2020 OADC Practice Group Leaders Chad Colton, Chair Bill Edgar, Vice Chair Daniel Lis, Publications Daniel Larsen, Board Liaison Markowitz Herbold Greenspoon Marder Buchalter Buchalter 1211 SW 5th Ave., #3000 1211 SW 5th Ave., #2850 1331 NW Lovejoy St., #900 1331 NW Lovejoy St., #900 Portland, OR 97204 | 503.295.3085 Portland, OR 97204 | 503.878.8036 Portland, OR 97209 | 503.226.8407 Portland, OR 97209 | 503.226.1191 [email protected] [email protected] [email protected] [email protected] COMMERCIAL
Graham Miller, Chair Jamison McCune, Vice Chair Andrew Gust, Publications Allen Eraut, Board Liaison Wood Smith Henning & Berman Bodyfelt Mount Betts Patterson & Mines Rizzo Mattingly Bosworth 12755 SW 69th Ave., #100 319 SW Washington St., #1200 111 SW 5th Ave., #3650 1300 SW 6th Ave., #330 Portland, OR 97223 | 971.256.4011 Portland, OR 97204 | 503.243.1022 Portland, OR 97204 | 503.961.6536 Portland, OR 97201 | 503.229.1819 [email protected] [email protected] [email protected] [email protected] CONSTRUCTION Jacqueline Mitchson, Chair Chris Parker, Vice Chair Christina Anh Ho, Publications Lloyd Bernstein, Board Liaison Bullivant Houser Bailey Davis Rothwell Earle & Xóchihua Thenell Law Group Bullivant Houser Bailey One SW Columbia St., #800 200 SW Market St., #1800 12909 SW 68th Pkwy, #320 One SW Columbia St., #800 Portland, OR 97204 | 503.228.6351 Portland, OR 97201 | 503.222.4422 Portland, OR 97223 | 503.372-6450 Portland, OR 97204 | 503.228.6351 [email protected] [email protected] [email protected] [email protected] COVERAGE
Naomi Johnson, Chair Melissa Healy, Vice Chair Christine Sargent, Publications Kjersten Turpen, Board Liaison Bullard Law Stoel Rives Littler Mendelson K&L Gates 200 Market St., #1900 760 SW 9th Ave., #3000 121 SW Morrison, #900 One SW Columbia St., #1900 Portland, OR 97201 | 503.224.8851 Portland, OR 97205 | 503.294.9263 Portland, OR 97204 | 503.221.0309 Portland, OR 97204 / 503.226.5786 [email protected] [email protected] [email protected] [email protected] EMPLOYMENT David Landrum, Chair Blake Fry, Vice Chair Ryan Christopher Bailey, Publications Brian Scott, Board Liaison Multnomah County Attorney’s Office Mersereau Shannon Portland Office of City Attorney American Family Insurance Group 501 SW Hawthorne Blvd., #500 111 SW Columbia, #1100 1221 SW 4th Ave., #430 11850 SW 67th Ave., #160 Portland, OR 97214 Portland, OR 97201 | 503.595.8034 Portland OR 97204 | 503.823.9968 Portland, OR 97223 | 503.403.1880 503.988.3138 ext. 87338 [email protected] [email protected] [email protected]
LIABILITY [email protected] GOVERNMENT
Megan Cook, Chair Jessica Wilcox, Vice Chair Helaina Chinn, Publications Donna Lee, Board Liaison Bullivant Houser Bailey Bullard Law Bodyfelt Mount Hart Wagner One SW Columbia St., #800 200 SW Market St, #1900 319 SW Washington St., #1200 1000 SW Broadway, 20th Floor Portland, OR 97204 | 503.499.4402 Portland, OR 97201 / 503.248.1134 Portland, OR 97204 | 503.243.1022 Portland, OR 97205 / 503.222.4499 NEW [email protected] [email protected] [email protected] [email protected] LAWYERS
Kirsten Curtis, Chair John Bachofner, Vice Chair Michael Jacobs, Publications Heather Bowman, Board Liaison Thenell Law Group Jordan Ramis Hart Wagner Oregon State Bar Professional 12909 SW 68th Pkwy., #290 1499 SE Tech Center Pl. #380 1000 SW Broadway, 20th Floor Liability Fund Portland, OR 97223 | 503.372.6450 Vancouver, WA 98683 Portland, OR 97205 | 503.222.4499 16037 SW Upper Boones Ferry Rd. [email protected] 360.567.3900 [email protected] Tigard, OR 97281 | 503.639.6911
PRACTICE PRACTICE [email protected] [email protected] MANAGEMENT
Daniel Nichols, Chair Tessan Wess, Vice Chair David Cramer, Publications Peter Tuenge, Board Liaison Redgrave Lewis Brisbois MB Law Group Keating Jones Hughes Portland, OR 97229 | 415.650.6176 888 SW 5th Ave., #900 117 SW Taylor St., #200 200 SW Market St, #900 [email protected] Portland, OR 97204 | 971.334.7005 Portland, OR 97204 | 503.382.4211 Portland, OR 97201 / 503.222.9955 [email protected] [email protected] [email protected] LIABILITY PRODUCT
Scott Schauermann, Chair Shayna Rogers, Vice Chair Kelly Huedepohl, Publications Grant Stockton, Board Liaison Hitt Hiller Monfils Williams Garrett Hemann Robertson Keating Jones Hughes PC Brisbee & Stockton 411 SW 2nd Ave., #400 1011 Commercial St. NE 200 SW Market St., #900 PO Box 567 Portland, OR 97204 | 503.595.5385 Salem, OR 97301 | 503.581.1501 Portland OR 97201 | 503 222-9955 Hillsboro, OR 97123 | 503.648.6677 [email protected] [email protected] [email protected] [email protected] LIABILITY PROFESSIONAL PROFESSIONAL
Greg Lockwood, Chair Christopher Piekarski, Vice Chair Elana Charles, Publications Timothy Heinson, Board Liaison Gordon Rees Scully Mansukhani Allstate Staff Counsel Lindsay Hart Heinson & DeDobblelaere 121 SW Morrison St., #1575 1000 SW Broadway, #1080 1300 SW 5th Ave., #3400 19530 SE Sunnyside Rd. Portland, OR 97204 | 503.227.8269 Portland, OR 97205 | 503.553.0360 Portland, OR 97201 | 503.226.7677 Damascus, OR 97089 | 503.479.6223 [email protected] [email protected] [email protected] [email protected] TRANSPORTATION
Abby Miller, Chair Sheila Cieslik, Vice Chair Joel Petersen, Publications Tom Armosino, Board Liaison Hodgkinson Street Mepham American Family Insurance Hodgkinson Street Mepham Frohnmayer Deatherage 1620 SW Taylor, #350 11850 SW 67th Ave., #160 1620 SW Taylor, #350 2592 E Barnett Rd. Portland, OR 97205 | 503.222.1143 Portland, OR 97223 | 503.403.1880 Portland, OR 97205 | 503.222.1143 Medford, OR 97504 | 541.858.3378 TRIAL [email protected] [email protected] [email protected] [email protected] PRACTICE
Alice Newlin, Chair Michelle Smigel, Co-Vice Chair Pamela Paluga, Publications Katie Smith, Board Liaison Lindsay Hart 503.758.5466 Abbott Law Group Lorber Greenfield & Polito 1300 SW 5th Ave., #3400 [email protected] 215 SW Washington St., #300 610 SW Alder St., #315 Portland, OR 97201 | 503.226.7677 Kate Wilkinson, Co-Vice Chair Portland, OR 97204 | 503.595.9510 Portland, OR 97205 | 503.416.4785 [email protected] 971.321.3788 [email protected] [email protected] [email protected] WOMEN IN LAW 2020 OADC BOARD OF DIRECTORS OFFICERS Features LLOYD BERNSTEIN President #MeToo and Nondisclosure Agreements in Oregon—Are Bullivant Houser Bailey One SW Columbia St., Ste. 800 They Still Viable?...... 4 Portland, OR 97204 —Pamela J. Paluga, Abbott Law Group Phone: 503.228.6351 Email: [email protected] GRANT STOCKTON Defending Non-Employers Against Aiding-and-Abetting Claims President-Elect Under ORS 659A.030(1)(g)...... 6 Brisbee & Stockton PO Box 567 —Robert Double III, Buchalter Ater Wynne Hillsboro, OR 97123 Phone: 503.648.6677 Email: [email protected] Do It the Old-Fashioned Way: Complying with ORS 742.013...... 8 KATIE L. SMITH —Christina Ho, Thenell Law Group Secretary/Treasurer Lorber Greenfield & Polito 610 S.W. Alder St., Suite 315 Portland, OR 97205 Phone: 503.416.4787 Email: [email protected] DIRECTORS Departments TOM ARMOSINO Frohnmayer Deatherage From The President...... 2 2592 E Barnett Rd. Medford, OR 97504 Phone: 541.858.3378 Email: [email protected] Recent Case Notes...... 10 HEATHER BOWMAN Oregon State Bar Professional Liability Fund Legislative Update...... 17 16037 SW Upper Boones Ferry Rd. Tigard, OR 97281 Phone: 503.639.6911 Email: [email protected] Petitions For Review...... 18 ALLEN ERAUT Rizzo Mattingly Bosworth 1300 SW 6th Ave., #330 Judge’s Bios...... 20 Portland, OR 97201 Phone: 503.229.1819 Email: [email protected] Defense Victory!...... 22 TIMOTHY HEINSON Heinson & DeDobblelaere 19530 SE Sunnyside Rd. The Scribe’s Tips For Better Writing...... 24 Damascus, OR 97089 Phone: 503.479.6223 Email: [email protected] Counsel on Court Procedures Update...... 25 DANIEL LARSEN Buchalter 1311 NW Lovejoy St. #900 Association News...... 26 Portland, OR 97209 Phone: 503.226.1191 Email: [email protected] DONNA LEE Hart Wagner 1000 SW Broadway, 20th Floor Portland, OR 97205 Phone: 503.222.4499 x1195 Email: [email protected] BRIAN SCOTT American Family Insurance Group 11850 SW 67th Ave., #160 Portland, OR 97223 Phone: 503.403.1880 x53625 Email: [email protected] PETER TUENGE Keating Jones Hughes 200 SW Market St., #900 Portland, OR 97201 Phone: 503.222.9955 Email: [email protected] KJERSTEN TURPEN K&L Gates 1 SW Columbia Street, #1900 Portland, OR 97204 Phone: 503.226.5786 Email: [email protected] ADMINISTRATIVE OFFICE GEOFF HORNING 147 SE 102nd Avenue Portland, OR 97216 503.253.0527 • 503.253.9172 (fax) 800.461.6687 • [email protected] President’s Message PRESIDENT’S MESSAGE A Call for OADC Members to Assist Courthouses in Procuring Masks Lloyd Bernstein, Bullivant Houser Bailey
“If life were predictable it would As Oregon moves towards reopening wants one. To that end, Chief Justice cease to be life, and be without courthouses, the judicial system is faced Walters has reached out to the Oregon flavor.”1 with the difficult challenge of making legal community and is asking us to them a safe environment for the legal pull together to help our court system We have all been profoundly impacted community and visiting members of the by either donating masks or making by the COVID-19 pandemic in too many public. Our court system simply cannot masks that can be used in courthouses unique and different ways to even operate effectively if those accessing around the state. We quite literally need attempt to unpack here. the court system – including lawyers – thousands, and the Judicial Department The one impact we all are anxious for their own safety when has limited ability to obtain extra masks. share in common is the they walk up the courthouse steps. If There are simply not enough masks impact on the practice the ability to access our courthouses available. of law – which, as we all remains paralyzed during the return With the encouragement of the Chief know, has been turned to some kind of normalcy, it seems Justice, OADC has volunteered to step upside down since our justice system could overload and up and lead the charge in procuring my opening message LLOYD BERNSTEIN potentially collapse from the inevitable courthouse masks. If every OADC discussing the future of OADC. Well backlog. member could donate just one mask (or folks, the “future” is here and, of course, As we are reminded anytime we more) it would be a tremendous help. We it is nothing like anyone anticipated when (reluctantly) turn to the news, one of have been assured that the masks do we started the year. Nevertheless, life’s the simplest approaches to enhance not need to be the N-95 variety. Simple unpredictability has presented OADC safety is to encourage people to wear disposable or washable masks are great.2 with an opportunity to step up and truly face masks. To encourage the wearing of You can even make masks for donation demonstrate to the community one of its face masks, Chief Justice Walters wants per the CDC instructions.3 The Judicial core values – helping to protect the civil our courthouses to have enough masks Department has assured us homemade justice system. on hand for anyone who might have masks would be very much welcomed forgotten theirs at home or otherwise and recommends that any homemade CONTINUED ON NEXT PAGE
