STACKING OF PIP ORDERED

Anderson v. Farmers, __ Or App __ (June 12, 2003)

Anderson had three separate auto policies with Farmers, each providing $25,000 of PIP coverage. While driving one of the cars insured by Farmers, Anderson injured his knee in an accident. The injury resulted in medical expenses which would exceed $65,000. The Farmers policies contained anti-stacking provisions, limiting PIP benefits to the limits of the highest coverage, in this case, $25,000. Farmers conceded that the anti-stacking provisions were not enforceable "in full" because the effect of the provisions would violate Oregon law requiring every motor vehicle liability policy to provide at least $10,000 in PIP coverage. Farmers agreed to pay $45,000, but because Anderson could not afford to pay the additional cost for knee surgery, he did not have it. Instead, he sued Farmers for breach of contract. The trial court ruled as a matter of law that Farmers was obligated to pay the full amount of PIP on the three policies and a jury awarded Anderson $226,000 for breaching the insurance contract.

On appeal, Farmers first argued that its anti-stacking provisions should be applied to any amount of PIP coverage in excess of the statutory minimum coverage limits of $10,000. As did the trial court, the Court of Appeals rejected this position. Nothing in the policy nor any statutory language supported Farmers’ right to so limit coverage.

Farmers also argued that it had not breached the policy because it agreed to pay only those medical expenses incurred by the insured in the year following the accident. Here, Anderson did not have the knee surgery and therefore had not "incurred" the expense. The court, without citing any authority, summarily rejected Farmers’ position. According to the court: ". . . in light of its refusal to preauthorize the surgery, Farmers cannot assert that the expense was not incurred during the prescribed period. The evidence in the record would support a finding that plaintiff chose not to have the knee replacement surgery because he could not afford to pay for the balance of the cost of the surgery in excess of the amount that Farmers had preauthorized."

EMOTIONAL DISTRESS DAMAGES IN THE SPOTLIGHT

Rathgeber v. James Hemeway, Inc., __ Or __ (May 22, 2003)                                      Simon v. Beard, __ Or App __ (June 26, 2003)

In Rathgeber, plaintiffs sued their real estate agent for breach of fiduciary duty, claiming economic and emotional distress damages relating to the purchase of a house that had numerous defects. The Oregon Supreme Court determined that the claim, in effect, constituted a claim for professional malpractice. Although it is always reasonably foreseeable that some emotional distress will result from negligent performance by a professional, that is not enough to support emotional distress damages. Plaintiffs must plead and prove that the professional standard of care specifically includes a duty to protect a client from emotional harm. In Rathgeber, the plaintiffs had not made such a claim.

Relying in part on Rathgeber, the Oregon Court of Appeals ruled that the plaintiff in Simon could not recover emotional distress damages for the alleged negligence of her obstetrician. The plaintiff in Simon, however, also claimed that she was entitled to emotional distress damages based on the "physical impact" rule. The physical impact rule requires, at a minimum, an act or omission that results in some perceptible physical effect on a plaintiff. Plaintiff alleged that her doctor’s failure to re-position her unborn fetus caused plaintiff to begin labor with the fetal position uncorrected and the fetus in unmonitored distress, exposing plaintiff to a "greatly increased" risk of death and "but for defendant's negligence, plaintiff could have, and would have, either experienced a vaginal delivery of a live child or undergone an emergency Cesarean section–and, thus, plaintiff would not have experienced the physical trauma of her unnecessarily protracted and ultimately futile labor."

Because Simon was on appeal from a pleading motion, the court cautioned that, after the presentation of evidence, a trier of fact might agree with defendant that the physical impact that plaintiff experienced here was no different than she would have otherwise. On the other hand, according to the court, the trier of fact could agree with plaintiff's inferential premise that, but for defendant's negligence, the birth process would have gone very differently–and that the physical impact to plaintiff from her protracted labor, differed materially from the impact that plaintiff would have experienced if defendant had acted non-negligently.

DEFENSIVE EPITHETS ARE NO DEFENSE

Garcez v. Freightliner, __ Or App __ (June 26, 2003)

Plaintiff, a male Hispanic, claimed he was terminated from his employment based on his race and also claimed that he was subjected to a hostile work environment. Part of his employer’s defense was that plaintiff also engaged in conduct similar to that he claimed was racially hostile towards him. The trial court effectively dismissed plaintiff’s federal law claims and plaintiff appealed.

On appeal, the Oregon court first held that plaintiff could not prove that he was terminated because of his race. He had been reported for and warned against sexual harassment. When management received an additional complaint, it investigated the claim and decided to terminate plaintiff. Defendant established a legitimate, non-discriminatory reason for the discharge.

