Firm News

Oregon Court of Appeals Affirms Summary Judgment in Favor of Subcontractor. Shareholder Liz Lampson and associate Jonathan Henderson successfully maintained a defense victory at the Oregon Court of Appeals for the firm’s excavation subcontractor client. The general contractor plaintiff sought nearly $200,000 in damages for alleged improper excavation at a residential subdivision property in Southern Oregon and argued on appeal that a dispositive defense summary judgment in favor of our client should be overturned. At issue was the trigger of the two-year statute of limitations for negligence. The court of appeals issued an Order Affirming Without Opinion the trial court ruling in favor of the client.

Court grants summary judgment on $10 million liquor liability claim. Shareholder Daniel S. Hasson prevailed in Multnomah County Circuit Court by obtaining an order granting complete summary judgment in favor of his client against claims brought by two separate plaintiffs arising out of a January 2010 shooting incident. Dan’s client was a fraternal organization alleged to have provided alcohol to a person who later shot and injured the two plaintiffs at a nearby gaming establishment. The plaintiffs brought claims seeking approximately $10 million in compensatory and punitive damages, alleging that the shooter (who was subsequently convicted of multiple counts of assault and attempted murder) had been served alcoholic beverages by Dan’s client while he was visibly intoxicated. Dan successfully argued that summary judgment was appropriate because the shooter’s criminal assault was not reasonably foreseeable as a matter of law.

Dispositive summary judgment granted for subcontractor against general contractor.  Shareholder Elizabeth E. Lampson prevailed in Washington County Circuit Court in obtaining a summary judgment in favor of her subcontractor defendant against all claims filed against it by the general contractor, including negligence, indemnity, and contribution. Liz's client was the EIFS installer at a single family residence. The motion contended that the ten-year repose period should apply and that it began to run when the client completed its work, as evidenced by final tender of payment. Liz further argued that any tolling benefit to plaintiff, triggered by a statutory notice of claim, did not inure to the benefit of the general contractor in tolling third-party claims against subcontractors. In response, the general contractor conceded the motion as to negligence, but argued that indemnity and contribution should survive past ten years. The court adopted the analysis offered by Liz in response, and granted the motion as to all claims. Liz was assisted at the hearing by appellate law associate, Jonathan Henderson.

Shareholder Chris Drotzmann Completes Portland Marathon. Running in his first marathon, Chris Drotzmann completed the 40th Anniversary Portland Marathon in 3:29:13; averaging a 7:59 per mile pace.

Defense verdict in Washington arbitration. Shareholder Elizabeth Lampson obtained a defense verdict at arbitration in King County (Seattle), Washington, for her general contractor client facing claims of water damages to a condominium unit after extensive siding renovation work at the complex. Liz was assisted throughout the case by associate Shayna Eagle.

Shareholder appointed to Governing Board. Shareholder Elizabeth Lampson has been appointed to the Governing Board of the Three Rivers Charter School in West Linn, Oregon. The school is in its eleventh year of operation and won the award of Charter School of the Year for the State of Oregon in 2008.

Court grants summary judgment in second series of motions for general contractor client. Shareholder Chris Drotzmann and associate Katie Smith won a second series of summary judgment motions for their general contractor client in a number of cases filed on behalf of multiple homeowners in a large housing development. The original legal issues involved the statute of ultimate repose applicable to the construction of a spec home as opposed to a custom home and the trigger date for the running of the statute of ultimate repose. Plaintiffs argued the starting date for the statute of ultimate repose was the date of sale to the first owner, which in many cases was several months to a year after substantial completion of the homes. The court agreed with the arguments presented by Chris and Katie that the start date for the running of the statute of ultimate repose was the date of substantial completion of construction of the homes, dismissing plaintiffs’ claims relating to original construction of the homes. The court granted plaintiffs leave to amend only as to any “repair” claims. Plaintiffs followed suit by amending their complaints to pursue the same list of defects, alleging negligent omission on the part of the general contractor to repair defects with original construction when the general contractor performed standard warranty repairs. The court agreed with the arguments presented by Chris and Katie that warranty repairs do not trigger a new statute of repose and/or statute of limitation and instead relate back to original construction, ultimately dismissing plaintiffs’ claims in their entirety.