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masks be wrapped individually for all once again gather in person and Geoff Horning, Executive Director distribution. fully enjoy another core value of OADC Oregon Association of Defense Counsel – the good company of our members. 147 SE 102nd Ave OADC has agreed to be the point of Until that time, let’s remember to be Portland, OR 97216 collection for the legal community. OADC respectful, practice law safely, and P: 503-253-0527 is also reaching out to the other state continue to lean on one another to get [email protected] and local Bar organizations in this effort through these tough times. And to that to collect masks for the courthouses. Thank you and stay safe. end, please find a way to donate masks The Oregon Judicial Department for our courthouses – let’s make sure Endnotes Marshal’s Office will collect the masks OADC meets the challenge of the day. 1. Eleanor Roosevelt. from OADC and then distribute them Let this be our “flavor” in helping to 2. Shop online here: https://www. to the counties in need. Anything and amazon.com/Best-Sellers-Industrial- protect our justice system! Scientific-Medical-Face-Masks/zgbs/ everything that you can do to help If you have any questions about industrial/8404646011. advance this good cause would be the collection process, have masks 3. See https://www.cdc.gov/ greatly appreciated. coronavirus/2019-ncov/prevent-getting- to donate, or can make masks to sick/how-to-make-cloth-face-covering. I look forward to the time when we can contribute, please contact: html.
The VerdictTM ■ 2020–Issue 2 3 Features
#MeToo and Nondisclosure Agreements in Oregon—Are They Still Viable? Pamela J. Paluga Abbott Law Group
In the wake of the #MeToo movement, The Oregon Workplace Fairness Act It is important to note that the Act’s nondisclosure agreements (NDAs) have limits NDAs prohibitions on NDAs and similar come under increasing criticism as a The 2019 Oregon Workplace Fairness provisions apply not just to sexual means for sexual offenders to continue Act, SB 726 (2019), attempts to assault, discrimination, or harassment their behavior with impunity and without straddle these conflicting goals by that occurs in the workplace, but also social repercussions. Quite simply, prohibiting employers from entering to conduct occurring outside the when victims of sexual into an agreement with an employee workplace, and includes off-premises harassment and assault or prospective employee that work-related events coordinated by or cannot talk about what contains a nondisclosure provision, a through the employer. In addition, the happened to them, the nondisparagement provision, or any other Act applies to coworker and employer perpetrators of that provision that has the purpose or effect conduct. And while an employer can conduct remain free of preventing an employee or prospective encourage employees involved in an to victimize others. Bill investigation to keep any matters PAMELA J. PALUGA employee from disclosing or discussing Cosby, Harvey Weinstein, conduct that constitutes discrimination, discussed confidential, an employer may Bill O’Reilly, and Roger Ailes were all harassment, or sexual assault under not require or direct that the employee called to task in the court of public Oregon law. The Act does, however, allow keep them confidential. opinion for using NDAs to silence women employers to enter into such agreements The five-year statute of limitations from coming forward with sexual assault if requested by the “aggrieved” employee The Act expands the limitation period claims. and if the agreement itself gives the for filing claims for sexual assault, employee seven days within which to Yet, as employment defense discrimination, and harassment from exercise the option of revoking the practitioners know, there are times when one to five years. A claim brought under agreement. an NDA is a useful and appropriate tool the Act is also subject to a five-year for preventing truly spurious allegations The Act was signed into law by Governor limitation period. The new five-year from reaching the public and decimating Kate Brown on June 11, 2019 and applies statute of limitations applies to conduct people’s lives and careers. Moreover, to every employer with one or more occurring on or after September 29, even some women’s advocacy groups Oregon employees. Some provisions 2019, and to violations of the Act and women’s rights lawyers, including of the Act took effect on September occurring on or after October 1, 2020. Gloria Allred, argue that eliminating NDAs 29, 2019, and others will take effect Employers must now have a written will take away a victim’s settlement on October 1, 2020. The prohibition anti-discrimination policy leverage and may also subject victims against NDAs and similar provisions in Whereas it has always been good to having details made public that they agreements takes effect on October 1, would prefer to remain private. There 2020. As of that date, an employee who practice for an employer to have an anti- is an inevitable tension between the claims an employer has violated the discrimination policy, under the Act, a need to stop future sexual harassment/ Act may sue the former employer or file written policy is now required. The policy assault and the need to give victims a claim with the Bureau of Labor and must: of that conduct as much settlement Industries (BOLI) and may also seek to • Provide a process for employees to leverage and privacy as possible. recover attorney fees. report prohibited conduct; CONTINUED ON NEXT PAGE
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• Identify who is responsible for Severance packages of perpetrator some employers may simply choose to receiving reports; employees are voidable under the Act pay the severance to avoid the potential • Describe the five-year limitation The Act also allows employers to void lawsuit and ensuing conflict. period; separation or severance provisions Suggestions going forward in agreements with a “perpetrator • State that an employer may not The increased time to bring suit will employee” if the employer investigates require or coerce an employee likely mean that employers will need to a claim of misconduct in good faith and to enter into a nondisclosure or review and possibly change their current determines that the allegations are well- nondisparagement agreement; document-retention policies. Having a founded. The employer can also include written document-retention policy, as • Explain that an employee may nondisclosure and no re-hire provisions well as following and enforcing it, would voluntarily request a nondisclosure in agreements with the perpetrator be an important first step in heading off or nondisparagement agreement and employee if supported by a good faith a spoliation claim down the line. that any such agreement comes with investigation, even if the perpetrator did the right to rescind the agreement not ask for an NDA. In this situation, the If they have not already done so, within seven days; and NDA does not have to include a seven- employment counsel should offer • Advise employers and employees day revocation period. to review their clients’ current to document any incidents of Of course, the right of employers to void employment, severance/separation, discrimination, harassment, and these agreements does not mean that and arbitration agreements to make sexual assault. disgruntled “perpetrator employees” sure they comply with the Act and to The written policy must be given to all will not sue their employers for breach confirm that their document-retention new employees upon hire, posted in the of contract, challenging the good faith policies are sufficient. Employment workplace, and provided to any employee investigation and determination and/or counsel should also ensure that their who complains about discrimination, the validity of the claims themselves. clients’ anti-discrimination policies are harassment, or sexual assault in Such lawsuits would also likely drag consistent with the Act. Lastly, manager/ the workplace. BOLI says it will have the victims into litigation involuntarily, employee training would certainly be guidelines ready for employers in June making them re-live situations they beneficial given the new prohibitions and 2020. would prefer to forget. For these reasons, proscriptions set forth in the Act.
The VerdictTM ■ 2020–Issue 2 5 Features Defending Non-Employers Against Aiding-and-Abetting Claims Under ORS 659A.030(1)(g) Robert Double III Buchalter Ater Wynne
For 67 years, the text of ORS statute, attorneys need not wait for court reached the same conclusion in 659A.030(1)(g)—which creates aiding- these decisions to attack subsection Larmanger v. Kaiser Foundation Health and-abetting liability for employment- (1)(g) claims. At the same time, we Plan of Northwest, holding that “[ORS] related actions prohibited under Chapter should be preparing our clients for the 659A.030(1)(g) is clear and unambiguous 659A—has remained unchanged. Yet possibility of adverse rulings and future on its face.”4 It further elaborated in despite the statute’s longevity, the claims based on expanded liability. McIntire v. Sage Software, Inc. that the Oregon Court of statute “immediately qualif[ies] [‘any Appeals and the Oregon person’] with the words ‘whether an Supreme Court have To date, all courts that have employer or an employee[,]’” meaning that the statute “does not allow a claim yet to weigh in on a addressed the issue have fundamental question for aiding and abetting against an entity of liability, namely, found that subsection (1)(g) that is neither the plaintiff’s employer nor to whom does the an employee of plaintiff’s employer.”5 And ROBERT DOUBLE III statute apply? Does the applies only to a plaintiff’s the court reiterated these conclusions in Malcomson v. Daimler N. Am. Corp.6 law create liability only for a plaintiff’s employer or fellow employee, employer and co-workers, or does it Oregon’s circuit courts have followed the extend further? but there nevertheless is a district court’s lead thus far, including in the three cases currently on appeal.7 This soon will change through a trio possibility that the Court of of cases pending before the Court of Practical implications of expanded Appeals.1 The question is one of statutory Appeals will interpret the liability interpretation, centered on the wording To date, all courts that have addressed of subsection (1)(g) itself, which makes statute to apply more broadly. the issue have found that subsection it an unlawful employment practice for (1)(g) applies only to a plaintiff’s “any person,2 whether an employer or an State of the law employer or fellow employee, but there employee, to aid, abet, incite, compel, or nevertheless is a possibility that the coerce the doing of any acts forbidden The District Court of Oregon has already Court of Appeals will interpret the under this chapter or the attempt to addressed the scope of liability under statute to apply more broadly. This could do so.” The answer will turn on how the subsection (1)(g) on several occasions, have the effect of expanding liability court interprets the phrase “whether an each time holding that liability is limited for employment-related actions well employer or an employee”—i.e., does the to a plaintiff’s employer or co-worker. beyond the employment relationship. phrase modify the term “any person,” or is In the first of a series of cases, the The list of unexpected defendants could it merely exemplary? court—in Duke v. F.M.K. Construction include, for example, a customer whose The court’s resolution of these cases will Services, Inc.—relied on the plain complaint to an employee’s manager have practical implications for defending language of subsection (1)(g) and found results in that employee’s termination. non-employer, non-employee defendants. that “the statute was intended only to Even if such defendant is not found Given the existing body of case law, regulate the conduct of those working liable, a more expansive reading of the which endorses a narrow reading of the for the plaintiff’s own employer.”3 The statute would allow plaintiffs to move CONTINUED ON NEXT PAGE
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beyond the pleadings stage in many cases, thereby costing defendants more money and potentially extracting higher settlements.
