Country Mutual Insurance Company v. Pittman, No. 3:2011cv00806 - Document 40 (D. Or. 2012)

Court Description: OPINION AND ORDER: For the reasons indicated, the plaintiff's Motion for Summary Judgment 18 is DENIED; defendant's Motion for Summary Judgment 21 is GRANTED IN PART AND DENIED IN PART. Signed on 11/16/2012 by Magistrate Judge Dennis J. Hubel. (sm)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF OREGON 5 PORTLAND DIVISION 6 7 8 9 10 11 12 COUNTRY MUTUAL INSURANCE ) COMPANY, dba Country Insurance) and Financial Services, Inc., ) an Indiana corporation, ) ) Plaintiff, ) ) v. ) ) RONALD PITTMAN, an individual,) ) Defendant. ) No. 03:11-CV-00806-HU MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT 13 _________________________________________ 14 15 16 17 John A. Bennett Stephen F. Deatherage Andrew E. Passmore BULLIVANT HOUSER BAILEY PC 888 SW Fifth Avenue, Suite 300 Portland, OR 97204-2089 18 Attorneys for Plaintiff 19 20 21 22 23 Laura N. Althouse Richard A. Lee BODYFELT MOUNT LLP 707 SW Washington Street, Suite 1100 Portland, OR 97205-3528 Attorneys for Defendant 24 25 26 27 28 1 - MEMORANDUM OPINION AND ORDER 1 HUBEL, Magistrate Judge: 2 This matter is before the court on the parties motions for 3 summary judgment. For the reasons discussed below, the plaintiff s 4 motion (Dkt. #18) is denied, and the defendant s motion (Dkt. #21) 5 is granted in part and denied in part. 6 7 SUMMARY JUDGMENT STANDARDS 8 Summary judgment should be granted if the movant shows that 9 there is no genuine dispute as to any material fact and the movant 10 is entitled to judgment as a matter of law. Fed. R. Civ. P. 11 56(c)(2). 12 must not weigh the evidence or determine the truth of the matter 13 but only determine whether there is a genuine issue for trial. 14 Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002) 15 (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th 16 Cir. 1996)). In considering a motion for summary judgment, the court 17 The Ninth Circuit Court of Appeals has described the shifting 18 burden of proof governing motions for summary judgment as follows: 19 The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party s case. Id. at 325, 106 S. Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S. Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The non-moving party must do 20 21 22 23 24 25 26 27 28 2 - MEMORANDUM OPINION AND ORDER 1 more than show there is some metaphysical doubt as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 528 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party s favor. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In determining whether a jury could reasonably render a verdict in the non-moving party s favor, all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct. 2505. 2 3 4 5 6 7 8 9 10 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010). 11 12 BACKGROUND FACTS 13 The plaintiff Country Mutual Insurance Company ( Country ) is 14 part of a group of personal lines insurance companies that 15 distributes various types of insurance products to farmers, indi- 16 viduals and small businesses. 1 17 retired on September 30, 2005, the defendant Ronald Pittman was a 18 registered 19 McMinnville, Oregon.2 20 against Country and Pittman by an individual named John Stuart (the 21 Stuart case ). 22 insurance agent for From January 1, 1993, until he Country, doing business in This case arises from a lawsuit filed At oral argument on the pending motions, the parties clarified 23 the history of the Stuart case. In March 2003, Stuart bought 24 property in Yamhill County, Oregon, on which he planned to build a 25 26 1 Dkt. #23-1, Agent s Agreement, ¶ 1. 27 2 28 Dkt. #9, Amended Complaint ¶ 6; admitted by Pittman at Dkt. #12, ¶ 1. 3 - MEMORANDUM OPINION AND ORDER 1 home. Stuart owned an existing residence, and Country issued a 2 homeowner s policy (which Pittman s attorney referred to as an ag 3 plus policy ) to Stuart to cover the existing residence. 4 point, Stuart met with Pittman to discuss insurance for the new 5 residence he planned to build. 6 facts during oral argument on the current motions, the new policy 7 was not to be an entirely new insurance policy at all, but rather 8 was to be an amendment or rider to Stuart s existing ag plus 9 policy covering Stuart s existing residence. At some As the attorneys described the During their discus- 10 sions, Stuart outlined the types of coverage he wanted, and Pittman 11 made certain representations regarding what was available. 12 Stuart s Complaint in the Stuart case, he alleged Pittman provided 13 him with an oral binder for insurance that would cover any and all 14 claims arising out of the course of construction of [the new 15 residence], 16 Country issued a Builder s Risk or course of construction policy 17 (as Country refers to it4) that did not contain the course of 18 construction terms Stuart had requested.5 19 policy Country issued to Stuart excluded the perils of faulty 20 workmanship, mold, and damage caused by water backup from sewer 21 drains. 6 22 insurance policy, despite several requests for a copy of the including Acts of God. 3 According to In Stuart, In particular, the Stuart claims he was never provided with a copy of the 23 24 3 25 4 26 Dkt. #23-7, Stuart Complaint, ¶ 8. See Dkt. #19, p. 2. 5 Dkt. #23-7, Stuart Complaint, ¶ 9. 27 6 28 Dkt. #9, Amended Complaint, ¶ 17; admitted by Pittman at Dkt. #12, ¶ 1. 4 - MEMORANDUM OPINION AND ORDER 1 Declarations page, and despite Pittman s assurance, in January 2 2004, that a written binder for the Policy was forthcoming. 7 3 In January or February 2004, the home being built for Stuart 4 suffered damage when it was left open to the weather, and as a 5 result, the interior sheathing split, water accumulated in the 6 crawl space, and mold grew. 8 7 Country. In the present case, Country alleges Pittman told Stuart 8 that the damage caused by the weather would be covered and the mold 9 damage also might be covered. 9 Stuart timely reported the loss to According to Stuart, a field 10 underwriter for Country inspected the damage in March 2004, before 11 any repairs were made, and Stuart was advised to chronicle the 12 repairs and to submit his claim in writing after repairs were 13 complete. 