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 litigation. In Seabold the company and its liability insurer are locked in a dispute over Liberty’s handling of Seabold’s defense in a construction-defect matter; Seabold contends that Liberty acted in bad faith in connection with settlement of the dispute. During the critical time period — while settlement negotiations were going on in the underlying case — Liberty was acting through coverage counsel, which is commonplace in such situations. Once the coverage litigation got underway, however, Seabold demanded to see the communications with and work done by the insurer’s “coverage counsel” on the theory that at least part of the time the attorney was acting as a claims adjuster. Under the reasoning of Cedell v. Farmers, a Washington case (and its progeny, discussed in this blog post from 2013), Seabold argued — successfully — that there was no absolute attorney-client privilege when “coverage counsel” is performing some of the business functions of a liability carrier. The trial court ordered Liberty Mutual to produce counsel’s communications (initially directly to Seabold, amended to production for review by the court), and Liberty Mutual sought a writ of mandamus — essentially, appellate review in the middle of a case — to block enforcement of the trial court’s order.
The issue that the court has identified for resolution is whether attorney-client privilege applies despite counsel’s involvement in “investigating and adjusting” the claim. This is the issue that Cedell and other courts outside of Oregon have decided in favor of policyholders, and one would think that this court would go the same way. However, in the Crimson Trace discovery dispute (which did not involve insurance) the court proved itself very protective of the attorney-client privilege in an institutional context, so “all bets are off,” as they say.
The second case accepted for review (back on March 31) is the 2014 Fountaincourt Homeowners Ass’n v. Fountaincourt Development decision from the Court of Appeals. In that decision the Court of Appeals confirmed that a claimant who obtains a judgment against an insured after trial may pursue that insured’s insurance assets in a garnishment proceeding as a judgment creditor, and that during resolution of the garnishment the insurer has the burden of proving that the judgment was not covered where there is prima facie evidence that at least some of the jury’s award was for covered damages. That decision was very beneficial for claimants concerned about being able to collect on a judgment.
The Supreme Court’s statement of the issues on review is rather breathtaking, and will ensure that the case is closely watched. Rather than try to summarize, set out below are the issues on review from the court’s statement:
(1) If a general verdict is returned against an insured entity in a mixed coverage case (i.e., one involving some damage that is payable by an insurer and some damage that is not), and the insurer defended under a reservation of rights, can the insured establish coverage for the awarded damages based on the general verdict? (2) Does defective work by an insured contractor constitute “property damage” if that term is defined as “[p]hysical injury to tangible property”? (3) Can an insured establish a prima facie case for insurance coverage with evidence showing only the possibility that a judgment is for damages within the insuring agreement of a liability policy? (4) If a liability insurer’s policy is garnished by a judgment creditor and a disputed question of fact must be resolved to determine if the insurer is obligated to pay the judgment, is the insurer entitled to a jury trial in the garnishment proceeding?
What is surprising here is the Court’s indication that it will take up some questions that many had thought were largely settled and were not the most controversial of the Court of Appeals’ decisions. One can hope that the Court’s indication that it will review those questions is only intended to settle any doubt. However because so much is at stake if the Court has decided to revisit those issues, this case promises to attract a lot of attention and amicus participants, and its resolution could shape (or re-shape) Oregon coverage law for a long time.