Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
Fisker's lawsuit against insurance companykatiefehren
A lawsuit filed by Fisker against insurance company XL for denying its claim when 338 Karmas were lost in Sandy flooding, which had a value of $33 million.
Goldberg v. Universal Prop. cas. ins. co. 2020 flaBolinLawGroup
This case involves a dispute over insurance coverage for property damage caused by Hurricane Irma. The plaintiff's condo was insured by the defendant insurance company. After inspecting the property, the insurer paid for damage to the dwelling but denied coverage for personal property, finding no storm-created opening. The plaintiff sued for breach of contract without first submitting a supplemental claim. The trial court granted summary judgment for the insurer, finding the plaintiff failed to submit the required supplemental claim. The appellate court affirmed as to the dwelling but reversed as to personal property, finding the insurer waived the supplemental claim requirement by denying all coverage.
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
Fisker's lawsuit against insurance companykatiefehren
A lawsuit filed by Fisker against insurance company XL for denying its claim when 338 Karmas were lost in Sandy flooding, which had a value of $33 million.
Goldberg v. Universal Prop. cas. ins. co. 2020 flaBolinLawGroup
This case involves a dispute over insurance coverage for property damage caused by Hurricane Irma. The plaintiff's condo was insured by the defendant insurance company. After inspecting the property, the insurer paid for damage to the dwelling but denied coverage for personal property, finding no storm-created opening. The plaintiff sued for breach of contract without first submitting a supplemental claim. The trial court granted summary judgment for the insurer, finding the plaintiff failed to submit the required supplemental claim. The appellate court affirmed as to the dwelling but reversed as to personal property, finding the insurer waived the supplemental claim requirement by denying all coverage.
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
First Natl Acceptance Co. v. City of Utica_12-cv-01622-0[1]James Evans
This case concerns the demolition of an apartment building owned by John Gosnell in Utica, New York. First National Acceptance Company held a mortgage on the property. The City of Utica inspected the building and issued notices of violations to Gosnell, but did not notify First National or follow certain statutory procedures. First National claims the demolition violated its due process rights. The court will determine if issues of material fact exist regarding whether Utica followed applicable laws in declaring the building unsafe and ordering its demolition.
Federal Judge Rules Against Small Haulers in Waste Management DisputeThis Is Reno
Reno's small waste haulers were dealt a blow this week in their ongoing dispute against the City of Reno and Waste Management. Green Solutions Recycling filed suit against the city and Reno Disposal (Waste Management) over the city's enforcement of its franchise agreement with Waste Management.
Copy of Order issued by U.S. District Court suspending AB 219, a new statute which made deliveries of ready-mix concrete subject to California Prevailing Wage Law.
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
The document is a complaint filed in bankruptcy court by Bernard Katz, the trustee of the Christ Hospital Liquidating Trust, against Genova Burns Giantomasi Webster. The complaint seeks to avoid and recover preferential transfers made by Christ Hospital to Genova Burns during the 90-day period prior to Christ Hospital declaring bankruptcy. Specifically, the complaint alleges that Christ Hospital made three transfers totaling $482,728.80 to Genova Burns and that these transfers allowed Genova Burns to receive more than it would have in a Chapter 7 bankruptcy. The complaint requests that the court avoid the transfers, order Genova Burns to repay the amounts, and disallow any claims Genova Burns has against the bankruptcy estate until repayment is made.
This document summarizes a court case between an insurance company (UCPB General Insurance) and an insured company (Masagana Telamart). The key facts are that Masagana had 5 insurance policies with UCPB that expired on May 22, 1992, but tendered payment for renewal on July 13, 1992 after some of its properties burned on June 13, 1992. UCPB refused payment claiming the policies were not renewed in time. However, the court found that UCPB had a past practice of granting Masagana 60-90 day credit for renewal payments, and that UCPB did not provide timely notice of non-renewal as required. Therefore, the court ruled the policies were effectively renewed and
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
This newsletter summarizes recent reinsurance case law developments. The first case discusses an 8th Circuit ruling that an endorsement incorporating a jurisdictional clause superseded an alternative dispute resolution clause. The second case discusses a New Jersey ruling staying litigation in favor of arbitration over an alleged breach involving an offset dispute. The third case discusses an Illinois ruling dismissing an assignee's request for pre-answer security and motion to compel arbitration against a sovereign-owned reinsurer.
The Alleged Debtors filed a motion requesting the court's permission to file an unredacted version of their Motion to Transfer Venue under seal. They argue the unredacted version contains sensitive commercial information regarding their financial condition and restructuring negotiations that could harm their business if disclosed publicly. The Alleged Debtors state they have publicly filed a redacted version, and the unredacted version would only be available to the court and specific receiving parties subject to confidentiality restrictions. They believe this balancing of interests appropriately protects their sensitive information while still allowing for consideration of the merits of their transfer motion.
The complaint alleges that investment solicitors Robert Kroner and Robert E. Kroner Insurance Services promoted and sold notes issued by Diversified Lending Group, which was later shut down as a Ponzi scheme. Specifically, the complaint alleges that the solicitors: 1) entered into an agreement to promote and control sales of DLG products; 2) made false representations about DLG and its notes at marketing meetings; and 3) continued selling the notes after learning of red flags regarding DLG. The trial court sustained the solicitors' demurrer and dismissed the case. The appellate court reversed, finding the complaint adequately alleged that the solicitors were secondarily liable for illegal securities sales and fraud.
BANK OF AMERICA FORECLOSURE, ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMlauren tratar
This document is an amended answer, affirmative defenses, and counterclaim filed by homeowners (Owners) in response to a foreclosure complaint brought by BAC Home Loans Servicing, LP (BAC). The Owners admit some basic facts about the mortgage but deny that BAC has the right to foreclose. They assert affirmative defenses that BAC lacks standing because the note was securitized and sold to investors prior to the alleged default. The Owners claim this means the real parties in interest are the investors, not BAC, and BAC cannot prove it has authority to foreclose. Exhibits are provided purportedly showing the loan was part of a mortgage backed securities trust.
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
This document is a motion filed in a US bankruptcy court requesting permission to file an unredacted version of a response under seal. It summarizes that the response contains sensitive commercial information about the debtors' financial condition and restructuring negotiations. The debtors argue the information could harm ongoing negotiations and business operations if disclosed publicly. They seek to file the unredacted version under seal and make it available only to specific parties.
This document discusses two court cases involving land disputes and contract interpretation.
In the first case, Dignos spouses sold the same parcel of land to two different parties. The court ruled the second sale was void and that the first buyer, Jabil, should regain ownership after reimbursing the second buyers for improvements made.
The second case examined whether a contract was one of sale or agency. Parsons Hardware argued it was an agent selling Quiroga beds, but the court found the contract established Parsons as a purchaser, not agent, as Quiroga set the prices and Parsons was obligated to pay for the beds.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
This document summarizes a court case between Jacqueline Veverka and Royal Caribbean Cruises regarding injuries sustained by Veverka during a cruise. Royal Caribbean filed a motion for summary judgment to dismiss the case. Veverka slipped on liquid left by Royal Caribbean employees and broke her hip. She underwent surgery and treatment but filed the case after contractual time limits. The court must determine if contractual limitations on liability and time to file a claim apply.
Stewart (carol) v stewart (lauriston) ca 2013 jmca civ 47Joniel Jojo Powell
This document summarizes a Court of Appeal case from Jamaica regarding the division of property rights between a divorcing couple, Carol and Lauriston Stewart. The judge had originally ruled that Mr. Stewart was entitled to 75% of the beneficial interest in the family home and Mrs. Stewart 25%, despite the Property Rights of Spouses Act typically requiring equal division. Mrs. Stewart appealed, arguing the judge erred in his assessment. The Court of Appeal considered the relevant act and precedents to determine if the original judgment properly applied the law.
The debtor, Cordillera Golf Club, LLC, filed an application seeking approval to retain GA Keen Realty Advisors, LLC as its real estate advisor nunc pro tunc to the petition date. GA Keen Realty will assist the debtor by raising debt or equity capital to fund a reorganization plan, refinance properties, or sell properties. GA Keen Realty will receive transaction fees ranging from 2-6% of proceeds depending on the type of transaction closed. The application seeks to waive certain fee application requirements and employ GA Keen Realty under an incentive-based fee structure customary for its commercial real estate advisory services.
This document is an application filed in the United States Bankruptcy Court for the District of Delaware by Cordillera Golf Club, LLC seeking approval to retain GA Keen Realty Advisors, LLC as its real estate advisor. Cordillera Golf Club filed for Chapter 11 bankruptcy protection and requires assistance assessing the highest and best use of its owned real property and obtaining capital for its business. The application requests that GA Keen Realty be approved as Cordillera's real estate advisor nunc pro tunc to the petition date under the terms of a retention agreement between the two parties. GA Keen Realty has experience advising other debtors in bankruptcy cases and working with Cordillera since prior to the bankruptcy filing.
The doctrine of privity of contract provides that only the parties to a contract can enforce rights or obligations under that contract. Over time, courts developed several exceptions to privity, including collateral contracts, agency relationships, and restrictive covenants that run with land. Academic debate questioned whether privity should be further modified or abolished. The Contracts (Rights of Third Parties) Act 1999 reformed English law by allowing expressly intended third party beneficiaries to directly enforce contract terms in certain circumstances.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
First Natl Acceptance Co. v. City of Utica_12-cv-01622-0[1]James Evans
This case concerns the demolition of an apartment building owned by John Gosnell in Utica, New York. First National Acceptance Company held a mortgage on the property. The City of Utica inspected the building and issued notices of violations to Gosnell, but did not notify First National or follow certain statutory procedures. First National claims the demolition violated its due process rights. The court will determine if issues of material fact exist regarding whether Utica followed applicable laws in declaring the building unsafe and ordering its demolition.