10 Based on the exclusions contained in the policy issued 14 by Country, it ultimately denied Stuart s claim.11 15 Stuart obtained judgments against the architect/builder for 16 the damage to the residence under construction; however, it appears 17 the architect was insolvent and unable to satisfy the judgments.12 18 Stuart filed suit against Country and Pittman in Yamhill County 19 7 Dkt. #23-7, Stuart Complaint, ¶¶ 10 & 11. 20 21 8 Dkt. #9, Amended Complaint ¶ 15; admitted by Pittman at Dkt. #12, ¶ 1; see Dkt. #23-7, Stuart Complaint, ¶ 13. 22 9 23 Dkt. #9, Amended Complaint, ¶ 16; denied by Pittman at Dkt. #12, ¶ 2. 24 10 25 11 26 Dkt. #23-7, Stuart Complaint, ¶ 14. Dkt. #9, ¶ 17; admitted by Pittman at Dkt. #12, ¶ 1; cf. Dkt. #23-4, letter dated March 7, 2005, from John Bennett to Arden Olson. 27 12 28 See Dkt. #23-7, Stuart Complaint, ¶¶ 15-26, 29; Dkt. #23-15, Country s Motion for Summary Judgment in the Stuart case, p. 3. 5 - MEMORANDUM OPINION AND ORDER 1 Circuit Court (the trial court ), asserting claims against Country 2 for breach of contract, negligent misrepresentation, and attorney s 3 fees; and a claim against both Country and Pittman for negligent 4 failure to procure insurance.13 5 6 Pittman moved for summary judgment in the Stuart case, and his motion was granted.14 Country also moved for summary judgment on 7 8 9 13 10 14 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See Dkt. #23-14, Stuart s First Amended Complaint. See Dkt. #23-8, a one-sentence order dated November 6, 2006, granting Pittman s motion for summary judgment in the Stuart case. In Oregon, a negligence claim (including a claim for negligent misrepresentation) that seeks only economic damages must be predicated on some duty of the negligent actor to the injured party beyond the common-law duty to exercise reasonable care to prevent foreseeable harm. Lewis-Williamson v. Grange Mut. Ins. Co., 179 Or. App. 491, 494, 39 P.3d 947, 949 (2002) (citing Onita Pacific Corp. v. Trustees of Bronson, 315 Or. 149, 159, 843 P.2d 890, 896 (1992)); accord Miller v. Mill Creek Homes, Inc., 195 Or. App. 310, 315, 97 P.3d 687, 689 (2004). The issue of whether a particular relationship is one that gives rise to such an enhanced duty is a question of law, to be decided on a case-by-case basis. LewisWilliamson, 179 Or. App. at 495, 39 P.3d at 949 (citations omitted). In Lewis-Williamson, the court held that a captive insurance agent is viewed as an agent of the insurance company and not of the insured (contrasted with the case of an independent insurance agent, who generally is viewed as an agent of the insured and owes a duty of reasonable care to the principal insured ). Therefore, a captive agent lacks the type of special relationship that can give rise to liability to the insured based on negligence in the context of purely economic loss. Id., 179 Or. App. at 495-96, 39 P.3d at 949-50; accord Miller, supra. According to Country, Pittman was dismissed from the Stuart case on summary judgment because he was Country Mutual s captive agent and had no special relationship with Stuart. Dkt. #19, p. 2 n.1; see Dkt. #9, Amended Complaint, ¶ 18. In his Answer in the present case, Pittman denies the allegation that he was dismissed from the Stuart case on that basis, Dkt. #12, ¶ 5; however, in a Tolling Agreement between Pittman and Country, dated December 3, 2007, the parties agreed Pittman was granted summary (continued...) 6 - MEMORANDUM OPINION AND ORDER 1 Stuart s claims.15 2 Country was granted summary judgment on Stuart s negligent misre- 3 presentation claim against Country. In a Second Amended Complaint, 4 Stuart asserted claims against Country for breach of contract and 5 attorney s fees.16 The parties explained at oral argument that 6 The case was tried to a jury, which found: (1) Pittman 7 entered into an oral contract of insurance different than the 8 policy later issued by Country Mutual ; (2) the oral insurance 9 contract eliminated the requirement of direct physical loss, and 10 the exclusions for damage caused by mold, water (whether or not 11 backed up through drains), and faulty workmanship or construc- 12 tion ; (3) Country s failure to provide insurance coverage consis- 13 tent with the oral contract of insurance damaged Stuart; (4) and 14 Country failed to mail or deliver the policy within a reasonable 15 time, which also damaged Stuart.17 16 $268,417.00 17 $168,035.91 in attorney s fees. These awards were memorialized in, in damages, and the The jury awarded Stuart trial court awarded Stuart 18 19 20 21 22 14 (...continued) judgment . . . because [he] did not have the type of special relationship with Stuart necessary for tort liability. Dkt. #23-12, p. 1. 23 15 24 16 25 26 27 28 See Dkt. ##23-15, 23-16, & 23-17. Id., ¶¶ 31-36. After Pittman s motion for summary judgment was granted, the parties stipulated to dismissal of Pittman with prejudice in exchange for Pittman s waiver of any costs in the Stuart case. See Dkt. #23-9. As a result, Stuart omitted any claims against Pittman in his Second Amended Complaint. See Dkt. #20-6, General Judgment in the Stuart case. 17 Dkt. #20-5, Verdict Form in the Stuart case. 7 - MEMORANDUM OPINION AND ORDER 1 respectively, a General Judgment entered December 4, 2006, and a 2 Supplemental Judgment dated May 29, 2007.18 3 Country appealed. Country and Pittman entered into a Tolling 4 Agreement, effective December 3, 2007 (notably, as will be seen, 5 one day short of one year after judgment was entered), for the 6 purpose of stop[ping] the passing of time, as to any contractual 7 or statutory period of limitation applicable to Country Mutual s 8 proposed claims against Pittman, . . . until 30 days after the 9 final decision and mandate of the appellate courts[.] 19 On May 5, 2010, the Oregon Court of Appeals reversed, finding 10 11 there was no evidence from which the jury could find that 12 [Country s] agent bound terms that clearly and expressly superseded 13 the usual terms of a course of construction policy or that [Stuart] 14 was damaged as a result of [Country s] failure to timely deliver 15 the policy, and therefore it was error for the trial court to 16 submit the case to the jury.20 17 decision on ORS § 742.043(1), which provides that an oral binder 18 for insurance is deemed to include all the usual terms of the 19 policy as to which the binder was given . . ., except as superseded 20 by the clear and express terms of the binder. 