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From the Desk of Matt Ukishima: Oregon limits the timeframe for initiating a product liability civil action for personal injury or property damage to ten years from the date of purchase (statute of ultimate repose). In cases where the product was manufactured in a different state with a longer statute of repose, plaintiffs may sue in Oregon and get the benefit of the longer limitations period. But, what happens if the manufacturing state has no statute of repose for product liability claims? Read on to find out.

Content Types Archives: Case Updates

Matt Ukishima

Oregon Case Law Update: Oregon Supreme Court Limits the Applicability of Oregon’s Statute of Repose in Product Liability Actions

From the Desk of Matt Ukishima: Oregon limits the timeframe for initiating a product liability civil action for personal injury or property damage to ten years from the date of purchase (statute of ultimate repose). In cases where the product was manufactured in a different state with a longer statute of repose, plaintiffs may sue in Oregon and get the benefit of the longer limitations period. But, what happens if the manufacturing state has no statute of repose for product liability claims? Read on to find out.

Claims Pointer: The Oregon Supreme Court determined that, while Oregon imposes a statute of repose of 10 years for product liability claims, when the product is manufactured in a state with no applicable statute of repose, then the claim is not subject to any repose period. In effect, this ruling expands the potential liability exposure for manufacturers, sellers, distributors, and others in the chain of manufacturing and sale for products and components manufactured in the 32 states that do not employ product liability statutes of repose.

Miller v. Ford Motor Co., 363 Or 105 (June 7, 2018).

In this matter, Aline L. Miller (“Plaintiff”) owned a Ford Escape, first sold in June 2001 and manufactured in Missouri. In May 2012, the Escape caught fire in Miller’s garage due to a faulty engine sensor. Plaintiff’s home was damaged and Plaintiff was injured when she fled the fire. In April 2014, Plaintiff filed a product liability lawsuit against Ford Motor Company (“Ford”) in Oregon State Court. Ford removed the case to Federal District Court and moved for summary judgment based on Oregon’s statute of repose for product liability actions. After the District Court denied Ford’s motion, the case was appealed to the Ninth Circuit Court of Appeals, which then turned to the Oregon Supreme Court with a certified question...

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Oregon Case Update: Oregon Supreme Court Restricts the Scope of Discoverable Communications Between Plaintiffs and Treating Physicians 

From the Desk of Ryan McLellan: Communications between plaintiffs and their treating physicians have long been discoverable in Oregon depositions after the plaintiff has put their injuries at issue. Does the physician-patient privilege in Oregon’s evidence code now allow plaintiffs to refuse to answer questions about such communications? Read on to find out.

Claims Pointer: In this personal injury lawsuit, a woman was injured when she fell through an allegedly faulty deck at an apartment. After filing her lawsuit against the apartment, defense counsel took her deposition and sought to learn what she told her treating physician about her injuries. Plaintiff’s attorney objected to the question as constituting a violation of Oregon’s physician-patient privilege. After the defense obtained a ruling from a trial court compelling plaintiff to answer the questions, plaintiff sought mandamus review by the Oregon Supreme Court. The Supreme Court reversed the trial court, finding that plaintiff’s communications with her treating physician were protected. This case has changed the longstanding practice of defense counsel in Oregon. It will now be more challenging for defense counsel and claims professionals to get all of the information they need to fully evaluate their claims.

Hodges v. Oak Tree Realtors, 363 Or 601 (September 13, 2018).

Rule 504-1 of Oregon’s Evidence Code establishes a privilege commonly known as the physician-patient privilege. In a civil lawsuit, a patient has the privilege to refuse to disclose any communications with his or her physician “made for the purposes of diagnosis or treatment of the patient’s physical condition…” The privilege is subject to a non-exclusive list of three exceptions. Importantly in this matter, the privilege does not extend to “communications made in the course of a...

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Attorney Katie Buxman

Washington Case Law Update: Washington Court of Appeals Sets the Stage for a Change in PIP Billing Practices 

From the Desk of Katie D. Buxman: Some insurers use automated software to adjust their PIP payments to match the standard rate for specific procedures in specified geographic areas. Some states, such as Oregon, have prohibited this practice. Is Washington the next state to follow that trend? Read on to find out.