Federal Judge Rules Against Small Haulers in Waste Management DisputeThis Is Reno
Reno's small waste haulers were dealt a blow this week in their ongoing dispute against the City of Reno and Waste Management. Green Solutions Recycling filed suit against the city and Reno Disposal (Waste Management) over the city's enforcement of its franchise agreement with Waste Management.
Copy of Order issued by U.S. District Court suspending AB 219, a new statute which made deliveries of ready-mix concrete subject to California Prevailing Wage Law.
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
The document is a complaint filed in bankruptcy court by Bernard Katz, the trustee of the Christ Hospital Liquidating Trust, against Genova Burns Giantomasi Webster. The complaint seeks to avoid and recover preferential transfers made by Christ Hospital to Genova Burns during the 90-day period prior to Christ Hospital declaring bankruptcy. Specifically, the complaint alleges that Christ Hospital made three transfers totaling $482,728.80 to Genova Burns and that these transfers allowed Genova Burns to receive more than it would have in a Chapter 7 bankruptcy. The complaint requests that the court avoid the transfers, order Genova Burns to repay the amounts, and disallow any claims Genova Burns has against the bankruptcy estate until repayment is made.
This document summarizes a court case between an insurance company (UCPB General Insurance) and an insured company (Masagana Telamart). The key facts are that Masagana had 5 insurance policies with UCPB that expired on May 22, 1992, but tendered payment for renewal on July 13, 1992 after some of its properties burned on June 13, 1992. UCPB refused payment claiming the policies were not renewed in time. However, the court found that UCPB had a past practice of granting Masagana 60-90 day credit for renewal payments, and that UCPB did not provide timely notice of non-renewal as required. Therefore, the court ruled the policies were effectively renewed and
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
This newsletter summarizes recent reinsurance case law developments. The first case discusses an 8th Circuit ruling that an endorsement incorporating a jurisdictional clause superseded an alternative dispute resolution clause. The second case discusses a New Jersey ruling staying litigation in favor of arbitration over an alleged breach involving an offset dispute. The third case discusses an Illinois ruling dismissing an assignee's request for pre-answer security and motion to compel arbitration against a sovereign-owned reinsurer.
The Alleged Debtors filed a motion requesting the court's permission to file an unredacted version of their Motion to Transfer Venue under seal. They argue the unredacted version contains sensitive commercial information regarding their financial condition and restructuring negotiations that could harm their business if disclosed publicly. The Alleged Debtors state they have publicly filed a redacted version, and the unredacted version would only be available to the court and specific receiving parties subject to confidentiality restrictions. They believe this balancing of interests appropriately protects their sensitive information while still allowing for consideration of the merits of their transfer motion.
The complaint alleges that investment solicitors Robert Kroner and Robert E. Kroner Insurance Services promoted and sold notes issued by Diversified Lending Group, which was later shut down as a Ponzi scheme. Specifically, the complaint alleges that the solicitors: 1) entered into an agreement to promote and control sales of DLG products; 2) made false representations about DLG and its notes at marketing meetings; and 3) continued selling the notes after learning of red flags regarding DLG. The trial court sustained the solicitors' demurrer and dismissed the case. The appellate court reversed, finding the complaint adequately alleged that the solicitors were secondarily liable for illegal securities sales and fraud.
BANK OF AMERICA FORECLOSURE, ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMlauren tratar
This document is an amended answer, affirmative defenses, and counterclaim filed by homeowners (Owners) in response to a foreclosure complaint brought by BAC Home Loans Servicing, LP (BAC). The Owners admit some basic facts about the mortgage but deny that BAC has the right to foreclose. They assert affirmative defenses that BAC lacks standing because the note was securitized and sold to investors prior to the alleged default. The Owners claim this means the real parties in interest are the investors, not BAC, and BAC cannot prove it has authority to foreclose. Exhibits are provided purportedly showing the loan was part of a mortgage backed securities trust.
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
This document is a motion filed in a US bankruptcy court requesting permission to file an unredacted version of a response under seal. It summarizes that the response contains sensitive commercial information about the debtors' financial condition and restructuring negotiations. The debtors argue the information could harm ongoing negotiations and business operations if disclosed publicly. They seek to file the unredacted version under seal and make it available only to specific parties.
This document discusses two court cases involving land disputes and contract interpretation.
In the first case, Dignos spouses sold the same parcel of land to two different parties. The court ruled the second sale was void and that the first buyer, Jabil, should regain ownership after reimbursing the second buyers for improvements made.
The second case examined whether a contract was one of sale or agency. Parsons Hardware argued it was an agent selling Quiroga beds, but the court found the contract established Parsons as a purchaser, not agent, as Quiroga set the prices and Parsons was obligated to pay for the beds.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
This document summarizes a court case between Jacqueline Veverka and Royal Caribbean Cruises regarding injuries sustained by Veverka during a cruise. Royal Caribbean filed a motion for summary judgment to dismiss the case. Veverka slipped on liquid left by Royal Caribbean employees and broke her hip. She underwent surgery and treatment but filed the case after contractual time limits. The court must determine if contractual limitations on liability and time to file a claim apply.
Stewart (carol) v stewart (lauriston) ca 2013 jmca civ 47Joniel Jojo Powell
This document summarizes a Court of Appeal case from Jamaica regarding the division of property rights between a divorcing couple, Carol and Lauriston Stewart. The judge had originally ruled that Mr. Stewart was entitled to 75% of the beneficial interest in the family home and Mrs. Stewart 25%, despite the Property Rights of Spouses Act typically requiring equal division. Mrs. Stewart appealed, arguing the judge erred in his assessment. The Court of Appeal considered the relevant act and precedents to determine if the original judgment properly applied the law.
The debtor, Cordillera Golf Club, LLC, filed an application seeking approval to retain GA Keen Realty Advisors, LLC as its real estate advisor nunc pro tunc to the petition date. GA Keen Realty will assist the debtor by raising debt or equity capital to fund a reorganization plan, refinance properties, or sell properties. GA Keen Realty will receive transaction fees ranging from 2-6% of proceeds depending on the type of transaction closed. The application seeks to waive certain fee application requirements and employ GA Keen Realty under an incentive-based fee structure customary for its commercial real estate advisory services.
This document is an application filed in the United States Bankruptcy Court for the District of Delaware by Cordillera Golf Club, LLC seeking approval to retain GA Keen Realty Advisors, LLC as its real estate advisor. Cordillera Golf Club filed for Chapter 11 bankruptcy protection and requires assistance assessing the highest and best use of its owned real property and obtaining capital for its business. The application requests that GA Keen Realty be approved as Cordillera's real estate advisor nunc pro tunc to the petition date under the terms of a retention agreement between the two parties. GA Keen Realty has experience advising other debtors in bankruptcy cases and working with Cordillera since prior to the bankruptcy filing.
The doctrine of privity of contract provides that only the parties to a contract can enforce rights or obligations under that contract. Over time, courts developed several exceptions to privity, including collateral contracts, agency relationships, and restrictive covenants that run with land. Academic debate questioned whether privity should be further modified or abolished. The Contracts (Rights of Third Parties) Act 1999 reformed English law by allowing expressly intended third party beneficiaries to directly enforce contract terms in certain circumstances.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
This document summarizes a law review article discussing the implications of the 2004 Consolidated Edison v. Northeast Utilities case. The case held that target company shareholders were not intended third-party beneficiaries of the merger agreement prior to the deal closing. As a result, target companies cannot recover shareholders' lost merger premium damages if a deal fails and may not be able to obtain specific performance. The article argues target companies should request provisions explicitly granting shareholders third-party beneficiary rights before closing and acknowledging the target's right to specific performance on shareholders' behalf. However, most public company merger agreements have not addressed the issues raised by the ConEd decision.
This document is a memorandum in support of a motion in limine regarding the effect of Senate Bill 814 on the parties' agreement concerning defense counsel. It argues that SB 814's independent counsel provisions do not apply in this case for two reasons: 1) The insurance policies give Continental the right to control the defense, triggering the savings clause in SB 814, and 2) The parties previously agreed that Bingham would serve as defense counsel within the traditional tripartite relationship, not as independent counsel, so applying SB 814 would contradict this existing agreement. The memorandum also contends that even if SB 814 did apply, it does not allow Schnitzer to select counsel or pay out-of-forum rates that exceed what is
Remedies in contract law can be divided into remedies in common law (damages) and remedies in equity (specific performance and injunctions). Damages seeks to compensate the injured party financially for losses caused by the breach, and there are various principles that govern their assessment and recovery, including causation, remoteness, mitigation, and heads of damages such as loss of bargain. Equity remedies seek to compel performance of a contract rather than provide compensation, but are subject to the court's discretion and will not be granted in all cases.
Findings and Conclusions awarding damages to Ash Grove against Travelers and Liberty Mutual for breach of duty to defend in connection with Portland Harbor Superfund Site.
Dixie Holdings filed an ex parte application seeking an extension of time to respond to Medical Marijuana Inc.'s petition to compel arbitration. Medical Marijuana Inc. opposed the application, arguing that Dixie is actually seeking relief from default as its time to respond had expired over two weeks prior. Medical Marijuana Inc. argued that Dixie failed to meet the requirements under CCP 473(b) to obtain relief from default, as Dixie did not provide specific facts demonstrating mistake, inadvertence, surprise or excusable neglect. Medical Marijuana Inc. also argued that Dixie made misstatements in its application and that there is no good cause to grant the relief sought.