21 The Court of Appeals based its The court noted 21 22 18 23 24 See Dkt. #20-6, General Judgment, signed November 30, 2006, and filed December 4, 2006; Dkt. #20-7, Supplemental Judgment, signed and filed May 29, 2007. 19 25 26 Dkt. #23-12, Tolling Agreement, p. 1. 20 Stuart v. Pittman, 235 Or. App. 196, 207, 230 P.3d 958, 964 (2010), rev d 255 P.3d 482 (Or. 2011). 27 21 28 Id., 235 Or. App. at 202, 230 P.3d at 962 (quoting ORS § 742.043(1)). 8 - MEMORANDUM OPINION AND ORDER 1 the statute creates a presumption that a binder includes those 2 terms that are usually contained in the policy for which the binder 3 was issued. 22 4 and concluded it was simply too vague and obscure to show Pittman 5 had clearly and expressly modified or waived the terms of the 6 usual course of construction policy or its exclusions from 7 property coverage for faulty work, water damage, and mold. 23 The court reviewed the evidence presented at trial 8 The Oregon Supreme Court allowed review24, and on June 3, 2011, 9 that court reversed the decision of the Oregon Court of Appeals. 10 The Oregon Supreme Court found the evidence was sufficient for the 11 trial court to submit the issues in the case to the jury for 12 decision, and further, the trial court did not err in its attor- 13 ney s fee award.25 14 appellate attorney s fees in the amount of $201,288.50, and costs 15 of $682.77.26 16 on September 15, 2011, $180,738.62 of which was post-judgment 17 interest at nine percent per year. 27 18 entered its appellate judgment on October 6, 2011.28 The Oregon Supreme Court also granted Stuart According to Country, it paid $819,738.62 to Stuart The Oregon Supreme Court 19 20 Id. (citations omitted). 23 Id., 235 Or. App. at 204-05, 230 P.3d at 963. 24 Stuart v. Pittman, 349 Or. 173, 243 P.3d 468 (Table) (2010). 25 21 22 Stuart v. Pittman, 350 Or. 410, 255 P.3d 482 (2011). 22 23 24 26 25 26 See Dkt. #9, Amended Complaint, ¶ 22; admitted by Pittman at Dkt. #12, ¶ 7 (although Pittman indicates the costs allowed by the Oregon Supreme Court were in the amount of $882.77). 27 27 Dkt. #19, p. 2; Dkt. #9, ¶ 22. 28 28 Dkt. #9, ¶ 22; admitted by Pittman at Dkt. #12, ¶ 7. 9 - MEMORANDUM OPINION AND ORDER 1 Country filed the current action against Pittman in this court 2 on July 1, 2011. Country asserts claims against Pittman for negli- 3 gence, common-law indemnity, and breach of duty as agent. 29 4 parties now seek summary judgment. Both 5 Preliminarily, the court notes Pittman has moved, [i]n the 6 alternative, . . . for partial summary judgment on Country s common 7 law indemnity claim[.] 30 Country concedes Pittman cannot be liable 8 for common-law indemnity because he was dismissed from the Stuart 9 case.31 Accordingly, Pittman s motion for summary judgment on 10 Country s Second Cause of Action for common-law indemnity is 11 granted. 12 In Pittman s motion for summary judgment, he argues Country 13 cannot maintain this action on procedural grounds. Country, on the 14 other hand, argues it is entitled to partial summary judgment on 15 the merits of its negligence claim against Pittman. I will address 16 Pittman s procedural motion first. 17 PITTMAN S MOTION FOR SUMMARY JUDGMENT 18 19 Pittman argues Country s claims in this case are barred by an 20 arbitration clause contained in the Agent s Agreement entered into 21 by the parties. 22 parties Mutual Agreements, subparagraph k of which provides as 23 follows: Section 2 of the Agent s Agreement contains the 24 25 26 29 Dkt. #9, Amended Complaint. 27 30 Dkt. #22, p. 3. 28 31 Dkt. #27, p. 11. 10 - MEMORANDUM OPINION AND ORDER 1 It is mutually agreed . . . [t]hat any claim or controversy relating to or arising out of the relationship between the Agent and [Country], this Agreement (and/or any agreement superseded by this Agreement), or the termination of this Agreement, whether the parties rights and remedies are governed or created by contract law, tort law, common law or other wise [sic], or by federal, state or local statute, legislation, rule or regulations, shall be resolved exclusively by binding arbitration in Bloomington, Illinois (unless otherwise provided by law), by one arbitrator selected by [Country] and the Agent, all in accordance with the commercial arbitration rules of the American Arbitration Association then in effect. Judgment upon any arbitration award lawfully rendered may be entered and enforced in any court having jurisdiction. Any claim governed by this arbitration clause must be brought within one year of the events giving rise to the claim or controversy by serving on the other party within such time a written request for arbitration stating the grounds for the claim and the relief requested.32 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Pittman asserts the arbitration clause applies to Country s 16 claims against him in this case because those claims arise out of 17 the parties contractual relationship.33 18 this common-sense conclusion,34 and the court finds the arbitration 19 clause is applicable to Country s claims against Pittman in this 20 case. Country does not dispute 21 Pittman argues Country failed to make a demand for arbitration 22 within the one-year limitations period specified in the arbitration 23 clause. The parties disagreement centers on interpretation of the 24 language requiring a claim to be brought within one year of the 25 26 32 Dkt. #23-1, Agent s Agreement, p. 3, § 2(k) (emphasis added). 27 33 Dkt. #22, p. 7. 28 34 See Dkt. #27. 11 - MEMORANDUM OPINION AND ORDER 1 events giving rise to the claim or controversy. 2 the phrase events giving rise to the claim in the arbitration 3 clause differs from the accrual of the claim. 4 a statute-of-limitations context, Oregon applies a discovery 5 rule, such that a plaintiff must actually be aware, or reasonably 6 should be aware, of the elements of a claim before the limitation 7 period begins to run. 8 Country was aware it had a claim against him at least by the date 9 of the jury s verdict in the Stuart case - November 17, 2006 - if 10 not much earlier, but Country did not make its written request for 11 arbitration pursuant to the Agent s Agreement until November 4, 12 2011. 