Category: Firm Blog

Nov 23rd, 2022

Best Law Firms – 2023 Edition

U.S. News – Best Lawyers® “Best Law Firms” announced our firm again received a Metropolitan Tier 1 ranking in the 2023 Edition of Best Law Firms for Insurance Law and Personal Injury Litigation – Defendants,  in Portland, Oregon. The Tier 1 ranking was determined through the firm’s overall evaluation which,…

Nov 5th, 2021

The Best Lawyers in America®2022 Edition – Lawyer of the Year

Shareholder Bill Davis was selected as a Lawyer of the Year for Personal Injury – Defense in the 2022 Edition of The Best Lawyers in America,® the oldest and most respected peer-review publication in the legal profession. Lawyer of the Year is awarded to only one lawyer per region and…

Nov 5th, 2021

Best Law Firms – 2022 Edition

U.S. News – Best Lawyers® “Best Law Firms” announced our firm again received a Metropolitan Tier 1 ranking in the 2022 Edition of Best Law Firms for Insurance Law; Personal Injury Litigation – Defendants. The Tier 1 ranking was determined through the firm’s overall evaluation which, in addition to other…

Jun 2nd, 2021

Washington Supreme Court Confirms Broad Expansion of Premises Liability Notice Exception for Businesses

On May 13, 2021, the Washington State Supreme Court released its decision in Johnson v. Liquor & Cannabis Bd., 98726-2, 2021 WL 1916522 (Wash. May 13, 2021), laying down another marker in a nearly four-decade expansion of Washington’s premises liability standard as applied to business owners. It is a fundamental…

May 24th, 2021

Davis Rothwell Noted as a Diverse Law Firm

Once again Davis Rothwell is included in the Portland Business Journal list of Portland’s Most Diverse Law Firms. We are committed to honoring and fostering diversity, to both inspire our corporate culture, and to enhance our legal strategies, analysis, and opportunities in defending American businesses.

Nov 9th, 2020

Best Law Firms – 2021 Edition

U.S. News – Best Lawyers® “Best Law Firms” announced our firm again received a Metropolitan Tier 1 ranking in the 2021 Edition of Best Law Firms for Insurance Law; Personal Injury Litigation – Defendants; Product Liability Litigation – Defendants; and Professional Malpractice Law – Defendants in Portland, Oregon. The Tier…

Jul 21st, 2020

REMINDER: Effective August 1, 2020, WAC 284-30-770: Adverse Notification Requirement

Effective August 1, 2020, Washington will require all insurers to add the following notice with any “adverse notification” issued to an insured: “If you have questions or concerns about the actions of your insurance company or agent, or would like information on your rights to file an appeal, contact the…

Jun 10th, 2020

Washington’s Highest Court Speaks on Vital Conflict of Interest Issue in Plein v. USAA

On May 21, 2020, the Washington State Supreme Court released its decision in Plein v. USAA Casualty Insurance, __Wn.2d __, No. 97563-9, 2020 WL 2568541 (May 21, 2020). In a landmark decision in Washington legal ethics, the Court established a new standard for what constitutes a “substantially related matter,” under…

Apr 17th, 2020

Deciphering Tree Rings: Interpreting an Insurer’s Duties to Defend and Indemnify Claims Arising from an Insured’s Commercial Timber Operation

Bighorn Logging Corporation v. Truck Ins. Exchange, 295 Or App 819 (2019) On January 30, 2019, the Oregon Court of Appeals in Bighorn Logging v. Truck Ins. Exchange issued an opinion finding, among other holdings, that the “operations” and the “incorrect performance” exclusions in a commercial general liability insurance policy…

Apr 17th, 2020

100 Cats: At What Point Is The Damage Caused By The Pet Owner Rather Than The Pet?

Phillips v. State Farm Fire and Casualty Co., 302 Or App 500 (2020) On February 26, 2020, the Oregon Court of Appeals issued an opinion that property damage resulting from pet waste was caused by the pets and not their owner, allowing State Farm’s domestic animal exclusion to apply to…

Apr 17th, 2020

Have Physical Trauma-Induced Fibromyalgia Claims? I’m Afraid There’s Some Bad News…

Miller et al v. Elisea et al, ___ P.3d ___, 302 Or App 188 (2020) The Oregon Court of Appeals issued an opinion on February 12, 2020, further restricting trial judges’ ability to exclude speculative theories of medical causation from consideration by juries. This time, it’s about physical trauma-induced fibromyalgia….