The court reversed, however, on the hostile work environment claim. Plaintiff testified that racial slurs were directed at him, but admitted he also used racial language in order to "defend" himself and to fit into the environment. The court ruled that it could not say as a matter of law that plaintiff’s conduct made the conduct directed at him "welcome" or that it was not offensive to him.

The Oregon court also addressed issues relating to the burdens of proof in a claim for conduct of non-supervisory personnel under federal law. Two recent US Supreme Court cases have resulted in rulings that, in cases involving harassment by supervisory personnel, the employer may defend by proving that the employer exercised reasonable care to prevent and correct any harassing behavior, and that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. This has come to be known as the Faragher/Ellerth defense.

Here, the alleged harassment came from his co-workers, not supervisors. The Oregon court held that the factors involved in the Faragher/Ellerth defense are relevant to establishing an employer’s liability, but that, because the conduct did not involve supervisory personnel, plaintiff, rather than defendant "bears the burden with respect to such evidence." This would suggest that plaintiff is required to prove as part of his case that the employer did not exercise reasonable care to prevent and correct harassing behavior and that plaintiff took advantage of any prevention or correction opportunities (for example, the employer’s established procedure for making and handling of complaints).

"LESSER INCLUDED" COVERAGE ROARS BACK TO LIFE

 Abrams v. General Star Indemnity Co., 335 Or __ (May 1, 2003)

A third party sued the insured for conversion. The complaint against the insured alleged that the insured subjectively intended harm. The insurer conceded that a conversion action was covered under the policy, but argued that it did not have a duty to defend because the complaint specifically alleged intent to cause harm.

The Oregon Supreme Court disagreed. The court recited the familiar test for the duty to defend: An insurer has a duty to defend if the allegations in the complaint, "without amendment" state facts sufficient to constitute a claim for conduct that the policy covers. When the complaint alleges intent to cause harm, the first determination is whether the complaint contains allegations of covered conduct. If so, there is a duty to defend even if the complaint also contains allegations of excluded "conduct."

An analysis of the duty to defend will require close examination of the elements of the particular tort or conduct alleged. For example, intent to harm is an element of the tort of malicious prosecution, so no duty to defend arises if that "conduct" is alleged. In a case of "ordinary conversion," however, a plaintiff can prove conversion without intent to cause harm. Therefore, in spite of the specific allegations of the complaint in this case, the plaintiff could prove a covered conversion "without amendment" of the complaint and the insurer owed a defense.

In Association of Unit Owners of Bridgeview Condominiums v. Dunning, 168 Or App 595 (2003), the court held that the product liability statute does not apply in a construction defect case against the owners, general contractor and engineers because real property is not a "product."

In Jones v. Emerald Pacific Homes, Inc., __ Or App ___ (July 2, 2003), plaintiffs, who were unsatisfied with the quality of construction in the home defendants built for them, sued for breach of contract and negligence. The trial court dismissed. On appeal, the court held that, in general, the relationship between a building contractor and its client is not the type of "special relationship" giving rise to separate tort liability. Plaintiffs had to rely on the construction contract for their remedy.

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In Kaplan v. Northwestern Mutual Life Ins. Co., ___ Wn App ___, 65 P3d 17 (2003), the court held that disability policy language that required the insured to be "under the care of a physician" was ambiguous as a matter of law. The insurer argued that the insured needed to be under the care of a doctor during the entire period of the alleged disability. The court held that the language could be also reasonably be interpreted to mean that the insured needed to be under a doctor’s care only at the time of the submission of a claim.

In Hodge v. Raab, __ Wn App __, 65 P3d 679 (2003), a mechanic was injured while working on a customer’s car. The mechanic attempted to recover UIM coverage from the garage policy on the grounds that the policy covered cars left in the care of the garage and there had been no waiver of UIM coverage in connection with the coverage of customers’ cars. The court held that UIM coverage was not mandated in conjunction with a policy that covered garage operations and only incidently covered "unspecified transient customer vehicles."

In Boag v. Farmers, __ Wn App __, 69 P3d 370 (2003) the court ruled that Farmers had to compensate the insured under her PIP coverage for sick and annual leave she had taken following a car accident.

In Cochran v. Great West Casualty Co., __ Wn App __, 67 P3d 1123 (2003), the insured, plaintiff’s employer, checked the agent’s form requesting specific UIM limits lower than the liability limits. The court held that the form satisfied the requirement of a written rejection of UIM limits equal to the liability limits, pursuant to RCW 48.22.030. The insurer was obligated for UIM coverage only in the amount selected by the insured.

