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From the Desk of Jeff Eberhard:  A few months ago, the Oregon Court of Appeals held that ORS 471.565(1), which prevents a patron who voluntarily consumed alcohol from bringing suit against the alcohol provider, to be unconstitutional in the context of a social host.  In this case, the Oregon Court of Appeals ruled that ORS 471.565(1) does not prohibit an intoxicated patron from filing a third-party complaint against the alcohol provider in a lawsuit brought by the injured plaintiff against the patron.

Content Types Archives: Case Updates

Oregon Case Law Update: Patron Not Prohibited from Filing Third Party Complaint Against Alcohol Provider

From the Desk of Jeff Eberhard:  A few months ago, the Oregon Court of Appeals held that ORS 471.565(1), which prevents a patron who voluntarily consumed alcohol from bringing suit against the alcohol provider, to be unconstitutional in the context of a social host. [See our prior Case Update on Schutz here].  In this case, the Oregon Court of Appeals ruled that ORS 471.565(1) does not prohibit an intoxicated patron from filing a third-party complaint against the alcohol provider in a lawsuit brought by the injured plaintiff against the patron.

Claims Pointer: In this case arising out of injuries suffered by a plaintiff when an intoxicated patron crashed in the plaintiff’s home, the Oregon Court of Appeals was tasked with deciding whether ORS 471.565(1) prevents the intoxicated patron from bringing the alcohol provider into the lawsuit by a third-party complaint.  The court looked to the plain text of the statute and the legislative history underlying the statute, and determined that the legislature would not have intended for ORS 471.565(1) to prevent a patron from impleading the provider.  Because the court was able to resolve the case on a “subconstitutional level,” it did not consider whether ORS 471.565(1) was constitutional in the context of a third-party claim.

Wilda v. Roe, 290 Or App 599 (2018)

Steven Roe (“Roe”) went out and visited a few taverns, where he consumed alcohol until he became intoxicated.  While driving, Roe fell asleep and crashed into the house where Charles Wilda (“Plaintiff”) was asleep in his bed.  Plaintiff filed suit against Roe, who admitted to the negligence and filed a third-party complaint against B & B Wachter, Inc., dba Round Butte Inn (“Round Butte”) and L & K Semm, Inc., dba Desert Inn Bar & Grill, Inc. (“Desert Inn”) (collectively “the taverns”) for serving him while he was intoxicated. ...

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Attorney Profile Case Update Template - Josh

From the Desk of Joshua P. HaywardWhen insurance adjusters allegedly act in bad faith or engage in unfair or deceptive acts, the insurance company can be exposed to bad faith claims or Consumer Protection Act (“CPA”) violation claims.  Can the individual insurance adjuster also be liable for bad faith or CPA claims?  Read on to find out.

Claims Pointer: In this case arising out of a motorcycle vs. vehicle accident, the Washington Court of Appeals was asked to determine whether the insured could maintain a bad faith claim and CPA claim against the individual adjuster.  The court determined that insurance adjusters may be liable for bad faith and CPA violations.  The court’s holding is a drastic departure from previous Washington court decisions, and going forward, adjusters should be aware that their conduct and actions may expose them to individual liability.

Keodalah v. Allstate Insurance Co., 75731-8-I, Washington Court of Appeals Div. I (March 26, 2018).

As a preliminary matter, appellate courts review a trial court’s dismissal in this type of proceedings by assuming that the allegations contained in the plaintiff’s complaint are true and accurate.  This means that the facts presented by the court in this ruling and set forth below are likely to be disputed by the defendants.  At this point, the following is only an allegation made by the plaintiff, and no factual determination has been made.

This cases arises out of a motor vehicle accident involving Moun Keodalah (“the insured”) and an uninsured motorcyclist.  The insured was crossing an intersection when he was struck by the motorcyclist.  The motorcyclist was killed in the collision, and the insured suffered injuries.  The Seattle Police Department’s (“SDP”) investigation found that “the motorcyclist was traveling between 70 and 74 m.p.h. in a 30 m.p.h. zone.”  SDP also determined that the insured was not on his cell phone.  An accident reconstruction firm hired by...

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Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: In Absence of a Special Relationship, Insurer Owes No Duty to Advise on Adequacy of Coverage

From the desk of Kyle D. Riley: Following motor vehicle accidents, especially accidents that result in severe injuries, claims against the at-fault insured may exceed policy limits.  In that case, can the at-fault insured file a third-party complaint against their insurer on the grounds that the insurer owed them a duty to counsel or advise on the adequacy of coverage and policy limits? Read on to find out.