Oct 7th, 2019

Update: Oregon’s Statutory Cap on Noneconomic Damages is Unconstitutional as Applied in Most Injury Cases

ORS 31.710 caps noneconomic damages in certain civil actions to $500,000. [1] The cap was enacted in the mid-1980s as part of a tort reform package passed by the Oregon legislature that was aimed at mitigating an insurance crisis in Oregon. Recent legislative enactments had greatly expanded liability by creating…

Aug 14th, 2019

Washington Legislature Now Allows All Parents to Recover for Adult Children’s Deaths

BREAKING NEWS! Due to a 2019 statutory amendment effective July 28, 2019, parents can now recover for loss of consortium in a wrongful death claim regardless of whether they were financially dependent on the child at the time of child’s death. RCW 4.20.060(2), see bill text at Senate Bill 5163…

May 29th, 2019

Insurer Deadlines for Responding to Third Party Versus First Party Claims in Washington

We are frequently asked to clarify the deadlines for insurers to respond to insurance claims in Washington. Many times this is the result of the insurer’s receipt of a demand letter alleging bad faith, or imposing an extremely short deadline for the insurer’s response. But the rumors that short deadlines…

Dec 10th, 2018

Early Exit from Defense, Even After Coverage is Exhausted, Can Be Bad Faith in Washington State

An excess exposure case involving multiple claimants is a classic fact pattern for a potential bad faith claim.  One such scenario was discussed in the August 2018 Washington Court of Appeals’ decision in Singh v. Zurich Am. Ins. Co., 428 P.3d 1237 (Wash. Ct. App. 2018). In Singh, the Court…

Dec 5th, 2018

Update on the New Ceiling for Arbitration Awards in Washington

Washington State’s statute regarding jurisdictional limits for mandatory arbitration of civil suits, RCW 7.06.020, was amended earlier this year to allow counties to impose mandatory arbitration on civil cases in which the plaintiff sought $100,000 or less (previously $50,000 or less). This change resulted from years of lobbying by the…

Oct 11th, 2018

Davis Rothwell Wins Defense Verdict in Clackamas County Premises Liability Trial

Shareholders Shayna Eagle and Dan Hasson obtained a defense verdict for their clients, a commercial contractor and a local municipality, following a five-day jury trial in Oregon City, Oregon, in September 2018. The case involved a slip-and-fall injury for which plaintiff was seeking approximately $300,000 in damages. The jury deliberated…

May 10th, 2018

Washington Appellate Court Says Bad Faith Law Truly Applies to “All Persons” Involved in Insurance

In Keodalah v Allstate Ins. Co, ___ Wn App ___ (March 26, 2018), Division One of the Washington Court of Appeals resolved a split created in the federal courts, holding that an individual insurance adjuster taking part in a coverage or benefits denial can be personally liable for bad faith.[1]…

Apr 17th, 2018

Washington Governor Signs EHB 1128 Expanding Mandatory Arbitration Rules

Pursuant to previous update, both houses of the Washington legislature passed a bill which substantially changes Washington mandatory civil arbitration (MAR). Most notably, the bill increases the damages ceiling on MAR cases from $50,000 to $100,000. As expected, the bill was subsequently signed into law by Washington Governor Jay Inslee….

Mar 2nd, 2018

BREAKING NEWS: House Bill 1128 Expanding MAR Passes through Washington Legislature.

On February 28, 2018, Engrossed House Bill 1128 (“EHB 1128”), was passed by the Washington Senate.[i]   Having previously passed through the House, the bill will now reach the desk of Governor Jay Inslee.  EHB 1128 significantly expands the jurisdiction of Washington’s mandatory civil arbitration (“MAR,” governed by RCW 7.06 et seq.).  Previously,…

Dec 12th, 2017

Oregon Court of Appeals’s Opinion Affirms Dismissal Based on Contractual Liability Waiver in Commercial Contract

On October 25, 2017, the Court of Appeals released its decision in Am. Wholesale Prods. v. Allstate Ins. Co., 288 Or App 418 (2017).  The Court’s opinion opens the door for practitioners to bring liability waiver defenses in future commercial litigation, despite the Oregon Supreme Court’s hard line against such…

Nov 17th, 2017

Confidentiality of Mediation-Related Communications in Washington

Confidentiality can be one of the most valuable tools in mediation.  The parties’ candor to the impartial mediator allows for an informed valuation and possible settlement.  Candid dialogue is encouraged by protecting mediation communications from discovery by the other parties to the litigation.  Thus in Washington, like Oregon, mediation communications…

Nov 17th, 2017

Alfieri v. Solomon and Confidentiality of Mediation-Related Communications in Oregon