Shareholder honored in Best Lawyers in America category. Shareholder Bill Earle was selected as Best Lawyers' 2012 Portland, Oregon Insurance Law Lawyer of the Year by The Best Lawyers in America®. Only a single lawyer in each specialty in each community is honored as the "Lawyer of the Year." Congratulations to Bill on this distinction!

The Best Lawyers in America® 2012 Edition. Two of our shareholders, Bill Davis and Bill Earle, were selected for inclusion in the 2012 edition of The Best Lawyers in America®, the oldest and most respected peer-review publication in the legal profession. Bill Davis was included in the practice area of Personal Injury Litigation and Bill Earle in the practice area of Insurance Law. Congratulations to both!

Oregon Super Lawyers® 2011 Edition. We are honored that three of our shareholders are included as Oregon Super Lawyers for 2011: Bill Earle for Insurance Coverage and Bill Davis and Paul Xóchihua for Professional Liability: Defense. In addition, two of our shareholders are included on the Rising Stars list: Chris Drotzmann for Construction Litigation Defense and Sam Anderson for Personal Injury Defense: General. Congratulations to all!

Defense verdict obtained in Lincoln County construction defect case. Shareholder Elizabeth Lampson obtained a defense verdict at trial for her developer client on a large, three-phase condominium project built on the Oregon Coast. The jury trial in Lincoln County (Newport, Oregon) lasted twelve weeks, from January to March 2011. Plaintiff homeowners association sought nearly $6 million in damages for alleged construction defects, property damage, breach of fiduciary duty under the Oregon Condominium Act, and attorney fees. The trial was one of the longest running jury trials in Lincoln County and in Oregon courts. Liz was assisted throughout the case and the trial by associate Danica Hibpshman.

Court grants summary judgment on multiple claims against firm’s subcontractor client.  Shareholder Chris Drotzmann and associate Chris Parker won summary judgment for their subcontractor framer client in a million dollar construction defect lawsuit involving a seventeen-unit condominium development in Portland, Oregon. Drotzmann and Parker moved for summary judgment against the general contractor’s third party claims, arguing they were barred by the statute of repose. The court agreed and rejected the general contractor’s theory that its indemnity and contribution claims were still viable. The court entered an order granting the motions for summary judgment in their entirety.

Paralegal completes criminology degree. We are pleased to announce the recent graduation of one of our paralegals, Jennifer Pelletier, from Portland State University. Jennifer completed her Bachelor of Science degree in Criminology, graduating cum laude, while working full-time. Congratulations, Jennifer!

Defense verdict in commercial lease dispute case. Shareholder Bill Davis and associate Jonathan Henderson recently obtained an excellent trial result for defendants/lessors in a case involving a commercial lease dispute. Plaintiffs/lessees sued defendants/lessors for fraudulent inducement and breach of lease. Plaintiffs' final, “drop-dead” demand at the settlement conference five days before trial was payment to plaintiffs of $200,000 plus dismissal with prejudice of defendants’ counterclaims. The trial verdict was a complete victory for the defense: a verdict dismissing with prejudice all plaintiffs’ claims and judgment in favor of defendants on their counterclaims of breach of lease, conversion, and waste in the amount of $687,000. The defendants were also awarded prevailing party attorney fees in an amount to be determined by the court.

Pro Tem Judge Appointment. Shareholder John Knowles has been appointed as a Pro Tempore Circuit Court Judge for the State of Oregon and will be serving in Washington County.

The Verdict Spring 2011 Newsletter. Be sure not to miss the "Recent Case Notes" article by Jonathan Henderson in the Oregon Association of Defense Counsel's The Verdict Spring 2011 Newsletter (page 14) regarding recovery of attorney fees. Also contributing to an article on practical tips for arbitrating is Paul Xóchihua (page 8) in the same publication. Kudos to both for contributing to this leading publication in Oregon for the legal defense community!

Navy Promotion. Shareholder Heather Beasley, a Commander in the United States Navy Reserve Judge Advocate General’s Corps (shown here with her husband, Commander James Beasley), has been selected for promotion to Captain (O-6), one rank below Admiral.

