Oregon Association of Defense Counsel. Discovery of Electronic Evidence. Tips to Avoid Apparent Agency. Duty to Advise About Excess Coverage

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1 OADC Orego Associatio of Defese Cousel Trial Lawyers Defedig You i the Courts of Orego Summer 2007 Qualified Privilege Discovery of Electroic Evidece Tips to Avoid Apparet Agecy 4 0 t h A iv e r s a r y Duty to Advise About Excess Coverage Orego Isurace Law

2 2007 OADC Practice Group Leaders AUTOMOBILE COMMERCIAL CONSTRUCTION COVERAGE EMPLOYMENT Jeffrey Hase, Chair Smith Freed & Eberhard PC 1001 SW 5th Ave., #1700 Portlad, OR / / (fax) Robert Aldisert, Chair Perkis Coie LLP 1120 NW Couch, 10 th Floor Portlad, OR / / (fax) Christopher Drotzma, Chair Davis Rothwell 1300 SW 5 th Ave., #1900 Portlad, OR / / (fax) Margaret Va Valkeburg, Chair Bullivat Houser Bailey PC 888 SW 5 th Ave., #300 Portlad, OR / / (fax) Amy Joseph Pederse, Chair Stoel Rives LLP 900 SW 5th Ave., #2600 Portlad, OR / / (fax) David Auxier, Vice Chair Yturri Rose, LLP PO Box S Otario, OR / / (fax) Heidi Madt, Vice Chair Schwabe Williamso 1211 SW 5th Ave., # Portlad, OR / / (fax) Da Schaz, Vice Chair Spooer Much & Amma PC 530 Ceter St., NE, #722 Salem, OR / / (fax) Jay Beattie, Vice Chair Lidsay Hart 1300 SW 5 th Ave., #3400 Portlad, OR / / (fax) David Riewald, Vice Chair Bullard Smith Jerstedt Wilso 1000 SW Broadway #1900 Portlad, OR / / (fax) Edward Sears, Publicatios Zipse Elkis & Mitchell SW Greeburg Rd., #710 Portlad, OR / / (fax) David Rocker, Publicatios Davis Wright Tremaie, LLP 1300 SW fifth Ave., #2300 Portlad, OR / / (fax) James Daigle, Publicatios Brisbee & Stockto LLC PO Box 567 Hillsboro, OR / / (fax) Robert Sabido, Publicatios Cosgrave Vergeer Kester LLP 805 SW Broadway, #800 Portlad, OR (fax) Todd Hachett, Publicatios Barra Liebma LLP 601 SW 2 d Ave., 23 rd floor Portlad, OR / / (fax) Julie Elkis, Board Liaiso Zipse Elkis & Mitchell SW Greeburg Rd., #710 Portlad, OR / / (fax) Greg Lusby, Board Liaiso Arold Gallagher PO Box 1758 Eugee, OR / / (fax) Drake Hood, Board Liaiso Brisbee & Stockto LLC PO Box 567 Hillsboro, OR / / (fax) Lidsey Hughes, Board Liaiso Keatig Joes 1 SW Columbia, #800 Portlad, OR / / (fax) Chris Kitchel, Board Liaiso Stoel Rives LLP 900 SW 5 th Ave., #2600 Portlad, OR / / (fax) NEW LAWYERS PRODUCT LIABILITY PROF. LIABILITY TRIAL PRACTICE Sarah Colbach, Chair Zipse Elkis & Mitchell SW Greeburg Rd., #710 Portlad, OR / / (fax) Michael Sadmire, Chair Ater Wye LLP 222 SW Columbia, #1800 Portlad, OR / / (fax) Gordo Welbor, Chair Hoffma Hart & Wager LLP 439 SW Umatilla Ave. Redmod, OR / / (fax) Simo Hardig, Chair Schulte Aderso 811 SW Naito Pkway., #500 Portlad, OR / / (fax) David Campbell, Vice Chair Williams Kaster & Gibbs PLLC 888 SW 5th Ave., #600 Portlad, OR / Daiel Reisig, Vice Chair Fucile & Reisig LLP 115 NW 1st Ave. Portlad, OR / / (fax) Scott O Doell, Vice Chair Keatig Joes 1 SW Columbia, #800 Portlad, OR / / (fax) Shaw O Neil, Vice Chair Mitchell Lag & Smith 101 SW Mai St., #2000 Portlad, OR / , ext / (fax) Vicki Smith, Publicatios Bodyfelt Mout 707 SW Washigto St., #1100 Portlad, OR / / (fax) Joshua DeCristo, Publicatios Schwabe Williamso 1211 SW 5th Ave. # Portlad, OR (fax) Kim Hoyt, Publicatios Garrett Hema 1011 Commercial St., NE #210 Salem, OR (fax) Jo Stride, Publicatios Toko Torp LLP 888 SW 5th Ave. #1600 Portlad, OR (fax) Daiel Skerritt, Board Liaiso Toko Torp LLP 888 SW 5th Ave. #1600 Portlad, OR (fax) Paul Xochihua, Board Liaiso Davis Rothwell Earle & Xochihua 1300 SW 5 th Ave. #1900 Portlad, OR / / (fax) Billy Sime, Board Liaiso Parks Bauer 494 State St., #440 Salem, OR / / (fax) Stephe Voorhees, Board Liaiso Kilmer Voorhees & Laurick 732 NW 19 th Ave. Portlad, OR / / (fax)

3 OADC BOARD OF DIRECTORS OFFICERS chris kitchel Presidet Stoel Rives LLP 900 SW 5 th Ave., #2600 Portlad, OR (fax) BILL SIME Presidet-Elect Parks Bauer 570 Liberty St. SE, #200 Salem, OR (fax) JULIE ELKINS Secretary/Treasurer Zipse Elkis & Mitchell SW Greeburg Rd., #710 Portlad, OR (fax) DIRECTORS DRAKE HOOD Brisbee & Stockto LLC PO Box 567 Hillsboro, OR (fax) LINDSEY HUGHES Keatig Joes Hughes PC 1 SW Columbia, #800 Portlad, OR (fax) JEANNE LOFTIS Bullivat Houser Bailey PC 888 SW 5 th Ave., #300 Portlad, OR (fax) Discovery of Electroic Evidece See story o page 6. F E A T U R E S qualified privilege a potetially powerful shield Patrick Flaaga cousel are i first positio whe it comes to discovery of electroic evidece Katherie Heeki apparet agecy: a malpractice trap for physicias ad tips to avoid it Matthew Racie do isurace defese cousel have a duty to advise cliets about excess coverage? Frak Weiss GREG LUSBY Arold Gallagher PO Box 1758 Eugee, OR (fax) DAN SKERRITT Toko Torp LLP 888 SW 5 th Ave., #1600 Portlad, OR (fax) STEVE VoORHEES Kilmer Voorhees & Laurick 732 NW 19 th Ave. Portlad, OR (fax) PAUL XÓCHIHUA Davis Rothwell Earle & Xóchihua PC 1300 SW 5 th Ave., #1900 Portlad, OR (fax) ADMINISTRATIVE OFFICE SANDRA FISHER, CAE 147 SE 102 d Portlad, Orego (fax) Three Thigs i hate about orego isurace coverage law: a policyholder s perspective David Rossmiller D E P A R T M E N T S FROM THE PRESIDENT 2 PRACTICE TIPS 17 ASSOCIATION NEWS 19 RECENT CASE NOTES 23 PENDING PETITIONS FOR REVIEW 28