On December 10, 2015, in Alfieri v Solomon, 358 Or. 383, 365 P3d 99 (2015), the Oregon Supreme Court addressed, for the first time, the extent to which the confidentiality provisions of Oregon’s mediation statutes, ORS 36.100 to 36.238, prevent a client from offering evidence of communications made by his…

Sep 1st, 2017

Oregon Court of Appeals Discusses “Actual Knowledge” Requirement of ORS 12.117

On July 19, 2017, the Oregon Court of Appeals released its opinion in Doe v. Silverman et al, 286 Or App. 813, ___ P3d ___ (2017), an action for damages based on child sexual abuse.  The opinion addresses Oregon Revised Statute (“ORS”) 12.117 – which is Oregon’s extended statute of…

Jul 27th, 2017

The Forgotten Duties of Bad Faith Beyond IFCA – Washington Bad Faith Claims Under Common Law and the CPA

In previous posts, we have detailed the Insurance Fair Conduct Act (IFCA)—advising insurers on how to act within IFCA’s directives,[i] while easing concerns about IFCA’s enhanced damages provisions.[ii]  At the same time, we cautioned readers to be aware that the promulgation of IFCA did not do away with first-party insureds’…

Jun 17th, 2017

The Meaning of “Improvement to Real Property” in Washington’s Statute of Repose

Washington’s construction statute of repose, RCW 4.16.300 and .310, applies to “all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property. . .”  RCW 4.16.310.  The statute prohibits any cause of action “not accrued…

Jun 7th, 2017

SCOTUS Opens the Door to Suits Against Tribal Employees

On April 25, 2017, in Lewis v. Clarke, 581 U.S. ___, 137 S. Ct. 1285, 197 L. Ed. 2d 631 (2017), the United States Supreme Court held that a tribal employee was not entitled to invoke tribal sovereign immunity as a defense to state tort claims. Lewis v. Clarke arose…

May 17th, 2017

Ninth Circuit Says Oregon Employee Complaints Need Not Leave the Office to Obtain Protection

The Ninth Circuit Court of Appeals’ recent opinion, Brunozzi v. Cable Communications Inc., 851 F.3d 990 (9th Cir. 2017), demonstrates an ongoing trend for courts to provide broad protection for work-related complaints under Oregon law.[1] The Ninth Circuit’s broad interpretation of an Oregon whistleblowing statute serves as a warning to…

May 3rd, 2017

Oregon PIP Benefits Do Not Include Transportation Costs (Other Than Ambulance)

In Dowell v. Oregon Mutual Ins. Co., 361 Or 62, 388 P3d 1050 (2017), a PIP insurer declined to pay transportation costs that its insured incurred when attending medical appointments related to treatment for her injuries that resulted from a motor vehicle accident.  In response, the insured filed a claim…

Apr 12th, 2017

Best Practices in PIP Reimbursement — Oregon

Unlike in Washington, a Personal Injury Protection (PIP) insurer in Oregon has authority for recovery above and beyond a standard subrogation claim.  Oregon PIP recovery is governed by three separate statutory provisions, each giving the PIP insurer a different avenue of recovery.  However, the Oregon courts have held that a…

Apr 12th, 2017

Best Practices in PIP Reimbursement and Uninsured/Underinsured Motorist Subrogation Claims — Washington

What is Subrogation? Subrogation reflects apportionment of fault for an automobile accident, allowing an insurer of a fault-free party to recover from the insurer of the at-fault party, while also promoting full compensation of the injured claimant.  The logistics can be complex: Initially, the claimant’s own insurer pays Personal Injury…

Mar 23rd, 2017

Oregon Court of Appeals Awards Attorney Fees in Additional Insured Coverage Action

We continue to follow the West Hills Dev. Co. v. Chartis Claims, Inc. case.  In February, Chris Parker told you about the Oregon Supreme Court’s holding earlier this year reaffirming insurers’ broad duty to defend an alleged additional insured based on vague allegations in the complaint.[1]  The Supreme Court affirmed…

Feb 15th, 2017

Unreasonable Denial of Coverage or Benefits Required for IFCA Acceptance

All agree that Washington’s Insurance Fair Conduct Act (“IFCA”) mandates that a court to grant attorney fees and allows the court to award triple damages if an insurer acts unreasonably in denying a claim for coverage or payment of benefits.[i]  However, prior to the Washington Supreme Court’s recent decision in…

Feb 7th, 2017

Oregon Supreme Court Reaffirms Broad Duty to Defend

The Oregon Supreme Court released its opinion in West Hills Dev. Co. v. Chartis Claims, Inc., 360 Or 650 (2016).  As reported in our May 2, 2016 blog post, this is an insurance coverage case in which the Court of Appeals recognized a broad duty to defend an alleged additional…