13 Pittman argues He notes that in Under this type of analysis, Pittman argues Pittman goes further, asserting that the events giving rise 14 to the claim actually occurred even earlier. Pittman claims a 15 plausible interpretation of the arbitration clause would require 16 Country to demand arbitration within one year of the alleged oral 17 binder to Stuart and some damage to Country - which would have been 18 when Country started to incur attorney fees to defend this claim - 19 by March 2005 or at least by the time Stuart s lawsuit was filed on 20 December 9, 2005. 35 21 Country argues the event giving rise to its claim was the 22 Oregon Supreme Court s issuance of a final judgment in the Stuart 23 case. 24 therefore, there was no claim. 36 25 argues it first suffered damage on December 4, 2006, when judgment It argues that until then, it did not suffer damage, and 26 27 35 Dkt. #34, p. 4. 28 36 Dkt. #27, pp. 2-3. 12 - MEMORANDUM OPINION AND ORDER In the alternative, Country 1 was entered against it in the Stuart case. Country notes that the 2 issue of whether Pittman bound the coverage alleged by Stuart was 3 vigorously disputed by Country both during the course of the Stuart 4 case in the trial court, and on appeal, with the jury agreeing with 5 Stuart, the Oregon Court of Appeals reversing, and the Oregon 6 Supreme Court reinstating the jury s verdict. 7 argues, the earliest date on which it even possibly could have been 8 damaged for purposes of starting the limitations clock was when the 9 original judgment was entered on December 4, 2006, memorializing 10 the jury s finding that Pittman orally bound insurance different 11 from the policy actually issued by Country.37 12 year later, the parties entered into the tolling agreement that 13 stopped the clock until 30 days after the final appellate judgment 14 was issued. 15 October 6, 2011, and Country made written demand for arbitration on 16 November 4, 2011.38 Country argues, therefore, that its arbitration 17 demand was timely. Thus, Country A day less than one The Oregon Supreme Court s judgment was issued on 18 Pittman maintains that because Country drafted the arbitration 19 clause at issue, the court cannot rule in Country s favor without 20 concluding that Country s interpretation of the events giving rise 21 22 23 24 37 25 38 26 27 28 Id., pp. 7-8. See Dkt. #20-11, letter from Country s attorney to Pittman s attorney making written request for arbitration. (The letter also notes the parties mutually agreed not to arbitrate the case, and Country was making the written request only . . . in order to satisfy the arbitration demand requirement in the Agent s Agreement - assuming that it applies. ) 13 - MEMORANDUM OPINION AND ORDER 1 to the claim language is the only plausible interpretation.39 2 Pittman further asserts that if the events giving rise to 3 language is ambiguous, then his interpretation must prevail, again 4 because Country drafted the contract language.40 5 6 DISCUSSION 7 The parties disagreement centers on the language requiring 8 any claims arising under the Agent s Agreement to be brought 9 within one year of the events giving rise to the claim or 10 controversy. . . . 11 interpreted, the court is guided by general principles of Oregon 12 law regarding the construction of a contract. 13 contract, the court s goal is to give effect to the intention of 14 the contracting parties. 15 ton N. & Santa Fe Ry. Co., 38 F. Supp. 2d 1185, 1191 (D. Or. 1999) 16 (Ashmankas, J.) (citations omitted). 17 the construction of a contract is a question of law for the 18 court. 19 P.2d 315, 320 (1995), in turn citing Timberline Equip. Co. v. St. 20 Paul Fire & Marine Ins. Co., 281 Or. 639, 643, 576 P.2d 1244, 1246 21 (1978)). 22 In considering how this language should be In construing a Hoyt Street Properties, LLC v. Burling- Generally, under Oregon law, Id. (citing Anderson v. Divito, 138 Or. App. 272, 277, 908 Oregon courts follow a three-step inquiry in contract inter- 23 pretation. Id. (citing Yogman v. Parrott, 325 Or. 358, 361, 937 24 P.2d 1019, 1021 (1997)). The first step is to analyze the disputed 25 26 27 28 39 Dkt. #22, p. 7 (citing Hoffman Const. Co. v. Fred S. James Co., 313 Or. 464, 470-71, 836 P.2d 703, 706-07 (1992)). 40 Id. 14 - MEMORANDUM OPINION AND ORDER 1 provision s text, in the context of the contract as a whole, to 2 determine whether the meaning of the provision is clear on its 3 face. 4 disputed terms as a matter of law. 5 Ass n of Seventh-Day Adventists, 209 Or. App. 380, 383, 149 P.3d 6 217, 218-19 (2006) (citing Yogman, supra). If the meaning is clear, then the court construes the Madson v. Western Or. Conf. 7 In determining whether contract language is clear on its face, 8 the court considers whether the disputed provision is ambiguous. 9 Whether terms of a contract are ambiguous is a question of law. 10 Yogman v. Parrott, 325 Or. 358, 361, 937 P.2d 1019, 1021 (1997). 11 Contract language is ambiguous if it is susceptible to more than 12 one reasonable interpretation, Madson, 209 Or. App. at 384, 149 13 P.3d at 219 (emphasis added) (citing Batzer Constr., Inc. v. Boyer, 14 204 Or. App. 309, 313, 129 P.3d 773, 776 (2006)), or if it is 15 capable of more than one sensible and reasonable interpretation[.] 16 Deerfield Commodities v. Nerco, Inc., 72 Or. App. 305, 317, 696 17 P.2d 1096, 1104-05 (1985); accord Batzer Constr., Inc. v. Boyer, 18 204 Or. App. 309, 313, 129 P.3d 773, 776 (2006). 19 If the contractual provision at issue is ambiguous, then the 20 court proceeds to the second step of the interpretation analysis; 21 i.e., examination of extrinsic evidence of the parties intent. 22 See Yogman v. Parrott, 325 Or. 358, 363, 937 P.2d 1019, 1022 (1997) 23 (citing ORS § 41.740, which provides that extrinsic evidence may be 24 considered to explain an ambiguity).41 The parties intent is to 25 26 27 28 41 Notably, the Ninth Circuit has held extrinsic evidence may not be examined to determine if there is an ambiguity in the first place, but may be used only as an aid in determining the parties intent once the court has determined, from the text and context, (continued...) 15 - MEMORANDUM OPINION AND ORDER 1 be pursued if possible. 2 (citing 3 extrinsic evidence of their intent. 4 proceed to the third and final analytical step, in which the 5 court relies on appropriate maxims of construction. ORS § Yogman, 325 Or. at 364, 937 P.2d at 1022 42.240). Here, the parties have provided no The court, therefore, must Id. 6 If the disputed provision is ambiguous then, as a basic tenet 7 of contract law, the ambiguous language is construed against the 8 drafter of the contract. 