4 p r e s i d e t s m e s s a g e B y C H R I S K I T C H E L Whe I m 64 he I was a associate, I W kid of figured by my late 50 s that I would be hittig those golde coastig years. I could hag out with the cliets, oversee cases hadled by associates ad juior parters, atted cofereces i exotic places ad just geerally ratchet it dow several otches while takig home more icome tha ever before. Somehow that did t happe. Our world is so differet from past years ad decades. Techology, competitio ad cost have chaged the very fiber of legal practice. Cliets demad kowledge ad expertise, but balk at the higher rates associated with that level of skill ad experiece. As ewer attoreys get fewer opportuities to develop trial related skills, the more experieced lawyers are forced to stay frot ad ceter. That requires a greater percetage of attetio ad eergy devoted to work tha ever before. A variety of atio-wide surveys ad studies idetify resposiveess as the sigle most importat factor to cliets i choosig a attorey. That oce meat returig a phoe call by the ed of the day. Now it meas respodig to a immediately or callig back withi the hour. That has several ramificatios that affect the i t e s i t y of my ow practice. W i t h BlackBerry, w i r e l e s s i t e r e t, laptop, ad cell phoe, I literally am dialed i to cliet cotact 24/7. Voice mail is ed i wav form a d i m - mediately accessible; f a x e s a r e ed i pdf form ad immediately accessible. I ca review pretty much aythig attached to a o my BlackBerry; I ve spet may hours i airports goig over a draft documet o the 2x1.5 scree estled i my left had with pe ad paper i my right ad my cell phoe otched securely betwee my shoulder ad ear. May times I ve had to egotiate with other travelers to tap ito the oly available electric outlet before my laptop battery closes me out. At home, my husbad (Ja) ad I both have our laptops powered o most of the time. We each have differet souds assiged to icomig ad to our cell phoes so we ca tell which oe of us is up. Sometimes we both have computers goig o each floor, so we do t have to take the stairs to check i whe the beepig beckos. (We oly have priters o oe floor, though, so a paper documet meas aother trip up the stairs eve with the etworked priter.) Ja ad I drive i to work together ad take turs makig calls o our cells. (I will leave discussio of the relative Cotiued o ext page Orego Associatio of Defese Cousel Summer 2007

5 abilities of me ad wome to multitask effectively ad semi-safely for aother time.) O loger trips, we take turs usig our laptops i the car all the while jugglig the competig power eeds from the radar detector ad the GPS. We are i costat commuicatio with our firms ad our cliets literally o a real-time basis. As a result of all this, o a day to day basis much more of my time is spet respodig NOW to a questio or issue just raised questios that require the kowledge ad experiece developed over may (may) years. So, of course, that meas I eed to stay available to provide those immediate resposes, either directly to the cliet or to the associates workig with me. What I miss most about these chages i how we commuicate is the cotemplative process, the time simply to thik a bit more about a problem ad alterate approaches or solutios. There is value i pagig back through the file, i discussig a issue with your peers, i orgaizig your thoughts, i vettig coflictig possibilities, i doig a bit of additioal research, i waitig for a more dispassioate emotioal perspective. The ability to take advatage of those opportuities is icreasigly rare. You ca, of course, refuse to buy ito the world of istat ask ad aswer. Depedig o the ature of your ow practice, it may or may ot have a sigificat impact o your competitive success i the legal market. Aother optio is to redefie what success meas to you after 25+ years of practice. I m ot ready to do that yet, or maybe just ot ready to take the associated risks. My firm is ot uappreciative of my efforts, but I do t kid myself that the most importat questio I have to aswer is what did you do for me today. Billable hours ad persoal productio are as vital to my fiacial well-beig today as they were whe I was freshout. I do t kow if ratchetig dow is eve a viable optio for my practice iche; it does t matter because I am ot yet ready to ratchet dow my icome. There s that dar mortgage ad may more years of college for my girls still loomig large. Ad travelig vacatios. I just thought it would be easier ad less complicated whe I got this old, ad certaily less urget. I expected the restless ights, the racig to get it all doe ad the momets of pure paic to dimiish. I ever eve thought about the effort ow required to keep a b r e a s t w i t h t e c h o l o g i c a l ad commuicatio advacemets. I did ot appreciate that the eed to take primary resposibility for gettig so may thigs doe would escalate. I figured there would be more watchig ad less doig. I had hoped my practice would become more of a spectator sport. All that said, I am somewhat surprised to fid that I like beig a lawyer ow more tha ever before. Albert ad Shaw Meashe: dad ad so, ad just two of our over 20 attoreys who brig a itimate uderstadig of family to our practice of family law. I ofte feel that I kow what I am doig ad doig it well. I actually ejoy the techology challeges. My work is iterestig ad egagig o a day to day basis. It is pretty hectic much of the time, although ot early as demadig overall as the 80s ad 90s whe my husbad ad I were both developig our trial practices full-time ad raisig three daughters. I may ot go to cofereces i exotic places, but sometimes if I squit my eyes they border o semi-exotic. I have may valued relatioships with our cliets ad with lawyers o both sides of the fece, icludig may i this orgaizatio. Servig the OADC is a ogoig pleasure ad a hoor. Life is good. The firm you wat o your side Portlad, OregoDivorceLawyers.com Orego Associatio of Defese Cousel Summer 2007

6 FEATURES Qualified Privilege A Potetially Powerful Shield Patrick Flaaga Bodyfelt Mout Stroup & Chamberlai, LLP O rego law has log recogized the defese of a qualified privilege whe a defedat faces potetial repercussios for his or her egative commets about aother i the cotext of a employmet relatioship. Jurisprudece shows that a qualified privilege is likely to arise i two cotexts: i a defamatio claim, or i a claim of itetioal iterferece with employmet relatios. Practically speakig, the defedat carries the burde of provig the existece of a qualified privilege. However, oce the privilege is successfully established, it becomes the plaitiff s burde to prove that the qualified privilege has bee forfeited through abuse. Defamatio A statemet that is otherwise defamatory is privileged if it is uttered uder such circumstaces that the law grats immuity to the speaker. Lud v. Arboe It l, Ic., 132 Or App 87, 95 (1994). Withi the cotext of defamatio, a qualified privilege protects three kids of statemets: (1) those made to protect the defedat s iterests; (2) those made to protect the plaitiff s employer s iterests; or (3) those made o a subject of mutual cocer to the defedat ad the persos to whom the statemet was made. DeLog v. Yu Eterprises, Ic., 334 Or 166, 170 (2002) (citatios omitted). Stated more geerally, whether a qualified privilege protects a otherwise defamatory statemet is determied by review of the scope ad/or cotext of the statemet ad the purpose of the statemet. For example, i Walsh v. Cosolidated Freightways, 278 Or 347 (1977), Cosolidated termiated plaitiff s employmet. After his termiatio, plaitiff obtaied employmet with Pacific Motor Truckig, Ic. i a similar capacity. Id. at 353. Plaitiff s maager at Pacific spoke with plaitiff s previous maager at Cosolidated regardig plaitiff s previous performace. Id. at 354. The previous maager made egative statemets icludig, I would t hire that type of idividual as a supervisor. Id. at 355. Plaitiff ultimately lost his job at Pacific because of the defamatory statemets from Cosolidated. Plaitiff cosequetly filed claims of defamatio ad itetioal iterferece with cotractual relatios agaist his previous supervisor ad Cosolidated. The court i Walsh ultimately dismissed plaitiff s claims because, the law clearly recogizes that a former employer has a qualified privilege to make defamatory commuicatio about the character or coduct of his employees to preset or prospective employers. Id. at 355, 358. Cotiued o ext page Orego Associatio of Defese Cousel Summer 2007