Dec 19th, 2016

The Three “I”ngredients to Staying “Reasonable” Under IFCA

Washington has long allowed insureds, through the common law doctrines of bad faith and breach of contract, to bring actions against insurers who are purportedly acting in bad faith when denying claims for coverage or payment of benefits.  However, since 2007, thanks to the passing of the Insurance Fair Conduct…

Nov 16th, 2016

Prelitigation Handling of ORS 20.080 Claims

Settlement demands seeking $10,000 or less trigger possible attorney fees recovery by a plaintiff under Oregon Revised Statute (“ORS”) 20.080 – an issue often overlooked by claims handlers unfamiliar with that statute.  ORS 20.080 provides that the plaintiff recovers attorney fees on any tort claim for personal injury or property…

Nov 1st, 2016

How to Obtain Medical Records When Plaintiff Refuses to Authorize Their Release

In personal injury cases, the defense will, almost without exception, seek to obtain the plaintiff’s medical treatment records. Ordinarily, the defense will ask the plaintiff to sign a stipulation and authorization for the release of his or her medical records. But what if the plaintiff refuses to sign? Can the…

Oct 18th, 2016

ELECTRONIC DISCOVERY IN THE WAKE OF THE FRCP 26 AMENDMENT

It has been nearly a year since the December 2015 amendment to FRCP 26, which now defines the scope of discovery as “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake…

Sep 15th, 2016

Offers to Settle Made After Arbitration but Before Trial De Novo

In Washington, plaintiffs may elect to engage in mandatory arbitration, which caps each plaintiff’s damages at $50,000. After arbitration, either party can request a trial de novo; however, if the requesting party does not improve its position from arbitration, it must pay the opposing party’s attorney fees.[i] The rationale here…

Sep 1st, 2016

Supreme Court Watch: Tomlinson v. Metropolitan Pediatrics, LLC

The Oregon Supreme Court recently accepted review of a case that could have far-reaching implications for those in the medical community in Oregon.  In Tomlinson v. Metropolitan Pediatrics, LLC, the Supreme Court is poised to rule on three questions: Can a physician be sued for medical malpractice (specifically, negligent failure…

Aug 1st, 2016

Oregon Supreme Court Rejects Legal Malpractice Theory Based on Attorney’s Failure to Assert “Colorable” Claims During Underlying Litigation

This spring, in Rowlett v. Fagan,[i] the Oregon Supreme Court reversed the Court of Appeals’ conclusion that an attorney could be liable for the negligent failure to assert a merely “colorable” claim during litigation.  The collective sigh of relief from members of the Bar was audible as the Supreme Court…

Jul 15th, 2016

THE MASTER OF THE OFFER: UTILIZING LIABILITY DISCLAIMERS IN ORCP 54 E OFFERS OF JUDGMENT

[i]The offer of judgment rule, ORCP 54 E, is a potentially powerful tool for mitigating attorney fee exposure.[ii]  Offers of judgment are particularly useful in cases involving minimal actual damages.  An early offer of judgment for the amount of the actual damages, plus reasonable attorney fees incurred to date, will…

Jul 5th, 2016

Using Construction Defect Notices in Product Liability Cases

ORS 701.565 contains a notice provision (colloquially, “701 Notice”) well known to those who practice construction defect law.   Those who handle product liability cases may be less aware of the application of ORS 701.565.  And yet, in product liability cases where property damage is alleged, 701 Notice provides key protections…

Jun 16th, 2016

In Another Supreme Court Win for DREX, Oregon Supreme Court Rules Negligent Construction Claims Subject to Two-Year Statute of Limitations

Construction defect cases make up a significant portion of Oregon’s civil docket, and nearly all include claims of negligent construction.  For years, the plaintiffs’ bar and the defense bar have fought over whether such claims are subject to the two-year statutory limitation period in ORS 12.110(1), or the six-year limitation…

Jun 15th, 2016

The Reptile Theory

The Reptile Theory[i] is a litigation strategy that has been credited with over $6 billion in verdicts and settlements since 2009.  While the strategy manifests itself in many ways, the idea behind it is simple: scare the jurors and then offer them safety via a judgment against the defendant.  Plaintiff’s…

Jun 1st, 2016

Does Tendering Policy Limits Satisfy an Insurer’s Duty to Defend?

