Archives: Legal Developments – Oregon

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Oregon Supreme Court Clears Roadblock to Allow Policyholders to Recover Litigation Costs

In a decision issued yesterday, February 2, 2017, the Oregon Supreme Court reversed several lower-court decisions and held that a policyholder that is forced into litigation with its insurer can recover attorney fees if the insurer settles the case for more than the insurer offered before litigation began, clearing a significant roadblock to resolution of coverage … Continue Reading

The Latest on the Duty to Defend in Oregon

Last year our partner Seth Row reported on an Oregon Court of Appeals decision, West Hills Development Co. v. Chartis Claims, Inc., 273 Or App 155 (2015). In West Hills, Oregon Auto Insured, a subcontractor, and the liability policy named the general contractor as an additional insured. In an underlying lawsuit by homeowners alleging construction defects, the … Continue Reading

Duty to Cooperate: What Does It Really Require?

Virtually every insurance contract imposes on the policyholder a “duty to cooperate” with the carrier during the fact-gathering and investigation process. Typically, this requires the policyholder to assist its carrier in the investigation, defense, and settlement of a claim or suit, both in the coverage context and in a third-party liability case. The failure to cooperate can … Continue Reading

Additional Insured Promises Mean Companies May Pay Twice for Employee Injuries

Most business owners understand that in exchange for paying premiums for workers compensation insurance, they get immunity from suit from their own injured employees.  This is usually referred to as the workers compensation “exclusive remedy”: if an employee accepts workers compensation insurance benefits, the employee may not sue the employer (subject to certain exceptions for … Continue Reading

Oregon Employer Liability Ruling Highlights Importance of Additional Insured Status

Earlier this year the Oregon Supreme Court expanded the potential liability of contractors and others for injury to employees of others on a job site, making it more critical than ever for contractors to ensure that they have additional insured protection. In Yeatts v. Polygon Northwest, an employee of a framing subcontractor on a building project … Continue Reading

Insurance Implications Loom in Oregon’s New Negligent-Construction Statute of Limitations

Last Thursday, the Oregon Supreme Court issued its opinion in Goodwin v. Kingsmen Plastering, Inc., 359 Or 694 (2016), holding that the deadline to file a negligent construction-defect claim is two years from the time a plaintiff knew or should have known of damage resulting from the defect—not six years, as applied by the lower … Continue Reading

Different Approaches to the Duty to Defend in Oregon and Washington

Oregon and Washington are often viewed as sister states, similar in their climates, policies and attitudes. Yet, while the two states share a border and a uniquely Pacific Northwest culture, their approaches to insurance law differ greatly. In particular, the legal protections to prevent insurers from wrongfully refusing to defend a policyholder against a covered … Continue Reading

From the UP Blog: Portland Harbor Superfund Litigation Has “Super” Implications For Policyholders

I was privileged enough to be invited to write the following guest blog post on May 2, 2016 for the blog of United Policyholders, an advocacy organization for commercial and personal-lines policyholders.  Our firm has had the privilege of writing several amicus briefs for UP over the years, including one discussed below.  UP is a … Continue Reading

I’m Exhausted! Oregon Court Provides Insights on OECAA Exhaustion, Independent Counsel Provisions

A new decision in the long running Siltronic insurance coverage litigation at the Portland Harbor Superfund Site gives new guidance on determining whether a cost should be categorized as a “defense cost” or an “indemnity payment.” The decision also fleshed out some parameters for the independent counsel provision of Oregon’s environmental insurance claims law (“OECAA”). … Continue Reading

New Law in Oregon Means Policyholders Should Now Report Bad Behavior to Insurance Commissioner

This week, Oregon’s governor signed into law SB 1591A, which permits the Insurance Commissioner (part of the Department of Consumer and Business Services, or DCBS) to release complaints made to DCBS about insurance company claims handling practices, upon request. This is a long-overdue fix to a bizarre anomaly in Oregon law: previously, the law (ORS … Continue Reading

Why a Decision on the Construction Statute of Repose Matters for Coverage in Oregon

My colleagues Stacey Martinson and Christi Taylor posted an excellent summary on our From the Ground Up blog of a new Oregon Supreme Court decision—Shell v. Schollander Companies, Inc., 350 Or 552 (2016)—on when Oregon’s ten-year statute of ultimate repose begins to run in a case involving a construction contract, but also negligence claims for defective construction. … Continue Reading