Court grants summary judgment dismissing multiple claims against firm’s general contractor client. Shareholder Chris Drotzmann and associate Katie Smith won summary judgment for their general contractor client in seven cases filed on behalf of multiple homeowners in a large housing development. The legal issue involved the statute of ultimate repose applicable to the construction of a spec home as opposed to a custom home and the trigger date for the running of the statute of ultimate repose. Plaintiffs argued the starting date for the statute of ultimate repose was the date of sale to the first owner, which in many cases was several months to a year after substantial completion of the homes. The court agreed with the arguments presented by Chris and Katie that the start date for the running of the statute of ultimate repose was the date of substantial completion of construction of the homes, dismissing plaintiffs’ claims relating to original construction of the homes.

Court grants summary judgment to firm’s three clients in $10 million construction defect lawsuit. Shareholder Chris Drotzmann and associate Patrick Wylie represented three defendants in a construction defect lawsuit concerning a 150-unit subdivision. Chris and Patrick moved for summary judgment, asking the court to find plaintiff’s claims were time-barred as a matter of law because plaintiff had discovered the alleged defects more than two years before filing suit. Weeks before the hearing on the motion, plaintiff sent a $2.5 million demand to the firm’s clients. The court granted the motion from the bench, completely dismissing all claims against the firm’s clients.

Court Dismisses Defendant’s Legal Malpractice Counterclaim; Jury Awards Firm’s Client Over $58,000 In Outstanding Attorney Fees. The Firm’s client brought a lawsuit against his former client for approximately $60,000 in unpaid attorney fees associated with a divorce and custody dispute. The defendant's counterclaim contended the attorney committed malpractice in the underlying dispute. Shareholder Chris Drotzmann was retained to defend the counterclaim and assisted his client in the prosecution of the attorney fee claim. The claim was initially arbitrated and the arbitrator dismissed the malpractice counterclaim and awarded the Firm’s client 100 percent of his outstanding fees. The defendant appealed and sought a jury trial. After a two-day jury trial, the court dismissed the malpractice claim and the jury awarded $58,722.97 in outstanding attorney fees. As an interesting twist, post-trial the court entered a Judgment Notwithstanding the Verdict concluding an Oregon statute of over fifty years which tolls claims when a defendant moves out of state violates the United States Constitution, and hence found plaintiff’s claim time-barred. Post-trial motions are pending and an appeal is likely.

February 2011 defense verdict from federal court jury. Shareholders Bill Earle and Paul Xóchihua, assisted by associate Linda Vierra, received a unanimous defense verdict in the case of Arch Chemicals, Inc. v. Radiator Specialty Company, a lawsuit filed for indemnity and contribution arising out of an underlying products liability case in which a devastating fire in the back of a vehicle caused the death of two family members and serious burn injuries to three other family members. Arch sought amounts it paid to the underlying plaintiffs by alleging that a product sold by Radiator Specialty Company caused or contributed to the fire. Radiator Specialty Company denied its product was defective and also denied its product caused the fire or the harm to the family. Radiator Specialty Company maintained that Arch’s product, a pool product containing 68 percent calcium hypochlorite, was the cause of the fire. After a nine-day trial, the jury deliberated over lunch for about ninety minutes before reaching its unanimous verdict in favor of Radiator Specialty Company.

Two victories at the Oregon Court of Appeals. Shareholder Dan Hasson received favorable rulings for his client from the Oregon Court of Appeals in two cases that were consolidated for appeal, Davis v. Boly and Boly v. Davis, 2010 Or. App. LEXIS 1628 (2010). In Davis v. Boly, the court affirmed the trial court's grant of summary judgment that invalidiated a claimed "equitable lien" against the client's real property. In Boly v. Davis, the court affirmed a full defense verdict against claims seeking $1,230,000 in damages from the client.

Bench trial results in dismissal of $15 million construction defect claim. Shareholder Chris Drotzmann and associate Patrick Wylie represented two contractors in a case alleging construction defects in three large commercial buildings. Plaintiffs purchased the buildings as part of a larger $114 million property acquisition between two sophisticated investment entities. The purchase and sale agreement acquiring the property contained an “as-is” release clause. After the court denied motions and cross-motions for summary judgment on the scope of the release language, trial was bifurcated to address whether the “as-is” release clause was intended to release the second-tier contractors represented by the firm. Patrick led and coordinated defense efforts in conducting discovery regarding the intent of the parties to the transaction and presenting evidence to the court in a one-day bench trial. The firm also utilized an expert in the commercial real estate field to testify regarding the trade meaning and purpose of the “as-is” release clause at issue. After hearing the evidence, the court issued a defense verdict from the bench. The bifurcated trial provided not only a defense verdict, but a substantial savings of resources by avoiding what would have been a six-week trial on the alleged defects at issue.