Claims Pointer: In this case arising out of an injured pedestrian, the Washington Court of Appeals considered whether the driver’s insurer owed a duty to advise, review, or counsel the driver on the adequacy of insurance coverage.  The court held that because there was no evidence of a “special relationship” between the insurer’s agents and the driver, the insurer and its agent owed no duty to advise, review, or counsel the driver on adequacy of coverage.  This case serves as a reminder of the fact that conversations between insureds and agents could expose the insurer and its agents to liability.

Norris v. Farmers Insurance Co., 76236-2-I, Washington Court of Appeals Div. I (March 19, 2018) (unpublished).

Jeffrey and Terri Norris (collectively “Norris”) where driving their vehicle when they struck and injured a pedestrian, Junfang He.  Junfang He filed suit, alleging damages exceeding the liability limits in Norris’ insurance policy with Farmers Insurance Group (“Farmers”).  Farmers extended a settlement offer for policy limits, but Junfang He declined the offer.  Norris filed a third-party complaint against Farmers, alleging that Farmers was negligent in advising and counseling Norris on their policy limits.  Farmers asked the trial court to dismiss the complaint, on the grounds that it owed no duty to Norris and that there was no special relationship that may have created a duty.  Following review, the the...

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Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: Injured Worker Responsible for Defective Condition Barred from Recovery from Landowner

From the desk of Kyle D. Riley: Under premises liability law in Washington, a landowner owes a duty of care to invitees that requires the landowner to inspect the premises and warn or remedy any dangerous conditions.  But where a worker hired to perform repairs is injured by a dangerous condition he was hired to repair, will the court find that the landowner breached a duty of care owed to the worker? Read on to find out.

Claims Pointer: In this case arising out of a worker who lived on the property while making repairs on the property, the court held that the landowners owed the worker the same duty of care owed to invitees.  However, because the worker had superior knowledge of the dangerous condition and was hired to remedy the dangerous condition, the court held that the landowners did not breach the duty of care owed to the worker.

McGee v. Graziano et al., 50046-9-II, Washington Court of Appeals Div. II (January 23, 2018) (unpublished)

Dan Graziano and Joyce Farley Graziano (collectively “the Grazianos”) managed a property for Eric Stroh.  In early November 2015, the Grazianos hired Jeff McGee (“McGee”) to “rip up the carpet, tack strips and padding” on the property in exchange for $300.  In late November, the Grazianos again hired McGee, this time to perform other remodeling work and prepare the floor for hardwood finishing.  McGee was paid $2,500 and given the right to live on the property while working.  While McGee was living on the property, a different worker who had been hired to finish the hardwood floors was in and out of the house for a few days.  At one point, while McGee was staying on the property, he stepped on a carpet staple and punctured his toe.  McGee’s toe became infected, and eventually, his foot and leg had to be amputated.

McGee sued the Grazianos, Eric Stroh, and EDJ Properties, LLC (collectively...

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Attorney Profile Case Update Template - Josh

Oregon Case Law Update: No Safe Harbor Protection in Dispute over Reasonable and Necessary Medical Services

From the desk of Josh HaywardUnder ORS 742.061(1), a first party plaintiff is entitled to attorney fees if their recovery at trial exceeds the amount tendered by the insurer.  However, in PIP and UM/UIM disputes an insurer can protect themselves from the risk of attorney fees if they send a “safe harbor” letter that accepts coverage and agrees to binding arbitration on a limited set of issues.  But where the insurer denies PIP benefits on the basis that medical services are not reasonable and necessary, will a safe harbor letter that accepts coverage and purports to limit the dispute to the amount of benefits due entitle the insurer to the safe harbor protection? Read on to find out.

Claims Pointer:  In this case arising out of a dispute over Personal Injury Protection (“PIP”) benefits, the first party plaintiff brought suit after the insurer denied PIP benefits on the basis that additional medical services were not reasonable and necessary.  The Oregon Court of Appeals held that while the insurer can protect themselves from attorney fee exposure by limiting the dispute to the amount of benefits due, a dispute as to whether medical services are reasonable and necessary is not a dispute about the amount of benefits due.  This case provides an important clarification on the benefit of the safe harbor letter in the context of PIP benefits.

Berger v. State Farm, 290 Or App 485 (2018)

Plaintiff Douglas Berger (“Plaintiff”) purchased an insurance policy from State Farm Mutual Automobile Insurance Company (“State Farm”).  The insurance policy contained PIP and uninsured motorist (“UM”) coverage, as required by Oregon’s statute.  Plaintiff was later injured in an accident involving a hit-and-run vehicle.  Plaintiff notified State Farm of the accident and his injuries.  The next day, State Farm sent Plaintiff a safe harbor...

