At the annual meeting of the Federation of Defense and Corporate Counsel (FDCC) in Montreux, Switzerland, in July, Diane was selected by the Nominating Committee to be on FDCC’s Board of Directors. Diane has been a member of FDCC for 19 years and looks forward to continuing her contributions to FDCC in this leadership role.
The Oregon Court of Appeals delivered a decision in the Certain Underwriters v. Mass. Bonding and Ins Co, 287 Or App 279 (2017). The trial court’s decision to dismiss London’s contribution claims was affirmed. The Court of Appeals decided that the trial court properly concluded that there had been “no final judgment after exhaustion of all appeals” entered before the effective date of the 2013 amendments to the Oregon Environmental Cleanup Assistance Act, and therefore the 2013 amendments applied to the claims. The 2013 amendments applied retroactively, unless there was a final judgment after exhaustion of all appeals regarding the environmental claim. The Court of Appeals found that since the environmental claim by the common insured against London had not reached the point where all appeals had been exhausted at the time the 2013 amendments were enacted, the retroactivity clause applied and London was barred from seeking contribution.
Diane L. Polscer and Bob Spajic were selected for inclusion in Best Lawyers in America 2018 by Best Lawyers®. Selection to Best Lawyers is based upon peer review and evaluations by the top attorneys in the country. This is 8th consecutive year Diane has been included for her work in Insurance Law and the first year for her work in Litigation – Insurance. This is Bob’s first year on the list for his work in Personal Injury Litigation – Defendants.
We are pleased to announce that the Oregon Association of Defense Counsel (OADC) was notified that it will be the recipient of the Defense Research Institute (DRI) State Leadership Defense Organization Diversity Award. The OADC is a non-profit organization for defense oriented civil litigation that provides a unified voice for defense concerns in Oregon. The award will be presented to OADC at the DRI Annual Convention on October 5, 2017 in Chicago, IL.
Congratulations to Gordon & Polscer lawyer Mary-Anne Rayburn, current OADC President, and to everyone in the organization who has helped to make OADC a valuable and vibrant organization.
Diane Polscer and Greg Baird have been selected for inclusion in the 2017 Oregon Super Lawyers list. This is the 12th consecutive year Diane has been selected and Greg’s 3rd consecutive year. In addition, Robert Kirsher has been selected for inclusion in the 2017 Oregon Rising Stars list. This is Rob’s 2nd consecutive year on the list.
Ryan Hesselgesser, Seattle, has been selected for inclusion in the 2017 Washington Rising Stars list.
Oregon’s Uninsured Motorist Safe Harbor Provision Undermined By Defense Pleadings
In Kiryuta v. Country Preferred Insurance Company, 376 P.3d 284 (2016), the Oregon Supreme Court found that an insurer’s defensive pleadings can render Oregon’s “Safe Harbor” provision, intended to insulate insurers from attorney fees if the insurer accepts uninsured/underinsured (“UIM”) coverage, inapplicable.
A plaintiff seeking UIM coverage is entitled to recover attorney’s fees if timely settlement is not made and the plaintiff’s recovery exceeds the insurer’s tender. However, ORS 742.061(3) provides insurers with a “Safe Harbor” from attorney fees if (1) the insurer accepts coverage in writing; (2) the only issues are “the liability of the uninsured or underinsured motorist” and “the damages due the insured;” and (3) the insurer agrees to binding arbitration.
In Kiryuta, the insurer sent plaintiff a letter that accepted UIM coverage, stated that the only issues were liability of the uninsured or underinsured motorist and the damages due the insured. However, after plaintiff filed suit, the insurer’s answer included two affirmative defenses, labeled "Contractual Compliance" and "Offset." The insurer argued that the affirmative defenses were not intended to assert that some term in the policy prevented plaintiff from recovering any damages and that no issues other than the damages due plaintiff were litigated in the arbitration.
The court disagreed with insurer. Under Oregon’s fact-pleadings rules, the court noted that a “party's pleadings matter” in that the pleadings declare and control the issues to be determined, the relations that the parties bear to each other and set the boundaries for evidence that can be admitted at trial. Generally, a defendant's responsive pleading has two functions: informing the plaintiff of facts that a defendant intends to prove at trial and providing the trial court a pleading foundation for taking testimony and instructingthe jury. Stated differently, a defendant's pleading can extend the boundaries of relevancy initially established by a plaintiff's pleadings.
The court found that the insurer’s pleadings provided a foundation for defendant to litigate an issue other than the amount of plaintiff's damages or liability of the underinsured driver. Through its answer, the insurer pursued a litigation strategy that was broader than that allowed under the Safe Harbor rules. The fact that the insurer may not have followed through with that litigation strategy at the arbitration proceeding makes no difference. The insurer was in control of its own pleadings and was in a position to conform those pleadings to the limitations of the Safe Harbor provision, by alleging only ultimate facts that pertained to the liability of the uninsured or underinsured motorist and the damages due plaintiff. As a result, plaintiff had to be prepared at the arbitration hearing to meet any proof that the insurer might offer consistent with its pleadings. The court concluded that insurer's conduct was inconsistent with the safe-harbor provision and that the trial court erred in not awarding plaintiff his reasonable attorney fees.
Gordon & Polscer once again makes the list of “Best Law Firms.” Best Lawyers is the oldest and most respected attorney ranking service in the world. Firms that are included in the 2017 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers.
Diane L. Polscer was selected for inclusion in The Best Lawyers in America 2017 by Best Lawyers®. Selection to Best Lawyers is based upon peer review and evaluations by the top attorneys in the country.
Diane Polscer has been appointed chair of the Federation of Defense and Corporate Counsel (FDCC) Diversity Committee. Diversity is an essential part of the FDCC, which welcomes people of diverse backgrounds and enhances the bonds between all people with respect and understanding within the legal profession. Diane has been a member of the Federation of Defense and Corporate Counsel (FDCC) since 1998.