7 FEATURES QUALIFIED PRIVILEGE cotiued from page 4 Itetioal Iterferece with Employmet Relatios A qualified privilege withi the cotext of itetioal iterferece with employmet relatios claims is also well established. By recogizig this defese, courts have ackowledged that iterferece with the cotractual relatios of aother is ot always tortious. Whe the alleged tortfeasor is promotig a iterest which is equal or superior i social value to that with which he iterferes, his actios are said to be privileged or justified. Wampler v. Palmerto, 250 Or 65, 74 (1967). However, perhaps because of the sactity of cotractual relatioships, to maitai a qualified privilege oe must act withi the scope of his employmet ad with the itet to beefit the corporatio or pricipal. Id. at 75. Abuse of the Qualified Privilege Eve o those occasios i which a privilege may apply, the protectio afforded by the privilege may be lost if it is abused. Oce a privilege is successfully established, the burde of provig a abuse of the qualified privilege rests upo the plaitiff. Walsh, 278 Or at 356. Ufortuately, this is where the law becomes a little murkier sufficietly murky to get most cases past summary judgmet ad before a jury. Simply stated, a qualified privilege must be exercised i a reasoable maer ad for a proper purpose. Walsh, 278 Or at 356 referecig W. Prosser, the Law of Torts 111, (1971). The court cotiued with its reliace upo Prosser: [P]robably the best statemet of the rule is that the defedat is required to act as a reasoable ma uder the circumstaces, with due regard to the stregth of his belief, the grouds that he has to support it, ad the importace of coveyig the iformatio. Id. Stated aother way, the court may fid a improper purpose, thus egatig ay protectio afforded by the qualified privilege, if a perso acts out of malice, vegeace, or for a persoal reaso rather tha to beefit the employer. See, e.g., Schram v. Albertso s, 146 Or App 415, (1997) (supervisor allegedly forced plaitiff to leave her employmet i retaliatio for her report of sexual harassmet). Similarly, a qualified privilege may be lost, [I]f the speaker does ot believe that the statemet is true or lacks reasoable grouds to believe that it is true; if it is published for a purpose other tha that for which the particular privilege is give; if the publicatio is made to some perso ot reasoably believed to be ecessary to accomplish the purpose; or if the publicatio icludes defamatory matter ot reasoably believed to be ecessary to accomplish the purpose. Lud v. Arboe It l, Ic., 132 Or App 87, 96 (1994). It is importat to ote that a selfish motive i itself is ot sufficiet to forfeit a privilege. The court i Wampler recogized, Most corporate officers or employees have some sort of persoal iterest i the fiacial welfare of their pricipal, eve though it may oly be a hope of a icrease i salary. If good faith is equated with the lack of ay such selfish iterest i ehacig the fiacial coditio of the corporatio, most officers or employees would ot dare to give the busiess advice it is their duty to reder. We do ot believe that good faith as used here ca reasoably mea aythig more tha a itet to beefit the corporatio. Wampler, 250 Or at 76. Therefore, so log as there is evidece of a itet to beefit the pricipal, a mixed motive that icludes some elemet of persoal gai will ot ecessarily defeat the asserted privilege. However, it likely will preclude victory at summary judgmet. Practice Tips for Assertig a Qualified Privilege Recogizig that the assertio of a qualified privilege is a defese ad that the defedat carries the burde of establishig the privilege, the defedat must gather sufficiet evidece to demostrate that he or she acted i the scope of employmet or i the best iterests of the corporatio/pricipal. Remember this goal durig the depositios of your cliet ad his or her superiors. Ufortuately, a plaitiff will likely defeat a motio for summary judgmet based upo the assertio of a qualified privilege by merely itroducig evidece of a improper motive. However, stay the course ad remember that at trial, evidece of a selfish motive i itself will ot trump evidece that the defedat acted i the best iterest of the pricipal. So log as you ca preset a clear ad coget story illustratig that your cliet acted i the best iterest of the pricipal, the qualified privilege is likely to afford a substatial degree of protectio, if ot a complete defese to the claim. J Orego Associatio of Defese Cousel Summer 2007

8 FEATURES Cousel Are i First Positio Whe It Comes to Discovery of Electroic Evidece Katherie R. Heeki The Heeki Law Firm I the movie A Bug s Life, the grasshoppers retur to the lad where the ats were supposed to stockpile food for the grasshoppers while they were away. Upo hearig the retur of the grasshoppers, Fleck, a hare-braied iovator, accidetally kocks over the stockpile with his latest ivetio, scatterig the food everywhere i his hurry to get dow ito the athill. Hopper, the leader of the grasshoppers, is agry ad cofrots the Quee i traiig who tries to avoid beig resposible because she is ew to the job. Hopper tells her, The first rule of leadership is: Everythig is your fault. That s also true for lawyers who wish to avoid havig to uderstad all that computer stuff tagled up i the ew federal rules regardig discovery of electroic evidece. Uder the ew rules, cousel have a affirmative obligatio to advise their cliets to stop routie documet destructio ad to idetify, preserve, ad search all sources of potetially relevat iformatio as soo as the cliet reasoably aticipates litigatio. See Fed R Civ P 37(f) ad Advisory Commitee Note; see also, Zubulake v. UBS Warburg, LLC, 229 FRD 422, 432 (SDNY 2004) ( [I]t is ot sufficiet to otify all employees of a litigatio hold ad expect that the party will the retai ad produce all relevat iformatio. Cousel must take affirmative steps to moitor compliace so that all sources of discoverable iformatio are idetified ad searched. ); see also, Cha v. Triple 8 Palace, Ic., 2005 WL at *6 (SDNY Aug 11, 2005) ( The preservatio obligatio rus first to cousel, who has a duty to advise his cliet of the type of iformatio potetially relevat to the lawsuit ad of the ecessity of prevetig its destructio ad the to maagemet, as well, if the cliet is a busiess.) The difficulty i fulfillig this obligatio comes from ot kowig what those sources could be ad whether the iformatio stored is accessible or ot. Uder the ew rules, if the iformatio is ot reasoably accessible, the the lawyer must list the source where that iformatio is stored, state that the iformatio is ot reasoably accessible, ad describe why it is ot reasoably accessible with eough detail that the requestig party ca evaluate the burdes ad costs of providig the discovery ad the likelihood of fidig relevat iformatio there. Fed R Civ P 26(b)(2)(B) ad Advisory Committee Note. If the requestig party challeges that desigatio, the cousel has to be able to show the court why that iformatio is ot reasoably accessible, which meas cousel has to uderstad hardware, software,.ost files,.pst files, ear-lie storage, off-lie storage,data recovery tools, amog others, to explai the burde ad cost to produce that iformatio. Id. Cousel also has to be able to prompt the cliet s thikig about where the data might be, ad if the cliet does ot kow, isist o talkig to someoe else who does util cousel is satisfied that cousel has exhausted every possible source of iformatio. I additio, cousel has to kow eough about hardware, software, ad storage devices to ask the questios that will cause the cliet to disclose iformatio that the cliet had ot cosidered Cotiued o ext page Orego Associatio of Defese Cousel Summer 2007