9 150 P.3d 424, 427 (2006) (citing Hill v. Qwest, 178 Or. App. 137, 10 143, 35 P.3d 1051, 1054 (2001), in turn citing Neighbors v. Blake, 11 167 Or. App. 343, 347, 3 P.3d 172, 175 (2000)). 12 argues he is entitled to utilize any interpretation of the clause 13 that is plausible, and Country can only prevail if it shows its 14 interpretation 15 pretation. 42 As discussed below, the court disagrees, and finds 16 the language 17 reasonable interpretation. disputed of the Berry v. Lucas, 210 Or. App. 334, 339, contract is is subject the to only only Thus, Pittman plausible one inter- sensible and 18 The parties have not cited any Oregon case interpreting 19 language substantially similar to the events giving rise to 20 language here. 21 any court, federal or state, that provide examples of similar Indeed, the court has located very few cases from 22 23 24 25 26 41 (...continued) that an ambiguity exists. Webb v. Nat l Union Fire Ins. Co. of Pittsburgh, 207 F.3d 579, 581-82 (9th Cir. 2000) (finding Yogman implicitly overruled the contrary holding in Abercrombie v. Hayden Corp., 320 Or. 279, 883 P.2d 845 (1994)). 27 42 28 Dkt. #22, p. 7 (citing Hoffman Const. Co. v. Fred S. James Co., 313 Or. 464, 470-71, 836 P.2d 703, 706-07 (1992)). 16 - MEMORANDUM OPINION AND ORDER 1 language to assist in the interpretation of when the events giving 2 rise to a claim begin. 3 In McNeil v. United States, slip op., 2012 WL 1415364, at *2 4 (Fed. Cir. Apr. 4, 2012), reh g en banc denied, June 12, 2012, for 5 purposes of when a claim must be brought in the Court of Federal 6 Claims, the court, in dicta, equated the events giving rise to 7 [the plaintiff s] claims against [the defendants] with the time a 8 claim first accrues. The court explained the six-year statute of 9 limitations begins to run when all events have occurred that are 10 necessary to enable the plaintiff to bring suit, i.e., when all 11 events have occurred to fix the Government s alleged liability, 12 entitling the claimant to demand payment and sue . . . for his 13 money[.] 14 Therefore, the events giving rise to the plaintiff s claims must 15 have occurred within six years of the filing of his complaint. Id. (internal quotation marks, citations omitted). Id. 16 Several courts have considered the timeliness of claims for 17 purposes of the six-year limitation period specified in section 15 18 of the National Association of Securities Dealers ( NASD ) Code of 19 Arbitration. 20 language similar to that at issue here, to-wit: No dispute, claim 21 or controversy shall be eligible for submission to arbitration 22 under this Code where six (6) years shall have elapsed from the 23 occurrence or event giving rise to the act or dispute, claim or 24 controversy. 25 Pa. Aug. 24, 1993) (quoting § 15; emphasis added). 26 Peabody & Co. v. Brandt, 131 F.3d 1001 (11th Cir. 1997), the court 27 held that the occurrence or event giving rise to a claim for 28 purposes of § 15 of the NASD Code is the one necessary to make the Section 15 of the NASD Code of Arbitration contains Piccolo v. Fargalli, 1993 WL 331933, at *2 (E.D. 17 - MEMORANDUM OPINION AND ORDER In Kidder, 1 claim viable, the occurrence or event after which a complaint 2 specifying the facts would withstand a Federal Rule of Civil 3 Procedure 12(b)(6) motion. 4 noted that in some cases, the last occurrence or event necessary 5 to make a claim viable depends on the nature of a particular 6 claim. 7 established when a single, specific event occurs, such as when 8 striking someone gives rise to a claim for battery. 9 cases, a course of events, or even several separate occurrences or 10 events, will be required before a claim is viable. The court gave 11 the example of a negligence action based on the defective design of 12 a product, noting the action would not be viable until the product 13 caused injury. 14 claim are established by the company s act of marketing the 15 product, that act does not establish the causation and injury 16 elements of the claim. Id., 131 F.3d at 1004. Id., 131 F.3d at 1002. The court For instance, sometimes a claim is Id. In other Although the duty and breach elements of such a Id. 17 Another example of how the facts of each case drive the 18 determination of the date of the occurrence or event giving rise 19 to a claim is illustrated by the contrast between claims for false 20 arrest and malicious prosecution. For false arrest, the plaintiff 21 can plead all elements [of the claim] on the day of the arrest 22 regardless of later proceedings. . . . 23 all the elements cannot be pled until the proceedings are ter- 24 minated in the plaintiff s favor. Sneed v. Rybicki, 146 F.3d 478, 25 481 (7th Cir. 1998) (construing Illinois law). For malicious prosecution, 26 Interesting though these analyses may be, none of these cases 27 provides definitive guidance in determining the point in time of 28 the events giving rise to Country s claims against Pittman. 18 - MEMORANDUM OPINION AND ORDER 1 Similarly, the court finds the analyses in the attorney malpractice 2 cases cited by the parties does not carry the day. 3 must determine when all of the events had occurred that were neces- 4 sary to fix Pittman s alleged liability sufficiently to allow 5 Country to bring suit. The court still See McNeil, supra. 6 Pittman argues that under a statute-of-limitations analysis, 7 the event giving rise to Country s claims was, at the latest, the 8 date of the jury s verdict in the Stuart case. Pittman notes 9 Oregon to recognizes a discovery rule, pursuant which the 10 limitations period begins to run when a plaintiff knows, or has 11 reason to know, of the elements of the claim.43 12 that a key component of a statute-of-limitations analysis under 13 Oregon law is that Oregon does not require the setting of final 14 damages for accrual of a claim. 44 15 Fireman s Fund Ins. Co., 302 Or. 343, 353, 730 P.2d 542, 547 16 (1986), a case Country argues is distinguishable from the present 17 case.45 Pittman asserts Pittman relies on Bollam v. 18 In Bollam, the plaintiffs alleged their liability insurer had 19 improperly handled a claim against the plaintiffs arising from an 20 automobile accident. The plaintiffs claimed their insurer s negli- 21 gence in handling the claim caused them to incur liability for 22 excess damages above their policy limits, and for attorney s fees 23 to protect their interests. 