Santa’s 2019 Naughty & Nice List of Pacific Northwest Legal Developments

By Allen Eraut

Santa may moonlight as an insurance defense attorney during the off-season. Over a cup of eggnog, Santa shared his Naughty & Nice List for 2019

Santa’s 2019 Naughty & Nice List of Pacific Northwest Legal Developments

Courtesy of the Rizzo Mattingly Bosworth elves

We consulted with Santa.He agrees that legal developments this year have given those of us in the Pacific Northwest ample reason to feel festive.We hope you enjoy reading Santa’s Naughty & Nice List for 2019…

Nice (mostly): Damages cap. By a narrow margin, the Oregon legislature defeated a measure that would have removed Oregon’s $500,000 noneconomic damages cap except in wrongful death cases. In Vasquez v. Double Press Mfg., the Oregon Supreme Court – in the first case to address this issue since Horton – expanded an exception to the cap for claims “subject to” Oregon’s Workers’ Compensation Act. Under the court’s interpretation, claims subject to Oregon’s Workers’ Compensation Act include claims where the plaintiff is injured at work, not just workers’ compensation claims against the employer. This means that a claim involving an injury on the job would not be subject to the damages cap.

Nice: No personal liability for claims professionals. In Keodalah v. Allstate Ins. Co., the Washington Supreme Court established what should be a common sense rule that employee claims adjusters are not personally liable for bad faith and Consumer Protection Act (CPA) causes of action. This rule had not been clear in Washington, as the court reversed the Court of Appeals, which had held that individual insurance professionals could be held liable.

Naughty and nice: Asbestos verdicts. On balance, a good year for asbestos verdicts:

  • Dale Hoy -- defense verdict (nice)
  • Henry Eisler -- $425,000 with 60% comparative fault award against plaintiff (nice)
  • Douglas Everson -- $4.25 million (naughty)
  • Billy Coonrod-- defense verdict (nice)

Naughty: Bare metal defense. In Air and Liquid Systems Corp. v. DeVries, the United States Supreme Court ruled that the bare metal defense is not available in maritime cases.

Nice: Maritime causation. Stephens v. Union Pacific is on the nice list again. The first time was for its good holding on personal jurisdiction, affirming the dismissal of an out-of-state defendant for its lack of contact with Oregon. This time, the Ninth Circuit affirmed summary judgment under Idaho and maritime law, holding that the minimal evidence of asbestos exposure was not sufficient to prove substantial factor causation.

Naughty: Comparative fault and wanton negligence. In State of Oregon v. Jorge Gutierrez-Medina, the court held that comparative fault is not available as a defense where the defendant’s conduct is “wanton,” described as when a person was aware of an unreasonable and highly probable risk of substantial bodily harm, and consciously disregarded that risk.

Nice: Bar hopping = complicity.ORS 471.565(2), otherwise known as the complicity defense, precludes recovery in a Dram Shop case where the plaintiff substantially contributes to the intoxication of the overserved patron. In Mason v. BCK Corp., the court held that bar hopping with the overserved patron can be considered substantial contribution to intoxication.


 



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