Tips for defending clients
Non-employer, non-employee defendants currently facing a subsection (1)(g) claim should seek dismissal based on the existing body of case law. The scope of the statute is, of course, a legal issue, but application of the statute to a given case may require further factual development before a defendant can secure dismissal. For the defendant who plainly is not alleged to be a plaintiff’s employer or co-worker, this would come at the motion-to-dismiss stage. Where, by contrast, the parties’ relationship is in dispute, a defendant may be forced to wait until summary judgment or even until trial to obtain a determination of the nature of the relationship and, in turn, the Conclusion No 17CV11777/Court of Appeals Case applicability of the statute. Alternatively, No A166808; Charlton v. Staub & Sons Although federal and state courts Petroleum, Inc., Deschutes County Circuit non-employer, non-employee defendants currently agree that liability under Court Case No 17CV34375/Court of may consider seeking a stay of the subsection (1)(g) is limited to a plaintiff’s Appeals Case No A167004; and Miller action against them until the Court of employer or co-worker, that scope v. Tillamook Cty. Health Dept., Tillamook Appeals issues its anticipated rulings and County Circuit Court Case No 18CV59146/ could soon be expanded by the Oregon Court of Appeals Case No A171169. provides some clarity. If successful, this Court of Appeals. Those attorneys who would avoid the cost of briefing an issue 2. “Person” is defined as “[o]ne or more are defending clients against pending individuals, partnerships, associations, that will soon be decided. subsection (1)(g) claims should watch labor organizations, limited liability Attorneys may also take steps to closely for the Court of Appeals’ rulings, companies, joint stock companies, corporations, legal representatives, protect their clients from future claims, as they will greatly impact the ability trustees, trustees in bankruptcy or regardless of the outcome of the pending of non-employer and non-employee receivers.” ORS 659A.001(9)(a). appeals. Attorneys should continue to defendants to succeed on early 3. 739 F Supp 2d 1296, 1306 (D Or 2010). use best practices when structuring dispositive motions. In the meantime, 4. 805 F Supp 2d 1050, 1056 (D Or 2011). their clients’ relationships with entities defense counsel should continue to seek 5. No 3:15-cv-00769-JE, 2015 WL 9274301, that could expose them to future liability to limit liability (or the impact of liability) at *3 (D Or Sept 28, 2015). under subsection (1)(g). This includes where possible, including through the 6. No 3:15-cv-02407-SB, 2016 WL 5867056, the use of indemnification clauses in any use of indemnification provisions. at *5-6 (D Or Aug 3, 2016). relevant agreements. Simple steps like Endnotes 7. Order, Hernandez, No 17CV11777 (Nov this can help blunt the impact of future 1. The three cases currently on appeal are: 21, 2017); Minute Order, Charlton, No lawsuits, whether under an expanded Hernandez v. Catholic Health Initiatives, 17CV34375 (Jan 10, 2018); Letter Opinion, reading of the statute or otherwise. Multnomah County Circuit Court Case Miller, No 18CV59146 (Apr 17, 2019).
The VerdictTM ■ 2020–Issue 2 7 Features Do It the Old-Fashioned Way: Complying with ORS 742.013 By Christina Ho Thenell Law Group
When an individual bringing an insurance assumed by the insurer.” (Emphasis Incorporation by reference as a means claim makes a material misrepresentation, added.) of indorsing the application upon the that misrepresentation may provide a As the text of the statute makes clear, an policy basis for rescission. Sometimes, material insurer can fulfill the first requirement of Incorporation by reference is a generally misrepresentations are made during ORS 742.013 by attaching the application accepted contractual concept and has the presentation of the claim or the to the policy or indorsing it upon the been utilized by insurers as such. Some investigation process. policy. The purpose of the requirement, policies contain language that purports to Other times, such according to the Court of Appeals, is to incorporate the application into the policy. misrepresentations “prevent problems of proof that could These may state, for example, that the are made during the arise if an insurer were permitted to deny insured’s policy “consists of the policy application process a claim on the basis of an alleged oral contract, insurance application, and the and are contained in misrepresentation” and ensure that “the declarations page and all endorsements the application for policyholder is provided with everything to the policy,” and/or that the agreement CHRISTINA HO the insurance policy that the insurer relies upon in issuing the between the parties is contained in “the before a claim is ever made. In the latter 1 policy.” policy contract, the insurance application situation, Oregon imposes special The term “attach” is relatively (which is made a part of this policy as if requirements on an insurer that wants straightforward (although, in today’s attached hereto), the declarations page, to rely on the misrepresentation as online world, it is unclear whether email and all endorsements to this policy.” Some a basis for rescinding the insurance attachments will suffice). The meaning insurers have argued that the application contract. If those requirements are not of the term “indorsed upon” is unsettled. is “indorsed upon” the policy, for purposes met, the insurer must pay the claim According to Brock v. State Farm Mut. of ORS 742.013, by virtue of such notwithstanding the fact that its insured Auto. Ins. Co., 195 Or App 519, 526 language incorporating the application made a material misrepresentation in (2004), to “indorse” the application into the policy. obtaining the policy. upon the policy means that “the material Electronic access to the application The governing statute, ORS 742.013, information from the application must be and insurance policy as a means of provides that misrepresentations, inscribed or otherwise reproduced on the indorsing the application upon the omissions, concealments of fact, and policy itself.” The Court of Appeals did not policy incorrect statements in an insurance specify what “reproduced on the policy application will not prevent recovery under itself” meant and whether other methods In today’s paperless world, many insurers the policy unless three requirements are of reproducing the information, such as now provide their policyholders access met: (1) the application is “indorsed upon incorporation by reference, would suffice. to policy documents online, which can or attached to the insurance policy when Unfortunately, Oregon’s appellate courts include electronic access to both the issued”; (2) the statements or omissions have not provided further guidance on the application and the policy. An insurer could are material and relied upon by the insurer; subject. As such, there remains room for argue that, by providing electronic access and (3) the statements or omissions are interpretation regarding what constitutes to both the policy and the application by either fraudulent or “material either to the “indorsing” the application upon the way of an online portal, the requirements acceptance of the risk or to the hazard policy. of ORS 742.013 have been met. While
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of the application, along with the policy, other jurisdictions have addressed the of policy documents are now provided to the policyholder after the policy is use of hyperlinks as a valid method for electronically. written. This must be done pre-claim. It integrating terms into a contract, Oregon The reality, however, is that insurance is undisputed that physical attachment courts have yet to rule on the issue at the companies rarely provide a copy of the of the application to the policy meets appellate level.2 application to the insured, let alone the requirements of ORS 742.013(1)(a). Judicial guidance is needed, but until attach it to the policy. To be clear, failure Therefore, this approach will eliminate then, the best way to avoid a failure-to- to adhere to ORS 742.013 is costing the ambiguity regarding what constitutes meet-ORS 742.013 argument is to play insurers. The practical effect is that even “indorsing” the application upon the it safe egregious misrepresentations made in the policy. application process are covered unless While there are good arguments that Endnotes there is another ground for denial of the both of the above situations should 1. Ives v. INA Life Co., 101 Or App 429, 433, rev satisfy ORS 742.013(1)(a), there is no claim. den, 310 Or 393 (1990). conclusive Oregon case law. For those What can be done to avoid an insured’s 2. See Nguyen v. Barnes & Noble Inc., 763 F3d 1171, 1178 (9th Cir 2014); Hubbert v. Dell with a coverage practice, clarity is argument that ORS 742.013 was not met? Corp., 359 Ill App 3d 976, 835 NE2d 113 needed, especially because the majority Do it the old-fashioned way: Mail a copy (2005).