Oregon Super Lawyers®. Shareholders Bill Davis, Bill Earle, and Paul Xóchihua were recently included in the 2010 Oregon Listing by Super Lawyers®. Bill Earle was distinguished for Insurance Coverage and Bill Davis and Paul were distinguished for Professional Liability Defense. Congratulations to all!

Shareholder featured speaker at Personal Injury 101 Seminar. Shareholder Heather Beasley will be a featured speaker for the Personal Injury 101 Seminar in Portland, Oregon, on December 17, 2010. The focus of her teaching will be evaluation of medical documentation, effective presentation of evidence, and ethics issues which may arise in defense of bodily injury claims.

Court grants summary judgment to firm’s client in $2 million insurance coverage action. Shareholder Bill Earle and associate Jonathan Henderson won a summary judgment motion filed on behalf of the firm’s insurer client in a $2 million insurance coverage dispute. The insureds, owners of a local restaurant and lounge, requested and received liquor liability umbrella coverage from the insurer, adding $2 million in coverage for liquor liability. The underlying policy period began in March 2007. The request for the umbrella policy was made in August 2007, and the policy change endorsement stated the effective date of the change was August 27, 2007. The insureds argued the umbrella coverage was retroactive to the beginning of the underlying policy period because the endorsement referred to the underlying policy period, and should provide coverage for the April 29, 2007, loss. The insurer argued the umbrella coverage was not available for any loss that occurred before the effective date of the change, as stated on the policy change endorsement. Both parties filed cross-motions for summary judgment. The court ruled in favor of the firm’s client, the insurer.

Plaintiffs dismiss claims after day one of four-day binding arbitration. Plaintiffs sued the builder/seller of a single family home and his real estate agent for negligence and fraud. Plaintiffs sought over $340,000 for construction defects and mold in the home and alleged misrepresentations related to the construction of the home and the risk that the home would flood. Shareholder Chris Drotzmann defended the seller’s real estate agent against purported negligence and fraud claims. Prior to the arbitration hearing, the firm’s client offered $15,000 towards settlement of the claim, which was rejected. After the first day of a four-day binding arbitration, plaintiffs agreed to dismiss the lawsuit with prejudice instead of proceeding further.

Four-day personal injury trial results in a verdict $380,000 less than plaintiff’s last demand. Plaintiff tripped and fell in a pothole on defendant’s property.  She claimed she needed two surgeries to her foot and suffered a subsequent broken ankle because of a weakened ankle condition. Plaintiff sought $45,000 in medical expenses, $18,000 in additional economic damages and $500,000 in noneconomic damages for her pain and suffering and permanent disability. Plaintiff’s last official settlement demand was $400,000, and the defense’s last official offer was $30,000. The settlement judge projected an adverse verdict of $100,000. Shareholder Chris Drotzmann, with the assistance of associate Brandon Stuber, tried the case for four days to a Multnomah County jury.  The jury found each party 50 percent at fault for the accident and awarded $18,211.30 in economic damages (the amount agreed to by the defense) and $20,000.00 in noneconomic damages, for a total award of $38,211.30. This award was reduced to $19,105.65 because of plaintiff’s comparative fault. The final verdict was $10,000 less than the defense’s last offer, $80,000 less than the settlement judge’s projected verdict range, and $380,000 less than plaintiff’s last demand.

PLF honors firm member. Shareholder Bill Davis (first row, second from right) was honored by the Oregon State Bar Professional Liability Fund, along with other PLF Defense Panel members, for his more than thirty years of service. Bill was one of the first attorneys retained by the PLF to represent its insureds when the organization was founded in 1978.

Firm members contribute to DRI publication. Shareholder Liz Lampson and associate Patrick Wylie are contributors to the newly-published Defense Research Institute publication, Construction Litigation Desk Reference, A State-By-State Compendium. Liz and Patrick authored the chapter on Washington law, featuring many categories of analysis including insurance issues, causes of action, defenses, alternative dispute resolution, and damages. The publication may be ordered through DRI's website: http://www.dri.org/open/Product.aspx?prod=2010-02CD.