9 FEATURES ELECTRONIC EVIDENCE cotiued from page 6 relevat, but which the lawyer may cosider relevat. These duties arise from the rules of civil procedure ad Orego s code of professioal coduct. Cousel caot sit back ad say, as the Quee-i-traiig did, I m ew to this job. Istead, cousel must educate themselves or hire someoe else who uderstads the techology to assist them; otherwise, cousel may fail to provide competet represetatio to the cliet. As stated i ORPC 1.1, Competet represetatio requires the legal kowledge, skill, thoroughess ad preparatio reasoably ecessary for the represetatio. Id. If cousel decides to hire someoe else, the cousel should scree that perso as if cousel were hirig a expert o liability or damages because it is likely cousel will eed a declaratio or testimoy or both from that perso durig the discovery process. If that expert is ot abidig by best practices for preservig, collectig, ad producig electroic evidece, the the cliet s case may be prejudiced. Compare Gates Rubber v. Bado Chemical Idustries, 167 FRD 90 (D Colo 1996) to Playboy Eterprises, Ic v. Welles, 60 F Supp 2d 1050 (SD Cal 1999). Thus, lawyers must kow eough about techology to adequately select ad oversee the expert s work. Moreover, lawyers are resposible for protectig cliet cofideces. ORPC 1.6. That obligatio is more complicated i discovery of electroic evidece because i may cases it will cost too much ad take too log to eyeball every potetially relevat file for privilege. Cosequetly, cousel may hire a expert to use software to filter out privileged iformatio usig key terms, but that search is oly as good as the terms. For example, if I filter for my full ame, Katherie Heeki, but ot for K.Heeki, ad someoe has stored my ame i their as K.Heeki, those s will get through the filter ad will be iadvertetly disclosed to the opposig party. The ew rules cotemplate that cousel will discuss ad reach a agreemet about iadvertet disclosure of privileged iformatio, which the court may iclude i the Rule 16 order. Fed R Civ P 16(b)(6) ad 26(b)(5)(B). I additio, a ew rule of evidece, FRE 502, which will take effect i December 2008 if Cogress approves it, creates a exceptio to a waiver of the privilege if the disclosure was iadvertet. See www. uscourts.gov/rules uder the Federal Rulemakig tab to view the proposed rule s text. Fially, cousel has a duty of fairess to the opposig party ad cousel. ORPC 3.4. I discovery, cousel caot ulawfully obstruct aother party s access to evidece or ulawfully alter, destroy or coceal a documet or fail to make [a] reasoably diliget effort to comply with a legally proper discovery request by a opposig party. Id. That meas cousel caot remai deliberately igorat about where electroic evidece is stored ad whether or ot it is accessible. Moreover, cousel caot misrepreset that iformatio is iaccessible, whe it is accessible, or produce the iformatio i a form that is more difficult to use. See Fed RCiv P.26(b)(2)(B) (respodig party must show that the iformatio is ot reasoably accessible ) ad Advisory Committee Note to Fed R Civ P 34(b) (respodig party may ot covert electroically stored iformatio to a form that makes it more difficult or burdesome for the requestig party to use). Perhaps most importat, cousel must keep i mid that cousel ca be held persoally, fiacially resposible for egliget destructio of evidece oce the duty to preserve exists. See Fed R Civ P 37; I re Napster, 462 F Supp 2d 1060, 1066 (ND Cal 2006) (egligece is the stadard for imposig sactios) (citig Glover v. BIC, Corp, 6 F3d 1318, 1329 (9 th Cir 1993)); I re September 11 th Liability Isurace Coverage Cases, --- FSupp2d ----, 2007 WL (SDNY Jue 18, 2007) (isurer ad cousel joitly ad severally liable for $500,000 as Rule 37 sactios). J Orego Associatio of Defese Cousel Summer 2007

10 FEATURES Apparet Agecy: A Malpractice Trap for Physicias ad Tips to Avoid It Matthew T. Racie Garrett Hema Robertso PC T he chagig ladscape of medical practice i the Uited States meas doctors must act as both professioals ad busiesspeople. Amog various busiess cosideratios, doctors must evaluate ad implemet measures to limit their exposure to malpractice lawsuits. This article discusses how courts i Orego ad other jurisdictios aalyze claims based o the theory of apparet agecy agaist physicias who employ idepedet cotractors to provide medical services, or who share office space, but ot a practice, with other physicias. This article suggests measures to limit potetial liability uder the doctrie of apparet (or ostesible) agecy. Apparet agecy arises from coduct that has created the appearace of a employmet relatioship or a joit practice betwee the allegedly egliget party ad the perso upo whom liability is sought to be imposed. As a poit of departure, it is importat to ote that the Orego Supreme Court has held that parters i the practice of medicie are all liable for a ijury to a patiet resultig from the lack of skill or the egligece of ay oe of the parters withi the scope of their partership busiess. Wemett v. Mout, 134 Or 305, 292 P 93 (1930). This is true for a limited liability partership as well. ORS (4). Physicias are also liable for the egligece of a employee, icludig physicia employees. Moulto v. Huckleberry, 150 Or 538, 549, 46 P2d 589 (1935). Furthermore, physicia-shareholders i a professioal corporatio are joitly ad severally liable for egliget or wrogful acts by other shareholders i rederig professioal services o behalf Cotiued o ext page Orego Associatio of Defese Cousel Summer 2007

11 FEATURES APPARENT AGENCY cotiued from page 8 of the corporatio. ORS (3); Hoeck v. Schwabe, Williamso & Wyatt, 149 Or App 607, 621, 945 P2d 534 (1997). However, where either a clear partership or a formal etity exists, the doctrie of apparet/ostesible agecy may be used to determie whether a physicia has a duty to a patiet ad therefore may be held liable for egliget harm to that patiet. For example, the Orego Court of Appeals has held that a hospital was liable for the egligece of a idepedet cotractor aesthesiologist uder the doctrie of apparet agecy. Jeiso v. Providece St. Vicet Medical Ceter, 174 Or App 219, 25 P3d 358 (2001). The Court of Appeals set out a two-part test for fidig the hospital liable uder the doctrie of apparet agecy: (1) the hospital must hold itself out as a provider of medical services ad (2) uless the patiet has actual kowledge of the physicia s actual status as a idepedet cotractor, the patiet must have a objectively reasoable belief that the physicia is a employee of the hospital. Jeiso, 174 Or App at 235. I Jeiso, the court foud that because the patiet reasoably believed that the treatig physicias were employees of the hospital ad the coset form that the patiet siged cotaied o idicatio that the doctors were idepedet cotractors, it was reasoable for the patiet to believe that hospital employees would be resposible for the patiet s medical treatmet. Id. at 235. Physicia Liability for Idepedet Cotractors The geerally accepted rule is that persos hirig idepedet cotractors are ot resposible for the torts of those cotractors. Apparet agecy is a exceptio to this geeral rule. As early as The geerally accepted rule is that persos hirig idepedet cotractors are ot resposible for the torts of those cotractors. the 1980s, Pesylvaia appellate courts, like the Orego Court of Appeals i Jeiso, applied the theory of ostesible agecy to hospitals ad their idepedet cotractor physicias. Recetly, the Pesylvaia courts have exteded the ostesible agecy theory to idividual physicias ad their idepedet cotractor employees. Parker v. Freilich, 803 A2d 738, 746 (Pa Super Ct 2002). I Parker, a patiet sued Dr. Freilich ad his idepedet cotractor urse for failig to remove a catheter i the patiet s right arm. The Pesylvaia court stated that it saw o reaso why the ratioale used to hold hospitals liable for the malpractice of idepedet cotractor physicias should ot exted to physicias usig idepedet cotractors assistig i the physicias offices. Moreover, the court placed the burde o physicias who used the services of idepedet cotractors to expressly iform the patiets of the idepedet cotractor status of the assistat. Parker, 803 A2d at 748. The Pesylvaia court proposed a twofactor test for fidig ostesible agecy liability where a physicia employs a idepedet cotractor: (1) whether the patiet looks to the doctor, rather tha the idepedet cotractor for care ad (2) whether the doctor holds out the idepedet cotractor as his or her employee. Orego courts have yet to apply their apparet agecy test to idividual physicias i cases subsequet to Jeiso. Still, give the logical progressio see i Pesylvaia jurisprudece, it is a reasoable assumptio that the Orego courts will evetually exted the apparet agecy test for hospital/idepedet cotractor liability to the physicia/idepedet cotractor relatioship. See Jeiso, 174 Or App at (citig with approval Guadagoli v. Seaview Radiology, P.C., 712 NYS2d 812, 817 (2000) (fidig issue for jury as to whether radiology corporatio was liable uder ostesible agecy theory for idepedet cotractor physicia s egliget review of mammogram take at facility operated by radiology corporatio)). I fact, a compariso of the test set out i Jeiso ad the test set out i Parker shows that they are closely aalogous. Physicia Liability i Office-Sharig Arragemets I additio to potetial apparet agecy liability for idepedet cotractors, physicias who share office space with other physicias face a outside risk of becomig liable for the malpractice of the office-sharig physicia based o a apparet agecy theory. Case law regardig agecy liability of idepedet physicias who share office space is sparse. It appears that the oly reported case o poit is a upublished opiio issued Cotiued o ext page Orego Associatio of Defese Cousel Summer 2007