The VerdictTM ■ 2020–Issue 2 9 Recent Case Notes
Recent Case Notes Sara Kobak, Schwabe Williamson & Wyatt Case Notes Editor
repair issues. The landlords demanded counterclaim was asserted to justify the Landlord-Tenant full payment of unpaid past rent, utility unpaid rent rather than to ameliorate the Tenant good-faith requirement bills, and move-in charges before any uninhabitable conditions. renegotiation of the rent amount. met despite conduct motivated by The Oregon Supreme Court disagreed avoidance of rent Several months later, the tenants with both courts and reversed the wrote the landlords and left them a judgment of dismissal. In reversing, the In Eddy v. Anderson, 366 Or 176, 458 P3d telephone message, informing the Supreme Court explained that the “good 678 (Feb. 21, 2020), the Oregon Supreme landlords that the bathroom drain was faith” standard under ORS 90.130 is not Court held that the “good faith” standard clogged again and complaining that the dependent on motivations, but on whether imposed by the Oregon Residential problem had reoccurred six or seven the tenants acted with “honesty in fact.” Landlord and Tenant Act (ORLTA) means times. The landlords responded to the Applying that definition, the Supreme “honesty in fact in the conduct or tenants’ communications, but denied Court held that the tenants met the transaction concerned.” the frequency of their prior complaints statutory “good faith” requirement so Residential landlords began this case by about the clogged drain. The tenants then long as “they subjectively believed that filing a breach-of-contract action against ceased paying rent, and the landlords the counterclaim had merit, and so long as former tenants to recover unpaid rent, filed an eviction action. After the tenants they did not knowingly fail to comply with among other damages. The tenants agreed to vacate the premises, the any prerequisite for asserting their claim.” responded with counterclaims alleging, landlords sued for breach of contract to Submitted by Michael G. Jacobs in part, that the landlords failed to recover the unpaid rent. In response, the Hart Wagner maintain the rental premises in a habitable tenants asserted a counterclaim under condition in violation of ORS 90.320 of the ORS 90.360(2) for damages based on the Employment ORLTA. landlords’ alleged failure to maintain the premises in a habitable condition. Value of a benefit may not be The history of the tenancy included asserted as an affirmative defense After a trial, the trial court dismissed complaints about the condition of the to defeat a wage claim, but it the tenants’ counterclaim under ORS property. Shortly after taking possession, may be asserted as an equitable 90.360(2), reasoning that the tenants did the tenants provided the landlords with a counterclaim for quantum meruit written list of requested repairs. This list not comply with their statutory good-faith included repairing a backed-up bathroom obligation because they failed to provide In Jones v. Four Corners Rod & Gun Club, drain. The landlords repaired the drain. the landlords with adequate written notice 366 Or 100, 456 P3d 616 (Jan. 30, 2020), Several months later, the tenants again of the uninhabitable conditions and had the Oregon Supreme Court held that an complained that the drain was clogged. acted with unclean hands. employer’s unlawful withholding of wages The landlords again fixed the drain and On appeal, the Oregon Court of in violation of ORS 652.610(3) precludes provided a tool for the tenants to fix Appeals affirmed the dismissal of the the employer from asserting the value future drain problems. Subsequently, counterclaim on different grounds. Citing of a lodging benefit as an affirmative the tenants paid their rent late and less the requirement of “good faith” under defense to defeat an employee’s wage than the amount owed. Along with their ORS 90.130, the Court of Appeals held claim and recover attorney fees as the partial rent payment, the tenants asked that the tenants were not entitled to prevailing party on such a claim. In such the landlords for lowered rent due to bring their counterclaim because the circumstances, however, the defendant CONTINUED ON NEXT PAGE
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employer still may raise recoupment as employer succeeded on an affirmative that it would contradict legislative intent an equitable counterclaim to recover the defense for setoff, the court reasoned to allow the employer to raise such an value of the lodging benefit. In this case, the employee agreed to work in exchange for lodging and related benefits. In violation of ORS 652.610(3), the employer did not obtain written authorization before deducting the value of the lodging from the employee’s wages, nor did the employer keep necessary wage records. After the employment relationship broke down, the employee sued the employer for unpaid minimum wages and attorney fees under ORS 652.200 and ORS 652.615. In response to the employee’s wage claim, the employer asserted “setoff” as both an affirmative defense and counterclaim to recover the value of the lodging benefits. The employer also claimed entitlement to statutory attorney fees under ORS 653.055(4), alleging it should be designated prevailing party on the employee’s wage claim because the value of the lodging benefit exceeded the employee’s minimum wages and therefore offset the employee’s recovery. The court held that the employer’s unlawful withholdings of wages prevented it from raising the value of the lodging benefit as an affirmative defense, but it was entitled to assert a separate equitable counterclaim to recover that value. Consequently, the employee was the prevailing party on his wage claim and entitled to statutory attorney fees for that claim, and the employer recovered the value of the lodging benefits on an equitable counterclaim without attorney fees. Based on the “qualitatively different” case outcome that would result if the CONTINUED ON NEXT PAGE
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affirmative defense. Unlike a successful defeats the employee’s wage claim and the employee, would become “largely counterclaim, which only affects the reverses the parties’ obligations with meaningless” if the employer was net money award in the judgment, respect to attorney fees. In addition, allowed to unlawfully withhold wages to a successful affirmative defense the wage statutes, designed to protect provide lodging benefits, then use those same benefits to avoid liability from the employee’s wage claim. The court also characterized the employer’s claim as one for “recoupment” and evaluated the text and broader context of ORS 652.610(5) to conclude that the legislature excluded recoupments from the wage statute’s remedial framework. After concluding that the value of the lodging benefit could not be asserted as an affirmative defense to the wage claim, the court explained that the employer still may assert recoupment as a counterclaim, and ORS 652.610(5) explicitly allows lawful counterclaims. Noting it has applied the equitable doctrine of quantum meruit to comparable circumstances, the court held that the facts satisfied the prima facie requirements for relief and the employer’s counterclaim was permissible. Because the value of the lodging exceeded the employee’s wages owed, and the employee had no notice of the excess amount, the court equitably reduced the employer’s recovery to match the employee’s wages. Submitted by Helaina Chinn Bodyfelt Mount Scientific Evidence Expert medical testimony admissible despite lack of consensus in medical field to support causation
In Miller v. Elisea, 302 Or App 188, 459 P3d 887 (Feb. 12, 2020), plaintiffs appealed a judgment dismissing their personal injury claim after the trial court granted defendant’s motion to exclude testimony from plaintiffs’ CONTINUED ON NEXT PAGE
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expert witness. The trial court to the determination of the scientific asserting that plaintiff failed to present excluded testimony from plaintiffs’ validity of evidence; however, an evidence on all elements of the claims. The experts on the grounds that it did absence of such a consensus is not trial court agreed and granted summary not constitute scientific evidence disqualifying. The court reasoned that judgment in favor of defendants. As to because plaintiffs had not shown that plaintiffs’ experts supported their the interference claims, the trial court there was a consensus in the medical theory that physical trauma can cause concluded that plaintiff failed to show community that physical trauma can fibromyalgia with evidence from their wrongful interference as to each contract cause fibromyalgia. The Oregon Court of own clinical experience, peer-reviewed or relationship. As to the defamation claim, Appeals reversed, holding that a lack of medical literature, and studies describing the trial court explained that the record consensus in the medical field about a a possible neurological mechanism of lacked evidence of communications that theory of causation is not disqualifying. causation. The court found that the were defamatory per se. evidence adduced by plaintiff was Plaintiff was in a minor car crash. The On appeal, the Oregon Court of Appeals scientifically valid under the Brown airbags did not deploy, and plaintiff reversed. As to the defamation per factors and that the trial court erred in denied impact to any of her body parts. se claim, the evidence in the record excluding the testimony of Drs. Brown Emergency services did not respond. indicated that defendant told plaintiff’s and Freeman. Plaintiff was ambulatory at the accident customers in an email that he was leaving Submitted by Dan Murphy scene, and her husband picked her up at his employment with plaintiff because of Keating Jones Hughes the scene. The following day, however, “diametrically different” views on ethics plaintiff reported severe back pain Defamation and best-business practices. Defendants and nausea to an urgent care clinician argued that the statement was not who diagnosed her with a lumbar strain Evidence of potentially defamatory defamatory because it was literally and cervicalgia. Over the next several statement and of wrongful conduct true that defendant and plaintiff had months, plaintiff received care from supports reversal of summary diametrically different views on business physical therapists, chiropractors, judgment of defamatory and practices and ethics. In rejecting that acupuncturists, a physiatrist, and her wrongful interference claims argument, the Court of Appeals pointed primary care provider. Nine months after out that the determination as to whether the accident, plaintiff’s primary care In NV Transport, Inc. v. V&Y Horizon, Inc., a statement is defamatory depends provider diagnosed her with fibromyalgia. 302 Or App 707, 462 P3d 278 (March not just on the literal meaning of the 11, 2020), the Oregon Court of Appeals At trial, defendant filed a motion to words, but also on how a recipient would addressed the evidence necessary to exclude evidence supporting a causal understand the statement. The court defeat summary judgment on claims of link between plaintiff’s fibromyalgia found that a recipient of the statement intentional interference with economic and the car accident, arguing that the could reasonably interpret the statement relations and defamation per se. Brown factors weighed against the as implying that plaintiff was unethical admissibility of scientific evidence Plaintiff employed defendant as a drayage or dishonest, not just that defendant supporting plaintiffs’ theory. State dispatcher. During his employment for and plaintiff saw ethics and business v. Brown, 297 Or 404, 687 P2d 751 plaintiff, defendant diverted portions of practices differently. As a result, the court (1984). In response, plaintiffs submitted plaintiff’s business to his own company. determined that a question of fact existed declarations from two physicians, Drs. After learning of defendant’s actions, as to whether the statement, viewed in Michael Freeman, MedDr, PhD, MPH, DC, plaintiff terminated defendant and its context, impugned plaintiff’s business and rheumatologist Paul Brown, MD. then brought claims for defamation and reputation. The court clarified that, with Defendant’s motion was granted. intentional interference with economic respect to defamation, “[i]t is the role of On appeal, the Oregon Court of Appeals relations against both defendant and his the factfinder to determine whether, in held that whether there is consensus company. the context in which the statement was in the medical community concerning a Defendants subsequently moved for made, the recipient would perceive that theory of medical causation is relevant summary judgment on those claims, [negative] implication and whether it is CONTINUED ON NEXT PAGE
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true or false.” The court also determined of Goodyear, was injured when a tire he cages to prevent injuries to employees that there were factual issues about was repairing exploded. Plaintiff sued like plaintiff, the managers knew of a whether defendants engaged in wrongful Goodyear, alleging that the employer similar prior incident and did nothing to conduct, including misrepresentations and was liable under theories of negligence, enforce the use of tire safety cages. disparagement, to interfere with plaintiff’s strict product liability, and intentional Plaintiff alleged that Goodyear, through business relations. misconduct. Following the briefing, plaintiff its managers, required employees to work Submitted by David W. Cramer conceded that its claims for negligence on dangerous tires. Those same managers MB Law Group and strict products liability were barred also observed employees failing to use by the exclusive-remedy rule in Oregon’s required safety equipment. Plaintiff Employer Liability workers’ compensation laws, as shown by alleged that the managers’ failure to Oregon Court of Appeals’ recent decision in correct this dangerous behavior, provide District court dismisses complaint Nancy Doty, Inc. v. Wildcat Haven, Inc., 297 training, and post specific warnings, was for failure to allege facts supporting Or App 95, 439 P3d 1018 (2019). Plaintiff enough to show the company’s intent to deliberate intention exception to asserted that his third claim for intentional cause serious injury or death to plaintiff. worker’s compensation exclusive misconduct should survive, however, Goodyear moved to dismiss. remedy rule because the worker’s compensation In considering the issue, the district court exclusive-remedy rule has an exception In Miller v. Goodyear Tire & Rubber first noted that carelessness or negligence when the employer deliberately intends to Company, 2020 WL 265198 (Jan. 18, will not satisfy the “deliberate intent” injure the employee. 2020), the Oregon district court granted requirement under Oregon law, and that defendant Goodyear’s motion to dismiss Plaintiff alleged that, although Goodyear the requisite intent to injure must be the under FRCP 12(b)(6). Plaintiff, an employee had a policy regarding the use of tire company’s intent, not its employees’