An adjuster or defense counsel may recognize at some point in a claim – sometimes even pre-litigation – that the insured’s minimum exposure on the claim will exceed policy limits.  The insurer may then opt to tender its policy limits to the claimant.  We are sometimes asked by adjusters if…

May 16th, 2016

Claim File Disclosure: Tips for Protecting Privileged Information Post-Cedell

Insurers are sometimes asked by their insureds for a copy of the claim file, which may include sensitive information such as coverage analysis (by in-house or outside counsel), adjuster notes regarding claim value, SIU/surveillance reports, or liability opinions.  Claims adjusters and lawyers defending insurers need to know when the claim…

May 6th, 2016

Oregon Supreme Court Expands Application of Statutory Damages Cap

During a wave of tort reform that swept the country in the 1980’s, the Oregon legislature enacted a cap limiting recovery of noneconomic damages to $500,000. That statute is still on the books today. But in the years since its enactment, the cap has been deemed unconstitutional to apply to…

May 3rd, 2016

Recent Case May Change How Insurers Provide Coverage to Medical Marijuana Growers

Liability insurers of marijuana businesses are probably already aware of Tracy v. USAA Cas. Ins. Co., 2012 U.S. Dist. LEXIS 35913 (D. HI, Mar. 16, 2012).  In Tracy, a medical marijuana user made a claim upon her homeowner’s insurance arising from theft of medical marijuana plants.  The United States District…

May 2nd, 2016

Oregon Supreme Court to Review Plaintiff-Friendly Insurance Decision

The Oregon Supreme Court accepted review of the Oregon Court of Appeals’ decision in West Hills Dev. Co. v. Chartis Claims, Inc., 273 Or App 155 (2015), an insurance coverage case in which the Court of Appeals recognized a broad duty to defend an alleged additional insured based on vague…

May 2nd, 2016

SELECTING THE CORRECT “SAFE HARBOR” FOR PIP AND UM/UIM CLAIMS

Oregon Revised Statute 742.061 allows an insured to recover attorney fees from its insurer after a successful lawsuit on the insurance policy.  Attorney fees are allowed when the action is filed in an Oregon court, the parties fail to reach settlement within six months from proof of loss, and the…

Apr 20th, 2016

Bad Faith Bill Fails to Pass Oregon Legislature

A broad, proposed insurance bad faith statute failed to pass the Oregon 2016 legislative session. The Oregon legislature had a short 35-day session in February 2016, its off-year from a regular session.  Typically, sweeping new legislation is not introduced in an off-year session, due to the short track lawmaking that…

Apr 20th, 2016

Oregon Supreme Court Applies 10-Year Statute of Repose to “Spec” House Defect Claims

Recently, in Shell v. Schollander Cos.[i], the Oregon Supreme Court considered which of two statutes of repose applies when a buyer enters into a purchase and sale agreement to buy an existing home. The defendant, Schollander Development Company, built “spec” houses—houses that are built without pre-existing contracts in anticipation of…

Apr 8th, 2016

The Reach of Washington’s Anti-Indemnity Statute

Washington’s workers’ compensation laws generally prohibit employees from suing their employers when they are injured on the job.  But workplace accidents can still lead to litigation for employers when indemnity agreements are in place. In the construction context, indemnity agreements are ubiquitous.  A subcontractor will often agree to indemnify a…

Apr 1st, 2016

A New Challenge to Oregon’s “Physical Impact Rule”

Under Oregon law, a plaintiff may not recover for purely emotional or psychic injury in a claim for negligent infliction of emotional distress, absent a special relationship, unless that plaintiff also suffered a direct accompanying injury to his or her person.  This principle, which has become known as the “physical…

Apr 1st, 2016

At a Glance: Oregon Consumer Identity Theft Prevention Act

Oregon has one of the most expansive identify theft prevention laws in the nation, and changes that went into effect this past January further broadened its application.  Codified at ORS 646A.600 et seq., the Oregon Consumer Identity Theft Prevention Act (“the Act”) requires both individuals and a range of corporate…

Mar 15th, 2016

Construction Defect Claims and the Right to Repair

In Washington, a homeowner may bring a construction defect action against a construction professional. But there is a 45-day “holding period” before such a claim may be filed. The purpose of this holding period is, among other things, to give construction professionals an opportunity to exercise the “right to repair”…

Mar 1st, 2016

Injury “Arising Out of” Use of an Uninsured/Underinsured Vehicle

In both Washington and Oregon, uninsured and underinsured motorist coverage must be offered in auto insurance policies. Such coverage must include damages that “arise out of” the ownership, maintenance, or use of the underinsured/uninsured vehicle. In a routine car accident involving an underinsured/uninsured vehicle, damages will almost certainly be found…