12 FEATURES APPARENT AGENCY cotiued from page 9 by a New York trial court: DiBeedetto v. Ray, 2001 NY Misc Lexis 666 (NY Sup Ct 2001). I DiBeedetto, plaitiff first saw Dr. Chadai, who practiced uder the ame Fishkill Medical Associates, which he ad two other physicias assumed i 1992 to lease office space. Dr. Chadai the formed Fishkill Medical, PC, i December 1996 to practice medicie. Dr. Chadai was the sole shareholder, director ad officer of the corporatio. Dr. Chadai referred plaitiff to a urologist for a procedure. After the procedure, plaitiff s followup care was hadled by Dr. Chakravorty, aother physicia leasig space withi the Fishkill Medical Associates buildig. Plaitiff alleged that Dr. Chakravorty failed to diagose a heart murmur ad a ifectio, ad that by reaso of such failure plaitiff suffered various ailmets that led to cogestive heart failure. Although Dr. Chakravorty was ot a employee of Dr. Chadai or Fishkill Medical Associates, the plaitiff alleged that the two physicias had created a ostesible agecy relatioship ad therefore were joitly liable. I New York, a ostesible agecy relatioship arises from coduct that creates the appearace of a joit practice betwee the allegedly egliget practitioer ad the perso upo whom liability is sought to be imposed. See, Hill v. St. Clare s Hospital, 499 NYS 2d 904 (1986). The court i DiBeedetto foud may facts that supported a ostesible agecy relatioship betwee Chadai ad Chakravorty, which precluded summary judgmet i favor of the physicias. Idicatios of ostesible agecy metioed by the court were: both doctors ames were o a sig uder Fishkill Medical Associates ; they had commo statioery, records, ad lab reports which bore the labels Fishkill Medical Associates or Fishkill Medical, PC ; they shared telephoe ad fax umbers; the urologist listed both physicias as the referrig physicias; ad Dr. Chadai billed plaitiff s HMO for Dr. Chakravorty s services. While this issue is far from settled i Orego, simply hagig a sig that makes it appear that physicias are practicig as a group could have uiteded cosequeces. Therefore, physicias should take measures to limit potetial liability uder a apparet agecy theory. Ways to Limit Liability for Apparet Agecy If two idepedet physicias wish to share office space without eterig ito a partership or creatig a formal etity uder which they will practice, those physicias eed to take various precautios to avoid a apparet agecy problem. A aalysis of the DiBeedetto case demostrates that the physicias should have separate sigs idetifyig their practices o the outside of ay buildig that they share. Moreover, other precautios such as separate billig systems, telephoe ad fax umbers, ad statioery ad busiess cards will help establish that there is o apparet agecy. If the physicias share a waitig room, they should post a otice that spells out that they are ot parters ad that they are ot resposible for the care of each other s patiets. The doctors should avoid advertisig their practices together i ay prit, radio, televisio, or iteret advertisemets. The physicias should avoid havig a commo logo that appears o ay paperwork, busiess cards, or o ay lab coats or scrubs wor by the physicias. Apparet agecy is a trap for the uwary physicia. This article has suggested some measures physicias ca take i order to help avoid this trap, or at least limit the situatios i which the trap may be sprug. I additio to implemetig these steps, physicias may wish to cosult their busiess, corporate, ad estate plaig attoreys to determie what additioal steps they should take to help protect their practices ad their busiess ad persoal assets from a malpractice suit based o the egligece of aother physicia or a idepedet cotractor. J 10 Orego Associatio of Defese Cousel Summer 2007

13 FEATURES Do Isurace Defese Cousel Have a Duty to Advise Cliets About Excess Coverage? Frak J. Weiss Toko Torp LLP troductio I You may or may ot kow it, but a defese lawyer s duty of care may require providig advice about the availability of isurace coverage ad the ecessity of tederig a claim. Somewhat alarmigly, a recet decisio eve suggests that this duty might exted to appoited isurace defese cousel. The risks imposed by this potetial obligatio are substatial. Failure to timely teder a claim ca provide a defese to coverage uder a occurrece-based isurace policy, ad is almost always fatal to coverage uder a claims-made policy. Accordigly, a lawyer foud liable for failig to advise a cliet to timely teder a claim could be faced with a claim for damages i a amout equal to the limits of the policy that otherwise would have covered the claim. I may istaces, such a claim could ru ito the millios. A Recet Example The most recet published decisio to address this issue was issued by a New York appellate court i December of See Shaya B. Pacific, LLC v. Wilso, Elser, Moskowitz, Edelma & Dicker, LLP, 827 NYS2d 231 (App. Div. 2006). Although its coclusio may be debatable, this opiio is worth beig aware of both for its aalysis of the potetial liability that faces all defese cousel, ad for its somewhat couterituitive coclusio that eve appoited isurace defese cousel may be liable for failig to provide coverage advice. I Pacific, the plaitiff, which had bee a defedat i a prior persoal ijury actio, brought a malpractice suit agaist the defese cousel that its primary isurer appoited to represet it. The suit was ot based upo aythig the firm did wrog i defedig the prior actio, but upo the claim that defese cousel did ot adequately ivestigate the availability of excess coverage, or take appropriate steps to teder the claim to potetial excess carriers. I the prior persoal ijury actio, the plaitiff had bee sued for over $50,000,000, but had oly $1,000,000 i primary coverage. Pacific s isurer advised it of the risk of a excess verdict ad suggested that it look ito whether excess coverage was available to it ad cosider egagig cousel to advise it cocerig ay potetial excess judgmets. Pacific did ot obtai idepedet cousel, but istead relied solely upo its appoited defese cousel to defed it. Evetually, summary judgmet was etered establishig its liability. Shortly before trial commeced o damages, defese cousel, actig o Pacific s behalf, tedered the claim to a potetial excess isurer. The excess isurer deied coverage, i part o the grouds that defese cousel had ot received timely otice of the claim. Not log thereafter, a judgmet of early $6,000,000 was etered agaist Pacific, a amout far i excess of its primary limits. I the subsequet malpractice actio that is the subject of the Pacific opiio, Pacific alleged that defese cousel had bee egliget i failig to see to it that the claim was timely tedered to the excess carrier. Defese cousel moved to dismiss. Defese cousel argued, amog other thigs, that as a matter of law it did ot have a duty to advise Pacific cocerig Cotiued o ext page Orego Associatio of Defese Cousel Summer