In Geston v. Scott, __ Wn App __, 67 P3d 496 (2003), defendant backed her van into plaintiff’s car in a parking lot, causing minor damage. Plaintiff went to the emergency room with minor complaints, but eventually found her way to Dr. Brett, who performed surgery on plaintiff’s neck. The jury awarded plaintiff the cost of the emergency room visit. The trial court granted plaintiff’s motion for a new trial. The Court of Appeals reinstated the jury verdict, holding that the jury could disbelieve plaintiff’s expert and the evidence supported the jury’s minimal verdict. It happens every once in awhile...

In Toste v. Durham & Bates, __ Wn App__, 67 P3d 507 (2003), the court held that settlement with a plaintiff extinguishes any implied indemnity obligations of the settling party to either joint or non-joint tortfeasors.

In Kloepfel v. Bokor, __ Wn __, 66 P3d 630 (2003), the Supreme Court held that, to recover damages in a claim for intentional infliction of emotional distress, the plaintiff does not have to prove severe emotional distress by means of objective symptomatology and a medical diagnosis. These requirements apply only to claims of negligent infliction of emotional distress.

In Arreygue v. Lutz, __ Wn App __, 69 P3d 881 (2003) the court held that an injured party may sue, even if the defendant’s liability has been discharged in bankruptcy, when the sole purpose of the action is to establish liability in order to recover from the bankrupt defendant’s insurance company.

__ Wn App __, 71 P3d 692 (2003)

The Park Avenue Condominium Owners Association sued the builder of the condos for construction defects under the Washington Condominium Act. The builder defended on the basis that it had disclaimed the implied warranties created by the Act. The Washington Court of Appeals noted that the Act prohibits general disclaimer of the implied warranties and held that the broad language used by the builder to disclaim was ineffective.

The builder also challenged the Act’s requirement that contractor comply with "all laws then applicable" to the construction. The builder complained that requiring compliance in every detail with the building code amounted to a "perfection standard." The builder argued that this implied warranty should be interpreted to require only workmanlike construction, and that any violation of the code should be material before it is actionable. The court rejected these arguments as inconsistent with the statutory language. Further, "materiality," to the extent the term has meaning, is better addressed in determining damages as opposed to breach.

FACTS GENERATE JURY QUESTION ON APPLICABILITY OF FAMILY PURPOSE DOCTRINE

Kaynor v. Farline, __ Wn App __, 72 P3d 262 (2003)

Nicholas Farline caused a fatal automobile accident while driving his Jeep, returning home from a basketball tournament. The decedent’s personal representative sued Nicholas and his divorced parents. Plaintiff alleged that Nicholas’s parents were liable under the family purpose doctrine. The trial court dismissed both parents and plaintiff appealed.

On appeal, the court examined each element of the family purpose doctrine and gave a lengthy recitation of the facts pertaining to ownership and usage of the Jeep, ultimately deciding that fact questions precluded summary judgment for either parent. On the issue of use for "family business" the court noted that "what constitutes general use, pleasure and convenience of a family is a question of fact that may change from family to family depending on the needs of the family and the authorization granted by the parent or parents." Here, although Nicholas was the exclusive driver of the Jeep, a jury might find that the Jeep was provided for Nicholas "so that he could assist his parents by transporting himself to his daily activities and visitations with his father in Idaho."

In addition, it is not necessary that the child even live with the parent. "An unemancipated child living away from one or both parents may be an agent of the family [for family car purposes] if it is shown that the child was authorized to use the vehicle, and that the child was using the vehicle, with the parent’s consent, for a family purpose."

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INDEMNITY NOT AVAILABLE WITHOUT DISCHARGE OF INDEMNITOR’S LIABILITY

Moore Excavating v. Consolidated Supply, 186 Or App 324 (2003)

Moore agreed to install a water system for Aspen. Moore purchased the pipe and glue from defendant Consolidated, relying on Consolidated for selection of the proper materials. The water system leaked after Moore’s installation and Aspen sued Moore. Moore settled with Aspen by paying damages and installing a new system. Moore then sued Consolidated for indemnification. Consolidated obtained summary judgment on the grounds that Moore could not prove a necessary prerequisite for indemnity: that Moore had discharged Consolidated’s liability to Aspen.

On appeal, the court held that Moore must be able to prove that it bought peace with Aspen for Consolidated as well as itself. It was not enough that Aspen agreed it had no intention of suing Consolidated – Consolidated’s liability had to be extinguished in a way that was legally binding on Aspen. The court distinguished cases where the plaintiff was seeking indemnity for defense costs only and had denied liability to the third party. In those circumstances, plaintiff is not required to show that it was actually liable to the third party in the first place, so the question of whether plaintiff had discharged its liability and that of the defendant is not at issue.