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intent. The court stated that theories of vicarious liability and respondeat superior are incapable of satisfying the deliberate-intent exception to the worker’s compensation exclusive remedy. In reviewing Oregon law, the court found that the allegations of conduct by Goodyear’s managers cannot be legally attributed to the corporation under Goings v. CalPortland Co., 280 Or App 395, 382 P3d 522 (2016), and Bundy v. Nustar GP, LLC, 277 Or App 785, 373 P3d 1141 (2016). After reaching that conclusion, the district court next found that plaintiff had not sufficiently alleged that the managers “wielded the whole corporate power of the employer,” so the managers’ actions could not be wholly attributed to the corporation. Although plaintiff argued that Goodyear knew that its managers were not requiring alone, does not establish that an alleged IIER, and ELL claims against the logging the use of tire safety cages, the district intentional interference with economic contractor and Hampton. relations (IIER) was done by improper court held that plaintiff had not sufficiently The trial court granted Hampton means or for an improper purpose. alleged that Goodyear had been informed summary judgment on the IIER and ELL The Court of Appeals also held that a that its managers were not enforcing the claims and denied the plaintiffs’ motion defendant’s right to control a bridge safety policies and procedures. Because to amend to increase their noneconomic did not establish that the defendant the complaint did not allege Goodyear’s damages and add new theories of had a right to control the risk-producing knowledge of the ongoing course of negligence. At trial, the jury returned a misconduct and failure to act, plaintiff activity that caused the plaintiffs’ verdict in favor of the defendants on all failed to allege facts necessary to support injuries, for purposes of the plaintiffs’ remaining claims. his claim that Goodyear deliberately Oregon Employer Liability Law (ELL) intended to injure him. Based on those claim. Plaintiffs raised several issues on appeal. The Court of Appeals affirmed holdings, the district court dismissed Defendant Hampton contracted with plaintiff’s complaint. two of those issues without discussion the defendant logging contractor to cut Submitted by David W. Cramer and ruled that the trial court properly timber on land owned by Hampton. The MB Law Group exercised its discretion to deny the logging contractor subcontracted with motion to amend. plaintiff and his company to harvest the Tort timber using a piece of heavy equipment. The Court of Appeals affirmed summary Interference and employer liability The logging contractor told plaintiff to judgment in favor of Hampton on the claims fail to pass evidentiary access the work site using a bridge that IIER claim. The plaintiffs alleged that thresholds was located on Hampton’s property. after the accident Hampton instructed While attempting to cross the bridge, the logging contractor and others not In Sanford v. Hampton Resources, Inc., plaintiff and the heavy equipment fell off to work with the plaintiffs. At the most, 298 Or App 555, 447 P3d 1192 (July the bridge into the creek below. Plaintiff however, the evidence showed that the 31, 2019), the Oregon Court of Appeals was injured, and he subsequently logging contractor and other contractors held that a defendant’s economic power, asserted negligence, breach of contract, had gotten a feeling that Hampton did CONTINUED ON NEXT PAGE
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not want the plaintiffs working on their Oregon Court of Appeals held that is silent regarding attorney fees, the projects or property. Hampton never told the correct approach for determining proper approach is either to exclude them that directly. This evidence was whether an offer of judgment under costs and fees on both sides of the insufficient to establish an intentional ORCP 54 E is more favorable than the offer-award comparison, or include costs interference by improper means or for an entered judgment is to include the and fees on both sides. improper purpose, the Court of Appeals pre-offer costs and fees on both sides The Court of Appeals agreed with ruled. The court specifically rejected of the comparison. The court’s holding defendants. It held that costs and fees the plaintiffs’ argument that Hampton’s creates a fair comparison equation for must be included in both the offer and economic power in the logging industry defendants who make reasonable offers award when comparing the two numbers made its conduct improper or created a under ORCP 54 E and penalizes plaintiffs for the purpose of determining whether “duty of non-interference.” who reject reasonable offers. the judgment was more favorable The Court of Appeals also affirmed After successfully prosecuting than the offer of judgment. Based on summary judgment in favor of Hampton defendants’ breach-of-contract claim that holding, the court reversed the on the ELL claim. Plaintiff alleged with a right to recover attorney fees, award for attorney fees incurred after Hampton had a “right to control” the plaintiff argued the $8,201 judgement the offer of judgment for defendant roads and bridges on its property and award—$6,801 in damages, plus fees A, because plaintiff’s award was less had failed to use every device, care, and and costs of $1,400 as of the date of than defendant A’s offer after including precaution that was practicable for the offer—exceeded defendant A’s offer fees and costs on both sides of the protection and safety” of plaintiff, as of $7,800 and defendant B’s offer of comparison. required by the ELL statutes. The court $2,600 under ORCP 54 E, with both of The court explained that the purpose of ruled that control of the bridge was not those offers silent on attorney fees. ORCP 54 E is to encourage settlement sufficient to make Hampton an indirect Based on that position, plaintiff claimed and penalize a plaintiff who rejects a employer liable under the ELL, because that it was entitled to all of its attorney reasonable offer. “To allow the attorney the “risk-producing activity” was the fees, including fees incurred after fees that were incurred up to the time plaintiff’s travel across the bridge, not defendants’ offers. Plaintiff relied on of service of the offer to be considered the bridge itself. There was no evidence Carlson v. Blumenstein, 293 Or 494, 504, only on one side of the comparison . . . that Hampton retained the right to 651 P.2d 710 (1982), where the Oregon would frustrate the purpose of the rule.” control that activity. Supreme Court compared the offer of It would also encourage parties to reject Submitted by Holly E. Pettit judgment against the sum of the award, reasonable offers and continue litigating Hart Wagner plus the costs and recoverable attorney if the attorney fees could later be fees incurred up to the time of service calculated to inflate only the judgment Civil Procedure of the offer. The trial court agreed with and not the offer. Thus, the reasoning plaintiff, and it awarded the requested Where an ORCP 54 E offer is silent in Carlson was not compatible with the attorney fees based on its conclusion regarding attorney fees, the court current version of ORCP 54 E. that the plaintiff’s award exceeded both will add pre-offer attorney fees to offers. Moving forward, Woodworkers Local both the offer and the award to W-246 allows defendants to leverage On appeal, defendants assigned error to determine whether the claimant’s plaintiffs with a reasonable offer when the trial court’s award of fees and costs award exceeded the offer trial is imminent. incurred after the service of their ORCP Submitted by In Int’l Ass’n of Machinist, Woodworkers 54 E offers of judgment. Defendants — Josh Sherman, Hart Wagner Local W-246 v. Heil, 302 Or App 442, argued that the current version of — Trent J. Andreasen, Keating Jones 461 P3d 1035 (Feb. 26, 2020), the ORCP 54 E provides that, when an offer Hughes
16 The VerdictTM ■ 2020–Issue 2 Legislative Update Legislative Update Rocky Dallum, Tonkon Torp OADC Lobbyist
Oregon’s executive and legislative leaders Trial Lawyers Association and supported by unemployment benefits, the CARES Act continue to respond to both the current OADC (House Bill 4212). allocated around $1.6 billion to the State pandemic and the call to address systemic of Oregon to use for its COVID response Lawmakers also finalized several bills racism following the unacceptable death and to disseminate to local governments. held over from the February session that of George Floyd and Legislative leaders and the governor ended following the Republican walkout. the ensuing historic continue to determine how to distribute Legislators agreed to clarifications to the demonstrations. those funds through the legislative new Corporate Activity Tax, restrictions Legislators have already “Emergency Board.” With some ambiguity on pesticide use in forestry, and a new convened one special over the allowable uses for those funds, cell phone tax to fund rural broadband. session to address policymakers have debated whether to Expect other employment-related issues both crises, while the give money directly to cities and counties, to surface, particularly regarding paid sick state continues to face earmark funds for economic recovery, or leave requirements and unemployment ROCKY DALLUM significant budgetary invest directly in the public health response. or workers’ comp eligibility arising from challenges. The “First Special Session Secondly, Oregon has wisely created a COVID. Most lawmakers and political of 2020” lasted three days and focused more robust “rainy day” fund since the insiders speculate that the next session will on police reforms, COVID response, and last recession, holding a balance of around convene in late July or early August. several items left over from the February $1.75 billion. Tapping into those reserves legislative session. The Capitol was closed With the special session only addressing will require a bipartisan effort, but the ability to the public, and lawmakers attempted to policy changes and minor budget to do so places Oregon in a better position vote on legislation while maintaining social adjustments, a significant budget shortfall than many other states. These are all issues distancing. still looms over state government. In the likely to be tackled in the next special face of significant unemployment and the While a special session has been brewing session, although the governor’s office in limitations on restaurants and bars, both for weeks, the urgency to address law particular appears to be waiting for more income tax and lottery collections have enforcement accountability helped prod federal support. Certainly, Oregon’s courts taken significant hits, turning what was a legislators to formally meet and pass will feel the budgetary challenges as well, $600 million surplus at the end of February new legislation. Lawmakers agreed to a and OADC continues to talk with legislators into a $2.6 billion deficit by mid-May. State largely bipartisan package, which included and other legal organizations to ensure economists predict a $10.5 billion shortfall restricting arbitrators from reducing that all litigants have access to a fair, over the next five years. To respond, the disciplinary action, providing the attorney competent, and efficient justice system. governor directed state agencies in May general with authority to investigate police Spring 2020 has already been a challenging to make across-the-board cuts of around misconduct, and addressing the use of year for the governor’s office and state 8.5 percent, but since the current biennium physical force by law enforcement. The agencies, from the Oregon Health is nearly half over, the cuts will mean an COVID response measures were more Authority’s management of the pandemic approximate 16 percent reduction in all controversial, including extension of to the well-documented failures of the state agency budgets for the next 12 moratoriums on evictions and restrictions Employment Department. Legislators months. Only the legislature can make more on foreclosure, as well as one issue that continue to evaluate the ability to specific cuts to programs or changes to failed to make it to the governor’s desk: conduct a legislative session that meets existing budgets. liability protection for businesses facing our state constitution’s requirements; suits related to COVID. Specific to OADC Despite the grim economic outlook, Oregon keeps legislators, Capitol staff, and the membership, the legislature did codify does have some tools to combat the public safe; and still allows for meaningful extensions for court filings and electronic oncoming revenue decline. First, in addition participation in the process. Like nearly appearances to account for the current to federal stimulus for the disrupted everything else we’ve experienced in 2020, pandemic, changes sought by the Oregon workforce, small businesses, and enhanced how the state responds changes day by day.