24 insureds claim against the insurer arose, causing the statute of The issue in the case was when the 25 43 Dkt. #22, pp. 9-10. 27 44 Id., p. 10. 28 45 See Dkt. #27, pp. 3-5. 26 19 - MEMORANDUM OPINION AND ORDER 1 limitations to begin to run. The insureds argued their claim 2 against the insurer arose at the time they paid their own funds to 3 the claimant to settle the claim. 4 arose when the insureds became aware of their potential liability 5 above their policy limits, and as a result, incurred attorney s 6 fees to protect their interests. The insurer argued the claim 7 The Bollam court held that when the Bollams retained and paid 8 an attorney to protect their interests, the Statute of Limitations 9 began to run. DeJonge v. Mutual of Enumclaw, 90 Or. App. 533, 10 537, 752 P.2d 1277, 1279 (1988) (citing Bollam, 302 Or. At 353, 730 11 P.2d at 547). 12 arise until the defendant s behavior has caused harm and resulting 13 damages to a plaintiff, R.A. Hatch Co. v. American Insurance Co., 14 728 F. Supp. 1499, 1503 (D. Or. 1990) (Frye, J.) (citing Bollam, 15 302 Or. at 347, 730 P.2d at 544), the statute of limitations 16 begins to run when an injured party discovers that he has been 17 harmed by the acts of the defendant even though the extent of the 18 injury is not yet known, and payment may not be made for some 19 time. 20 687 P.2d 1083 (1984), the Oregon Supreme Court distinguished 21 between two discrete concepts, the occurrence of harm and the 22 extent of damages, noting [i]t is immaterial that the extent of 23 damages could not be determined at the time of the [tort] for 24 purposes of determining when the statute of limitation commenced to 25 run. 26 Industrial Plating Co. v. North, 175 Or. 351, 354, 153 P.2d 835, 27 836 (1944)). Although a cause of action for negligence does not Id. (citation omitted). In Jaquith v. Ferris, 297 Or. 783, Jaquith, 297 Or. at 788, 687 P.2d at 1086-87 (quoting Thus, [t]he critical focus is when damage first 28 20 - MEMORANDUM OPINION AND ORDER 1 occurred, not when the full extent of damage is identifiable. 2 DeJonge, 90 Or. App. at 537, 752 P.2d at 1279. 3 In the present case, Country asserts that the earliest it was 4 damaged by Pittman s conduct was the date judgment was entered in 5 the trial court - December 4, 2006. 6 liable to pay either damages to Stuart or the costs of an appeal. 7 Thus, Country argues, as a matter of law, [Country] had incurred 8 actionable 9 St. Paul Fire & Marine Ins. Co. v. Speerstra, 63 Or. App. 533, 539, 10 666 P.2d 255, 258 (1983). Pittman, however, argues the latest date 11 when Country was harmed was the date of the jury s verdict. 12 Pittman notes that in a letter from Country s attorney to Pittman s 13 attorney dated March 7, 2007, Country acknowledged that it knew of 14 its claim against Pittman as of the time of the jury s verdict.46 15 In the letter, Country s attorney stated, among other things, the 16 following: 17 harm by the time of At that time, Country became the entry of judgment. . . . As you know, [Stuart] prevailed at trial. . . . The jury found that Mr. Pittman made promises to the insured to bind a type of insurance coverage that, to my knowledge, does not exist. Needless to say, it is not coverage written by Country Mutual. . . . [W]e must now address responsibility for the judgment and the cost of appeal, as between the agent and the company. 18 19 20 21 22 . . . Country Mutual believes that the judgment is the ultimate responsibility of agent Pittman. Though I disagree with the jury s verdict, the jury made findings of fact that agent Pittman bound Country Mutual to coverage 23 24 25 26 27 28 the 46 Dkt. #22, pp. 10-11 (citing Dkt. #23-11). 21 - MEMORANDUM OPINION AND ORDER it does not write.47 As such, the agent is obligated to indemnify the insurer. See, United Pacific Insurance v. Price, 39 Or App 705, 593 P2d 1214 (1979) and Lynch v. First Colony Life Ins. Co., 108 Or App 159, 814 P2d 552 (1991).48 1 2 3 4 5 Thus, Pittman argues, Country knew as of the jury s verdict that it 6 had a potential claim against him. 7 the jury s verdict, not the formal judgment, that started the clock 8 ticking; [t]he judgment enforcing the verdict was merely a natural 9 consequence of the jury s verdict. 49 Pittman further argues it was 10 Pittman s position is unsupportable. It is the judgment, when 11 entered, that [b]ecomes the exclusive statement of the court s 12 decision in the case and governs the rights and obligations of the 13 parties that are subject to the judgment[.] 14 Country s liability to Stuart did not arise until the judgment was 15 entered.50 ORS § 18.082(a). 16 47 17 18 19 20 21 22 found. This is a misstatement of what the jury in the Stuart case See Dkt. #20-5, Verdict form. 48 Dkt. #23-11. Although Country s attorney claimed Pittman was obligated to indemnify the insurer, the Price and Lynch cases he cited actually hold an agent is liable in negligence, not indemnity, for the type of conduct alleged here. As noted earlier in this opinion, Country now recognizes it has no indemnity claim against Pittman. 49 Dkt. #22, p. 11 n.1. 23 50 24 25 26 27 28 Indeed, in this case, the difference between the jury s verdict and the ensuing judgment is analogous to the order by the trial court judge in the Stuart case granting Pittman s motion for summary judgment. No formal judgment ever was entered to memorialize that order; instead, the parties reached a settlement that resulted in Pittman s dismissal from the case. Had the parties in the Stuart case reached a settlement of Stuart s claims after the jury rendered its verdict, but before the court entered (continued...) 22 - MEMORANDUM OPINION AND ORDER 1 Pittman also argues Country knew of its claims against him, 2 triggering Country s obligation to demand arbitration, as early as 3 March 21, 2005, when Stuart s attorney wrote to Country s attorney, 4 stating Stuart intended to hold Country liable for not issuing a 5 policy in conformance with Pittman s oral binder. 51 Pittman argues 6 Stuart s counsel reiterated, in a letter dated October 28, 2005, 7 that Stuart intended to file litigation against both Pittman and 8 Country based upon Pittman s conduct. 