Editor’s note: The court’s efforts to distinguish prior case law is not very satisfying. Many times in the settlement of a case, the party who will later seek indemnity does not admit that anyone is liable. In a case where a party anticipates a substantial indemnity claim, it may be in the predicament of acknowledging fault or having to go to trial to have fault established one way or the other. In any event, when an indemnity claim is anticipated, a global release should be obtained from the original plaintiff.

Swisher v. Albertson’s, 186 Or App 734 (2003)

Plaintiff slipped on a piece of lettuce in defendant’s store. The lettuce was on the floor at the end of the checkout line. The trial court granted summary judgment for defendant because plaintiff could not prove that defendant’s employees knew that the lettuce was there.

On appeal, the Court of Appeals reversed. Plaintiff argued that there was evidence the lettuce had been dropped by defendant’s employees. Plaintiff testified that it was her belief that the lettuce broke off when a bagger handed the bagged lettuce to a customer or loaded the groceries in a cart. According to the court, evidence that plaintiff was in this area of the store, where defendant’s employees have control over the products before giving them to customers, "would allow a reasonable juror to conclude that no one other than defendant’s employees could have put the lettuce on the floor."

The court also ruled that the condition of the lettuce leaves–brown, wilted and slimy–permitted an inference that the lettuce had been stepped on many times. The position of the lettuce, in an area that was "in the control of and fully visible" to the defendant’s employees, would permit a jury to conclude that the lettuce had been on the floor long enough that an employee should have discovered it.

In Kovac v. Crooked River Ranch Club and Maintenance Assoc., ___ Or App ___ (February 19, 2003), the court upheld summary judgment for defendant on plaintiff’s interference with business advantage claim. Defendant, a homeowners association, urged the county to deny plaintiff’s request to use part of his house as a real estate business. When the county denied plaintiff’s application, plaintiff sued, alleging antitrust and business interference claims. Plaintiff claimed that the county had delegated its land use decision to defendant. The court found that defendant’s activities consisted only of efforts to persuade denial of the application. Such activities are protected free political speech and barred plaintiff’s claims.

In Beall Transport Equipment Co. v. Southern Pacific Transportation, 186 Or App 696 (2003), the court reaffirmed the rule that defendant’s good faith should be considered in an action alleging conversion. Failure to include that element in instructions to the jury constituted reversible error.

In Dunwoody v. Handskill Corp., 185 Or App 605 (2003), the Court of Appeals ruled that an employer may not fire a worker who misses work to respond to a subpoena in a criminal case.  The court held that compliance with a subpoena in a criminal case is an important public duty.  An employee may sue for wrongful discharge if the employer interferes with that duty.

The Oregon Legislature is in session and working on a number of measures with significant potential effect. Those that appear to be moving forward are:

HB 2049: Requires that a party who wants to amend pleadings to assert a claim for punitive damages must file the motion no less than 60 days before trial. This bill passed the House and a public hearing in the Senate occurred on April 21, 2003.

SB 611: For claims against architects and other design professionals, the complaint must be accompanied by an affidavit of the attorney stating that the attorney has retained an expert who is qualified and willing to testify to admissible facts and opinions sufficient to create a fact question as to professional liability. This bill passed the Senate and was referred to the Judiciary Committee in the House.

Click here to go to the legislature's web site for the most up-to-date information.

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___Wn App ___, 65 P3d 350 (2003)

Following an accident in which he was rear-ended by Drake, Harris sought medical treatment for a shooting pain in his left shoulder, which was eventually diagnosed as left shoulder impingement. Harris presented a PIP claim to his insurer, USAA. USAA required Harris to submit to an IME with Dr. Bebe. In the ensuing litigation between Harris and Drake, Drake listed Dr. Bebe as a medical expert whom she intended to call at trial. Harris did not object until the day before trial, at which time he moved to exclude Dr. Bebe’s testimony on the grounds that Dr. Bebe’s examination was subject to a work-product privilege. The trial court granted the motion and denied Drake’s motion for a continuance of the trial. At trial, the court ruled that Drake could not offer evidence that Harris had seen a chiropractor for left shoulder pain fourteen months before the accident and granted Harris’s motion for a directed verdict on causation and special damages. The jury awarded Harris nearly $141,000. Drake appealed the various trial court rulings.

On appeal, the Court of Appeals held that work product protection attaches to a PIP IME because it is done in anticipation of arbitration between Harris and USAA. The work-product privilege belonged to USAA, but could be asserted in a proceeding where USAA is not a party. The PIP insured, has a "sufficient relationship" with the insurer so as to be able to assert the insurer’s privilege on its behalf until its "wishes [concerning the privilege] can be ascertained."

The court also held that, in the absence of evidence that Harris was experiencing shoulder pain just prior to the accident, it was not error for the trial court to exclude evidence of prior complaints. According to the Court of Appeals, when an accident "lights up and makes active a pre-existing condition that was dormant and asymptomatic prior to the accident, the pre-existing condition is not a proximate cause of the resulting damages."