The VerdictTM ■ 2020–Issue 2 17 Petitions forFor Review Review Petitions For Review Sara Kobak, Schwabe Williamson & Wyatt Case Notes Editor
The following is a brief summary of cases for which petitions for review have been granted by the Oregon Supreme Court. These cases have been selected for their possible significance to OADC members; however, this summary is not intended to be an exhaustive listing of the matters that are currently pending before the court. For a complete itemization of the petitions and other cases, the reader is directed to the court’s Advance Sheet publication.
Allianz Global Risks US Insurance insurance markets that provides coverage and (3) “Does the foregone conclusion Company v. ACE Property & Casualty for ‘sudden, unexpected and unintended’ doctrine apply under Article I, section 12, Insurance Company, S067017, discharges (the ‘London Exclusion’) have of the Oregon Constitution?” A159758 (control). 297 Or App 434, a meaning different from the domestic 442 P3d 212 (May 8, 2019). Argument exclusion, such that the London Exclusion Walker v. State of Oregon, S067211, scheduled for Sept. 16, 2020. provides coverage only if the pollution A163420. 299 Or App 432, 450 P3d discharge is abrupt?” 19 (Sept. 19, 2019). Argument In this insurance coverage action, the scheduled for Sept. 16, 2020. Oregon Court held that the purchasing State v. Pittman, S067312, A162950. corporation at issue did not assume the 300 Or App 147, 452 P3d 1011 (Oct. In this employment action, the plaintiff selling corporation’s contingent liabilities 16, 2019). Argument scheduled for brought claims against an agency of the so as to be entitled to make claims under Sept. 15, 2020. State of Oregon for common-law wrongful the insurance policies of the selling discharge and statutory whistleblowing, corporation. The issues on review are: In this criminal case, the Oregon Court of ORS 659A.203, after she was discharged (1) “If a contract provides that a party Appeals affirmed a trial court’s decision from her position. On appeal, in addition unconditionally assumes all liabilities of holding a criminal defendant in contempt to affirming the trial court’s rejection a second party, and a contemporaneous for failing to comply with a court order to of the plaintiff’s statutory claim, the contract provides that the second enter a passcode into a seized electronic Oregon Court of Appeals held that the trial party does not transfer certain cash or device based on its conclusion that the court erred in submitting the plaintiff’s contingent liabilities to the first party, is “foregone conclusion” doctrine was wrongful-discharge claim to the jury it established as a matter of law that the applicable and that the state had proved because the plaintiff’s disagreements first party did not expressly or impliedly that the defendant’s knowledge of the about governance and best practices assume any contingent liabilities of passcode was a foregone conclusion. did not fulfill an important public duty to the second party?”; (2) “May an insurer The issues on review are: (1) “Does support a wrongful-discharge claim, nor affect a co-insurer’s contribution rights compelling a person to provide the did her complaint about a public-meeting by entering into a separate agreement passcode to an electronic device such notice under the circumstances of this with the insured’s parent, in which the as a cell phone violate the right against case. On review, the issues are: (1) parent agrees to indemnify the insurer for self-incrimination provided by Article I, “Whether the Court of Appeals correctly any claims the insurer pays, if the policy section 12, to the Oregon Constitution applied the appropriate standard of was issued to satisfy state and federal and the Fifth Amendment to the United review for reviewing the trial court’s financial responsibility regulations and States Constitution?”; (2) “Does the denial of defendant’s motions for the separate agreement is not endorsed foregone conclusion doctrine permit directed verdict[?]”; and (2) “In applying into the policy?”’ and (3) “Does a variant of the government to compel a person to that standard, did the Court of Appeals the domestic qualified pollution exclusion disclose a passcode to a lawfully seized correctly apply the applicable law governing exception common in the London electronic device, including a cellphone?”; plaintiff’s wrongful discharge claim?” CONTINUED ON NEXT PAGE
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Otnes v. PCC Structurals, Inc. , interpreted UTCR 21.080(5)(a)(i) as recorded against a condominium unit, S067165, A167525. 299 Or App not requiring relation back as a matter holding that the bank’s deed of trust 296, 450 P3d 60 (Sept. 11, 2019). of right, what must a party prove for an remained superior to the condominium Argument scheduled for Sept. 23, e-filed document to ‘relate back’ to the association’s lien on the unit. On review, 2020. date of the original submission?”; “(3) the issue is: “Under ORS 100.450(7) and Is relation back available when a clerk the facts of this case, did the lien of the On reconsideration of an order of the rejects a filing due to a failure to pay condominium owners’ association obtain Appellate Commissioner, the Oregon a filing fee?”; and “(4) Did the Court of priority over the bank’s deed of trust, if Court of Appeals held that a plaintiff Appeals err when it ruled that ORAP 6.25 the association sent a priority-jumping failed to provide an explanation adequate does not allow a motion to reconsider an notice at a time when no legal action was either to allow the trial court to excuse opinion issued on reconsideration of an pending, and the bank took no action in the plaintiff’s failure to pay the filing order from the Appellate Commissioner?” the 90 days following the notice?” fee or to justify its discretion in ordering that the filing date relate back to the The Bank of New York Mellon Trust De Young v. Brown, S067385, date the motion was originally filed. On Company, National Association v. A162584. 300 Or App 530, 451 P3d review, the issues are: “(1) Does UTCR Sulejmanagic, S067155, A163269. 651 (Nov. 14, 2019). Argument 21.080(5)(a)(i) require a party who efiled 299 Or App 261, 450 P3d 14 (Sept. 5, scheduled for Nov. 16, 2020. a document before a filing deadline, but 2019). Argument scheduled for Sept. which was rejected by the clerk after the 23, 2020. In its decision, the Oregon Court of deadline, to establish that a ‘filing failure Appeals exercised its inherent equitable is excusable or relief is justified’ in order In this foreclosure action, the Oregon authority to award attorney fees to a for a corrected filing to relate back to Court of Appeals affirmed the trial plaintiff who acted in a representative the date of the original submission?”; court’s grant of summary judgment to a capacity to ensure that a special “(2) If the Court of Appeals correctly bank seeking to foreclose a trust deed local election complied with statutory requirements. On review, the issues are: (1) “Does the substantial benefit theory for recovering attorney fees apply if awarding fees would spread the cost of litigation not just among those who benefited from it, but also to those who may not benefit from it?”; and (2) “May a court award fees under the substantial benefit theory absent reasonable certainty that the benefit will be realized?”
Cox v. HP, Inc., S067138. Argument scheduled for Nov. 16, 2020.
In the original mandamus proceeding, the issue on review is: “Does a corporation that certifies the design of a product ultimately used in Oregon have sufficient minimum contacts with Oregon to be sued in this state?”
The VerdictTM ■ 2020–Issue 2 19 Judge’s Biography
The Honorable Kelly Skye Multnomah County Circuit Court
A BIOGRAPHY
Not long ago, before we were all for a change of pace and decided to use the Multnomah County Circuit Court in relegated to our homes to practice social her experience as a criminal defense 2010. Having worked in all three branches distancing, I had the distinct pleasure attorney to work as the legislative of government, she brings a unique of sitting down over chopped salads representative for the Oregon Criminal perspective to the bench. with my mentor and former boss, Judge Defense Lawyers Association. For two Kelly Skye. Over the bustle of the typical Judge Skye offered a few practice tips. Mother’s lunch crowd, a dining experience She suggests trial lawyers begin their which I now realize I took for granted, trial preparation with jury instructions, we caught up on Multnomah County using the summary of the pleadings as courthouse news, parenting advice, and the roadmap for the jury. She notes that recent pet antics. Speaking with a unique many lawyers forget to observe the jury’s blend of humility and compassion that I response to examination and argument have come to expect and admire, Judge by attorneys. Attorneys need to balance Skye reflected upon her particular path to their interest in making a record with the bench and offered some sage advice for practicing attorneys. being flexible and responding to cues from jurors about when to move on. She As a native Oregonian, Judge Skye has also emphasizes the importance of using deep roots in the Pacific Northwest. After graduating from the University of voir dire to learn about your potential Oregon with a degree in journalism, Judge jurors and focusing on rooting out biased Skye attended law school on the east jurors instead of trying to educate coast at Northeastern University. She jurors on particular aspects of your pursued her passion for constitutional case. Above all, Judge Skye emphasizes law and public interest work by becoming the importance of maintaining a staff attorney at Metropolitan Public professionalism no matter what occurs in Defenders in Portland. Eventually, she the courtroom. became a chief attorney, training and supervising the misdemeanor lawyers sessions she worked in the legislature, After soaking up a lunch hour of warmth and law clerks. While working as a advocating for criminal justice and and wisdom, I felt grateful for the time to criminal defense attorney, Judge Skye sentencing reform. She then became reconnect with Judge Skye. I appreciated Deputy General Counsel and, within litigated misdemeanor and felony criminal her candor and reflections on building cases, as well as juvenile delinquency about two years, General Counsel to a successful career and practicing with and dependency cases. Twelve years of Governor Ted Kulongoski. As a tribal professionalism and integrity. With litigating as a public defender gave her a member herself, one of the many aspects renewed spirits, we stepped out into deep understanding of trial practice and of working for the governor that Judge the crowded Portland streets and into the evidentiary rules applicable in both Skye enjoyed was working closely the rain. civil and criminal trials. with tribal leaders across the state During her final years at Metropolitan on a variety of policy issues. Governor Submitted by Sheeba Roberts Public Defenders, Judge Skye was looking Kulongoski appointed Judge Skye to Betts, Patterson & Mines
20 The VerdictTM ■ 2020–Issue 2 Judge’s Biography
The Honorable Lung S. Hung Presiding Judge - Malheur County Circuit Court
A BIOGRAPHY
