OTLA Trial Lawyer Winter 2022

52 Trial Lawyer • Winter 2022 actually control the rent that may be charged for dwelling units, rather than all laws that might have an indirect impact on the rental market. The court decided, even though the city’s relocation assistance ordinance may affect the amounts that landlords choose to charge for rent, the ordinance does not control the amounts they may charge. Thus, ORS 91.225 does not preempt the ordinance. Regarding the cause of action created by the ordinance, the court noted the well-established authority of state courts to hear claims based on different sources of law, including local law. Based on that broad authority, the court concluded the city’s creation of a cause of action for Portland tenants against landlords who violate the ordinance did not contravene the Oregon Constitution. Justice Garrett dissented, arguing the ordinance controls rent by imposing an adverse financial consequence on a landlord who does nothing other than raise the rent more than a threshold amount. In the dissenting view, an ordinance may violate ORS 91.225 through means less direct than an outright prescription or prohibition of certain rents. An ordinance unlawfully exercises “restraining” influence over rent if it requires landlords to forego or limit rent increases solely in order to avoid a city-imposed cost. DECISIONS OF THE OREGON COURT OF APPEALS An insurer’s failure to request an assignment of its subrogation rights during the pendency of settlement discussions in which it does not participate does not equitably estop the insurer from later pursuing those rights. Nelson v. Liberty Insurance Corp., 314 Or App 350 (2021); Aoyagi, J. The plaintiffs were represented by Nadia Dahab, Bob Bonaparte and Randy Vogt. After their property was damaged in a fire that started at a nearby lumber mill, the plaintiffs pursued contract claims against their homeowner’s insurer, Liberty Insurance Corporation, and negligence and other claims against the lumber mill. The plaintiffs then invited all parties to participate in a global mediation, but Liberty declined. It did not request an assignment of its subrogation rights under the homeowner’s insurance agreement. After the mediation, the plaintiffs reached a settlement with the lumber mill and released it from all claims. After learning of the settlement, Liberty asserted an affirmative defense to the plaintiffs’ contract claims based on the plaintiffs’ interference with Liberty’s subrogation rights. The trial court granted summary judgment for the plaintiffs on the affirmative defense, holding Liberty was equitably estopped from asserting its rights. The case proceeded to trial and resulted in a $10,000 verdict for the plaintiffs. The Court of Appeals reversed and remanded, holding the trial court erred in concluding no objectively reasonable juror could return a verdict for Liberty on its subrogation defense. The court explained the trial court did not view the evidence in the light most favorable to Liberty and, so viewed, the summary judgment record established a genuine issue of fact as to whether Liberty was silent when it had a duty to speak, as relevant to the first element of equitable estoppel. When two defendants make separate settlement offers, independent of the other defendant, and when the defendants are jointly and severally liable for the full amount of damages that are awarded to the plaintiff, their separate settlement offers are not aggregated for purposes of determining an award of reasonable attorneys’ fees. Callais v. Henricksen, 314 Or App 553 Sheets Continued from p 51