                                            ___ Wn App ___, 63 P3d 860 (2003)

Evich procured a lost profits policy for plaintiff. Evich’s employer, Acordia, did not provide plaintiff with a copy of the policy, but did provide an 80 page summary of it. The summary referenced a portion of the policy that required the insured to bring any suit or action on a claim within two years. Plaintiff’s equipment was damaged by fire in July of 1996. Plaintiff notified Evich of the loss and asked Evich if there was any time limit for submission of a claim. Evich said there was not. Plaintiff did not submit a claim for lost profits until September of 1999. The policy underwriters indicated they would deny the claim as untimely. After negotiations, plaintiff settled with the underwriters for a fraction of the value of the claim, then sued Acordia for breaching its duty of care to plaintiff by giving it incorrect information. The trial court granted judgment in favor of Acordia.

On appeal, the court weighed the possibility that Acordia had a "special relationship" with plaintiff, creating an enhanced or fiduciary duty of care. The court held that the nature of the particular relationship between plaintiff and Acordia created such a duty. The factors mentioned by the court as creating this relationship included the fact that Evich had been plaintiff’s broker for over ten years and managed all its policies; he sold plaintiff maritime insurance, "which is a specialized and complex area of insurance;" because of the size of plaintiff’s operations, Evich spoke with plaintiff’s representatives nearly every day about coverage matters; and Evich traveled to London to negotiate the policy in question with an underwriting syndicate. The court held that Acordia’s special relationship with plaintiff "established an affirmative duty to competently advise plaintiff." If a broker under these circumstances gives advice, "he must provide carefully considered and responsive advice." That duty is not necessarily negated by the insured’s failure to read the policy.

In Kaplan v. Northwestern Life Ins. Co., __ Wn App __, 65 P3d 17 (2003), the court held that disability policy language that required the insured to be "under the care of a physician" was ambiguous as a matter of law.  The insurer argued that the insured needed to be under the care of a doctor during the entire period of the alleged disability.  The court held that the language could also reasonably be interpreted to mean that the insured need to be under a doctor's care only at the time of the submission of a claim.

In New Hampshire Indemnity Co. v. Budget Rent-A-Car Systems, Inc., ___ Wn2d ___, 64 P3d 1239 (2003), Bentley caused an accident while driving a car rented from Budget. Bentley chose not to purchase Budget’s optional coverage, but was insured by plaintiff. The Washington Supreme Court ruled that Budget was not required to provide primary coverage for its car while rented to Bentley. The court announced that there is no per se rule requiring a vehicle insurer to provide primary coverage and the terms of the insurance contracts control. Here, Budget’s contract indicated that it did not provide coverage until all other coverages were exhausted. This "super-escape" clause controlled over plaintiff’s excess coverage clause for a car that its insured did not own. Plaintiff owed primary coverage and was required to reimburse Budget’s cost of defending the insured.

In Schwendeman v. USAA, ___ Wn App ___, 65 P3d 1 (2003), the court denied class certification for all USAA insureds who had vehicle damage repairs with the use of non-OEM parts. The court held that plaintiff failed to establish that common questions of law or fact predominated over any questions affecting only individual members of the proposed class. The USAA policy language required consideration of the particular vehicle depreciation and physical deterioration, which prevented commonality among all proposed class members.

In another case involving a class action against an insurer, the court ruled that the class was proper. In Sitton v. State Farm, ___ Wn App ___, 63 P3d 198 (2003), the trial court certified a class of PIP claimants who were denied benefits after an external medical utilization review. In spite of the myriad different factual issues involved in individual claims, the Court of Appeals upheld class certification on the common issue of whether State Farm acted in bad faith to deny PIP benefits to its insureds.

In Hardy v. Pemco, ___Wn App ___, 61 P3d 380 (2003), the court held that the language in the "Other Insurance" clause of UIM coverage making the policy excess for a non-owned car was not to be read in isolation of the anti-stacking provision. While the "excess" coverage was triggered, the anti-stacking language still applied to limit the insurer’s liability.

In Martin v. Goodyear Tire & Rubber Co., ___ Wn App ___, 61 P3d 1196 (2003), a "side ring" detached from the tire assembly of a truck belonging to an Oregon company which was transporting gravel in Washington. The ring became airborne and flew through the windshield of a car belonging to a couple from Oregon, killing the wife. The court held that the Washington product liability statute of ultimate repose, rather than Oregon statute, applied to the manufacturer’s liability.

