Generally, we brush off those demands, confident a jury would never award that much for pain and suffering.

Good news. We’re right.

We tracked every reported personal injury verdict across Oregon for 2012.  Based on that tracking, we noted the following observation: Oregon juries rarely awarded ratios larger than 1:1 in noneconomic to economic damages. Quite often, juries awarded less.  This observation held constant no matter the injuries involved (major or minor) and regardless of forum or county.  Though we caution against rules of thumb in valuing cases, this observation is interesting.  Objective data supports anecdotal evidence.

The chart below reproduces a portion of our tracking research.

The chart focuses on personal injury/MVA cases, because they offered the largest sample size.  Other types of personal injury cases showed similar ratios.

The chart also omits defense verdicts.  However, approximately 25% of personal injury cases resulted in defense verdicts.  (Admittedly, however, that percentage was much higher for med-mal cases than any other kind of personal injury claim).

Feel free to contact us if you have questions or comments about our tracking efforts.  We are happy to share our raw data or talk through other trends and observations.

Thank you to Sam Smith for writing this Enews and gathering this information.

Dunn Carney Allen Higgins & Tongue is proud to announce that 8 of its lawyers were recently selected by their peers for inclusion in The Best Lawyers in America^® 2013 (Copyright 2012 by Woodward/White, Inc., of Aiken, SC).

Tom Tongue was named in Bet the Company Litigation, Commercial Litigation, Securities Litigation and Trusts and Estates Litigation, Jack Hoffman in Land Use and Zoning Law and Litigation, Jay Chock in Personal Injury Litigation, Ken Antell and Gil Parker in Real Estate Law, Elizabeth Howard in Water Law, Don Templeton in Insurance Law, Marsha Murray-Lusby in Trusts and Estates.

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

The Oregon Court of Appeals recently decided two cases addressing the legal doctrine res ipsa loquitur, to infer negligence against a storeowner for injuries suffered by a customer. Res ipsa loquitur is a rule of circumstantial evidence that allows a jury to infer negligence based on the nature of the accident. To prevail, a plaintiff must prove: 1) an injury, 2) the injury is of a kind that ordinarily does not occur in the absence of negligence, and 3) the negligence is “more probably than not” attributable to the defendant.

In Hammer v. Fred Meyer Stores, a customer was injured when the contents of a shelf containing large cartons of lemonade fell on her as she attempted to remove one carton. The storeowner argued that the customer’s use of res ipsa loquitur was inappropriate because she could not prove that Fred Meyer had exclusive control over the shelf due to its public location. In rejecting this argument, the Court noted that Fred Meyer was in charge of installing, handling, and moving the shelf, and there was no evidence that a third person had altered or tampered with the shelf.

However, in Hagler v. Coastal Farm Holdings, Inc., the Court rejected the use of res ipsa loquitur. The customer was injured when a post pounder fell onto her foot. The Court found that the use of res ipsa loquitur was inappropriate because other customers had the ability to access the post pounders, rendering the store’s control non-exclusive. Instead, the Court applied ordinary premises liability principles, finding that the evidence did not support that the display of post pounders “created an unreasonable risk to customers.”

Under these cases, the key in a premises liability action is the degree of control the storekeeper has over the object. If it is one that customers can manipulate, move, or pick up, res ipsa loquitur will likely not apply. However, if the store retains exclusive control over the object, res ipsa loquitur likely applies.

Thanks to Mary Anne Nash for writing this article.

Portland, Ore. – Dunn Carney is pleased to announce that Elissa Meyrowitz Boyd, Blair E. McCrory and Mary Anne Nash have joined the firm. 

Boyd will focus on insurance coverage and commercial litigation and contribute to the Dunn Carney Insurance Coverage Blog.  She received her law degree from the University of Michigan School of Law and her undergraduate degree from University of Michigan.

McCrory has three years experience defending contractors and developers in complex construction defect matters.  McCrory will focus on insurance defense and construction defect litigation.   She is a graduate of Lewis and Clark Law School and received her undergraduate degree from Bradley University in Peoria, Illinois.

Nash will practice agriculture, natural resource and environmental law as well as general litigation.  She will also be contributor to Dunn Carney Natural Resources Updates.  She is a graduate of the University of Oregon School of Law and received her undergraduate degree from Oregon State University.