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Attorney Profile Case Update Template - Josh

From the Desk of Joshua P. Hayward: In Washington, a person who is injured while rescuing another individual may have a claim against the party whose negligence caused the need for rescue.  But does this rule apply to a professional rescuer, such as a firefighter, who is injured while responding to an accident scene? Read on to find out.

Claims Pointer: In this case arising out of a situation where a firefighter was severely injured while responding to an accident, the Washington Court of Appeals held that the firefighter was unable to recover from the various parties whose negligence had caused the initial accident.  This case serves as a reminder and clarification on the scope of the professional rescuer doctrine.

Loiland v. State et. al., No. 76096-3-I, Washington Court of Appeals Div. I (December 26, 2017)

While driving on I-5 in icy and foggy conditions, Pedro Lopez (“Lopez”) lost control of his pickup truck, spun across four lanes, and ended up in a ditch. Sergeant Johnny Alexander (“Sergeant Alexander”) from the Washington State Patrol (“WSP”) responded to the scene. Sergeant Alexander requested a tow truck and began to prepare a report. While preparing the report, Sergeant Alexander observed four cars pass the scene and nearly lose control. He determined that the lights on his patrol car were distracting drivers and therefore a tow truck on the scene would only make matters worse. Sergeant Alexander canceled the tow and left the scene with Lopez, but failed to turn off the pickup truck’s lights or mark the pickup to indicate that he had responded.

Emergency dispatchers began to receive 9-11 calls regarding the wrecked pickup truck and dispatched fire and rescue engines to the scene. Firefighter Wynne Loiland (“Loiland”) arrived at the scene. After observing that the pickup was unoccupied, Loiland began to mark the pickup with tape. At that time, Mario Perez (“Perez”) who was driving past the scene, spun out, and struck Loiland...

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Attorney Profile Case Update Template - KDB

When is a Visitor Deemed to be a Business Invitee?

From the Desk of Katie D. Buxman: In Washington, a possessor of land owes a duty of care to visitors (known as “entrants”).  The duty of care differs depending on the status of the entrant.  The entrant is classified as either an invitee, licensee or trespasser, and the highest duty of care is owed to an invitee.  If the entrant’s visit was primarily for social reasons yet the entrant provided an incidental economic benefit to the possessor, will the entrant be classified as an invitee?  Read on to find out.

Claims Pointer: In this case arising out of a plaintiff who was injured after falling over a step at the defendant’s house, the Washington Court of Appeals held that because the primary reason for the plaintiff’s visit was social, the plaintiff was considered to be a licensee at the time of the incident.  The court further held that because the plaintiff was aware of the dangerous condition before being injured, the plaintiff was barred from recovering under his premises liability claim against the defendants.

Akin v. Mckelvey, No. 75725-3-I, Washington Court of Appeals Div. I (February 5, 2018) (unpublished)

On December 21, 2014, Shawna Akin (“Akin”) went to the home of Julie McKelvey (“Julie”) and Michael McKelvey (collectively “the McKelveys”), in order to visit Julie who was recovering from a recent surgery.  Akin worked as an aesthetician, and Julie had been Akin’s client for the past seven years.  After the visit was planned, Akin offered to bring Julie “scar cream.”  According to Akin’s testimony, when she arrived at the home she noticed a single step concrete landing in front of the gate and sensed that the step did not look to be safe.  Akin stayed at the McKelveys’ home for about 30 minutes, where she met family members, drank tea, and toured the home.  Akin also gave Julie the scar cream, and Julie paid Akin.  When Akin was leaving, she stepped backwards...

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Bill Taaffe

Oregon Case Law Update: Oregon Supreme Court Limits Claims Based on Abuse of Vulnerable Persons

From the desk of Bill Taaffe: Oregon’s statute on abuse of vulnerable persons (ORS 124.110)—here, elderly persons—provides plaintiffs with a claim against a person who wrongfully, or in bad faith, withholds a vulnerable person’s money or property.  The statute also provides for treble damages, giving the judge or jury the discretion to award an “amount equal to three times all economic damages.”  But will the statute apply in a situation where the plaintiff alleges that an insurance company delayed processing claims in bad faith and refused to pay the plaintiff full benefits owed under the policy?  Read on to find out.

Claims Pointer: In this case arising out of a dispute over healthcare insurance benefits, the Oregon Supreme Court held that the statute on elder financial abuse does not provide plaintiff with a claim against the insurance company for delaying the processing of claims and refusing to pay full benefits owed under the policy.  This case serves as an important clarification on the scope of Oregon’s statute on elder financial abuse, making it clear that the statute does not apply to claims against insurance companies for denying benefits.