This document discusses remedies for breach of contract. It defines key terms like contract, breach, and remedy. The main remedies for breach of contract are discussed in detail, including damages (compensatory, liquidated, punitive, and nominal), contract rescission, specific performance, contract reformation, and restitution. Compensatory damages aim to make the injured party whole by reimbursing expectation and consequential losses. Liquidated damages clauses must be reasonable. Punitive damages punish and deter wrongdoing. Nominal damages vindicate rights without compensation.
Gaggero/Mooring/Walters/Praske/Chatfield/Sulphur County Records/Cases 5 jamesmaredmond
This first amended complaint objects to discharging the debtors from bankruptcy. It alleges that the debtors made false representations and concealed information to induce the plaintiff to lease them an equestrian facility. It alleges the debtors underreported rental income, failed to pay rent, abandoned the property, and engaged in delay tactics to avoid a judgment. The complaint objects to discharge based on allegations that the debtors concealed or transferred assets, made false statements, and failed to keep adequate records. It seeks to have the plaintiff's debt exempted from any discharge.
L7 Rights to discharge and disolve contracts.pptxthắm ngọc
This document discusses various ways in which a contract can be discharged or dissolved, including:
1. Performance of obligations as agreed.
2. Agreement between the parties to alter or waive contract conditions.
3. Frustration of the contract due to an unforeseen event outside parties' control that fundamentally changes obligations.
4. Operation of law, such as bankruptcy terminating a party's contract liabilities.
It provides examples of cases where contracts were found to be frustrated due to events like destruction of the subject matter, changes in law, or non-occurrence of an event fundamental to the contract. Statutes like the Frustrated Contracts Act are also discussed.
This document summarizes a court case from the District Court of Queensland regarding an appeal of a magistrate's decision to dismiss an application for leave to proceed with an action. The plaintiff had done building work for the defendants in 1997-98 but was unpaid. The court found that the plaintiff's explanation for the delay in the case was satisfactory. Additionally, the limitation period for the claim had not yet expired. Therefore, the court set aside the magistrate's decision to dismiss the application and granted the plaintiff leave to proceed with the action.
The document summarizes various remedies for breach of contract, including damages, mitigation of damages, rescission and restitution, specific performance, reformation, and recovery based on quasi-contract. It also discusses election of remedies, waiver of breach, and contract provisions limiting remedies. It analyzes three cases involving mitigation of damages, liquidated damages vs. penalties, and recovery based on quasi-contract.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
The document summarizes two cases where courts recognized a promissory estoppel claim against an employer - Roberts v. Geosource Drilling Services, Inc. and Hernandez v. UPS Supply Chain Solutions, Inc. In Roberts, the employee quit his job and prepared to work for Geosource in reliance on oral promises and a written contract, but Geosource rescinded the job offer. In Hernandez, the employee had actually moved from Illinois to Texas based on a job promise. Both courts found promissory estoppel claims based on the employees' detrimental reliance on the employers' promises.
This document discusses the legal doctrine of duress across several contexts:
1) Duress to the person, where threats of violence can void agreements.
2) Duress to goods, where threats to seize property to extract payment may allow recovery of sums paid.
3) Economic duress, where threats to breach contracts or cause financial harm can also void agreements if the victim's will was overborne. The standards for economic duress require assessing the victim's protests and alternatives available.
Remedies for duress include recovering sums paid or treating agreements as voidable through the tort of intimidation.
An offer expires before acceptance in several ways: 1) By lapse of time if not accepted within the time prescribed by the offeror. 2) If no time is prescribed, by non-acceptance within a reasonable time. 3) Upon the death of either the offeror or offeree before acceptance. A contract between a drama group and hotel to use the hotel's hall was frustrated when the hotel burned down, destroying the essential object of the contract. When the common object of a contract can no longer be achieved due to unforeseen circumstances, the contract is discharged for the future but not void from the beginning. The parties can recover money paid or owed before frustration.
091007 Complaint D E 2 10 07 09 Draft Finaljsanchelima
This document is an amended complaint filed in bankruptcy court by Maison Grande Condominium Association against Dorten Inc. and Robert L. Siegel as trustee. The complaint seeks to avoid any security interests or liens claimed by the defendants in the association's assets. It also seeks a determination that a purported 99-year lease and any security interests or liens granted under the lease are invalid. The association states that the lease and any security interests were not properly perfected and seeks to reject the lease in bankruptcy.
Contract And Tort Pleural Plaques ( Nov 07)legalnewsblog
The House of Lords ruled against workers seeking compensation for pleural plaques caused by asbestos exposure. Pleural plaques themselves cause no symptoms and do not lead to other asbestos-related diseases, but they indicate the presence of asbestos fibers in the lungs. The Lords found pleural plaques are not actionable damage under UK law as they cause no physical or economic harm. While future asbestos-related illnesses may be compensated, pleural plaques alone will not result in compensation. The ruling establishes a binding precedent in UK courts.
Defending Against Tenant’s Warranty of Habitability Claim and Other Defenses Adam Leitman Bailey, P.C.
The document discusses various defenses that can be used against a tenant's claim for a rent abatement due to a landlord breaching the warranty of habitability. It outlines 11 defenses including the tenant failing to provide access to make repairs, electing other remedies like a rent reduction from the housing authority, and failing to notify the landlord of issues. It also notes that abatements do not apply to personal property damage, conditions caused by the tenant, or non-residential leases. Landlords cannot defend against abatement claims by arguing they are a special entity like a city or co-op. The document provides case examples to illustrate different defenses.
1) Beswick v Beswick established that a third party can enforce a contract if they are intended beneficiaries, as determined by the language and circumstances of the agreement. The widow was entitled to specific performance of payments promised to her after her husband's death.
2) Trident General Insurance v McNiece expanded exceptions to privity to allow subcontractors to claim under liability policies where they were intended beneficiaries. The court applied theories of unjust enrichment, reliance, and trusteeship.
3) Coulls v Bagot's Executor affirmed privity by restricting claims to parties that provided consideration, denying a widow benefits after her husband's death as she did not personally provide consideration.
Similar to Beneficial Motion to Dismiss Based on SB 814 (20)
This document establishes rules for interpreting business property insurance policies in Oregon relating to business interruption claims from events like pandemics. It prohibits certain insurer conduct like failing to timely investigate or pay claims. Insureds can sue for actual damages if insurers violate these rules. The act takes effect immediately.
PPT for ABA SAC 2018 of ICLC Tucson Conference 2018Seth Row
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
Opinion granting plaintiffs' msj 17-02-10 reliance is required spending on ...Seth Row
US District Court, District of Oregon, order holding that insurer did not "rely" on insured's alleged misrepresentation by incurring expenses to investigate insured's loss
2014 09-12 plaintiff's reply brief re application of all-sums rule v. time-on...Seth Row
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
Judge Mosman avoided directly ruling on the application of SB 814 to the defense costs being sought by Schnitzer, instead holding that Schnitzer was judicially estopped from arguing that its defense counsel was "independent counsel" subject to SB 814.
Judge Stewart - Siltronic Order on Allocation of Environmental Response Costs...Seth Row
Judge Stewart's order goes behind the labels applied to various environmental response costs, to the purpose for which the work was done, to determine for insurance purposes whether a cost was "defense" or "indemnity."
1) The attorney, Seth Row, wrote a letter to Senator Shields to express concerns about bill HB 4051, which would allow insurers to provide policy documents via website rather than paper copies. 2) Row believes the bill lacks important protections for policyholders by not ensuring they consent to electronic delivery or have a choice in delivery method. 3) The bill's 10-year retention period for policy documents is also insufficient, as insurance claims often arise decades after a policy is issued, placing policyholders at a disadvantage in "lost policy" disputes.
The Ninth Circuit Court of Appeals ruled that a letter from the EPA under section 104(e) of CERCLA, requesting information from a landowner at a Superfund site, constitutes a "suit" and therefore triggers an insurer's duty to defend. This decision, along with previous trial court rulings in Oregon, establishes that insurers must defend policyholders who receive such information request letters. The court's interpretation of Oregon's environmental insurance claims statute, the OECAA, broadened the definition of "suit" and rejected arguments that the statute impaired contracts. This ruling may impact many involved at the Portland Harbor Superfund Site and other contaminated sites in Oregon.
Multi care health system v. lexington ins. co.Seth Row
This document is a memorandum from a United States Court of Appeals summarizing a case between Multicare Health System and Lexington Insurance Company. The court dismissed Multicare's claims against Lexington with prejudice, finding that Lexington did not have a duty to disclose the self-insured retention amount on the certificate of insurance provided to Multicare. The certificate stated the insurance policy limits but not the retention amount. The court determined that Lexington and USI did not make any affirmative misrepresentations, and they did not have a fiduciary or other special relationship that would create a duty to disclose the retention amount to Multicare. Therefore, Multicare failed to state a claim for misrepresentation or other causes of action.
Anderson Bros v. Travelers 9th Cir Decision August 30 2013Seth Row
This document summarizes an appeals court case regarding whether an insurer had a duty to defend its insured. The insured received two letters from the EPA identifying it as potentially responsible for environmental contamination at a Superfund site. The insurer refused to defend, arguing the letters were not "suits." The court affirmed the lower court's ruling that the letters triggered the duty to defend under the policy. Both letters alleged facts that could establish the insured's liability under CERCLA and Oregon law considers such letters a "suit" in the context of comprehensive general liability policies.