About Dunn Carney

Dunn Carney is a leading client-focused law firm in the Pacific Northwest. Attorneys work with clients on a daily basis to develop and implement legal and business solutions designed to avoid the problems that could lead to formal proceedings. In the event of litigation, they have an experienced team of trial attorneys who provide expert counsel and representation in alternative dispute resolution and in the courtroom. Clients have trusted their individual and business needs to Dunn Carney for more than 80 years. Dunn Carney is Oregon’s only member of Meritas, a legal service organization that offers high-quality worldwide legal services through a closely integrated group of independent law firms.

Recently, the Oregon Court of Appeals, in Hall v. Speer, ruled than a claimant injured in an automobile accident provided her insurance company “proof of loss” for an underinsured motorist (“UIM”) claim even though the insurance company did not yet know the at-fault driver’s liability limits. As a result, the Court of Appeals awarded the claimant attorney fees under ORS 742.061 because the insurance company did not accept coverage and consent to binding arbitration within six months of the proof of loss. This holding is likely to result in an increased number of claims against insurers for attorney fees in UIM cases.

ORS 742.061 provides that if an insured provides its insurer with a proof of loss and settlement is not reached within six months—and the insured’s recovery exceeds the tender—the insurer is liable for the insured’s attorney fees. However, there is a “safe harbor” provision, where an insurer can avoid exposure for fees by accepting coverage and agreeing to binding arbitration to resolve the claim within six months of receiving the proof of loss.

In Hall, the insurer waited more than a year and a half after learning of the claimant’s injuries before sending a “safe harbor letter” accepting coverage. The claimant had submitted an application for Personal Injury Protection (“PIP”) benefits, but not UIM benefits, and was examined by an orthopedist to evaluate her injuries at the insurer’s request. The insurer argued that these circumstances did not constitute a proof of loss—and that its delay in accepting coverage was therefore reasonable—because it did not know the liability limits of the at-fault driver. Without that information, the insurer argued, it could not estimate whether the claimant’s damages would exceed the at-fault driver’s coverage limits. The Court of Appeals disagreed, finding that the information the claimant provided gave the insurer an “adequate opportunity for investigation” of its potential obligations. The Court mentioned that, had the insurer attempted to investigate the underlying liability limits, there might have been a basis for the insurer’s delay. However, because that did not happen, the Court ruled against the insurer.

This decision puts insurers in a precarious position in dealing with possible UIM claims. In effect, once the insured applies for benefits and the insurer is aware of the extent of the injuries, Hall places the duty on the insurer to investigate the underlying liability limits to determine whether the insured’s damages may exceed available coverage. Insurers who have not been following this practice can likely expect an increased number of claims for attorney fees under ORS 742.061.

Dunn Carney will be a sponsor of the MC Consultants 17th Annual West Region Construction Defect & Insurance Coverage Conference in San Diego, CA. Eric Kekel is a co-chair of the conference and will speak on a panel addressing Ethical Issues Related to AI Endorsement /Insurance Coverage. Bill Joseph will be a panel moderator for the Pacific Northwest Coverage and Current Trends panel.  To register for the conference, click on this link to the registration form.

Last month, the Oregon Court of Appeals was faced with that familiar situation: a Washington resident with a Washington insurance policy files a breach of contract action against her insurance company here in Oregon.  Typically, the only connection to Oregon is that the underlying accident occurred here. 

Oregon law—namely ORS 742.061—is friendlier than Washington law when it comes to claiming attorney fees against an insurer.  So, for years, there has been an incentive to bring suit in Oregon for actions on Washington policies, provided there is any connection to this state.  And, for years, this practice has caused litigation about whether Oregon’s attorney fees statute applies to Washington policies.

No more. The Oregon Court of Appeals finally reached the issue in Morgan v. Amex Assurance Co., 242 Or App 665, P3d(2011), ruling that ORS 742.061 applies only to policies delivered or issued for delivery in Oregon.

This is a common sense result stemming from the plain language of ORS 742.001, which states that ORS chapter 742 (of which ORS 742.061 is a part) applies to “all insurance policies delivered or issued for delivery in this state.”  When read in conjunction with ORS 742.061, the court reached the following conclusion: Oregon’s attorney fee statute applies only to Oregon insurance policies. 

Morgan has not been appealed.  Its ruling is the law of the land, unless the legislature decides to amend ORS chapter 742.  For the time being, there is no longer any incentive to file suit in Oregon for actions on Washington policies. 

A copy of the Morgan decision can be found here:  http://www.publications.ojd.state.or.us/A141913.htm

Thanks to Sam Smith for writing this article.

In a construction defect action, does an insurance company have a duty to defend an insured-contractor when the claimants’ complaint does not specifically allege that construction defects resulted in “property damage” to other property? Relying on a difference in requirements for pleading “general” damages, as distinguished from “special or collateral” damages, the Oregon Court of Appeals recently answered that a defendant-insurer had no duty to defend an insured-contractor in such a negligence action.