Bates v. Bankers Life and Casualty Co., 362 Or 337 (2018)

In this case, Plaintiffs Lorraine Bates and Charles Ehrman Bates (“Plaintiffs”) purchased long-term healthcare insurance policies sold by Bankers Life and Casualty Company and its parent company (collectively “Bankers”).  Plaintiffs later brought claims in federal district court against Bankers for elder financial abuse pursuant to ORS 124.110(1)(b).  In support of their claims, Plaintiffs alleged that Bankers “developed” procedures to delay and deny insurance claims in bad faith, such as “failing to answer phone calls, losing documents, [and] denying claims without notifying policyholders.” Plaintiffs contended that as a...

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Attorney Profile Case Update Template-JDE Matt Ukishima

Oregon Case Law Update: $500,000 Non-Economic Damages Cap; the Slippery Slope Just Got Slippier

From the desk of Jeff Eberhard and Matt UkishimaA few months ago, the Oregon Court of Appeals issued a decision in Vasquez v. Double Press Mfg., Inc., 288 Or App (2017), holding that applying the $500,000 noneconomic damages cap to plaintiff’s $4,860,000 noneconomic damages award would render the plaintiff with a remedy that was not substantial, and as a result, violates the remedy clause of Article I, section 10 of the Oregon Constitution. [See our prior Case Update on Vasquez here].  In this case, the Oregon Court of Appeals considers whether the noneconomic damages cap violates the remedy clause if applied to the husband’s $2,343,750 noneconomic damages award and to the wife’s $759,375 noneconomic damages award.  Read on for a discussion on the court’s analysis and the future of the statutory cap on noneconomic damages.

Claims Pointer: In this case arising out of a plaintiff who was rendered paraplegic after a job site accident, the Oregon Court of Appeals purports to rely on Vasquez, holding that application of the $500,000 noneconomic damages cap to the husband’s $2,343,750 noneconomic damages award leaves the husband with a remedy that is not substantial.  The court also holds that applying the noneconomic damages cap to the wife’s $759,375 noneconomic damages award leaves the wife with a remedy that is not substantial, despite the fact that the wife stood to recover more than 65 percent of her noneconomic damages award. We expect this opinion to be reviewed by the Oregon Supreme Court and the 2019 session of the Oregon legislature.

Rains v. Stayton Builders Mart, Inc. 289 Or App 672 (2018)

Plaintiff Kevin Rains (“Kevin”) was rendered paraplegic after a defective board of wood broke at his job site, causing him to fall almost 16 feet.  He brought a products liability suit against the retailer and manufacturer of the defective board...

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Attorney Profile Case Update Template - Josh

Oregon Case Law Update: Offsetting Jury Awards by Previously Paid PIP Benefits

From the desk of Josh Hayward: Under ORS 31.555, courts are to offset a party’s jury award if the party has previously received payments for personal injury protection (“PIP”) benefits.  But when the economic damages on the verdict form are unsegregated, creating an ambiguity that does not allow a court to determine whether the jury’s award specifically includes PIP benefits paid by the insurer, will the court reduce the award?  Read on to find out.

Claims Pointer: In this case arising out of injuries sustained in a motor vehicle accident, the court held that offsetting plaintiff’s award by previously provided paid PIP benefits was proper even though the damages were not segregated. It was proper because the verdict form offered by the plaintiff did not ask the jury to segregate the economic damages. In the future, we should expect plaintiff attorneys to submit much more detailed verdict forms asking the jury to specifically determine which medical treatments were related to the accident.

Daniels v Allstate Fire and Casualty Company, 289 Or App 698 (2018)

This case arose from injuries suffered by Danny Daniels (“Plaintiff”) in a car accident.  Following the accident, Plaintiff received PIP benefits from his insurer, Allstate Fire, and Casualty Company (“Allstate”).  Plaintiff later sued Allstate for UIM benefits. Following the trial, the jury returned a verdict awarding damages in favor of Plaintiff.  Relying on ORS 31.555, the trial court reduced the award by the amount of PIP benefits that Allstate previously paid to Plaintiff.  Plaintiff appealed the trial court’s decision.

The Oregon Court of Appeals reviewed the trial court’s decision to offset the award by the amount of PIP benefits that Allstate paid to Plaintiff under ORS 31.555.  The text of ORS 31.555 states that:

“If judgment is entered against a party on whose behalf an advance payment...

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