Charter oak v. interstate mechanical usdc oregon july 2013 mosman papakSeth Row
This document is a court opinion and order regarding various motions for summary judgment in an insurance coverage dispute. The judge adopts the findings and recommendation of the magistrate judge, who recommended granting in part and denying in part several motions for summary judgment. Specifically, the judge agrees that Glacier failed to properly assert a claim for bad faith breach of contract. The judge also finds that Glacier breached its duty to cooperate under the insurance policies by confessing judgment in a related case without notice to the insurers.
Letter to Senator Johnson (Oregon) Supporting HB3160/SB414Seth Row
This letter summarizes a legal case involving an insurance company, St. Paul Fire & Marine, refusing to defend its policyholder Anderson Brothers in a Superfund cleanup case, in violation of Oregon law. It asks the senator to support a bill that would complement recent amendments to the Oregon Environmental Cleanup Assistance Act, as the current law does not apply to most coverage disputes small businesses face. The letter explains that without this legislation, insurance companies have little incentive to defend policyholders as required by their contracts.
This document proposes amendments to A-Engrossed Senate Bill 414. The amendments modify sections of ORS 731.256 and ORS 746.230 related to unfair claim settlement practices. Key changes include prohibiting insurers from committing unfair claim settlement practices, allowing private actions for violations, and setting standards for prompt claims investigation and settlement when liability is clear. The amendments would go into effect on January 1, 2014.
Difficult Coinsurance Problems In Builder's Risk InsuranceSeth Row
This document summarizes key issues regarding coinsurance clauses in builder's risk insurance policies. It discusses:
1) What coinsurance is and how it functions as a penalty for underinsuring property. If the insured does not maintain insurance of a certain percentage of the property's value, the coinsurance clause will reduce payments in the event of a claim.
2) Ways for insureds to reduce the risk of coinsurance penalties, such as regularly updating policy limits to reflect increasing property values during construction.
3) Optional policy additions like agreed value clauses that can waive coinsurance penalties for an additional cost. Maintaining accurate and up-to-date insurance limits is important to avoid coinsurance problems.
A toxic combination of 15 years of low growth, and four decades of high inequality, has left Britain poorer and falling behind its peers. Productivity growth is weak and public investment is low, while wages today are no higher than they were before the financial crisis. Britain needs a new economic strategy to lift itself out of stagnation.
Scotland is in many ways a microcosm of this challenge. It has become a hub for creative industries, is home to several world-class universities and a thriving community of businesses – strengths that need to be harness and leveraged. But it also has high levels of deprivation, with homelessness reaching a record high and nearly half a million people living in very deep poverty last year. Scotland won’t be truly thriving unless it finds ways to ensure that all its inhabitants benefit from growth and investment. This is the central challenge facing policy makers both in Holyrood and Westminster.
What should a new national economic strategy for Scotland include? What would the pursuit of stronger economic growth mean for local, national and UK-wide policy makers? How will economic change affect the jobs we do, the places we live and the businesses we work for? And what are the prospects for cities like Glasgow, and nations like Scotland, in rising to these challenges?
Calculation of compliance cost: Veterinary and sanitary control of aquatic bi...Alexander Belyaev
Calculation of compliance cost in the fishing industry of Russia after extended SCM model (Veterinary and sanitary control of aquatic biological resources (ABR) - Preparation of documents, passing expertise)
Budgeting as a Control Tool in Government Accounting in Nigeria
Being a Paper Presented at the Nigerian Maritime Administration and Safety Agency (NIMASA) Budget Office Staff at Sojourner Hotel, GRA, Ikeja Lagos on Saturday 8th June, 2024.
KYC Compliance: A Cornerstone of Global Crypto Regulatory FrameworksAny kyc Account
This presentation explores the pivotal role of KYC compliance in shaping and enforcing global regulations within the dynamic landscape of cryptocurrencies. Dive into the intricate connection between KYC practices and the evolving legal frameworks governing the crypto industry.
Explore the world of investments with an in-depth comparison of the stock market and real estate. Understand their fundamentals, risks, returns, and diversification strategies to make informed financial decisions that align with your goals.
Dr. Alyce Su Cover Story - China's Investment Leadermsthrill
In World Expo 2010 Shanghai – the most visited Expo in the World History
https://www.britannica.com/event/Expo-Shanghai-2010
China’s official organizer of the Expo, CCPIT (China Council for the Promotion of International Trade https://en.ccpit.org/) has chosen Dr. Alyce Su as the Cover Person with Cover Story, in the Expo’s official magazine distributed throughout the Expo, showcasing China’s New Generation of Leaders to the World.
Confirmation of Payee (CoP) is a vital security measure adopted by financial institutions and payment service providers. Its core purpose is to confirm that the recipient’s name matches the information provided by the sender during a banking transaction, ensuring that funds are transferred to the correct payment account.
Confirmation of Payee was built to tackle the increasing numbers of APP Fraud and in the landscape of UK banking, the spectre of APP fraud looms large. In 2022, over £1.2 billion was stolen by fraudsters through authorised and unauthorised fraud, equivalent to more than £2,300 every minute. This statistic emphasises the urgent need for robust security measures like CoP. While over £1.2 billion was stolen through fraud in 2022, there was an eight per cent reduction compared to 2021 which highlights the positive outcomes obtained from the implementation of Confirmation of Payee. The number of fraud cases across the UK also decreased by four per cent to nearly three million cases during the same period; latest statistics from UK Finance.
In essence, Confirmation of Payee plays a pivotal role in digital banking, guaranteeing the flawless execution of banking transactions. It stands as a guardian against fraud and misallocation, demonstrating the commitment of financial institutions to safeguard their clients’ assets. The next time you engage in a banking transaction, remember the invaluable role of CoP in ensuring the security of your financial interests.
For more details, you can visit https://technoxander.com.
How to Invest in Cryptocurrency for Beginners: A Complete GuideDaniel
Cryptocurrency is digital money that operates independently of a central authority, utilizing cryptography for security. Unlike traditional currencies issued by governments (fiat currencies), cryptocurrencies are decentralized and typically operate on a technology called blockchain. Each cryptocurrency transaction is recorded on a public ledger, ensuring transparency and security.
Cryptocurrencies can be used for various purposes, including online purchases, investment opportunities, and as a means of transferring value globally without the need for intermediaries like banks.
Madhya Pradesh, the "Heart of India," boasts a rich tapestry of culture and heritage, from ancient dynasties to modern developments. Explore its land records, historical landmarks, and vibrant traditions. From agricultural expanses to urban growth, Madhya Pradesh offers a unique blend of the ancient and modern.
Navigating Your Financial Future: Comprehensive Planning with Mike Baumannmikebaumannfinancial
Learn how financial planner Mike Baumann helps individuals and families articulate their financial aspirations and develop tailored plans. This presentation delves into budgeting, investment strategies, retirement planning, tax optimization, and the importance of ongoing plan adjustments.
Navigating Your Financial Future: Comprehensive Planning with Mike Baumann
Beneficial Motion to Dismiss Based on SB 814
1. 2
3
4
5
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
6 CERTAIN UNDERWRITERS AT
LLOYD'S, LONDON AND EXCESS
7 INSURANCE COMPANY, LIMITED,
8 Plaintiffs,
9 v.
10 MASSACHUSETTS BONDING AND
INSURANCE COMPANY, succeeded in
11 interest by HANOVER INSURANCE
COMPANY; et al.,
12
13
14
Defendants.
Case No. 0304-03995
DEFENDANT BENEFICIAL'S MOTION
TO DISMISS AMENDED COMPLAINT
BASED ON GOOD FAITH
SETTLEMENT- ORS 465.480(4),
AS AMENDED
Oral Argument Requested
Official Court Reporting Services Requested
15 Pursuant to ORCP 21 A(1) and G(4), defendant Beneficial Fire and Casualty Insurance
16 Company (Beneficial) moves to dismiss plaintiffs' amended complaint with prejudice and
17 without leave to re-plead. Oral argument on this motion is requested and will take approximately
18 40 minutes. Official court reporting services are requested.
19 I. INTRODUCTION
20 The Oregon legislature recently enacted Senate Bill 814 which was signed into law by the
21 Governor on June 10,2013 (SB 814). Declaration of Christopher T. Carson, Exhibit 1.
22 As emergency legislation, the bill became law immediately upon its signing. SB 814, section 9.
23 SB 814 amends ORS 465.480, as relevant to this case, to eliminate contribution claims against an
24 insurer that has entered into a good faith settlement with its insured concerning the relevant
25 environmental claim and to mandate a presumption that such a settlement is in good faith.
26
Page 1- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
J<..ILMER VOORHEES & LAURICK, t'.L.
A PROFESSIONAL CORPORATION
732 N W. 19"' AVENUE
PORTLAND, OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290
2. The legislation applies to this action, divests this court ofjurisdiction, and bars plaintiffs' claim
2 for contribution against Beneficial and the other defendants. The action must therefore be
3 dismissed, with prejudice, and judgment entered in favor ofBeneficial.