14 FEATURES EXCESS COVERAGE cotiued from page 11 isurace coverage matters. The first issue examied by the court i Pacific was whether the egagemet letter set by the isurer defeated the claim by makig clear that defese cousel was egaged oly to defed the uderlyig claim, ad by advisig the isured to cosider hirig idepedet cousel i coectio with possible excess claims. The court cocluded that it did ot. I doig so, the court effectively presumed that the scope of egagemet would iclude the duty to ivestigate coverage uless the egagemet letter expressly excluded this obligatio. As the court explaied, i order to survive a motio to dismiss: [A] legal malpractice plaitiff eed ot specifically plead that the alleged malpractice fell withi the agreed scope of the defedat s represetatio. Rather, a legal malpractice defedat seekig dismissal must teder documetary evidece coclusively establishig that the scope of its represetatio did ot iclude matters relatig to the alleged malpractice. Pacific at Havig dispesed with this iitial argumet, the court ext cosidered the questio of whether, uder ordiary circumstaces, a attorey retaied directly by a defedat i a persoal ijury actio has ay obligatio to ivestigate the availability of isurace coverage for his or her cliet ad see that timely otices of claims are served. The firm argued that there was o support for such a duty, but the court disagreed. The court held that it could ot rule out such a duty as a matter of law. Istead, the court foud that this was a fact questio that would tur upo the scope of the agreed represetatio ad upo whether the attorey lived up to the appropriate stadard of care. I reachig this decisio, the Pacific court distiguished a prior, well-publicized, New York decisio, Darby & Cotiued o ext page Are you still usig a court reportig firm stuck i the 1950s? Embrace the digital age with Naegeli Reportig, the firm with the most iovative litigatio techology i the coutry. We offer cuttig-edge court reportig, trial presetatio, videography ad videocoferecig services. Naegeli: Workig hard to simplify your life ad make your case successful. Natioal (800) Hyperliked Trascripts i Ay Format Word-Searchable Exhibits Audio/Trascript Sychroizatio Video/Trascript Sychroizatio Digitized Video o CD or DVD Persoal Audio CD E-trascript o CD Court Reportig Trial Presetatio Legal Videography Videocoferecig Servig all of Orego, Washigto, Idaho ad the Natio 24 hours a day Every Day Portlad, OR (503) Seattle, WA (206) Spokae, WA (509) Coeur d Alee, ID (208) Orego Associatio of Defese Cousel Summer 2007

15 FEATURES EXCESS COVERAGE cotiued from page 12 Darby v. VSI It l, 95 NY2d 308 (2000), i which the court upheld the dismissal of a malpractice claim agaist patet cousel who failed to advise their cliet of the potetial for coverage for a patet ifrigemet claim. Accordig to the court i Pacific, the Darby decisio did ot stad for the propositio that a defese attorey may ever be liable for failig to discover available isurace coverage. As iterpreted by the Pacific court, Darby merely held that a attorey hired to defed patet litigatio could ot be liable for failig to pursue a ovel ad questioable coverage theory, but implied that the result might be differet whe the availability of coverage is more clear. Fially, the Pacific court foud that the fact that defese cousel had bee appoited by a primary isurer did othig to chage this aalysis. It reasoed that, although appoited defese cousel might have had a coflict that would prohibit providig advice about coverage available uder the primary policy, o such coflict existed with respect to excess coverage. Accordigly, the court foud o reaso why the rule would ecessarily be differet with respect to isurace defese cousel. Pacific appears to be uique with respect to its applicatio to appoited isurace defese cousel. However, decisios i other jurisdictios have hited at similar results i the cotext of traditioal defese lawyers, ofte assumig that a duty to advise exists, or at least that the presece of such a duty is a fact questio for the jury. See, eg, Tush v. Pharr, 68 P3d 1239 (Alaska 2003); Jordache Eters, v. Brobeck, Phleger & Harriso, 18 Cal4th 739, 958 P2d 1062 (1998). Orego defese cousel should be wary of the potetial that similar argumets will be made here, ad should take steps to protect themselves. What is the Solutio? I Orego, as elsewhere, i order to prove a claim of egligece i a actio agaist a attorey, the plaitiff must establish a duty of due care owed by the attorey, a breach of that duty, causatio ad damages. If a lawyer wishes to avoid potetial liability for failig to provide coverage advice, the best approach is to elimiate the possibility of a fact fider cocludig that the lawyer s duty of care icluded providig such advice. This is best accomplished by a professioal services agreemet that precisely defies the scope of the lawyer s obligatios. Additioally, it is recommeded that you draft egagemet letters limitig the scope of the egagemet to the particular matter beig defeded ad expressly disclaimig ay obligatio to provide coverage advice. I istaces where such a egagemet letter is impractical, it would be wise to simply write the cliet ad advise him or her that you have ot bee egaged to provide advice about the availability of isurace coverage ad, if the cliet wishes to receive such advice, he or she should cotact idepedet cousel. Havig received such a letter, the cliet could ot reasoably claim to have relied upo the lawyer to provide advice cocerig coverage matters. J Orego Associatio of Defese Cousel Summer

16 FEATURES 3 Thigs I Hate About Orego Isurace Coverage Law: A Policyholder s Perspective David Rossmiller Du Carey Alle Higgis & Togue ike ay other isurace coverage or isurace recovery L lawyer who practices primarily i Orego, I fid certai aspects of Orego coverage law ot oly icoveiet, but baffligly wrog-headed or just plai bafflig. This is ot uique to Orego practice, of course coverage law is the great workshop of the commo law, ad courts i 50 states are costatly at work, weldig o a ew theory here, hammerig out a diged-up priciple there, all of which edows coverage law with more tha its fair share of differeces from state to state. Although the uderlyig cocepts are the same, each state has its ow idiosycrasies, its ow way of aswerig key questios, or i may istaces, ot aswerig them or eve addressig them at all. This provides edless sources of woder, amazemet, frustratio ad opportuities to fumble i oe s desk for the Tyleol. This article is about those thigs i Orego coverage law that cause oe s temple to throb. Although the title of this article refers to oly three thigs I hate about Orego coverage law, that is a arbitrary umber: it could be 4, 7, 11 or 15. Whatever the true umber is, it is broadeed for those who, like me, practice o both sides of the fece, represetig both isurers ad policyholders. Ufortuately, givig eve a short list for both sides would cosume too much space, ad so the scope of discussio here must be limited to the policyholder s perspective. While this article is writte from the policyholder s perspective, there is certaily some value for the defese i uderstadig the frustratios ad challeges faced by attoreys represetig policyholders. The isurer s side ca be told aother day. Here is a sample list, i o particular order of loathig: 1. No first party bad faith. First party 1bad faith is a relatively recet developmet i coverage law, ad, like most thigs that are either good or bad, came out of Califoria. First party bad faith arose i the 1970s about the time Joh Leo was sigig Power to the People, ad it has spread by commo law decisio or statute to the majority of states, but ot to Orego. The bottom lie for policyholder attoreys: potetial first party bad faith damages are a powerful icetive for isurers to settle. The most recet ad widely publicized examples of this fact ca be foud i the Hurricae Katria homeowers coverage cases still beig litigated i Mississippi ad Louisiaa. A first party bad faith verdict i Broussard v. State Farm Fire & Casualty Co, 2007 WL (SD Miss 2007) i Jauary started a avalache of settlemet of hudreds of other similar cases i the two states. The jury s bad faith award was $2.5 millio later reduced by the judge to $1 millio over o-paymet of what may have bee as little as several thousad dollars worth of wid-damaged shigles. Sice the, oe of the Katria cases scheduled for trial has gotte to the jury before settlemet, ad the vast majority were put to rest i huge global settlemets. Orego law has othig comparable courts have declied to edorse first party bad faith, ad have bee persistet i refutig attempts by policyholders to break out of cotract by ay theory of tort, whether it is called bad faith or somethig else. I Orego, whe oe has a first party claim ad o amout of letter writig or back ad forth with the isurer is workig, oe looks at other states eviously like a kid with strict parets, 2woderig why their judges ad legislators give them all the cool stuff to play with while you get socks ad uderwear for Christmas. 2. Holloway v. Republic. I this decisio, the Orego Supreme Court appears to have subbed a prevailig legal tred of the last 25 years. Decades ago, it was rare that courts would Cotiued o ext page 14 Orego Associatio of Defese Cousel Summer 2007