From the outside, Malheur County (9th (1944) in law school), that history forms appear before him. While he understands Judicial District) may seem like an unlikely part of Judge Hung’s familial bond with that issues or cases may be contentious, landing spot for a man who was born in the area. His grandmother and her siblings negativity or disparaging conduct toward Hong Kong and raised in Seattle. The were sent to the Minidoka War Relocation counsel certainly affects an attorney’s county, bordering Idaho, is the only county Center in southern Idaho. One way that credibility with the bench. He also in Oregon that operates on Mountain his great uncles were able to leave the encourages attorneys to respect the Standard Time, rather than Pacific intelligence of their jurors. If there is a bad Standard Time. But this county, unique fact, address it head on. If counsel refuses among Oregon counties, perfectly suits to address a negative fact, the jury is Judge Lung S. Hung. left with blanks in the story, which may In 1982, Lung S. Hung immigrated to the damage your case. United States at the age of six. He lived in Judge Hung enjoys the challenge of Seattle through the time he completed his his work. As a judge in a smaller county undergraduate degree at the University of (population-wise), his daily docket is Washington. Though he initially became filled with an array of matters. While he a CPA following his undergrad education, he was hesitant about accounting as a advises litigants to be prepared, he also career path. Recognizing the versatility of recommends that attorneys prepare their a law degree, he then attended law school judge. Judge Hung appreciates briefs that at the University of Colorado in Boulder. contain a Statement of the Law. As he While in law school, he enjoyed classes jumps from a hearing on a murder charge camps was through working the farmers’ that allowed him to experience the to a traffic violation, he appreciates fields in that part of the country. Though courtroom, and he knew, upon graduating, having a quick guide to the legal issues the camps reflect a divisive point in our that he wanted to get into court. to refer to prior to the hearings. The country’s history, Judge Hung’s family, like Interestingly, having lived in progressively Statement should be a quick synopsis of many Japanese Americans, found great smaller cities, he knew he wanted to end the important cases that explains the law acceptance from the people of Malheur up in a smaller town following law school. on the main issues the court will need to County following the war, and so they At that time, the Malheur County District decide. stayed. Attorney’s office had an open position, so As for life in Malheur County, Judge Hung he applied and was hired. Judge Hung practiced with the Malheur loves that he knows his neighbors in a County District Attorney’s office from Although Judge Hung is himself a first- way he did not experience growing up in a 2003 until his appointment to the bench generation immigrant, his family had in February of 2012 by Governor Kitzhaber. larger city. The sense of community he has been in the United States for many years, In November 2012 he was elected to the found in Malheur County feels like home in and part of the draw to Southeastern bench as the incumbent and is currently a way he never experienced before. And if Oregon was that he had family in the the Presiding Judge in Malheur County you find yourself before Judge Hung, know area. While many of us know of the stain (Judge Erin Landis is also a Circuit Court you are in front a man who has found his represented by the Japanese internment Judge in Malheur). perfect spot. camps established during World War II from our history books (or from reading Like many judges, Judge Hung expects David W. Cramer Korematsu v. United States, 323 US 214 collegiality from the advocates who MB Law Group
The VerdictTM ■ 2020–Issue 2 21 Defense VictoryVictory! Defense Victory! Christine Sargent, Littler Mendelson Defense Victory! Editor Contributing authors Alex Hill, Greg Lockwood, Jackie Mitchson, and Joel Petersen
Defense Verdict in days after receiving his BOLI dismissal notice. Michael Tooley represented Medical Malpractice Trial plaintiff. Sean Stokes and Greg Lockwood On November 8, 2019, Karen O’Kasey of Gordon Rees Scully Mansukhani and Colleen Scott of Hart Wagner, Sheri represented defendant. Browning of Brisbee & Stockton, John Defendant moved to dismiss under ORCP Pollino of Garrett Hemann Robertson, 21 A(9), because plaintiff failed to file and Jennifer Oetter of Lewis Brisbois within 90 days following BOLI’s dismissal, obtained a complete defense verdict in as required by ORS 659A.875(2). Plaintiff, Danny Stryffeler, et al. v. Tina Fan Jenq, relying heavily on legislative history and M.D., et al., Case No. 17CV37543, a a single federal court case, argued that medical malpractice lawsuit tried before the one-year statute of limitations, ORS Multnomah County Circuit Court Judge 659A.875(1), superseded the 90-day Thomas M. Ryan. Stephen C. Thompson limitation under ORS 659A.875(2). and George L. Kirklin represented plaintiffs. Defendant argued that the rules of Plaintiffs, the parents and guardians of construction, the plain language of the their adult daughter, alleged that their statute, and the overwhelming weight daughter sustained permanent lower brain of federal case law supported dismissal. Judge Souede granted defendant’s injury during surgery to repair a pressure presented evidence that the defendants motion, dismissing all claims with sore on her buttocks and that this did not violate the standard of care, and prejudice, and entered an order with injury resulted in her suffering locked-in the jury found no negligence against any written findings of fact and conclusions syndrome. Plaintiffs brought direct claims defendant. against the doctor and nurse anesthetist of law. The court found that the legislative and a vicarious claim against the hospital. Defendant Prevails history did not support plaintiff’s proposed Plaintiffs alleged multiple theories of Where Employment “whichever is longer” interpretation of the medical negligence and sought $35.5 language of ORS 659A.875. Discrimination Lawsuit million in economic damages and $20 Defendant Prevails million in non-economic damages. Was Filed Outside of Where Plaintiff Failed to At trial, defense counsel successfully 90-Day Limitation Under obtained directed verdicts on multiple Meet Burden on Writ of ORS 659A.875(2) negligence allegations. The only remaining Garnishment allegation for the jury’s consideration On November 26, 2019, Multnomah against the surgeon and nurse anesthetist County Circuit Court Judge Benjamin On December 31, 2019, after a two-day was placement of the patient in a head- Souede granted a complete dismissal hearing, Multnomah County Circuit Court down position during the surgery. An in Pacheco v. Home Forward, Case No. Pro Tem Judge Steven A. Todd found that additional allegation against the nurse 19CV14632, where plaintiff filed an garnishor plaintiff Pauline Jansen did not anesthetist was considered regarding employment discrimination case within meet her burden on a writ of garnishment failure to maintain adequate cerebral the one-year employment discrimination against garnishee defendant AXIS Surplus perfusion pressure. The defense statute of limitation, but more than 90 Insurance Company (“AXIS”) in Pauline CONTINUED ON NEXT PAGE
22 The VerdictTM ■ 2020–Issue 2 DefenseDefense Victory! Victory
DEFENSE VICTORY! continued from previous page
Jansen v. Moving On Up, Inc. and Moving court determined plaintiff failed to meet motorcycle, that plaintiff contended were USA, Inc. v. AXIS Surplus Insurance, Case her burden to establish coverage under covered by warranty. Plaintiff alleged No. 17CV13536. Lloyd Bernstein and the policy. claims under the Unfair Trade Practices Jackie Mitchson of Bullivant Houser Bailey Act, the Magnusson-Moss Act, and elder represented AXIS. Matthew Kirkpatrick Plaintiff’s Motion to abuse under ORS 124.110. To support represented plaintiff. Amend to Add Punitive his claim for punitive damages, plaintiff In the underlying case against Moving On Damages Denied argued that a “secret agreement” existed Up, plaintiff alleged four claims: breach between defendants and that defendants of contract, elder abuse, conversion, and On April 10, 2020, Multnomah County both made misrepresentations to plaintiff. unlawful trade practices. Plaintiff and Circuit Court Judge Melvin Oden-Orr Judge Oden-Orr, agreeing with INDS’s defendants Moving On Up and Moving USA issued an 11-page opinion denying argument, struck some of plaintiff’s entered into a settlement, which included plaintiff’s motion to amend to add evidence as inadmissible hearsay, found (1) a stipulated judgment against Moving punitive damages as to defendant that there was no “secret agreement” On Up and Moving USA in the amount of Interstate National Dealership Services, between defendants, and concluded $100,000, (2) a covenant not to execute Inc. (“INDS”) in Glenn Kinder v. Interstate plaintiff otherwise failed to provide the judgment against Moving On Up, and National Dealer Services, Inc., et al., Case any evidence that supported punitive (3) assignment of Moving On Up’s claims No. 19CV25247. Matthew Kirkpatrick damages against INDS. The court noted, against AXIS to plaintiff. After entry of represented plaintiff. Alex Hill of Bullivant in part, “[s]pecifically, citing State v. the stipulated judgment in the underlying Houser Bailey opposed the motion on Bivens, 191 Or App 460, 467-68 (2004), case, plaintiff filed a writ of garnishment behalf of INDS. Defendant INDS cautions [***] that, ‘[i]f against the CGL policy AXIS issued to Plaintiff filed suit against INDS and one of a motion to amend for punitive damages Moving On Up seeking coverage under its authorized repair facilities after INDS relies on stacked inferences to the point the policy for the $100,000 stipulated declined to cover repairs to plaintiff’s of speculation, those inferences cannot judgment. In response, AXIS denied having 2014 Can-Am Spyder RT, a three-wheeled support punitive damages.’” garnishable property of Moving On Up and asserted several coverage defenses. Plaintiff requested a garnishment hearing under ORS 18.782 to determine whether the policy covered the stipulated judgment against Moving On Up. Plaintiff ROCKFORD testified that the moving company’s actions caused her to delay having knee INVESTIGATIONS, LLC surgery, which exacerbated her PTSD and • Workers Compensation Investigations caused stress and knee pain. • Insurance Defense, Claims & Liability Investigations After the hearing, the court issued a • Domestic Related Cases, Infidelity, Child Custody letter opinion concluding that plaintiff’s • Licensed & Insured in OR & WA testimony regarding “stress” and knee pain did not establish that she had We specialize in covert surveillance. We are passionate sustained a “bodily injury” caused by and committed to producing results to provide objective an “occurrence” as those terms were evidence. We understand that investigations often involve sensitive issues so we assure complete confidentiality. defined in the policy. The court also We believe that a team effort accompanied by strong concluded that plaintiff’s testimony about communication is the key to a successful investigation. defendants taking her money and property and refusing to return it did not establish 503.686.0458 • [email protected] any “property damage.” Accordingly, the
The VerdictTM ■ 2020–Issue 2 23 Scribe’sThe Scribes Tips Tips for Better Writing
The Scribe’s Tips for Better Writing Dan Lindahl Bullivant Houser Bailey
Avoiding Ambiguity When a Single Word has Contradictory Meanings
The English language has many words these sentences: Joe’s wallet. Sally handed Joe some bills that have contradictory meanings. • The error was attributed to the board’s for gasoline. Joe used the cash to fill the These words are oversight. tank.” known as contronyms, In context, it is clear “bills” means cash, antagonyms, or auto- • The governor sanctioned the not a demand for payment. antonyms. Cleave, reopening of business. oversight, clip, bill, • Sally handed Joe some bills for But in the absence of context, the reader enjoin, and sanction gasoline. can easily be misled about the intended are a few examples of Adequate context will often prevent any meaning. The key is to be aware of the DAN LINDAHL contronyms. ambiguity. For example, suppose the contradictory meanings and to provide The problem with contronyms is the risk Sally and Joe sentence appeared in this sufficient context so the reader does not of ambiguity, or worse. Consider each of context: “The gas tank was as empty as stumble over a puzzling ambiguity.
