Archives: Legal Developments – Oregon

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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”). Classification … 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 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

Or. Fed Court Rejects “Hail Mary” Insurer Argument Against Attorney Fees

The dispute between Schnitzer Steel and its carriers over defense at the Portland Harbor Superfund Site has been addressed many times in this blog, because it has raised many novel and fascinating (to me, anyway!) issues.  Here is the latest: on November 12, 2014 Judge Mosman ruled on Schnitzer’s motion for attorney fees after Schnitzer … Continue Reading

Ore. Fed. Ct. Considers Meaning of “Occurrence” for Developer Liability

In a decision handed down earlier this week in litigation between a primary-layer carrier and an umbrella carrier an Oregon federal court held that when a plaintiff brings a claim against a developer for negligence, the term “occurrence” in the developer’s policies means the negligent development, globally: in other words, the developer’s negligent work is one … Continue Reading

Oregon Federal Court Affirms Breadth of Duty to Defend

An Oregon federal judge recently reaffirmed a broad approach to the duty to defend in a carrier-on-carrier dispute.  The case is Seneca Insurance v. James River Insurance.  As with many such cases in Oregon, the dispute centered around defective construction, this time on the coast.  Plaintiff insurer, Seneca, agreed to defend its insured, a contractor.  Seneca … Continue Reading

Oregon Class Action Filed Against Regence BCBS Over Non-Profit Status

In a follow-on to a much larger class action filed earlier this spring in Illinois against another Blue Cross/Blue Shield insurer group, the same Chicago law firm (along with an East Coast personal-injury firm) has turned its sights on Oregon’s Regence Blue Cross/Blue Shield, accusing Regence of violating its own charter and Oregon law by funneling profits … Continue Reading

Oregon Federal Court Confirms Availability of Prejudgment Interest on Disputed Defense Costs

In an as-yet-unpublished decision in the long-running Ash Grove v. Liberty Mutual case the court recently granted the policyholder’s request for prejudgment interest on defense costs recovered at trial.  Ash Grove (Case No. 09-239-HZ) involves reimbursement of legal fees and costs incurred in defense of claims associated with the Portland Harbor Superfund Site.  After pretrial rulings … Continue Reading

Oregon Bill That Would Assist Insurers In “Lost-Policy” Battles Dies

Those of us in the coverage game who deal with “long-tail” claims — that is, claims under older occurrence-based policies — routinely have to deal with a common problem: the policies are gone.  Businesses destroy old records, change hands, have a flood, etc., and the old insurance policies are gone.  Professional records managers are now … Continue Reading