In Skeie v. Mercer Trucking Co., ___ Wn App ___, 61 P3d 1207 (2003), plaintiff, a passenger in a car that collided with defendant’s truck, was injured by cement blocks that fell from the truck upon impact. Relying on statutory authority, the court held that the owner of the truck had a duty to secure its load so as to prevent the loss of the load in an accident, and that its failure to do so was a legal cause of plaintiff’s injury.

In Coleman v. Hoffman, ___ Wn App ___, 64 P3d 65 (2003), defendants operated an apartment complex after the owner defaulted on its loan to defendants. One of the tenants fell through a deteriorated railing on the premises and brought a premises liability claim against defendants. The court reversed summary judgment in favor of the defendants, concluding that there was an issue for the jury as to whether the defendants exercised sufficient control over the premises to be considered a "possessor" and thereby acquire the duties of a landlord.

In Joyce v. Washington State Department of Corrections, ___ Wn App ___, 64 P3d 1266 (2003) the court held that the estate of a driver killed in an automobile accident with an offender under community supervision could recover for the Department of Corrections’ negligent supervision of the offender. Among other things, the court held that plaintiff had sufficiently shown foreseeability to send the issue to the jury. Plaintiff showed that the offender failed to complete his court ordered supervision requirements, that his reporting for supervision was continually unreliable and that he was suffering from mental health problems. The court therefore opined that it was foreseeable that he "would continue to exercise poor or no judgment, continue to break the law, drive without a valid license and potentially endanger the lives of others." According to the court, any other person on the road with the offender was "foreseeably endangered." The court also held that there is no requirement of any factual nexus between the original crime and the crime that injured the plaintiff.

In Norris v. Church & Co., ___ Wn App ___, 63 P3d 153 (2003), the plaintiff homeowners brought a claim against the builder of their home for fraudulent concealment of construction defects. The builder admitted knowing that subcontractors had installed windows without flashings but told the homeowners that water damage was caused by a problem with installation of the gutters that the builder did not discover until after the house was completed. Plaintiffs had sufficient evidence of their lack of knowledge of the defects that caused the water damage and the builder’s concealment of the true cause of the damage to avoid summary judgment. The court also held that purchasers of new homes are not obligated to undertake a professional inspection. Finally, the court ruled that fact questions precluded summary judgment on the statute of limitations defense. Although the house was completed in 1994 and plaintiffs did not sue until 2000, there was evidence that the plaintiffs could not have discovered the real reason for the leaks earlier.

In Lian v. Stalick, ___ Wn App ___, 62 P3d 933 (2003), defendant landlord argued that he was not liable for the decrepit condition of the tenant’s stairs unless the dangerous condition was the result of an affirmative act of negligence or faulty repair on his part. The court held that the common law rule (found in the Restatement) making a landlord liable "if he has failed to exercise reasonable care to repair the condition" is a notice requirement, not a rule making previous repair attempts a prerequisite to liability.

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__ Or __ (January 24, 2003)

Plaintiff fell from a construction platform while working for a subcontractor. Plaintiff sued the general contractor on the job. Plaintiff alleged negligence in failing to provide proper training and supervision for plaintiff’s disassembly of the platform where he had been working. Plaintiff also alleged the defendant’s liability under the Employer’s Liability Act, claiming that defendant had failed to install guardrails on the platform and failed "to train plaintiff how to avoid the hazards of working in areas where there was a danger of falling." From a jury verdict in plaintiff’s favor, the defendant appealed.

The Oregon Court of Appeals overturned the verdict, ruling that defendant had not assumed any control over plaintiff’s work or any obligation to control the work. The Supreme Court, on the other hand, ruled that the Court of Appeals had defined "the work" under the ELA improperly. While the Court of Appeals had looked at the specific task in which plaintiff was engaged at the time, disassembly of the platform, the Supreme Court ruled that the proper ELA focus was on "any work involving risk or danger," in this case, working at height over a concrete pad. Defendant may not have controlled the disassembly of the platform, but one of defendant’s employees had decided jointly with plaintiff’s employer to use the platform to accomplish the work in the first place and had input on how it was to be constructed. This was enough, according to the court, to permit a jury to find that defendant exercised actual control over the manner in which the "risk-producing activity"(working at height) was performed. Actual control over the "risk producing activity" triggers an ELA claim. The court also held that the defendant’s involvement in the decision-making process exposed it to negligence allegations as well.

185 Or App 262 (2002)

The Mountain Bike Bandit robbed several residents of the Sullivan’s Gulch neighborhood in Portland. The bandit used a bicycle to approach victims between the hours of 9 p.m. and midnight. He threatened them with a gun, took money or possessions, but did not harm the victims. One night, plaintiff was crouching on the sidewalk working in her yard in the neighborhood at 11 p.m. A bicyclist approached and as he passed, plaintiff felt a blow to her head. Plaintiff sued the city, claiming that she suffered injury in a bike bandit attack. She blamed the city because, she alleged, the police had prevented her neighbors from warning her about the bandit and that the city’s negligence in preventing the warning caused her injury. The city moved for summary judgment, which the trial court granted.