4 II. FACTS
5 On August 8, 1997, Zidell1
filed a complaint for insurance coverage against multiple
6 insurers that had issued policies to Zidell covering roughly three decades of its operations
7 (the Moody Avenue action)? Zidell sought coverage from each of its liability insurers for
8 defense and indemnity in an Oregon Department of Environmental Quality (DEQ) enforcement
9 action relating to Zidell's facility at 3121 S.W. Moody Avenue, Portland, Oregon (the Moody
10 Avenue site). The defendants in the Moody Avenue action included, among scores of others, the
11 defendant insurers (defendants), and plaintiffs (London) in this case. Carson Dec., Exhibit 2,
12 Moody Avenue Complaint, Multnomah County Case No.9708-06226.3
13 On August 13, 1997, Zidell sent a letter to 49 insurers, including defendants and London,
14 inviting them to a meeting on September 7, 1997, in Portland, Oregon, to discuss Zidell's
15 demands for coverage, allocations of defense and indemnity obligations among insurers, and to
16 "engage in serious and good faith settlement discussions." Zidell noted that it was "well aware
17 ofthe costs of a complex insurance coverage action" and offered to discount its claims for
18 coverage in order to reach settlement. Deposition of Dean DeChaine, pp. 52-56, Exhibits 201
19 and 202. Carson Dec., Exhibits 3, 7, 8. Zidell's negotiations were conducted by Dean DeChaine
20
21
22
23
24
25
26
1
The parties insured a number ofrelated entities, including ZRZ Realty Co. and others.
Those entities have been collectively referred to throughout this litigation as "Zidell."
2
ZRZ Realty Company, et al. v. Century Indemnity Company, et al., Multnomah County
Circuit Court, Case No. 9708-06226.
3
The complaint itself is 53 pages. For the sake ofbrevity, Exhibit 2 is the original case
caption, and Beneficial moves the court to take judicial notice ofthis complaint from the court's
file in Case No. 9708-06226. ·
Page 2- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
K.ILMER VOORHEES & LAURICK, J:'.L.
APROFESSIONAL CORPORATION
732 N.W 19"' AVENUE
PORlLAND, OREGON 97209-1302
(503) 224-0055 fAX (503) 222-5290
3. following consultation with Zidell and its other counsel.4
DeChaine dep., p. 71. Carson Dec.,
2 Exhibit 3.
3 Beneficial, other insurers, and London attended the meeting with Zidell on September 9,
4 1997. DeChaine dep., pp. 56-57, Exhibit 203. Carson Dec., Exhibits 3 and 9. After plenary
5 discussions with all insurers, Zidell held separate settlement discussions, either on that date or
6 shortly thereafter, with its different insurers. Zidell presented separate demands to each insurer
7 based on Zidell's calculation, with the assistance of counsel, ofwhat Zidell felt that insurer
8 should pay. DeChaine dep., pp. 64, 77. Carson Dec., Exhibit 3. Zidell also offered each insurer
9 a twenty percent discount if they would settle within sixty days. /d. Zidell's demands included
10 settlement of both the insurers' defense and indemnity obligations for the Moody Avenue site.
11 DeChaine dep., pp. 99-100. Carson Dec., Exhibit 3. Zidell was prepared to negotiate below
12 those original demands and discounts, and it thereafter negotiated with each insurer on an
13 individual basis. DeChaine dep., pp. 64-65. Carson Dec., Exhibit 3.
14 Zidell stated from the outset that its offered settlements released all environmental claims
15 related to the Moody Avenue site. However, Zidell was unwilling to release its potential
16 coverage for unrelated future environmental contamination or bodily injury claims not at issue in
17 the DEQ proceeding. DeChaine dep., p. 62. Carson Dec., Exhibit 3. Specifically, Zidell was
18 unwilling to agree to a complete policy "buy-back" or to complete releases of all environmental
19 claims, agreements that would deprive Zidell ofcoverage ifclaims were made against it relating
20 to other facilities. /d. While some insurers initially requested a release that was broader than
21 Zidell was willing to give, the settling insurers, including Beneficial, ultimately agreed to
22 Zidell's offered scope of release. DeChaine dep., p. 65.5
Carson Dec., Exhibit 3.
23
24
25
26
4
Mr. DeChaine is well known to this court. For the record, however, Mr. DeChaine
became an attorney in 1964. He was an attorney and partner at Miller Nash. DeChaine dep.,
pp. 101-104. Carson Dec., Exhibit 3.
5
London confirmed to this court that Beneficial settled without even requiring a
complete "site release," but only a release of certain environmental claims relating to Moody
Page 3- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
K.ILMER VOORHEES & LAURICK, t'.L.
A PROFESSIONAL CoRPORATION
732 N.W. 19m AVENUE
PoRTLAND, OREGON 97209-1302
(503) 224-0055 · FAX (503) 222-5290
4. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
After negotiations, Zidell reached settlements with Beneficial and the other defendants.
Zidell's initial demand to Beneficial was $1.15 million. DeChaine dep., p. 64. Carson Dec.,
Exhibit 3. Beneficial agreed in principle to settle by late March 1998.6
DeChaine dep.,
pp. 66-67 and letter of March 27, 1998, Exhibit 210. Carson Dec., Exhibits 3 and 15. Following
further discussion of settlement terms, many of which focused on Beneficial's purchase of a
certificate of deposit for Zidell's benefit, Zidell and Beneficial concluded a settlement in October
1998, with Beneficial agreeing to purchase a $422,196.50, certificate of deposit which would
provide a later payout of $525,000 to Zidell. Carson Dec., Exhibit 16, Beneficial Settlement
Agreement.
Mr. DeChaine confirmed that the settlement between Zidell and Beneficial was reached
after arm's lengths negotiations. He further confirmed that, based on his lengthy experience as a
lawyer, the settlement was in good faith. DeChaine dep., p. 68. Carson Dec., Exhibit 3.
Moreover, Judge Keys' Second Findings of Fact and Conclusions of Law, entered December 17,
2002, on which the judgment against London in the Moody Avenue action was based, found and
concluded that Zidell's settlements with Beneficial and other settling insurers "were [negotiated]
at arms' length." Carson Dec., Exhibit 17, Second Findings ofFact and Conclusions ofLaw,
LF/C 2006 and 2007.7
- - - -- ------(Cont.)
Avenue. Opposition to London MSJ re Equitable Conduct, Carson Dec. Exhibit 8 - Transcript
ofProceedings November 9, 2012,40:7-21,41:8- 19.
6
At the time Beneficial and Zidell negotiated their settlement in principle, the DEQ proceedings
were at a very early stage. Beneficial and all insurers contested that they owed coverage.
Moreover, Zidell's ultimate exposure was speculative at best. Indeed, even a year and a half
after that agreement, London argued that Zidell had no provable indemnity damages, that
Zidell's settlements with Beneficial and other insurers had overly compensated Zidell for any
exposure, and that because of those settlements London was entitled to a refund for defense costs
that it had then been ordered to pay. Carson Dec., Exhibit 36, London's Trial Memorandum Re
Breach of Contract Damages, filed on November 9, 1999. In fact, London argued, and the court
found, as of December 13, 2002, that Zidell had not yet incurred any costs to remediate
sediments, groundwater, or soils. Carson Dec., Exhibit 17, Second Findings of Fact and
Conclusions of Law (Allocation) LF/C 2001-2002, 2023-2024, and 2032- 2033.
7
These Findings and Conclusions were submitted in full with Beneficial's opposition to
London's Motion for Summary Judgment re: Contribution.
Page 4- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
K.ILMER VOORHEES & LAURICK, P.L.
A PROFESSIONAL CORPORATION
732 N W 19"' AVENUE
PORTLAND. OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290
5. Zidell also negotiated with and was willing to settle with London.8
Zidell had no
2 intention, in negotiating settlements, to harm the interests ofLondon or any other non-settling
3 parties. DeChaine dep., pp. 68, 75-76. Carson Dec., Exhibit 3. As with Beneficial, Zidell's
4 claim related to coverage only for environmental claims at the Moody Avenue site. Zidell was
5 willing to settle that claim, and Zidell provided London with extensive documents to aid those
6 negotiations. DeChaine dep., pp. 56-58 and Exhibits 204, 205, 206. Carson Dec., Exhibits 3,
7 10-12. As it was with defendants, Zidell was unwilling to agree to a settlement with London that
8 released claims for coverage for other sites or injuries that were not at issue in the DEQ
9 proceeding. DeChaine dep., p. 62 and Exhibits 6, 207, 208, 7, 11. Carson Dec., Exhibits 3, 4,
10 13, 14, 5, 6); see also, Beneficial's Opposition to London's Motion for Summary Judgment re
11 Equitable Conduct, Carson Dec. Exhibit 8- Transcript ofProceedings November 9, 2012,
12 40:7-21. London, however, refused to settle with Zidell unless it agreed to a policy buy-back or
13 a complete release of all environmental claims for all London policies (including policies not at
14 issue in the present case) and including claims not arising from the Moody Avenue site, and
15 bodily injury claims that might arise from that site. DeChaine dep., pp. 60-62 (Carson Dec.,
16 Exhibit 3); see also, Beneficial's Opposition to London's Motion for Summary Judgment re
17 Equitable Conduct, Carson Dec. Exhibit 8 - Transcript of Proceedings November 9, 2012,
18 57:17-58:25 and Trans. 5/22/2013, 8:16-9:18, submitting Moody Avenue Ex. 4831. London did
19 not settle.
20 Contrary to the representations of London and its attorney, Zidell never had a plan to
21 isolate London in order to force London to pay defense costs without limitation. To quote
22 Mr. DeChaine's testimony:
23
24 8
Although London has represented to this court that London did not settle only because
Zidell refused to settle in order to keep London on the hook (Trans. 11/9/12, 85:18-87:9) and that
25 there were no settlement negotiations involving London (Trans. 5/22/13, 10:14-11:7;
27:21-28:14), neither ofthose representations is true. DeChaine dep., pp. 68,75-76, 99. Carson
26 Dec., Exhibit 3.
Page 5- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
K.ILMER VOORHEES & LAURICK, P.L.
