OTLA Trial Lawyer Winter 2022

51 Trial Lawyer • Winter 2022 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 State Farm’s “anti-stacking” policy terms unenforceable; insured permitted to obtain UM/UIM benefit in the policy limit amounts of each of insured’s policies with State Farm. Batten v. State Farm Mut. Auto. Ins. Co., 368 Or 538 (2021), Flynn, J. Travis Eiva and Michael Brian represented the plaintiffs. Lisa T. Hunt filed the amicus brief on behalf of OTLA. In consolidated cases from U.S. District Court, each of the respective plaintiffs was severely injured in damage amounts significantly higher than the at-fault driver’s liability policy limits. Each plaintiff had more than one State Farm automobile policy, each carrying statutorily mandated UM/UIM coverage in a specified policy limit amount. State Farm asserted that, under its “Other Underinsured Motor Vehicle Coverage” provision, it was only required to pay UM/UIM benefits under the policy with the single highest policy limit. The parties in the underlying cases filed competing summary judgment motions to resolve State Farm’s counterclaims seeking a declaration that the “other coverage” termwas valid and enforceable. The U.S. District Court certified the question to the Oregon Supreme Court, which the court accepted. Under ORS 742.504, the “comprehensive model policy” statute governing UM/UIM coverage, the Supreme Court first noted the statute required “every policy” issued in Oregon provide coverage in terms no less favorable to the insured than the terms of the “model policy.” The Supreme Court further determined the amount an insurer must pay under ORS 742.504 considers the following: (1) the amount the insured “could have recovered in a civil action from” the uninsured/underinsured motorist; (2) “the amount of any authorized deductions” (such as workers' compensation payments); and (3) the "limit of liability stated in the declarations." The court clarified, however, policy limits or other liability limitation terms in a single policy cannot limit an insurer’s payment obligations across multiple policies. In other words, "the UM/UIM coverage under every policy must provide for payment of 'sums that the insured *** is legally entitled to recover as damages' up to the declared limit of liability.” Based on the foregoing, the Supreme Court concluded State Farm’s “other coverage” provision was less favorable to its insureds than the model policy terms and was therefore unenforceable. Oregon law permits cities to create private rights of action through ordinances; Portland “relocation assistance” ordinance not preempted by state ban on “rent control.” Owen v. City of Portland, 368 Or 661 (2021); Balmer, J. The city was represented by Denis Vannier. Phil Goldsmith filed the amicus brief on behalf of OTLA. The City of Portland passed an ordinance requiring landlords to pay “relocation assistance” to tenants in certain circumstances when rent is increased more than 10% in a 12-month period and the tenant decides to move out after the increase. The ordinance also allowed tenants to sue landlords who violated the ordinance in state court. A group of Portland landlords challenged the ordinance, arguing it was preempted by a statute banning “rent control” ordinances, ORS 91.225, and that the city did not have the authority to create a private cause of action enforceable in state court. The trial court concluded ORS 91.225 did not unambiguously prohibit laws that, like the ordinance, indirectly affect the amounts landlords choose to charge as rent. The trial court also concluded the state constitution granted the city the authority to allow tenants to sue landlords under the ordinance in state court. The Court of Appeals agreed, as did the Supreme Court. The Supreme Court explained ORS 91.225 preempts only local laws that See Sheets 52