Court Protects Self-Insured Policyholders Facing Historic Environmental Liability

Environmental cleanups typically involve industrial sites that have operated for decades. Because of this, well-positioned policyholders will have defense coverage under numerous policies and from a range of different insurers. When this occurs, defense costs have to be allocated between insurers to avoid double recovery.… Continue Reading

Oregon Supreme Court Overrules 40-Year Precedent on Covenant Judgments

Good news for policyholders today from the Oregon Supreme Court: the court overruled the 42-year-old Stubblefield decision, making it much easier for defendants in litigation to protect themselves if their insurance company fails to reach a reasonable settlement with the plaintiff. Today’s decision in Brownstone Homes Condo Ass’n v. Brownstone Forest Heights LLC means that … Continue Reading

Allianz Trial on Pollution Exclusion Issues Highlights Importance of Jury Instructions

One of the most common pollution exclusions in older general liability policies is the standard-form 1973 “qualified” pollution exclusion (often called the “1973 Exclusion”).[1] The 1973 Exclusion excludes pollution coverage unless the “occurrence” that caused the damage was “sudden and accidental.”  In Oregon, this exclusion will not apply if the pollution results from “discharges, dispersals, … Continue Reading

New Oregon Decision Impacts Umbrella Coverage and Additional Insured Status

A new decision from the Oregon Supreme Court on indemnity agreements may impact one of the most headache-inducing negotiating points in indemnity contracts: “additional insured” coverage under umbrella policies.  Common assumptions about what to require as “additional insurance” may need to be re-examined as a result. General contractors usually demand that subcontractors procure primary-layer liability … Continue Reading

Oregon Duty to Defend is Very Broad, as Shown in Two New Cases

Two new decisions from federal courts in Oregon demonstrate just how broad an insurance company’s contractual duty to defend its insured truly is.  These decisions should be helpful to policyholders in fighting back against denials of coverage.  Wrongful denials of defense are unfortunately common in Oregon, due to the absence of a meaningful bad faith … Continue Reading

Ninth Circuit Hands Oregon Policyholders a Major Win on”Known Loss”

In a June 25, 2015, to-be-published decision in Kaady v. Mid-Continent Casualty Co. the Ninth Circuit adopted a decidedly pro-policyholder interpretation of the oft-contested “known loss” provision that is standard in commercial general liability (CGL) policies, holding that an insured’s knowledge of damage to one part of a structure does not allow an insurer to deny coverage for … Continue Reading

Oregon District Court Provides Clarification on Environmental Coverage Issues

In the most recent opinion in the ongoing Marine Group litigation, Judge Acosta clarified two issues that recur in complex environmental insurance litigation: first, which party has the burden of proving that incurred defense costs were reasonable and necessary; and second, whether an insured can recover pre-tender defense costs.… Continue Reading

Oregon Supreme Court Accepts Review of Two Important Insurance Disputes

The Oregon Supreme Court recently accepted for review two cases with potentially lasting implications for insurance coverage disputes in the state. The first case is a mandamus ruling – the court decided to accept for review a trial court’s ruling in Liberty Surplus Insurance v. Seabold Construction on a hot evidence issue important to bad-faith coverage … Continue Reading

Likely Changes to Oregon Data Breach Law Should Prompt Review of Cyber Coverage

This excellent post by my colleague Brian Sniffen in our firm’s IP Law Trends blog reports on the efforts by Oregon’s attorney to strengthen the state’s data breach notification laws.   The proposed amendments to the Oregon Consumer Identity Theft Protection Act (ORS 646A.602 et seq.) are part of Senate Bill 601, which is making … Continue Reading

Ore. Appeals Court Important Holding on Construction Indemnity Agreements

Just as the ball began to fall in New York to herald the New Year Oregon’s Court of Appeals issued an important ruling on contractual indemnity agreements in construction contracts.  The decision isn’t directly on insurance coverage, but is important because of the overlap between additional insured issues, contractual indemnity, and Oregon’s “anti-indemnity” statute (ORS … Continue Reading

Oregon Environmental Coverage Mediation Program Launched

In 2013 the Oregon Legislature passed SB 814, which amends the Oregon Environmental Cleanup Assistance Act, a unique law regulating environmental coverage disputes.  Part of SB 814 required the State to set up a mediation program for such claims (and made a carrier’s refusal to participate in mediation a prohibited claims practice).  That mediation program … Continue Reading
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