The Court of Appeals reversed. The court held that a jury could decide that it is reasonably foreseeable that the assaults by the bandit would continue and that neighborhood residents who were warned would avoid being out on the street at night. According to the court, if plaintiff had not been outside, she could not have been injured. Therefore, the case should be submitted to a jury.

In Kambury v. DaimlerChrysler Corp., __ Or App__ (January 8, 2003), plaintiff alleged that a defective vehicle air bag killed Amy Kambury. Plaintiff filed his lawsuit more than two but less than three years after the death. The Oregon Supreme Court ruled that the product liability claim was time-barred. One of plaintiff’s theories alleged that defendant failed to warn of the air bag defect both at the time of purchase and "thereafter on a continuing basis" up until the time of death. Plaintiff argued that a "post-sale" failure to warn is not a product liability action and therefore not subject to the two-year statute of limitations. The Oregon Court of Appeals ruled that a failure to warn prior to the sale that merely continues after the date of the sale does not state a claim independent of the product liability statutes and all plaintiff’s theories were barred by the two-year statute.

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In Russell v. Deere & Co.,__ Or App__ (January 29, 2003), the court ruled that plaintiff failed to state a claim. The combine sold by defendant was admittedly defective because it left a substantial amount of grain on the ground after cutting it from the stalks. The combine was not, however, "unreasonably dangerous" because the defect caused only economic loss, not physical destruction of any property.

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In Benjamin v. Wal Mart, 185 Or App 444 (2002), plaintiff sued for the asphyxiation death of her father, which she alleged resulted from a defective Coleman heater that her father had used in a tent. A white label with black lettering on the heater told users not to use the heater in an enclosed area such as a tent. In addition, the people who had used the heater the night before had told the decedent that they had problems with the heater that had affected their daughter.

At trial, a "human behaviors" expert testified that an adequate warning must explain the seriousness of the consequences of failure to follow instructions and that a label should draw the attention of the user by color or some other means. The Court of Appeals held that a jury could conclude that the heater instructions were inadequate. The court also ruled that the specific warning from the previous night’s user did not cure the inadequate instructions. In the context of the conversation, the jury could have concluded that the decedent thought the user was joking.

In a medical malpractice case, the statute of limitations normally begins to run when plaintiff is aware that the doctor’s actions caused a distinct injury. In Greene v. Legacy Emanuel Hospital, __ Or __ (December 27, 2002), Dr. Nesler accidently perforated plaintiff’s uterine wall and colon during a medical procedure. Plaintiff claimed she did not know that Dr. Nesler’s conduct was negligent until another doctor examined her records nearly a year and a half after plaintiff left the hospital. Plaintiff argued that her lawsuit, filed more than two years after the injury but less than two years after her "discovery," was timely.

The Oregon Supreme Court disagreed. Sometimes "special circumstances" surrounding a medical procedure may create fact questions about discovery of a cause of action. These might include assurances from a doctor of momentary side effects, false or misleading statements to the plaintiff about recovery or novel medical procedures. None of these were present in this case. Plaintiff knew that she had been injured from the procedure and knew that the doctor had caused that injury. The facts that plaintiff knew regarding her injury satisfied the "discovery rule" for purposes of the statute of limitations.

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In Evans v. Multnomah County Sheriff’s Office, __ Or App __ (November 6, 2002), the court held that an employer must accommodate an employee who has a "disability," which the court defined, for purposes of this case as a "physical impairment that significantly limits his or her ability to perform a broad range of jobs in various classes that a person of comparable qualifications could perform."

Plaintiff suffered a heart condition that required him to take anticoagulant drugs, which in turn increased the risk of severe bleeding if he was injured. Plaintiff, a corrections deputy, requested that, instead of rotating through all the deputy posts, he be assigned a permanent post with limited or no inmate contact. Defendant refused the request on the grounds that an essential function of the job was the ability to rotate through all the posts into which other deputies were normally assigned. The court held that an employer may not unilaterally declare a job classification off limits to disabled people on the grounds that their disability prevents them from performing some of the duties of some of the positions within that job classification.

The court recognized that its ruling, based on Oregon law, was more favorable to the plaintiff than if his claims had been filed under federal law, but the court concluded that it could not reconcile the Oregon statutory language with the narrow interpretation of similar language in the federal courts.