17 FEATURES INSURANCE COVERAGE LAW cotiued from page 14 allow a policyholder to assig claims to a third party claimat for the isurer s breach of the duty to defed or the duty to idemify, uless the claimat obtaied a judgmet at trial agaist the policyholder. A stipulated judgmet betwee the policyholder ad the claimat, combied with a coveat ot to execute the judgmet agaist the policyholder, were thought to be fake procedures ifused with collusio at the isurer s expese, as well as a violatio of the stadard atiassigmet, Cooperatio ad No Actio clauses i policies. A ati-assigmet clause prohibits assigmet of rights uder the policy without the isurer s coset; the Cooperatio clause, as the ame suggests, requires isureds to act cooperatively with the isurer; ad the No Actio clause bars suits agaist the isurer uless a judgmet o the merits is etered or the isurer agrees to the settlemet. However, i somewhat of a quiet revolutio that has goe o i the majority of states i the last few decades, courts lost faith i this positio, ad bega to see a isurer s breach of the duty to defed as ujustly abadoig policyholders to fight off tort claimats aloe, deyig them what is ofte called the most importat feature of a liability policy: a paid defese. I such istaces, courts bega to say, policyholders who have bee wrogly dumped ad left by the side of the road have the right to make whatever deal they ca to extricate themselves from harm s way subject to a hearig o reasoableess of the settlemet amout or a so-called good faith hearig. Courts have used various justificatios for this shift. Some say the isurer s breach relieves the policyholder from the duty of further performace of certai parts of the policy, while others say a stipulated judgmet combied with a coveat ot to execute the judgmet agaist the policyholder is a real liability agaist the policyholder, but oe that is ot eforced because of the cotractual agreemet ot to execute it, cotiget o assigmet of policy rights. Orego appeared to be followig the same tred with the eactmet i 1989 of ORS , later reumbered ORS , which appeared to be iteded to overrule the lie of cases that bega with Stubblefield v. St. Paul Fire ad Marie Isurace Co., 267 Or 397, 517 P2d 262 (1973). These cases were ot models of clarity, or was their exact scope clear, but at the miimum they disallowed assigmets agaist a breachig isurer where a assigmet occurred before a stipulated judgmet was etered, ad i the view of may, also where the assigmet occurred before a judgmet o the merits. The statute says that, i a uderlyig tort actio, a policyholder may assig ay cause of actio agaist the isurer as a result of the judgmet to the plaitiff. Although Orego appellate courts had ever explicitly said stipulated judgmets were ow allowed, ad although the statute does t say what kid of judgmet should be etered, it was widely assumed assigmets were valid that occurred after a stipulated judgmet was recorded. Courts appeared to share this view after the statute wet ito effect, o Orego appellate cases raised the flag of the Stubblefield lie. (Nevertheless, i a abudace of cautio, policyholder lawyers made sure to write settlemet agreemets to state the assigmet took effect oly upo etry of the judgmet). The the Orego Supreme Court decided Holloway v. Republic Idemity Co. of America, 341 Or 642, 147 P3d 329 (2006), i which it held that a ati-assigmet clause i a policy was ot ambiguous ad was therefore eforceable. This case fails to metio ORS at all, which is curious. The Supreme Court reversed the Court of Appeals decisio, which itself was somewhat curious, i that the appeals court did metio the statute but failed to decide the case usig it. What does this mea for the validity of assigmets pursuat to stipulated judgmets ad coveats ot to execute? What does the statute mea? No oe really kows, or does ayoe kow if this case is just a glitch that will be erased at the Court s ext opportuity, or a permaet fixture of ucertaity. 3. No extrisic evidece allowed to show ambiguities i policy laguage. Certai thigs exist i the law that probably every lawyer would rather forget ad ever 3have to thik about agai, for example, the Rule Agaist Perpetuities or the Statute of Frauds. The parol evidece rule certaily makes a strog bid for iclusio i this category. The parol evidece rule basically says that whe parties to a cotract have embodied the fial expressio of their itet i a writte agreemet, the terms of the writig may ot be varied or cotradicted by evidece of prior writte or oral agreemets, i the absece of fraud, duress or mutual mistake. Simple eough. I applicatio, however, the parol evidece rule is like politics everyoe has a differet take. The rule is edlessly malleable ad takes may differet forms depedig o the circumstaces, the jurisdictio ad eve the court withi a jurisdictio. This is sigificat for isurace coverage law because the parol evidece rule forms the basis for how courts costruct a methodology to aalyze whether ambiguities exist i a policy, ad how to resolve them. From the policyholder s perspective, may other states have a ambiguous methodology that is more chock full of opportuities for discovery ito all kids Cotiued o ext page Orego Associatio of Defese Cousel Summer

18 FEATURES INSURANCE COVERAGE LAW cotiued from page 15 of thigs that drive isurers crazy ad perhaps may be admitted to show or resolve ambiguities: policy draftig history, icosistet positios i prior litigatio, uderwritig files, commuicatios with reisurers ad so forth. Not Orego, which follows the four corers aalysis ad allows for o cosideratio of extrisic evidece of the parties itet. Employers Is of Wausau v. Tektroix, Ic, 211 Or App 485, 505, 156 P3d 105 (2007) citig Hoffma Costructio Co. of Alaska v. Fred S. James & Co. of Orego, 313 Or 464, 836 P2d 703 (1992). The four corers approach is sometimes mistakely referred to as a plai meaig aalysis, but the plai meaig methodology actually allows for extrisic evidece to be used i certai circumstaces. The four corers aalysis othig outside the policy laguage, ad the lawyers argumets about it, of course is used to decide whether a ambiguity exists. For ambiguity to exist, two reasoable iterpretatios must exist. O the bright side, the policyholder s iterpretatio does ot ecessarily have to be as good as the isurer s: it oly has to be reasoable, at least accordig to a o-precedetial federal case. Koell Cost. ad Demolitio Corp. v. Valiat Is. Co., 2006 WL at *4 (D Or). Ad agai o the bright side for policyholders, oce ambiguity is foud, the policy is iterpreted agaist the isurer that drafted it eve if the policyholder is itself a sophisticated commercial etity (o Orego appellate case appears to hold to the cotrary) ad the policyholder wis. Red Lio Hotels, Ic. v. Commowealth Is. Co. of Am., 177 Or App 58, 64, 33 P3d 358 (2001). Coclusio. This list is merely represetative, or course. I a short article, may worthy cadidates must be excluded. These iclude the lack of a reasoable expectatios doctrie, o stackig of UIM policies, a relatively arrow third party bad faith doctrie, ad o coverage by estoppel. Each isurace recovery lawyer udoubtedly has his or her ow persoal eemies list. J Outstadig Service ad Discouts for Your Wireless Phoe! Update Services has cotracted with Verizo Wireless to offer discouted plas ad equipmet to our members. Take advatage of this great wireless program with Verizo as a member beefit of your associatio. Curretly uder our pla Verizo users receive a 8% discout off the mothly access fee o all Verizo s published cosumer voice rate plas of $34.99 ad above as well as havig a basic pla of $11.99/mo. Discouts are available o data products as well. As our umber of phoes with Verizo grows so does the discout to our members. Oce the umber of Verizo users reaches 500 users, the discout will be 10%. Verizo ow offers wireless DSL. Call Wedy to see if this ew service is available i your area. Verizo offers: Great roam like home ad i-etwork coverage. Terrific FREE phoe replacemet programs Free log distace o most plas Dedicated Corporate customer service Wireless Broadbad Service Plus much more! We are excited about this program ad believe you will be also. For additioal iformatio, cotact us ad we will give you all the great details. Or you ca cotact our Verizo Accout Represetative, Wedy Clacy, at (make sure to metio Update Services) UPDATE SERVICES, INC or 16 Orego Associatio of Defese Cousel Summer 2007