Claims Pointer: In this class action lawsuit, a chiropractic clinic brought a Consumer Protection Act claim against an insurer for its use of software to determine the reasonableness of PIP payments. After the lawsuit was dismissed by the trial court, the court of appeals reversed and reinstated the lawsuit. It concluded that the chiropractic clinic properly alleged a violation of Washington’s CPA because the insurer failed to individually examine claims to determine whether they were reasonable and necessary. This case may be the first step Washington courts take towards eliminating an insurer’s ability to use software such as Fair Health to determine the reasonableness of PIP payments to providers.  

Folweiler Chiropractic PS (“Folweiler”) is a chiropractic clinic based out of King County, Washington. In 2016, Folweiler filed a class action lawsuit against American Family Insurance Company (“American Family”) alleging violations of Washington’s Consumer Protection Act. Folweiler alleged that, from 2012 to 2016, it treated numerous patients with PIP coverage provided by American Family and was directed to bill American Family directly. However, Folweiler alleged, rather than accepting and paying each bill, American Family processed the bills through a payment database maintained by Fair Health which compared Folweiler’s bills to the same procedures in the same zip code and reduced such bills to the 80th percentile of payments in the database. Folweiler argued that American Family’s use of the software violated its duty to...

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Attorney Profile Case Update Template - Josh

Oregon Case Law Update: Plaintiffs Must Show Diminished Property Value in Order to Prevail on a Timber Trespass Claim Involving Ornamental Trees

From the Desk of Joshua P. Hayward: Defending timber trespass cases is complicated by the fact that if plaintiff prevails, they will be awarded double or triple damages and attorney fees. What happens if a plaintiff does not allege that the trespass diminished the value of their property? Read on to find out.

Claims Pointer: In this timber trespass case, a plaintiff brought both a nuisance claim and a timber trespass claim against Klamath County for spraying herbicide on his property and causing $23k in damage to plaintiff’s ornamental trees. At trial, plaintiff did not allege that the trespass diminished the value of his property, and in fact, admitted that the value was not affected. Despite this, the plaintiff prevailed on the timber trespass claims and was awarded double damages and attorney fees. The court of appeals reversed, holding that plaintiff’s failure to allege diminished property value was fatal to the timber trespass claim. This case illustrates that in order for a plaintiff to prevail in a timber trespass suit involving ornamental trees, they must prove that the property value was diminished or that it is impossible to determine whether their property value was diminished.

Harshbarger v. Klamath County, 294 Or App 631 (Oct. 31, 2018).

In June 2010, the Klamath County Department of Public Works applied herbicide along a right-of-way next to Daniel Harshbarger’s (“Plaintiff’s”) property. When the herbicide made its way to Plaintiff’s property, it damaged or killed several ornamental pine trees, at a total alleged cost of $23,486. Plaintiff sued Klamath County (“County”) for nuisance and timber trespass. Plaintiff sought damages related to the value of the trees but never made allegations related to how the trespass affected the market value of his property.

Before and during trial, the...

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Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: Damages and Attorney Fee Exposure Can Make a Mistaken Coverage Denial a Costly Error

From the desk of Kyle D. Riley: Denying coverage under an insurance policy in Washington is a risky proposition. Damages and attorney fee exposure can make a mistaken coverage denial costly. If there is any doubt, the insurer can file a declaratory action and avoid some of the potential pitfalls of a bad faith claim. How does such a situation look in practice? Read on to find out.

Claims Pointer: In this insurance coverage opinion, an insurer was held to be justified in denying coverage to its insured. A woman was injured while self-picking cherries on the insured’s cherry orchard and sued the orchard. The orchard sought coverage under a homeowner’s policy. The insurer filed a declaratory action and was held to be justified in denying coverage due to a business exclusion clause in the policy. This case, although unpublished, serves as a reminder that it is better to be safe (filing a declaratory action) than sorry (denying coverage outright and being exposed to a bad faith lawsuit).

W. Nat’l Assur. Co. v. Robel, et ux, et al., No. 35394-0-III, 2018 Wash. App. LEXIS 2387, (Ct. App. Oct. 23, 2018) (unpublished).

In July of 2010, Vicki Posa (“Ms. Posa”) fell off a ladder while self-picking cherries on an orchard operated by John and Linda Robel (the “Robels”). Ms. Posa filed a lawsuit against the Robels and, under a homeowner’s policy (the “Policy”), Western National Assurance Co. (“Western National”) provided a defense under reservation of rights. After a successful motion to dismiss was reversed, Western National filed a declaratory action arguing that the Policy excluded coverage for injuries arising from business operations.

The Robels did not appear to defend the declaratory action due to filing for bankruptcy protection. However, Ms. Posa was allowed to appear and argued that the Policy covered her injuries. Specifically,...