A PROFESSIONAL CORPORATION
732 N.W 19"' AVENUE
PORTLAND, OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290
6. 75
2 Q. I've heard represented by London's counsel
3 that the reason Zidell did not settle with London is
4 because Zidell wanted to have one carrier left to pay
5 defense cost?
6 76
7 A. That's not true.
8 Q. The reason -- I think your testimony today
9 is the reason there was no London/Zidell agreement
10 was there was disagreement on the scope of the
11 release; is that true?
12 A. Well, I think it was on the scope of the
13 release and the amount.
14 Q. But it was not based on Zidell's desire to
15 have one carrier left?
16 A. Not at all. As a matter of fact, we were
17 hopeful that London would buy out right in the
18 beginning, which we thought ifthat occurred then the
19 other insurers would fall in line more quickly.
20 DeChaine dep., pp. 75-76. Carson Dec., Exhibit 3.
21
22
23
24
25
26
Page 6- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
KILMER VOORHEES & LAURICK, t'.L.
A PROFESSIONAL CORPORATION
732N.W. 19"'AVENUE
PORTLAND. OREGON 97209-1302
(503) 224-0055 fAX (503) 222-5290
7. 1 III.
2 A.
3
SB 814 Eliminates Claims for Equitable Contribution Against Insurers Who Have
in Good Faith Settled Environmental Claims With Their Insureds.
4 Se<:tion 4 ofSB 814 amends ORS 465.480, the statute that the court earlier ruled did not
5 apply to this case, in ways which both requires the statute's application to Beneficial's settlement
6 with Zidell and makes clear that London may not maintain this action. Specifically, as
7 applicable here, subsection (4)(a) provides:
8 (4)(a) An insurer that has paid all or part of an environmental claim may seek
9 contribution from any other insurer that is liable or potentially liable to the insured and
10 that has not entered into a good-faith settlement agreement with the insured
11 regarding the environmental claim.
12 (b) There is a rebuttable presumption that all binding settlement agreements
13 entered into between an insured and an insurer are good-faith settlements. A
14 settlement agreement between an insured and insurer that has been approved by a court of
15 competent jurisdiction after 30 days' notice to other insurers is a good-faith settlement
16 agreement with respect to all such insurers to whom such notice was provided.
17 (c) For purposes ofascertaining whether a right of contribution exists between
18 insurers, an insurer that seeks to avoid or minimize payment of contribution may not
19 assert a defense that the insurer is not liable or potentially liable because another insurer
20
21
22
23
24
25
26
9
When SB 814 was enacted, it was recognized that the statute did not specify the precise
procedure by which claims against settling insurers would be dismissed. See May 8, 2013 letter
of David P. Rossmiller, representing the American Insurance Association, and noting that "the
'good faith' settlement procedures of Section 4 lack any court procedure under Oregon law... ' " .
(Carson Dec., Exhibit 18). Accordjngly, Beneficial presents this motion under all potentially
applicable provisions ofthe Oregon Rules of Civil Procedure, including, ORCP 21 A (1) on the
grounds that SB 814 deprives the cou11 ofjurisdiction over London's claim once Beneficial's
settlement is determined to be in good faith. Beneficial also presents this motion directly under
ORS 465.480(4), as now amended, which appears to adopt a sui generis procedure allowing
Beneficial to file this motion to dismiss for determination by the court.
Page 7- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
KJLMER VOORHEES & LAURJCK, t'.L.
A PROFESSIONAL CORPORATION
732 N W 19"' AVENUE
PORTLAND, OREGON 97209-1 302
(503) 224-0055 FAX (503) 222-5290
8. has fully satisfied the environmental claim ofthe insured and damages or coverage
2 obligations are no longer owed to the insured.
3 (d) Contribution rights by and among insurers under this section preempt all
4 common law contribution rights, if any, by and between insurers for environmental
5 claims.
6 (Bold added.)
7 (4)(a) and (b) make clear that a right of contribution under ORS 465.480 requires both
8 that insurers from which contribution is sought be "liable or potentially liable" to the common
9 insured and that such insurer has not entered into a "good faith settlement" ofthe environmental
10 claim with the common insured. While Beneficial has already been determined to be "liable or
11 potentially liable" to the common insured, Zidell, within the meaning ofthe statute, Beneficial
12 has also entered into a good-faith settlement of the "environmental claim" with Zidell, which the
13 statute presumes was a good-faith settlement.
14 The presumption of good faith requires that Beneficial's settlement must be found to be
15 in good faith unless London can bear its burden of proving otherwise.
16 In civil actions and proceedings, a presumption imposes on the party against
whom it is directed the burden ofproving that the nonexistence ofthe presumed
17 fact is more probable than its existence.
18 OEC 308. See also Lawrence v. Clackamas County, 164 Or App 462,467-468,992 P2d 933
19 (1999) (presumption stands unless rebutted by a preponderance ofthe evidence).
20 Subsection (4)(d) preempts common law claims for contribution, making the statute the
21 exclusive contribution remedy where it applies. As noted, that exclusive remedy is subject to
22 conditions that London cannot meet here.
23 Oregon's standards of"good faith" are discussed below. They do not set a high bar.
24 Beneficial reached its settlement with Zidell after arms' length negotiations and for a proper
25 purpose. London has the burden of showing otherwise, which it will be unable to do.
26
Page 8- DEFENDANT BENEFICIAL' S MOTION TO DISMISS AMENDED COMPLAINT
KJLMER VOORHEES & LAURICK, l'.L.
A PROFESSIONAL CORPORATION
732N,W I9"'AVENUE
PORTLAND, OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290
9. B. SB 814 Applies to Beneficial's Settlement With Zidell.
2 Assuming London cannot show by a preponderance ofthe evidence that the settlement
3 between Beneficial and Zidell was other than in "good faith," the only question is whether the
4 amendments to the statute apply to this case. They do.
5 Section 8 ofthe legislation sets out the provisions governing its effectiveness. Again,
6 items bearing directly on the issue before the court are highlighted:
7 (1) Except as provided in subsections (2) and (3) ofthis section, sections 2, 6 and
8 7 ofthis 2013 Act and the amendments to ORS 465.479 and 465.480 by sections 3 and
9 4 of this 2013 Act apply to all environmental claims, whether arising before, on or
10 after the effective date of this 2013 Act.
11 (2) Sections 2, 6 and 7 ofthis 2013 Act and the amendments to ORS 465.479
12 and 465.480 by sections 3 and 4 of this 2013 Act do not apply to any environmental
13 claim for which a final judgment, after exhaustion of all appeals, was entered before
14 the effective date of this 2013 Act.
15 (3) Nothing in sections 2, 6 and 7 ofthis 2013 Act or the amendments to ORS
16 465.479 and 465.480 by sections 3 and 4 of this 2013 Act may be construed to require the
17 retrying of any finding offact made by a jury in a trial of an action based on an
18 environmental claim that was conducted before the effective date ofthis 2013 Act.
19 (Bold added.)
20 The terms are clear. The amendments apply to "all environmental claims," no matter
21 when they arose. Accordingly, the amendments apply to the environmental claims in this case,
22 leaving only the question whether this case falls within the exception under subsection 8(2).
23 It does not.
24 The unly exception to SB 814's universal application is for "environmental claims for
25 which a final judgment, after exhaustion of all appeals, was entered before the effective date" of
26 the amendments. In earlier proceedings involving London's motion for summary judgment on
Page 9 ~ DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
.KJLMER VOORHEES & LAURICK, I'.C.
A PROFESSIONAL CORPORATION
732 N W 19"' AVENUE
PORTLAND, OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290
10. 1 the application ofthe pre-amendment statute, this court determined that this exception to the
2 statute's application applied.
3 The court's determination was incorrect then, and it would be incorrect to continue the
4 error into the analysis of the recent statutory amendments, especially given the clear history and
5 intent of SB 814. This court reasoned:
6 Section (2) ofthe retroactivity provisions is also instructive. It states that the
7 retroactivity provisions "do not apply to any claim for which a final judgment, after
8 exhaustion of all appeals, was entered before the effective date ofthis 2003 A~t."
9 Clearly, this refers to "environmental claim" and not contribution claims. As plaintiff
10 contends, "Section 2(3) is meaningless in the context ofan environmental claim that has
11 been paid" (!d., 4).
12 Finally, ORS 465.480(4) does not apply because under Section (2) the underlying
13 environmental claim was adjudicated in a final judgment on April 7 2003. As plaintiffs
14 contend this exception to the application ofORS 465.480(4) makes sense because the
15 legislature reasonably "would have no interest in retroactively applying the amendments
16 to a claim that had been adjudicated."
17 Carson Dec., Exhibit 19, Order Regarding Application ofORS 465.480(4) ofJanuary 31,2013.
18 With respect, the court's analysis violates two fundamental rules of statutory
19 construction: (1) words in a statute are to be given their ordinary and plain meaning, Greenway v.
20 Par/anti, 245 Or App 144, 148, 261 P3d 69 (2011), and (2) the court's duty in construing statutes
21 is "simply to ascertain and declare what is, in terms or in substance, contained therein, not to
22 insert what has been omitted, or to omit what has been inserted." ORS 174.010.
23 Subsection 8(2) is plain and straightforward: the amendments apply- and require
24 dismissal ofthis case - unless a ''finaljudgment, after exhaustion of all appeals, was entered
25 before the effective date ofthis 2013 Act." (Emphasis supplied.) That language does not refer
26 to a claim having been "adjudicated." Rather, the provision refers to one specific, objectively
Page 10- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
K.ILMER VOORHEES & LAURJCK, l'.L.