52 9 his lawsuit, he included claims against both Country and Pittman, 10 and his claims against Country were based on Pittman s oral 11 representations. However, Country maintained throughout the Stuart 12 case that Pittman never made oral representations for any type of 13 insurance 14 construction policy.53 15 tions, and advocated for Pittman s version of events, to which he 16 testified at trial of the Stuart case. coverage other than what Indeed, when Stuart filed was provided in Stuart s Country defended against Stuart s allega- According to Country, it 17 18 19 20 50 (...continued) judgment, the jury s verdict would have had no effect. 51 21 22 23 24 25 26 27 28 Dkt. #22, pp. 11-12 (referring to Dkt. #23-5, letter dated March 21, 2005, from Arden J. Olson to John A. Bennett). 52 Id. (citing Dkt. #23-6, letter from Arden J. Olson to an unknown recipient, referred to by Pittman s attorney as Pittman s representative, with a copy to Pittman s attorney; see Dkt. #23, ¶ 7). 53 See Dkt. #27, p. 6 n.1, quoting language from Country s motion for summary judgment in the Stuart case (Dkt. #23-15 in this case), where Country argued, There is no evidence that [Stuart] and Mr. Pittman agreed to a type of coverage other than that required by [Stuart s] construction contract, and no enforceable binder insurance contract exists. 23 - MEMORANDUM OPINION AND ORDER 1 relied on Pittman s testimony both at trial and during the appeal.54 2 Thus, simply being put on notice of Stuart s claims against Country 3 and 4 sufficiently to trigger the one-year period within which Country 5 had to demand arbitration. Pittman was not enough to establish harm to Country 6 The court finds the event[] giving rise to Country s claim 7 against Pittman, and therefore triggering the one-year time limit 8 for Country to demand arbitration, was entry of the judgment in the 9 Stuart case on December 4, 2006; and further, this is the only 10 sensible, reasonable, plausible interpretation of the language of 11 the arbitration clause.55 12 entered into the Tolling Agreement that stopped the passing of 13 time, as to any contractual or statutory period of limitation 14 applicable to Country Mutual s proposed claims against Pittman, 15 . . . until 30 days after the final decision and mandate of the 16 appellate courts[.] 56 17 Court entered final judgment in the Stuart case, Country made its 18 written demand for arbitration. 19 limitation specified in the arbitration clause of the Agent s Less than one year later, the parties Within 30 days after the Oregon Supreme Country complied with the time 20 21 22 23 24 54 25 55 26 27 28 See Dkt. #19, p. 4. The court is not persuaded that Pittman s supplemental authority, see Dkt. #38 (citing Dial Temporary Help Service, Inc. v. DLF International Seeds, Inc., ___ P.3d ___, 252 Or. App. 376 (Sept. 26, 2012), changes this conclusion. 56 Dkt. #23-12, Tolling Agreement, p. 1. 24 - MEMORANDUM OPINION AND ORDER 1 Agreement.57 2 Pittman s motion for summary judgment is denied. As a result, Country s claims are timely, and 3 4 5 COUNTRY S MOTION FOR PARTIAL SUMMARY JUDGMENT Country moves for summary judgment on its First Cause of 6 Action for negligence.58 7 jury s findings and the circuit court and appellate court judgments 8 under Oregon s issue preclusion rules. 59 9 in this diversity action, Oregon law applies to the court s 10 analysis of the preclusive effect, if any, of the judgments in the 11 Stuart case.60 Country argues Pittman is bound by the The parties agree that 12 For the elements of issue preclusion, both parties cite Nelson 13 v. Emerald People s Utility District, 318 Or. 99, 914 P.2d 697 14 (1996). In Nelson, the Oregon Supreme Court considered whether an 15 unemployment compensation decision by the Employment Division 16 should be given preclusive effect in a subsequent civil action. 17 Nelson, 318 Or. at 101, 862 P.2d at 1295. 18 [i]ssue preclusion arises in a subsequent proceeding when an issue The court explained that 19 20 21 22 23 24 25 57 Indeed, Pittman s position raises a question as to his motivation for entering into the Tolling Agreement in the first place. If Pittman s position were correct, then by the time the tolling Agreement was executed, there was nothing to toll, as one year from the date of the jury s verdict had long since passed, and it had been even longer since Stuart initially raised his claims. Thus, if Pittman s position were correct, the court is left to wonder why he did not take that position instead of agreeing to the Tolling Agreement. 26 58 Dkt. #19. 27 59 Dkt. #19, p. 9. 28 60 See id.; Dkt. #28, p. 10. 25 - MEMORANDUM OPINION AND ORDER 1 of ultimate fact has been determined by a valid and final deter- 2 mination in a prior proceeding. 3 court specified five requirements that must be met for a decision 4 in one tribunal to preclude relitigation of the issue in a subse- 5 quent proceeding, to-wit: 6 Id. (citations omitted). 1. The issue in the two proceedings is identical. 2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding. 3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue. 4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding. 5. The The prior proceeding was the type of proceeding to which this court will give preclusive effect. 7 8 9 10 11 12 13 14 15 16 17 Nelson, 318 Or. at 104, 862 P.2d at 1296-97 (citations omitted). The parties agree as to which party bears the burden of proof 18 on each of these elements. 19 proving elements 1, 2, and 4. 20 the identical issue was decided in a previous action, and was 21 necessary to the judgment in the prior action. 22 Anderson, 214 Or. App. 660, 666, 167 P.3d 994, 999 (2007) (citation 23 omitted). Whether the issues are identical and whether a par- 24 ticular matter was actually decided are questions of law for the 25 court. 26 Inc., 275 Or. 97, 104-05, 550 P.2d 1185, 1188-89 (1976) (citation 27 omitted). Country has the burden, initially, of The court first addresses whether Barackman v. State Farm Fire & Cas. Co. v. Century Home Components, The Century Home court further explained: 28 26 - MEMORANDUM OPINION AND ORDER 1 Once the court has concluded that the evidence is sufficient to establish that an identical issue was actually decided in a previous action, prima facie the first judgment should be conclusive. The burden then shifts to the party against whom [preclusion] is sought to bring to the court s attention circumstances indicating the absence of a full and fair opportunity to contest the issue in the first action or other considerations which would make the application of preclusion unfair. 