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Oregon Case Law Update: Oregon Court of Appeals Reminds Litigants That Destruction of Evidence Can Warrant Serious Sanctions 

From the desk of Bill TaaffeSpoliation occurs when, among other things, one party to a lawsuit destroys or otherwise hides relevant evidence from the adverse party. When spoliation is discovered, the consequences imposed by the court vary from a slap on the wrist to an outright dismissal. What does it take for a case to be dismissed for spoliation? Read on to find out.

Case Pointer: In this employment dispute, a trial court dismissed a plaintiff’s cause of action because she deleted numerous relevant text messages and emails before discovery. The Court of Appeals reversed the dismissal. It noted that the trial court was required to explain how plaintiff’s deletion of relevant messages prejudiced the defendant’s defense, but because it failed to provide such an explanation, the dismissal was an abuse of discretion. This case serves as an important reminder to preserve evidence when the threat of litigation is looming and to pursue sanctions when evidence is destroyed by an adverse party.

Markstrom v. Guard Publishing, 294 Or App 338 (Oct. 10, 2018).

Serena Markstrom (“Plaintiff”) worked for Guard Publishing (“Register Guard”), a newspaper based out of Eugene, Oregon, for twelve years. Towards the end of her tenure, the relationship became strained and Register Guard placed Plaintiff on a “process improvement plan.” Plaintiff, in turn, sent a “notice of grievance” to the Register Guard through her union representative, alleging discrimination and hostile work environment. Sometime later, Plaintiff was terminated for insubordination, dishonesty, and destruction of evidence and company property.

Plaintiff believed that she was wrongfully terminated and filed a lawsuit against the Register Guard. The Register Guard made a discovery request of Plaintiff, demanding all text messages and emails in Plaintiff’s...

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Washington Case Law Update: Washington Court of Appeals Confirms That a Landowner Need Not Warn a Licensee of Dangers on Property They Do Not Own

From the desk of Tom McCurdy: Landowners owe certain duties to individuals present on their land. The extent of the duty depends on whether the individual is an invitee, a licensee, or a trespasser. Regardless of status, must a landowner warn of dangers on another’s land? Read on to find out.

Case Pointer: In this premises liability case, a young girl was camping with a youth group near Lake Cle Elum when she tragically drowned while swimming. Her youth group was camping on land adjacent to the lake, which was owned by a third party. After her death, her estate filed suit against the landowners of the campsite, arguing that they had a duty to warn the girl of the dangers of the lake. The trial court granted the landowners’ motion for summary judgment, holding that landowners have no duty to warn licensees of dangers on land owned by others. The Washington Court of Appeals affirmed, holding that landowners have no duty to warn guests of dangers present on the land of another. Although unreported, this case provides valuable insight on limitations of the scope of a landowner’s duty to warn licensees about dangers on adjacent property.

Bethay et al. v. Parker et al., Wash. Ct. of Appeals, No. 35541-1-III (October 2, 2018) (unpublished).

In July 2015, Shawn Parker and KBSM, LLC (“Defendants”) allowed a youth group to camp on land they owned near Lake Cle Elum. Defendants had been allowing the youth group to utilize the land for camping trips free of charge for several years without incident. However, on July 27, 2015, Christine Bethay drowned while swimming in nearby Morgan Creek Cove. Four counselors from the youth group led fifteen children from the camping area on Defendants’ land across a federally owned strip of land and down into the cove to swim. Christine Bethay was among those children and, while the...

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Attorney Profile Case Update Template - Josh

Washington Case Law Update: Washington Court of Appeals Affirms Summary Judgment Against Unrepresented Plaintiff for Failing to Follow Procedural Rules

From the Desk of Joshua P. Hayward: Unrepresented parties occasionally get the benefit of the doubt from trial courts when they miss deadlines. Often, an unrepresented party must miss several deadlines and/or court appearances before their case is dismissed. How much leeway must the trial court give an unrepresented plaintiff before the Court of Appeals upholds a dismissal? Read on to find out.

Claims Pointer: In this slip and fall case, an unrepresented plaintiff brought a premises liability claim against WinCo foods after falling in one of its stores. After missing two deadlines to file responses to WinCo’s Motion for Summary Judgment, the judge denied plaintiff’s requested continuance and granted WinCo’s Motion for Summary Judgment. The Court of Appeals upheld the dismissal. This case, although unreported, provides guidance on how much leeway a trial judge needs to give an unrepresented party.