19 PRACTICE TIPS Practice Tips By Joh Kaempf Bullivat Houser Bailey PC Orego Court of Appeals Limits the Use of ORCP 47E Uamed Expert Affidavits to Defeat Summary Judgmet Motios the Witer 2006 editio I of this colum, I discussed strategies for respodig to ORCP 47E uamed expert affidavits submitted by plaitiff s cousel i oppositio to summary judgmet motios. ORCP 47E provides that a uamed expert affidavit ca create a geuie issue of material fact oly whe the opposig party is required to provide the opiio of a expert to establish a geuie issue of material fact. There are may situatios i which expert testimoy is ot required to create a geuie issue of material fact, ad, therefore, a ORCP 47E uamed expert affidavit is ot sufficiet to defeat a summary judgmet motio. For example, expert testimoy is ot required to show whe a claim accrued for purposes of the statute of limitatio. See Hoffma v. Rockey, 55 Or App 658, 663, 639 P2d 1284 (1982) ( A reasoable perso may well coclude, before receivig ay expert opiio, that he has bee ijured ad that the ijury was caused by the egliget act or omissio of the tortfeasor; thus, a plaitiff ca kow that their claim accrued without cosultig a doctor or a lawyer. ) (emphasis added). Sice that colum, the Orego Court of Appeals has twice rejected the use of ORCP 47E uamed expert affidavits to defeat a summary judgmet motio. I Belgarde v. Li, 205 Or App 433, 134 P3d 1082, rev. deied, 341 Or 197 (2006), the plaitiff sued various couty officials for the allegedly uauthorized expediture of public fuds. The defedats moved for summary judgmet o the basis that they relied i good faith o the advice of legal cousel. I respose, plaitiff submitted two ORCP 47E uamed expert affidavits addressig whether the defedats were etitled to rely o the advice of cousel defese. However, the trial court grated defedats summary judgmet motio. Belgarde, 205 Or App at O appeal, the court i Belgarde affirmed the summary judgmet for defedats. Cocerig the plaitiff s reliace o his attorey s ORCP 47E uamed expert affidavits, the court cofirmed that ORCP 47E applies whe a party is required to provide the opiio of a expert to establish a fact ***. Id. at 441. The court the held as follows: I this case, however, plaitiff was ot required to provide the opiio of a expert to establish such a fact. Ideed, so far as we ca tell, the affidavits were ot offered to establish ay facts at all. Istead, they were offered as expert legal opiios about the uderlyig issues of Cotiued o ext page Orego Associatio of Defese Cousel Summer

20 PRACTICE TIPS PRACTICE TIPS cotiued from page 17 whether the couty lawfully could issue marriage liceses to same-sex couples ad whether, as a result, defedats lawfully may rely o the advice of cousel defese. Those matters are, at least i this cotext, ot properly the subject of a ORCP 47E affidavit. We therefore coclude that the trial court did ot err i determiig that defedats were etitled to rely o the advice of cousel defese ad did ot err i gratig defedats motio for summary judgmet o that basis. Id. at (italics i origial). I Tarlow v. Ladye Beett Blumstei LLP, 209 Or App 171, 147 P3d 355 (2006), the plaitiff sued the defedat attoreys for wrogful iitiatio of civil proceedigs. Defedats represeted aother party i the uderlyig lawsuit agaist plaitiff, ad plaitiff was grated summary judgmet as to the claims agaist him i that lawsuit. Plaitiff argued that defedats kew or reasoably should have kow that there was o legally cogizable basis for the claims agaist him. Defedats moved for summary judgmet o the basis of issue preclusio, cotedig that because the trial court i the uderlyig case determied that defedats did ot act maliciously, plaitiff s lawsuit was barred. The trial court agreed with defedats ad grated their summary judgmet motio. Id. at O appeal, the court i Tarlow affirmed the summary judgmet for defedats. Plaitiff argued that his attorey s ORCP 47E uamed expert affidavit itself establishes a geuie issue of material fact as to all elemets of a claim for wrogful use of civil proceedigs icludig the elemet of malice. Id. at 176. The court disagreed with plaitiff, however, holdig as follows: Plaitiff does ot demostrate how expert testimoy regardig defedats subjective motivatio would be admissible uder OEC 702. Moreover, specialized kowledge is ot ecessary to aswer the questio of whether defedats had a primary purpose other tha that of securig a adjudicatio of [the uderlyig] claims [agaist plaitiff]. *** [A] ordiary lay juror would ot eed the assistace of a expert to determie whether defedats acted with malice. The ORCP 47E affidavit therefore presets o substative evidece of malice that would raise a geuie issue of material fact ad preclude summary judgmet. Id. at (citig Belgarde) (emphasis added). Therefore, whe faced with a ORCP 47E uamed expert affidavit filed i oppositio to a summary judgmet motio, cousel should cosider whether expert testimoy is required to establish a geuie issue of material fact o the subject of the motio. If a claim is able to reach a jury without expert testimoy o the relevat issue, cousel should argue that the proposed expert testimoy is thus ot required withi the meaig of ORCP 47E. I such cases, citig the express terms of ORCP 47E, as well as the recet Belgarde ad Tarlow decisios, cousel should be able to have a summary judgmet motio grated eve whe opposig cousel submits a ORCP 47E affidavit. J OADC Newsletter Editors 2007 EDITOR IN CHIEF Jeae Loftis Bullivat Houser Bailey PC 888 SW 5 th Ave., #300 Portlad, OR / ASSOCIATE EDITOR Wesley Rabor Garrett Hema Robertso PC PO Box 749 Salem, OR / FEATURE ARTICLES EDITOR George Pitcher Williams Kaster & Gibbs PLLC 888 SW 5 th Ave., #600 Portlad, OR / CASE NOTES EDITORS Christie Coers-Mitchell Cosgrave Vergeer Kester LLP 805 SW Broadway, 8th Fl. Portlad, OR / Wedy Margolis Cosgrave Vergeer Kester LLP 805 SW Broadway, 8th Fl. Portlad, OR / PRACTICE TIPS EDITOR Joh Kaempf Bullivat Houser Bailey PC 888 SW 5 th Ave., #300 Portlad, OR / Orego Associatio of Defese Cousel Summer 2007

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