A PROFESSIONAL CORPORATION
732NW 19~AVENUE
PORTLAND, OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290
11. determinable thing: has the "environmental claim" been reduced to a "finaljudgment after
2 exhaustion ofall appeals." That requirement has not been met here, as the record plainly shows.
3 The Moody Avenue action went to trial, after which a trial court judgment was entered.
4 London and Zidell both appealed. The Court of Appeals reversed and remanded the case back to
5 the trial court for further proceedings. ZRZ Realty Co. v. Beneficial Fire and Cas. Ins. Co.,
6 225 Or App 257, 201 P3d 912 (2009). The Supreme Court accepted review, then reversed in
7 part and affirmed in part, and also remanded the case to the trial court. ZRZ Realty Co. v.
8 Beneficial Fire and Cas. Ins. Co., 349 Or 117, 241 P3d 710 (2010), on reconsideration 349 Or
9 657, 249 P3d 111 (2011). Most recently, the case was again reviewed by the Court ofAppeals
10 and again remanded to the trial court for further proceedings. ZRZ Realty Co. v. Beneficial Fire
11 and Cas. Ins. Co., 255 Or App 524, 300 P3d 1224,2013 WL 830912 (2013).
12 There has never been a "final judgment" in the Moody Avenue action, even in the trial
13 court, let alone a "final judgment after exhaustion of all appeals." The original "final judgment"
14 on which this court based its determination that ORS 465.480 did not apply to this case has long
15 since lost its effectiveness. And there will be no "final judgment after exhaustion of all appeals"
16 in the Moody Avenue action until there is either a final judgment in the trial court which is not
17 appealed by either party or there is an appellate judgment issued at the end ofthe appellate
18 process under ORS 19.450.
19 Even if the "environmental claim" for purposes of SB 814 is considered to be London's
20 contribution claim (a notion that London previously denied), there still has not been a "final
21 judgment after exhaustion of all appeals." After all, that is the very claim that is now at issue.
22 Under a proper construction of SB 814, the legislation applies to this case, and this case
23 does not fall under the exception to the bill's application. The bill explicitly divests this court of
24 subject matter jurisdiction over London's common law contribution claim and bars any claim by
25 London under ORS 465.480. Dismissal with prejudice is required.
26
Page 11- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
KILMER VOORHEES & LAURICK, l'.C.
APROFESSIONAL CORPORATION
732 N.W. 19"' AVENUE
PORTLAND. OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290
12. 2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
I9
20
21
22
23
24
c. Legislative History Confirms Applicability of SB 814.
The legislative history of SB 814 further supports its application here. In a previous
appeal of the trial court rulings in this case, the Oregon Court of Appeals ruled that as a matter of
common law, defendants' settlements with Zidell did not bar London's contribution claims. 10
The issue had never before been addressed by an Oregon appellate court. SB 814 reflects the
legislature's direction that good faith settlements do bar contribution actions relating to
environmental cases- essentially, a legislative "correction" ofjudicial action which was contrary
to the legislature's intent.
One ofthe chief supporters ofSB 8I4 was Schnitzer Steel, whose attorney, Joan Snyder,
provided a detailed analysis of the bill. Ms. Snyder submitted both written and oral testimony on
March 22, 21 03 before the Senate Committee on General Government, Consumer and Small
Business Protection, and again on May 9, 20I3 before the House Committee on Consumer
Protection and Government Efficiency. On both occasions, Ms. Snyder explained Section 4 of
SB 8I4 as follows:
Good Faith Settlements. In order to encourage settlement of environmental
claims, it is important to clarify that an insurer that settled an environmental
claim in good faith with its policyholder cannot later be the target of a suit by a
different insurer seeking to make the settling insurer pay even more.
Carson Dec., Exhibits 2I and 21. Ms. Snyder also clarified that the intent ofthe legislation was
to apply to pending litigation:
!d.
Section 8. Section 8 makes clear that the bill does not allow revisiting facts found
by a jury or reopening matters in which there has been a final judgment. It
applies only to future and pending claims for which there has been no final
resolution.
1
°Certain Underwriters at Lloyd's London, etc. v. Massachusetts Bonding and
25 Insurance Company, et al., 235 Or .App.99, 230 P.3d I03 rev den 349 Or 173,243 P3d 468
(20 I0), on reconsideration 245 Or. App I01, 260 P3d 830 (20 I1 ). Remand of the appellate
26 court case to this court did not occur until sometime after August 17, 2011.
Page !2- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
K-ILMER VOORHEES & LAURICK, J-'.L.
A PROFESSIONAL CORPORATJON
732 N.W 19"' AVENlJE
PORTLAND, OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290
13. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Moreover, Ms. Snyder identified the good faith settlement provisions as clarifying an
existing ambiguity in the current statute:
Clarifies an identified ambiguity in the OECAA that allows one insurance
company which pays a claim to sue another already-settled insurer for
contribution by providing a rebuttable presumption of good faith and a
mechanism for courts to implement a contribution bar.
Carson Dec., Exhibits 22 and 23. 11
A"Summary- Senate Bill 814, Section by section
description" provided by Ms. Snyder, states, in relevant part:
(4) (a)-(c) In order to encourage settlements that willfund remedial action,
clarifies that, once an insurer has entered into a good faith settlement with an
insured regarding an environmental claim, contribution claims against that insurer
are cut off. Provides a rebuttable presumption that a binding settlement
between an insured and insurer is in good faith, ...
Carson Dec., Exhibits 24 and 25. And finally, Exhibit C- SB 814: Proposed Updates to Oregon
Environmental Cleanup Assistance Act, states that the good faith settlement provisions represent
a clarification of the existing statute:
Clarifies current ORS 465.480(4) to make clear that an insurance company that
has entered into a good faith settlement is no longer liable or potentially liable.
Establishes presumption and process for conclusively establishing "good-faith
settlement."
(Bold and underlining added.) Carson Dec., Exhibits 26 and 27.
Jessica Hamilton, General Manager, Harbor Environmental for the Port of Portland, was
equally explicit that SB 814 protected past settlements. In written testimony in support of Senate
Bill 814 before the Senate Committee on General Government, Consumer and Small Business
Protection on March 22, 2013, and again on May 9, 2013, before the House Committee on
11
ORS 465.480 was amended in 2003 by Senate Bill297, Ch. 799 Oregon Laws 2003
22 (the "2003 Act"). Uncodified Section 5 of the 2003 Act, which was similar in some language to
Section 8 ofSB 814, concerned application ofthe statute. Section 5(4) of the 2003 Act barred
23 claims against settling insurers, but confusingly stated that the bar applied "to an action based on
an environmental claim for which final judgment as to all insurers has not been entered by the
24 trial court on or before the effective date ofthis 2003 Act ...." Notably, while SB 814 contains
language similar to Sections 5(1) through (3) ofthe 2003 Act, SB 814 does not contain language
25 similar to that previously uncodified Section 5(4) of the 2003 Act. Instead, SB 814 broadens the
bar against actions against settling insurers in the sweeping language ofcurrent Section 4 within
26 the codified amendments.
Page 13- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
K.ILMER VOORHEES&. LAURICK, l:'.L.
A PROFESSIONAL CORPORATION
732 N W 19"' AVENUE
PORTLAND, OREGON 97209- 1302
(503) 224-0055 FAX (503) 222-5290
14. Consumer Protection and Government Efficiency, Ms. Hamilton singled out the good faith
2 settlement provisions as the first important provision she addressed. Among her remarks, were
3 the following:
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
A. Presumption of Good Faith Settlements
3. The Port previously entered into settlements with a number of its insurers that
resolved those insurer' Portland Harbor-related liabilities. Those settlements were
entered into in good faith, based on the best technical information available at the time.
Those settlements have also allowed the Port proactively to participate in the Portland
Harbor investigation and remediation.
4. SB 814 would protect the Port and the previously settled insurers from
unreasonable claims for contribution or equitable indemnity, because such claims could
not be brought unless and until an insurer
1) ...
2) Establishes that the Port's prior insurance settlements were not made in good
faith. Because the Port's prior insurance settlements were entered into in good
faith, this legislation would prevent unnecessary and expensive contribution
or indemnity litigation.
(Bold and underlining added.) Carson Dec., Exhibits 28 and 29.12
In sum, the clear language of SB 814, buttressed by its legislative history, establishes that
SB 814 applies to London's present contribution action.
12
When the legislature was considering adopting SB 814 as emergency legislation, London and
its actions concerning the Moody Avenue action were presented as examples oftactics that
SB 814 was intended to redress. In support of her testimony before both legislative committees,
Joan Snyder submitted charts that included the Moody Avenue action (Carson Dec., Exhibits 30
and 31), and singled out that litigation with a diagram that shows its prolonged course. (Carson
Dec., Exhibits 32 and 33). Ms. Snyder also submitted, with her May 9, 2013, testimony, a copy
of the Certain Underwriters decision, from this case in which the Oregon Court of Appeal held
that the common law did not bar London's claim for contribution. Carson Dec., Exhibit 34.
Finally, Zidell 'Wrote in support of SB 814, using London (although diplomatically unnamed in
Zidell's letter) and its continuing refusal to settle, and this present contribution action, as
examples ofthe abuses that SB 814 was designed to remedy. Carson Dec., Exhibit 35. The
legislature was aware of all of these things when it adopted SB 814 and concluded that it should
immediately take effect.
Page 14- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
KJLMER VOORHEES & LAURICK, P.C.