24 The VerdictTM ■ 2020–Issue 2 Council on Court Procedures Update
Council on Court Procedures Update New Amendments to the ORCP At the conclusion of the Council’s last biennium, the following amendments were passed by the Council and submitted to the Legislature:
Known as the “Stewards of the ORCP,” the Council on Court Procedures evaluates and updates rules affecting all aspects of civil practice. Helpful information concerning the Council, its history, members, and mission can be found at its website, https:// counciloncourtprocedures.org. The Council is made up of attorneys who primarily practice civil law as well as trial and appellate judges. The Council invites and encourages input from practitioners and the public. The Council began its current two-year biennial work cycle in September 2019. The Council has not yet made final determinations as to what it will send to the Legislature for approval or modification. Here are some proposed modifications: currently a split on the committee along with a subpoena concerning objections the lines of plaintiff attorneys and defense and how to present those to a court. The ORCP 7 attorneys on this issue. proposal is based on a concern that an Waiver of service. The Council is considering unrepresented party may not have an a process under which waiver of service ORCP 23 understanding as to how to get before can be accomplished if a plaintiff provides Death of a defendant prior to filing of a judge if, for example, a trial subpoena written information to a defendant asking lawsuit. This is not really an ORCP issue. creates undue hardship for the recipient. for a waiver with a time limit for defendant Plaintiffs’ Bar wants to modify ORS 12.190 Another proposal is to allow a party to issue to respond. Several other states have to establish a statutory framework in terms a written request to another party requiring adopted a similar process. Concerns about of timing and relation-back for identifying a the party or a representative of the party unsophisticated and/or unrepresented defendant as deceased and establishing a to appear as a witness at trial. This would defendants, potential attorney fees for not personal representative for the decedent. forego the need of a party to subpoena waiving service, and time deadlines make ORCP 31 another party for trial testimony. passage of this proposal unlikely. Modifications to interpleader. The proposed ORCP 57 ORCP 15/21/23 changes in the rule are somewhat technical Jury selection. A recent Oregon Court of Modifications to answers. Plaintiff attorneys in nature. The amendments will track federal Appeals case addressed Batson challenges have raised a concern about defendants rules in allowing a crossclaim or counterclaim in jury selection, advising the Legislature filing an answer adding new defenses and/ in interpleader and establishing a process for and/or other decision-makers to delineate or changing an answer after an amended potential attorney fees with regard to funds guidelines to aid trial judges. It is unclear complaint is filed. The specific issue deals or property deposited with the court. whether the Council has authority to with significant changes made to an answer address this topic because it deals with close to trial. The proposal would provide ORCP 55 substantive law. explicit authority for a court to strike new Instructions to be served with subpoenas. defenses or modifications to an answer The Council is considering proposals to — Submitted by Scott G. O’Donnell if not timely or unduly prejudicial. There is require that written instructions be served Keating Jones Hughes
The VerdictTM ■ 2020–Issue 2 25 Association News Association News
OADC Past Presidents 2020 Annual Convention — CANCELED George Pitcher...... 2019 The June 18-21, 2020 OADC Annual Convention in Sunriver Resort, Sunriver, Oregon, Vicki Smith...... 2018 has been canceled. Please visit oadc.com for further information. Mary-Anne Rayburn...... 2017 Michael Lehner...... 2016 Gordon Welborn...... 2015 Dan Schanz...... 2014 New and Returning Members Michael (Sam) Sandmire...... 2013 Greg Lusby...... 2012 OADC welcomes the following new and returning members to the association: Jeanne Loftis...... 2011 Drake Hood...... 2010 Ruth Casby Jonathon Himes Julie Elkins...... 2009 Hart Wagner Farleigh Wada Witt Bill Sime...... 2008 Chris Kitchel...... 2007 Robert Barton...... 2006 Hon. Mark Clarke...... 2005 Martha Hodgkinson...... 2004 Judge Bios Previously James Edmonds...... 2003 ™ Stephen Rickles...... 2002 Published in The Verdict Steven Blackhurst...... 2001 Jonathan Hoffman...... 2000 Hon. Stacie Beckerman, Magistrate Judge, U.S. District Court...... 2017 Issue No. 2 Chrys Martin...... 1999 Thomas H. Tongue...... 1998 Hon. Leslie Bottomly, Multnomah County Circuit Court...... 2018 Issue No. 4 Paul Fortino...... 1997 Larry A. Brisbee...... 1996 Hon. Stephen Bushong, Multnomah County Circuit Court...... 2017 Issue No. 3 Frank E. Lagesen...... 1995 Robert E. Maloney, Jr...... 1994 Hon. William Cramer, Jr., 24th Judicial District...... 2017 Issue No. 4 Keith J. Bauer...... 1993 Michael C. McClinton...... 1992 Hon. Joel DeVore, Oregon Court of Appeals...... 2019 Issue No. 4 Ronald E. Bailey...... 1991 Hon. James Fun, Washington County Circuit Court...... 2017 Issue No. 4 John H. Holmes...... 1990 John Hart...... 1989 Hon. Norm Hill, Polk County Circuit Court...... 2018 Issue No. 2 Carl Burnham, Jr...... 1988 James H. Gidley ...... 1987 Hon. Danielle Hunsaker, Washington County Circuit Court...... 2019 Issue No. 1 Ralph C. Spooner...... 1986 G. Marts Acker...... 1985 Hon. Mustafa Kasubhai, Magistrate Judge, U.S. District Court...... 2019 Issue No. 2 James L. Knoll...... 1984 Walter H. Sweek...... 1983 Hon. Erin Lagesen, Oregon Court of Appeals...... 2020 Issue No. 1 James F. Spiekerman...... 1982 Hon. Malcolm F. Marsh...... 1981 Hon. Andrew Lavin, Multnomah County Circuit Court...... 2018 Issue No. 3 Austin W. Crowe, Jr...... 1980 Hon. Heidi Moawad, Multnomah County Circuit Court...... 2019 Issue No. 3 Richard E. Bodyfelt...... 1979 Robert T. Mautz...... 1978 Hon. Melvin Oden-Orr, Multnomah County Circuit Court...... 2019 Issue No. 1 Douglas G. Houser...... 1977 Hon. Rodney W. Miller...... 1976 Hon. Tracy Prall, Marion County Circuit Court...... 2018 Issue No. 2 David C. Landis...... 1975 William V. Deatherage...... 1974 Hon. Christopher Ramras, Multnomah County Circuit Court...... 2018 Issue No. 4 Frederic D. Canning...... 1973 Wayne Hilliard...... 1972 Hon. Shelley Russell, Multnomah County Circuit Court...... 2019 Issue No. 2 Roland (Jerry) F. Banks...... 1971 Jarvis B. Black...... 1970 Hon. Janet Stauffer, 7th Judicial District...... 2019 Issue No. 4 Thomas E. Cooney...... 1969 James B. O’Hanlon...... 1968 Hon. Youlee You, Magistrate Judge, U.S. District Court...... 2018 Issue No. 3 Hon. Robert Paul Jones...... 1967 Hon. Katharine von Ter Stegge, Multnomah County Circuit Court...... 2018 Issue No. 1
26 The VerdictTM ■ 2020–Issue 2 Association News Thank You, OADC Members, for Mask Donation Effort Grant Stockton, Brisbee & Stockton OADC President-Elect
Thank you, OADC, for leading the effort to solicit donations of masks to our local courthouses. (See President’s Message, this issue.) Since taking up Justice Walters’ charge, over 100 different Bar, legal, and community organizations have been contacted, and the response has been robust. To date, the efforts by OADC members have already resulted in donations of over 40,000 masks to the court system, and there are commitments on the way that will push this number well beyond 100,000.
These masks are being distributed to local courthouses by the Oregon Judicial Department Marshal’s Office. Jon Gadberry, Deputy Marshal of the Oregon Judicial Department Marshal’s Office picking up At the courthouse level, the masks are masks donated by Oregon’s legal community. being provided to any court patron that but this early success should not be masks. The OADC will continue to lead wants or needs one, including attorneys confused with a completed project. With the charge. and—more importantly—parties to the governor’s recent mask-wearing If you know an organization that may be legal matters, their family members, orders, the ongoing need is tremendous able to help, please reach out to them. If witnesses, and jurors. and is expected to continue into the you haven’t donated yet, please do so. The 100,000-donation number may seem indefinite future and for so long as the And if you have already donated, THANK like a very large number (because it is!), Chief Justice needs our support securing YOU and please consider doing so again!
The VerdictTM ■ 2020–Issue 2 27 The VerdictTM Editors EDITOR IN CHIEF Jeanne Loftis TheOADC Oregon Association of Defense Counsel Bullivant Houser Bailey One SW Columbia St., #800 State Political Action Committee (PAC) Portland, OR 97204 503/499-4601 [email protected] The Voice of the Civil Defense Lawyer FEATURE ARTICLES CO-EDITOR The Oregon Association of Defense Counsel works to Julie Smith Cosgrave Vergeer Kester protect the interests of its members before the Oregon 900 SW 5th Ave., 24th Floor legislature, with a focus on: Portland OR 97209 503/219-3821 [email protected] • Changes in civil • The judiciary and FEATURE ARTICLES CO-EDITOR practice and the trial court funding Shayna Rogers court system Garrett Hemann Robertson • Access to justice 1011 Commercial St. NE Salem, OR 97301 503/581-1501 [email protected] CASE NOTES EDITOR Sara Kobak Schwabe Williamson & Wyatt 1211 SW 5th Ave., #1900 Portland OR 97204 503/796-3735 [email protected] DEFENSE VICTORY! EDITOR Christine Sargent Littler Mendelson 121 SW Morrison St., #900 Portland, OR 97204 503/889-8915 [email protected] Your JUDGES BIO EDITOR contribution to Tessan Wess Lewis Brisbois the Oregon Association of 888 SW 5th Ave., #900 Defense Counsel State PAC will support Portland, OR 97209 OADC’s efforts in legislative activities 971/334-7005 [email protected] and government affairs. THE SCRIBE’S TIPS EDITOR Dan Lindahl The Oregon Association of Defense We need your help and support to Bullivant Houser Bailey Counsel has a comprehensive continue this important work. All One SW Columbia St., #800 government affairs program, donations to the OADC State PAC Portland, OR 97204 503/499-4431 which includes providing effective go to directly support our efforts [email protected] legislative advocacy in Salem. to protect the interests of the Civil EDITORIAL ASSISTANT Defense Lawyer. Stephanie Wilken Bullivant Houser Bailey One SW Columbia St., #800 To make a contribution please contact the OADC Portland, OR 97204 office to receive a donation form at 503.253.0527 or 503/499-4490 [email protected] 800.461.6687 or [email protected]. OADC Thanks our 2020 Sponsorship Partners
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