled with all defendants except for Brand.  Thirteen days into trial, Barbara died.  The court allowed Barbara’s daughter, Ramona Brandes (“Ramona”) to be appointed as personal representative of Barbara’s estate and the trial continued as a survivorship action. ...

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Attorney Profile Case Update Template - Josh

Washington Case Law Update: Court Finds Issues of Material Fact on Reasonableness of Insurer’s Handling of UIM Claim

From the Desk of Joshua P. Hayward: Numerous statutes in Washington require insurers to act in good faith when dealing with the insured’s UIM and PIP claims. Among other requirements, acting in good faith requires an insurer to act “reasonably.” In the event that the insurer’s expert determines that the insured’s medical condition was not caused by the accident but the insured’s expert determined that it was, does the insurer act in bad faith by relying solely on the opinion of its own expert?

Claims Pointer: In this case arising out of a car accident, the insured sought UIM benefits claiming that the car accident caused her dermatomyositis condition. The insured’s medical expert determined that the dermatomyositis condition was caused by the car accident, while the insurer’s medical expert determine that it was “more likely than not” that the car accident did not cause the insured’s condition. The Washington Court of Appeals determined that there was an issue of material fact as to whether it was reasonable for the insurer to rely solely on the opinion of its own medical expert when there was other credible evidence related to causation.

Leahy v. State Farm, 76272-9-I, Washington Court of Appeals Div. I (May 21, 2018).

Shannon Leahy (“Leahy”) suffered soft tissue injuries in a car accident. Leahy first sought PIP benefits and later sought UIM benefits from her insurer, State Farm Mutual Automobile Insurance Company (“State Farm”). After the accident, Leahy was also diagnosed with dermatomyositis (“DM”). Leahy alleged that the condition was triggered or caused by the accident. State Farm’s adjuster requested Leahy’s medical treatment records for three years prior to the accident, none of which mentioned Leahy’s dermatomyositis condition. Leahy provided State Farm with a report from her rheumatologist,...

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Oregon Appellate Update: Oregon Supreme Court Grants Review in Two Important Cases – Tort Cap and Dram Shop

From the Desk of Jeff Eberhard: On November 1, 2017, the Oregon Court of Appeals issued two separate decisions, both of which have a significant impact on the insurance industry and defense of claims.  Recently, the Oregon Supreme Court issued orders accepting review of the Oregon Court of Appeals’ decisions in both cases.  Read on to learn more about each of these two cases.

Noneconomic Damages Tort Cap of $500,000

Vasquez v. Double Press Mfg., 288 Or App 503 (2017).

In this case, the Oregon Court of Appeals held that ORS 31.710(1), which provides a $500,000 noneconomic damages cap in bodily injury claims, violates the remedy clause in Article I, section 10 of the Oregon Constitution. [See our prior Case Update on Vasquez here].  In that case, after considering comparative fault, the plaintiff was awarded $6,199,090, composed of $1,339,090 in economic damages and $4,860,000 in non-economic damages.  The court determined that applying the $500,000 noneconomic damages cap would render plaintiff with a “paltry fraction” of the damages he sustained and a remedy that that is not “substantial,” even though plaintiff was set to recover $1,839,090 of the total $6,199,090 judgment.  Following the court’s ruling, the defendants along with amicus filed a petition for review with the Oregon Supreme Court.  On March 22, 2018, the Oregon Supreme Court accepted review of the Oregon Court of Appeals’ decision and is set to hear oral arguments on September 14, 2018.

Dram Shop – Claims by Intoxicated Patron  

Schutz v. La Costita III, Inc., 288 Or App 476 (2017).

In this case, the Oregon Court of Appeals held that ORS 471.565(1), which prevents a plaintiff who voluntarily consumed alcohol from bringing a claim against the alcohol provider, violates the remedy clause in Article I, section 10 of the Oregon Constitution.  [See our prior Case Update...

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