George v. Winco Foods, LLC, No. 76661-9-I, 2018 Wash. App. LEXIS 2200, (Ct. App. Sep. 24, 2018) (unpublished).

In June of 2015, Margaret George (“Plaintiff”) slipped and fell in the aisle of a WinCo Foods (“WinCo”) in Washington. On May 5, 2016, Plaintiff filed suit, claiming that she slipped on a “clear waxy substance” and was injured as a result. The court set a discovery cutoff date of March 13, 2017. During the course of litigation, Plaintiff became an unrepresented party (The opinion is unclear on when this occurred).

Prior to the discovery cutoff, WinCo filed a Motion for Summary Judgment (“MSJ”), relying on an affidavit provided by its employee, Steven Kneller. The affidavit established that Plaintiff had spoken with a WinCo employee sometime after the incident and said that “she didn’t see anything on the floor.” Additionally, Mr. Kneller stated that he had inspected the area...

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Attorney Profile Case Update Template - Josh

Oregon Case Law Update: Oregon Court of Appeals Identifies Threshold Level of Evidence Required to Prove an Injury is Permanent

From the Desk of Joshua P. Hayward: When bringing personal injury suits, plaintiffs often allege that the injuries they have suffered are permanent. What evidence is required for plaintiffs to prove that the alleged injuries are permanent? Read on to find out.

Claims Pointer: In this personal injury case, the Oregon Court of Appeals held that the plaintiff failed to provide sufficient evidence from which the jury could have found that the claimed injury was permanent. The court further held that the trial court’s jury instruction on the plaintiff’s alleged permanent injury “substantially affected defendant’s rights” and warranted a reversal of the trial court’s decision.

Elan v. Tate, 294 Or App 76 (September 12, 2018).

Plaintiff David Elan (“Plaintiff”) was in his late seventies at the time of the accident. Plaintiff was walking on the side of the road when he was struck in the shoulder by the side-view mirror of a vehicle driven by Defendant Alana Lynn King Tate (“Defendant”). The impact caused Plaintiff to spin, fall over and suffer injuries serious enough to warrant an overnight stay at the hospital. Plaintiff filed suit, alleging he suffered a permanent head injury as a result of Defendant’s negligence. The case went to trial eighteen months after the accident.

To prove the extent of his injuries, Plaintiff relied on the testimony from a retired emergency room physician (Barmanche), a physical therapist (Schaible), and himself. Plaintiff testified that, at the time of the trial, “he still had headaches, mood problems, and memory issues.” Schaible testified that he treated Plaintiff a week after the accident for “symptoms of a concussion sustained during the crash” including “sensitivity to sound, shoulder pain and reduced range of motion in his neck, headaches, vision issues, and ‘obvious memory...

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Oregon Case Law Update: Oregon Court of Appeals Provides Guidance on a PIP Insurer’s Duty to Promptly Pay PIP Benefits after Receiving Proof of Loss

From the desk of Cliff J. Wilson: Under Oregon’s no-fault personal injury protection (“PIP”) statute, insurers must provide certain benefits (e.g. medical expenses and wage loss) to insured drivers involved in car accidents, without regard to fault. In the case of PIP medical benefits, the statute requires that benefits must be paid “promptly” after receiving proof of loss. The statute also provides that PIP medical expenses are deemed “reasonable and necessary” unless the PIP insurer provides the medical provider notice of denial within 60 days. Does the statute require that the PIP insurer pay the expenses within 61 days, though? Further, is the insured excused from complying with the terms of the insurance policy if the insurer does not pay the PIP medical expenses within 61 days? Read on to find out.

Claims Pointer: In this case, the Oregon Court of Appeals held that an insured party’s attendance at an examination under oath (“EUO”) was a condition precedent to filing an action for breach of contract. The court also held that the insurer’s failure to pay or deny benefits within 60 days of receiving a proof of loss was not a material breach of the insurance policy. Importantly, the court relied on this holding to reject Plaintiff’s argument that an insurer’s failure to pay or deny benefits within 60 days made such benefits immediately payable 61 days after receiving the proof of loss.

Moore v. Allstate Ins. Co., 293 Or App 690 (September 6, 2018)

Under Oregon’s PIP statute, a driver involved in a motor vehicle accident is entitled to receive up to $15,000 from their own insurance provider for “[a]ll reasonable and necessary expenses…incurred within one year¹ after the date of the person’s injury…” The insurer is required to provide such benefits “promptly after proof of...

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