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The Oregon Legislature is considering a bill to raise the minimum limits required by the state’s financial responsibility laws for motor vehicle insurance. Presently at $25,000 per person and $50,000 per accident, the bill would raise the limits to $50,000/100,000. PIP limits would also increase to $25,000. The required bond or deposit amount for persons or entities that do not purchase insurance to satisfy the FRL would increase from $60,000 to $125,000. Self-insurance remains an option for those that qualify. (HB 2572)

__W 2d __, 59 P3d 611 (2002)

Robel, injured on the job, made a workers compensation claim. When she returned to a light duty position, some of her co-workers made fun of her injury and suggested that it was faked. The employees, including an assistant manager, also called plaintiff names and told customers that the light duty position was to punish plaintiff. Robel reported the behavior to her union representative, who met with the store director. Although the director met with all the employees and eventually terminated one, plaintiff alleged that the harassment continued. Robel eventually left her job and sued her employer for disability discrimination, retaliation for filing a workers comp claim, infliction of emotional distress and defamation. From an award of damages, the employer appealed.

The Washington Supreme Court held, for the first time, that the anti-discrimination statute applies to disability-based hostile work environment claim, and also ruled that the facts of this case supported such a claim. In addition, the court held that Robel had proven a claim for intentional infliction of emotional distress. The facts did not, however, establish a defamation claim.

The facts of this case, as recited by the court, did not present particularly egregious circumstances. Three judges dissented from the majority opinion. The majority ruling however, signifies that the present majority will have very low tolerance for workplace misconduct.

__Wn App __, 60 P3d 106 (2002)

Plaintiff began working for defendant on a probationary status. Plaintiff’s supervisor gave her every indication that she would become a permanent employee, but soon thereafter began making comments that plaintiff found sexually offensive. Plaintiff eventually complained about the supervisor. There was evidence that the supervisor’s attitude toward plaintiff changed, her probationary period was extended and, after a poor evaluation by the supervisor and two other employees, plaintiff was terminated. She sued for wrongful discharge but the trial court dismissed the case on summary judgment. Plaintiff appealed.

The Court of Appeals held that it does not matter if the supervisor’s original conduct was or was not sexual harassment. Any employee who reasonably believes that unlawful employment practices are occurring and complains of it is protected from retaliatory discharge whether or not the conduct complained of is, in fact, unlawful. Here, plaintiff’s belief was reasonable, shifting the burden to the employer to show a non-retaliatory reason for plaintiff’s discharge. In light of the conflicting evidence about the reasons for the termination and whether those reasons were a pretext, plaintiff’s claim should not have been dismissed. If either party produces some evidence to support its position it is, according to the court, the jury’s function to decide if the evidence is convincing.

In Urban Development, Inc. v. Evergreen Building Products, __ Wn App __, 59 P3d 112 (2002), the court held that a contractor’s construction contracts for work, materials and labor are not contracts that support a claim for indemnity. The court noted that an action for implied warranty of workmanlike performance in construction contracts is too similar to a cause of action for negligent construction , which is not recognized in Washington. The court also held that the statute of limitations for a oral contract memorialized by a written proposal is the six-year statute for written contracts rather than the three year statute for oral contracts, even if the proposal is not signed by both parties, as long as the proposal contains the certain essential elements: the subject matter of the contract, the parties, the terms and conditions, and the price.

In Otani v. Broudy, __ Wn App__, 59 P3d 126 (2002) the court held that damages for "loss of enjoyment of life" are not recoverable by the decedent’s estate in a survival action. In this case, the decedent died on the operating table and was not conscious of her impending death. Would recovery be allowed if the decedent was conscious she was going to die? That is yet to be answered.

In Clark v. Baines, __ Wn App __, 59 P3d 1180 (2002), the court held that a defendant cannot counterclaim for malicious prosecution in a civil battery case after the defendant had made a no contest type plea to the same conduct in a criminal case. The plea established "probable cause" for the civil case.

In Adams v. Able Building Supply, Inc., __ Wn App__, 57 P3d 280 (2002), plaintiff sued her former employer for sex discrimination. Although plaintiff ably proved that her former boss’s behavior was obnoxious and rude, she produced no evidence that it was of a sexual nature or that the boss was not equally as obnoxious to the male employees.

In Hamm v. State Farm__ Wn App__, 60 P3d 640 (2002), plaintiff, who was injured by an uninsured motorist, received PIP benefits from State Farm, her insurer. Following arbitration of the UM amount, State Farm offset the PIP previously paid from the UM benefit award. Plaintiff sued to require State Farm to share in her legal expenses for the UM arbitration. The court held that plaintiff could not recover a share of the legal fees for the arbitration, even though State Farm offset the PIP amount. The court held that PIP in this case was not reimbursed from a "common fund" created by recovery from the tortfeasor and State Farm was therefore not required to pay expenses associated with the recovery.

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