In State Farm Fire and Cas. Co. v. American Family Mut. Ins. Co., the court reasoned that the defendant-insurer had no duty to defend the insured-contractor unless the underlying complaint, without amendment, could result in liability for water damage to other components or contents of the building separate and apart from the “‘cost of repairs’” to correct the defective performance. The court concluded that the third-party claimants were required to specifically plead such resulting water damage before evidence could be properly admitted on that issue at the trial of the underlying action. Accordingly, the allegations of the underlying complaint did not allege “property damage” or injury to property covered by the defendant-insurer’s policy. The defendant-insurer, therefore, had no duty to defend.

If you are interested in learning more about the nuances of insurer-provided defense in claims and actions against insureds, please contact the leader of Dunn Carney’s Insurance Defense Team, Eric Kekel,  or any member of our Insurance Defense Team, at http://www.dunncarney.com/practice-areas/insurance-defense-and-coverage/.

SB 961:  Prohibiting construction contract provisions that require waiver of subrogation, indemnification and contribution rights.

A recently introduced Senate Bill that seeks to amend Oregon Revised Statute 30.140 has created considerable interest among general contractors, subcontractors, the Oregon State Bar, various construction-related industry groups and insurers.  SB 961 proposes to change existing law by rendering void waiver of subrogation, indemnity or contribution rights in construction agreements.

Current law already renders void any provision in a construction agreement that requires one contractor to indemnify another contractor for the other’s own negligence.  The proposed amendment would close what some perceive as a “loophole” that allows contractors to contractually waive their right to recover payments attributable to another contractor’s negligence after having settled with a third-party claimant. For example, under existing law, subcontractors who pay settlement amounts to a claimant in an effort to avoid litigation are prohibited from pursuing the general contractor for contribution with respect to such payment if the subcontractor has waived this right in its contract with the general contractor.  Such waivers are relatively common and enforceable under current law.  The new bill would render waiver of subrogation provisions void.  While these waivers do not generally impact litigated cases because the fault of each party is effectively assessed at the same time in the litigation, they can affect the rights of a contractor, or its insurance carrier, when the contractor chooses to independently settle with a claimant and then pursue others.  The bill, however, is not intended to affect relationships between insured contractors and their insurers.

Discussions and revisions to the bill are ongoing, and a final draft is currently scheduled to be sent to the Rules Committee on April 21, 2011.  Dunn Carney will be attending an input session for construction law attorneys on Monday, April 18, 2011, and may also attend the Rules Committee hearing depending on the results of the input session.  Dunn Carney will also continue to track this and other bills of interest to its clients and local businesses during the 2011 legislative session.

Thank you to Laura Althouse for writing this article.

Suppose an individual and a contractor enter into a contract to build a home providing that the contractor will install copper pipe and will do so in a workmanlike manner. But, instead, the contractor installs plastic pipe.  Suppose also the contractor installed the pipe in a defective manner, causing leaks that damage the home.  Does the homeowner have a claim for breach of contract or negligence? Or both?

This question is important because it can mean the difference the between a claim being time-barred or not. A breach of contract claim must be brought within six years, while a claim for negligent construction can be brought as many as a ten years after the home is substantially complete.  ORS 12.080, 12.110. This has led some contractors to argue that a claim for faulty construction lies exclusively in contract when there is a contract with a homeowner.  Up until recently, the results have been mixed.  However, the Oregon Supreme Court recently put the issue to rest in Abraham v. T. Henry Const. Co. The Court held that the existence of a contract does not extinguish a negligence claim unless the contract “creates, defines, or limits” that claim.

That seems like a lot to unpack, but it is actually relatively simple. The tort of negligence holds defendants liable for the “reasonably foreseeable” harm caused by their conduct. The Court explained that, because this standard of care arises under the common law, it applies independently of any contract. Thus, while a contract may limit the ordinary standard of care for negligence – the breach of which would be a breach of contract, not negligence – merely incorporating the general standard of care owed by a contractor (such as performance in a workmanlike manner) into a contract will not preclude a negligence claim. As a result, the Court explained, in the example given above, the homeowner would have claims for both breach of contract (for installing the wrong pipes) and negligence (for the property damage). The upshot is that contractors wanting to cut off claims for faulty construction at six years based on a construction contract must clearly limit negligence claims in the contract, but contractors should be careful of limiting negligence liability to such an extent that they write themselves out of insurance coverage.