A PROFESSIONAL CORPORATION
732 N W 19rn AVENUE
PORTI.AND, OREGON 97209-1302
(503) 224-0055 · FAX (503) 222-5290
15. IV. GOOD FAITH
2 The amendments to ORS 465.480 that bar London's action for contribution against
3 Beneficial and the other defendants require, as a condition for the bar, that the insurers from
4 which contribution would otherwise be sought have settled with Zidell in "good faith." The
5 statute does not define "good faith," so the term is given its common ordinary meaning. PGE v.
6 Bureau ofLabor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) ("[W]ords of common
7 usage typically should be given their plain, natural, and ordinary meaning.").
8 The usual source for determining the ordinary meaning of statutory terms is a dictionary
9 of common usage. State v. Murray, 340 Or. 599,604, 136 P.3d 10 (2006) ("Absent a special
10 definition, we ordinarily would resort to dictionary definitions, assuming that the legislature
11 meant to use a word of common usage in its ordinary sense."). "Good faith" means "honesty or
12 lawfulness of purpose." Webster's Third New International Dictionary (unabridged ed 2002)
13 Consistent with that definition, in the law ofcontracts - and a settlement agreement is,
14 obviously, a contract- an obligation of good faith and fair dealing is implied in every contract,
15 the purpose ofwhich is to "prohibit improper behavior in the performance and enforcement of
16 contracts, and to ensure that the parties 'will refrain from any act' that would 'have the effect of
17 destroying or injuring the right ofthe other party to receive the fruits ofthe contract,"' and thus
18 "serves to effectuate the objectively reasonable expectations ofthe parties." Klamath
19 Off-Project Water Users, Inc. v. Pacificorp, 237 Or App 434, 445, 240 P3d 94 (2010) (citing
20 Iron Horse Engineering v. Northwest Rubber, 193 Or App 402, 421, 89 P3d 1249 (2004)).
21 In the context ofthe settlement of an environmental claim for which multiple insurers
22 have potential liability, settlement affects all involved insurers. SB 814 bars a paying insurer
23 (London) from seeking contribution from another insurer (Beneficial) that has settled with the
24 same insured (Zidell) in "good faith." Thus, here, "good faith" requires consideration ofthe
25 interests ofthe insurer that would otherwise be entitled to claim contribution. Wagner v.
26 Goldschmidt, 51 Or 63, 93 P 689 (1908), is instructive. The issue in Wagner was whether a
Page 15- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
KJLMER VOORHEES & LAURICK, t'.L.
A PROFESSIONAL CORPORATION
732 N.W 19"' AVENUE
PORTLAND, OREGON 97209-302
(503) 224-0055 • FAX (503) 222-5290
16. client could, without the knowledge or involvement ofhis attorney, settle with an adverse
2 litigant. The settlement had cut offthe rights ofthe attorneys to litigate the dispute to judgment
3 and gain an entitlement to an award offees. The court held that the settlement was valid and
4 could not be challenged by the attorneys. An important consideration for the court was that
5 "[t]here [was] no evidence in the record that the settlement was collusive or made for the purpose
6 of cheating or defrauding plaintiffs attorneys out oftheir fees[.]" Wagner, 51 Or at 64.
7 Here, in September 1997, Zidell went to all of its insurers and presented them with an
8 opportunity to settle. Zidell explained to all its insurers that Zidell's demands were based on its
9 allocation ofthe responsibility ofeach insurer, and Zidell invited them to negotiate those
10 allocations. Within seven months, after negotiations that both Zidell's counsel considered, and
11 Judge Keys determined, to be the result of arm's length discussions, Beneficial and Zidell
12 reached a settlement agreement that included a limited release of environmental claims related to
13 the Moody Avenue site.
14 There is no suggestion that Zidell and Beneficial colluded or otherwise acted improperly
15 to prejudice the interests of any other insurer, including London. London was not excluded from
16 ~ettlement negotiations with Zidell to benefit Beneficial. To the contrary, London was equally
17 approached by Zidell and given an opportunity to settle. London did not settle because it insisted
18 on the release of claims far beyond those that were at issue at Moody Avenue, a demand that was
19 unacceptable to Zidell.
20 It is necessarily true that whether a settlement was in good faith must be determined
21 based on the information that was known to the parties at the time of settlement, and not as a
22 hindsight determination. Moreover, there are a range of possible settlements terms, depending
23 on the negotiating skills, determination and priorities ofthe parties, all ofwhich may be in good
24 faith.
25 Based on the plain meaning of"good faith," and the context in which it is used in
26 ORS 465.480 as now amended, all that is required in order for Beneficial to meet the
Page 16- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
K.ILMER VOORHEES & LAURICK, t'.L.
A PROFESSIONAL CORPORATION
732 N W 19"' AVENUE
PORTLAND, OREGON 97209-IJ02
(503) 224-0055 · FAX (503) 222-5290
17. 1 requirement that its settlement with Zidell was in "good faith" is that the settlement be honest on
2 both sides, that the settlement be within a reasonable range reflecting a reasonable resolution of
3 the dispute given the relative interests ofboth parties ("the objectively reasonable expectations of
4 the parties"), and that, as to London, the affected third party, the settlement be non-collusive and
5 not designed with the idea of"cheating or defrauding" London. The settlement between
6 Beneficial and Zidell meets all these criteria and London cannot make a showing to the contrary.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
v. CONCLUSION
The 2013 amendments to ORS 465.480 apply to this case. Accordingly, this court no
longer has jurisdiction over the subject matter ofthe case and, in any event, the amended
complaint now fails to set out ultimate facts constituting a viable and enforceable claim for relief.
Alternatively, ORS 465.480(a) and (b), as amended, provide for the filing of this motion and
dismissal of London's action. For all these reasons, London's amended complaint should be
dismissed with prejudice and final judgment should be entered in favor of Beneficial.
DATED this 191
h day of July, 2013.
KILMER VOORHEES & LAURICK, P.C.
(jfN~T(kChristopher T. Carson OSB No. 844502----
DLA PIPER LLP (US)
Eliot Hudson, CSBA No. 66251
Admitted Pro Hac Vice
OfAttorneys for Defendant Beneficial Fire and Casualty
Insurance Company
Page 17- DEFENDANT BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT
KILMER VOORHEES & LAURICK, J-'.L.
A PROFESSIONAL CORPORATION
732 N.W 19'" AVENUE
PORTLAND, OREGON 97209-1302
(503) 224-0055 - FAX (503) 222-5290
18. 2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
CERTIFICATE OF SERVICE
I certify that on this 191
h day of July, 2013, the foregoing DEFENDANT
BENEFICIAL'S MOTION TO DISMISS AMENDED COMPLAINT was served on the
following via [ ] hand delivery [ ] overnight delivery [ ] fax and mail [X] email and mailing by
depositing with the U.S. mail in Portland, Oregon, enclosed in a sealed envelope with first class
postage prepaid, addressed as follows:
John S. Folawn
Courtney C. Dippel
Folawn Alterman & Richardson LLP
805 SW Broadway, Ste. 2750
Portland, OR 97205
Email: john@farlawfirm.com
courtney@farlawfirm.com
Of Attorneys for Plaintiffs
Carl E. Forsberg
Charles E. Albertson
Forsberg & Umlauf, P.S.
901 Fifth Ave., Ste. 1400
Seattle, WA 98164
Email: cforsberg@forsberg-umlauf.com
calbertson@forsberg-umlauf.com
Of Attorneys for Industrial Indemnity
Company
Thomas W. Brown
Cosgrave Vergeer Kester, LLP
888 SW Fifth Ave., Ste. 500
Portland, OR 97204
Email: tbrown@cosgravelaw.com
Of Attorneys for National Union Fire
Insurance Company of Pittsburgh, PA
Page 1- CERTIFICATE OF SERVICE
Diane L. Polscer
Andrew Moses
Gordon & Polscer LLC
9755 SW Barnes Rd., Ste. 650
Portland, OR 97225
Email: dgolscer@gordon-golscer.com
amoses@gordon-golscer.com
Of Attorneys for Glens Falls Insurance Co.
and Continental Insurance Co.
Richard A Lee
Bodyfelt Mount LLP
707 SW Washington St., Ste. 1100
Portland, OR 97205
Email: lee@bodyfeltmount.com
Of Attorneys for Century Indemnity
Company and Industrial Indemnity
Company
Admitted Pro Hac Vice
Kenneth H. Sumner
Sinnott, Puebla, Campagne & Curet
Two Embarcadero Center, Suite 1410
San Francisco, CA 94111
Email: ksumner@sgcclaw.com
Of Attorneys for National Union Fire
Insurance Company ofPittsburgh, PA
.KJLMER VOORHEES & LAURlCK, I'.C.
A PROFESSIONAL CORPORATION
732 N W. 19m AVENUE
PORTLAND, OREGON 97209-1302
(503) 224-0055 · FAX (503) 222-5290
19. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Admitted Pro Hac Vice
Eliot R. Hudson
DLA Piper LLP (US)
555 Mission Street, Suite 2400
San Francisco, CA 94105-2933
Email: eliot.hudson@dlapiper.com
Of Attorneys for Defendant Beneficial Fire
and Casualty Insurance Company
Page 2- CERTIFICATE OF SERVICE
Christop r T. Carson, OS No. 844502
Of Attorneys for Defendant Beneficial Fire and Casualty
Insurance Company
I:8692000Post-Appeal - State Court PleadingsMTD - SB 814 motion
(Beneticiai)Motion to Dismiss SB 814.docx
K.ILMER VOORHEES&.. LAURICK, J:'.L.
A PROFESSIONAL CORPORATION
732NW.I9rnAVENUE
PORTLAND, OREGON 97209-1302
(503) 224-0055 FAX (503) 222-5290