OTLA Trial Lawyer Summer 2021

43 Trial Lawyer • Summer 2021 Between the Sheets Lisa T. Hunt Cody Hoesly Nadia Dahab By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Nadia Dahab, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT Jury correctly permitted to conclude under proper jury instructions that the causes of the decedent’s injuries from a multi-car accident could not be differ- entiated between the two vehicle strikes and the damages arising therefrom could not be “apportioned” between them. Wright v. Turner , 368 Or 207 (2021), Walters, J. Lisa T. Hunt and Rick Glantz represented the plaintiff. Kathryn Clarke wrote the amicus brief on behalf of OTLA. This is the second appeal of a 2009 jury’s $979,540 damages award for inju- ries suffered in a multi-car collision by Martha Wright. In 2004, the truck in which Wright was a passenger, was first struck by Turner’s vehicle and then rear- ended by Oliver’s vehicle. Turner and Oliver admitted liability and settled their claims for policy limits. The first trial was against Wright’s underinsured motorist (UIM) carrier, Mutual of Enumclaw (MOE), to obtain UIM benefits. MOE conceded the liability of the underlying drivers and never challenged the testi- mony of the plaintiff ’s expert that the cause of the plaintiff ’s injuries could not be differentiated between the two acci- dents. Instead, MOE sought to limit the first trial to the jury’s determination of damages only and to limit its payment obligations to a single $500,000 “per accident” policy limit because the policy defined multiple accidents close in time as one accident. After the jury issued its verdict for the plaintiff, the trial court disagreed with MOE’s contention that only one accident occurred and entered the full judgment less offsets for the plaintiff. In the first appeal, the Court of Appeals reversed the trial court’s judg- ment, and the Supreme Court reversed that decision. The Supreme Court con- cluded the number of accidents was a fact question for the jury to decide on re- mand. The parties disputed, among other things, whether the Supreme Court’s remand was limited to the single fact question and whether MOE could re- visit the issues of liability and causation in the second trial. In the event that the jury found that two accidents had oc- curred, MOE sought to assert a new defense theory that the second accident caused the entirety of Wright’s injuries. In so doing, MOE sought to maintain the limitation of its payment obligation to the single $500,000 policy limit. The plaintiff argued MOE had expressly limited the first trial to damages, did not seek any comparative fault determination from the jury and had failed to challenge the expert’s testimony on the basis of differing causes of injury between the two accidents. Over the plaintiff ’s objections, the trial court permitted MOE to put on evidence in support of its new defense to See Sheets 44 We dedicate this issue’s Between the Sheets to our dear friend, colleague and collaborator Christine Moore, who passed away unexpectedly on April 9, 2021. Moore had been a regular contributor to Between the Sheets since Fall 2014. We miss her deeply and will carry her legacy forth.