Defense win on basis of statute of ultimate repose. Shareholder Liz Lampson and associate Danica Hibpshman obtained a dispositive motion for summary judgment on a $2.6 million damage claim against the plaintiff owner of a commercial property and the general contractor on the basis of Oregon's statute of ultimate repose. The key issue was when the repose period began to run. Liz and Danica developed critical evidence from written discovery and thorough deposition testimony obtained for the defense. The court found the evidence compelling enough to find no question of fact to defeat the motion as argued by plaintiff.

Pleading dismissal obtained in legal malpractice lawsuit. Plaintiff alleged he was not properly served in a prior auto accident lawsuit by the firm’s attorney client. As a result, plaintiff alleged he was not aware of the suit and did not file an answer or a responsive pleading of any kind. A judgment of default was entered and pursuant to Oregon’s financial responsibility laws, plaintiff’s driver’s license was suspended for failing to satisfy the judgment. Plaintiff alleges he was unable to continue driving his taxicab once he and his employer learned of the suspension. Plaintiff brought suit against the firm’s attorney client seeking lost profits as a result of the license suspension. Shareholder Chris Drotzmann and Associate Jonathan Henderson obtained dismissal of the lawsuit by successfully arguing the defendant lawyer owed no duty to the non-privity plaintiff.

Six-week jury trial results in verdict substantially less than last settlement offers. Shareholder Chris Drotzmann obtained a verdict in a construction defect case that was substantially less than the last settlement offers. Counsel represented a mason and a window setter during a six-week jury trial in Washington County, Oregon, on a construction defect claim brought by the owners of an 11-building, 97-unit residential complex in Beaverton, Oregon. During trial, counsel sought to exclude plaintiffs’ expert’s ability to extrapolate the purported defects in the masonry work given the limited amount of testing performed. The court granted the defense motion, reducing the potential recovery from $325,000 to just over $50,000. The jury again reduced the claim during deliberation to just under $5,000, resulting in a verdict $70,000 less than the last settlement offer. Likewise, plaintiffs sought nearly a million dollars from the framing defendants, including the firm’s window setting sub-sub contractor. After deliberation, the jury returned an award of just over $20,000 against the firm’s window setting subcontract, over $100,000 less than the last offer.

Defense verdict: Product defect (pig feed). Shareholder Paul Xóchihua obtained a defense verdict, and won on a counterclaim, on an allegedly defective pig feed product in Yamhill County. Plaintiff alleged the pig feed contained excessive amounts of the mineral Selenium, which caused injury and death to plaintiff’s pigs and financial losses to its farming operations. Our client counterclaimed for recovery of money owed for the feed, plus interest.

Coverage win at Oregon Court of Appeals (“same or related” coverage). Shareholder Bill Earle obtained a favorable appellate court ruling in Oregon State Bar Professional Liability Fund v. Benfit, 225 Or App 409 (2009), where the court held that claims against two attorneys were “same or related claims” under the State’s Professional Liability Fund Plan, providing liability insurance protection for Oregon lawyers.

Washington Court of Appeals coverage win on environmental cleanup costs.Shareholder Bill Earle also received a favorable ruling for his client from the Washington Court of Appeals in Walla Walla College v. Ohio Cas. Ins. Co., 149 Wash App 726 (2009). The court held there was no coverage for environmental cleanup costs because damage did not take place during the policy period. Associate Jonathan Henderson participated in the oral argument before the court.

Defense verdict on personal injury case. Shareholder Chris Drotzmann obtained a defense verdict in an auto accident case in Marion County. Following a “near miss” head-on collision, plaintiff contended the defendant turned in front of him at the last moment, forcing plaintiff to run off the road.  The defendant acknowledged making a left turn motion but then stopped in his lane of travel when plaintiff, traveling at a high rate of speed, unnecessarily left his lane of travel. The plaintiff incurred substantial medical expenses, including surgery, and contended he was disabled and no longer able to work. Plaintiff asked the jury for damages in excess of $500,000.  After a three-day trial, the jury returned a verdict finding plaintiff 51 percent at fault, resulting in a defense verdict.

Motion for summary judgment granted. Law firm and associate not in “special relationship” for tort law claims: Associate Jonathan Henderson won a motion for summary judgment against an attorney who filed claims against his former associate for failure to respond timely and for damages to the client from entry of default. The employer attorney argued the case was valid on agent-principal law. Mr. Henderson successfully obtained a dismissal of all tort based claims.