2 3 4 5 6 7 Id. (internal quotation marks, citations omitted). The Barackman 8 court noted that although the Century Home court did not expressly 9 say so, the party asserting issue preclusion also bears the burden 10 on the fourth Nelson factor - the privity issue. 11 Or. App. at 667, 167 P.3d at 999 (citation omitted). 12 Barackman, 214 Thus, the court s first task is to determine whether Country 13 has met its burden to prove elements 1 and 2. 14 Country claims it is entitled to summary judgment in the present 15 case is Pittman s negligence. In support of its claim that Pittman 16 was negligent, Country asserts the following facts: 17 a. The issue on which Pittman promised Stuart, and bound Country, to 18 provide coverage that does not, and has never, 19 existed. 61 20 b. Pittman failed to communicate accurately to Stuart 21 what was covered under, and what was excluded from, 22 Country s course-of-construction policy.62 23 24 25 26 27 61 Dkt. #9, Amended Complaint, ¶ 25. 28 62 Id. 27 - MEMORANDUM OPINION AND ORDER 1 c. Pittman s representations to Stuart altered the 2 risk Country was willing to take, and promised 3 coverage Country was not willing to provide.63 4 d. Pittman had a duty, as Country s agent, to protect 5 its interests, bind only coverage Country provided, 6 and not waive any of Country s policy provisions.64 e. 7 Pittman had a duty to timely mail or deliver 8 Stuart s course-of-construction policy to him. 9 Any delay in delivery of the policy to Stuart was due to Pittman s actions.65 10 f. 11 Country sustained damages due to Pittman s negli- 12 gence in binding Country to coverage it did not 13 provide, and in failing to deliver Stuart s policy 14 to him in a timely manner.66 15 16 17 Contrast the above with what the jury found in the Stuart case: 1. Pittman enter[ed] into an oral contract of insur- 18 ance different than the policy later issued by 19 Country Mutual[.] 67 20 2. The oral contract of insurance eliminated any 21 requirement of direct physical loss, and exclusions 22 for damage by mold, water (whether or not backed up 23 63 Id. 64 Id., ¶ 26. 26 65 Id., ¶ 27. 27 66 Id., ¶¶ 28 & 29. 28 67 Dkt. #20-5, Verdict form, Question 1. 24 25 28 - MEMORANDUM OPINION AND ORDER 1 through drains), and faulty workmanship or con- 2 struction.68 3 3. Stuart was damaged by Country s failure to provide 4 insurance coverage consistent with the oral con- 5 tract of insurance[.] 69 6 4. within a reasonable time[.] 70 7 8 Country fail[ed] to mail or deliver the policy 5. 9 Stuart was damaged in the amount of $268,417 by the failure to mail or deliver the policy within a reasonable time[.] 71 10 11 In its brief, Country indicates it anticipates that Pittman 12 will agree that the issue in the two proceedings (that Pittman made 13 an oral insurance binder to Stuart and failed to timely provide the 14 written policy) is identical, and that the issue was actually 15 litigated and essential to a final decision. 72 Country, therefore, 16 devotes 17 Country s assumption was erroneous; Pittman argues the issues were 18 not identical.74 19 with those pled by Country in the present case shows how the issues its argument to the element 68 Id., Question 2. 69 Id., Question 3. 70 Id., Question 4. 71 Id., Questions 5 & 6. 72 Dkt. #19, p. 10. 27 73 See id., pp. 10-12. 28 74 See Dkt. #28, pp. 12-15. 22 23 24 25 26 privity.73 However, Comparing the issues decided by the Stuart jury 20 21 of 29 - MEMORANDUM OPINION AND ORDER 1 differ. At issue in the Stuart case, according to the questions on 2 the Verdict form, was whether the oral contract of insurance 3 Pittman bound was different than the policy later issued by 4 Country Mutual. 75 5 Country is whether Pittman orally bound coverage that does not, 6 and has never, existed. 76 7 In the present case, the issue as pled by These issues are not identical. Country states the second issue as whether Pittman failed to 8 timely provide the written policy. 77 9 form, the issue in the Stuart case was whether Country failed to Again looking to the Verdict 10 make timely delivery of the policy.78 11 Pittman, or some other Country employee, who failed to deliver the 12 policy was not decided in the case. The issue of whether it was 13 Oregon law provides that the only matters considered to be 14 determined by a former judgment are those that appear[] on its 15 face to have been so determined or which [were] actually and 16 necessarily included therein or necessary thereto. 17 In relying on the jury s verdict and the Oregon Supreme Court 18 judgment in the Stuart case, Country must take for better or for 19 worse the adjudicated facts upon which it rests. 20 Indemnity Ins. Co. of N. Am., 227 Or. 508, 512, 363 P.2d 740, 742 21 (1961) (citing Am. Surety Co. of N.Y. v. Singer Sewing Mach. Co., 22 18 F. Supp. 750, 753-54 (S.D.N.Y. 1937)). Country alleges Pittman 23 issued an oral binder for a type of coverage that does not, and 24 75 Dkt. #20-5, Question 1. 26 76 Dkt. #9, ¶ 25. 27 77 Dkt. #19, p. 10. 28 78 Dkt. #20-5, Question 4. 25 30 - MEMORANDUM OPINION AND ORDER ORS § 43.160. Jarvis v. 1 has never, existed 79; Pittman did not accurately communicate the 2 available coverage to Stuart80; and Pittman s representations to 3 Stuart altered the risk Country was willing to take, and promised 4 coverage Country was not willing to provide.81 The jury in the 5 Stuart case found Pittman had entered into an oral contract of 6 insurance that differed from the policy later issued by Country, 82 7 specifically by eliminating certain requirements and exclusions 8 that the policy Country issued actually contained.83 9 findings do not match Country s allegations in this lawsuit. The jury s The 10 jury made no finding regarding whether the type of insurance 11 Pittman described to Stuart exists, or ever has existed, nor did 12 the jury make any finding as to whether Pittman accurately repre- 13 sented a type of coverage that actually was available from Country. 14 The jury simply found Pittman had made certain representations, and 15 the policy issued by Country did not match those representations, 16 damaging Stuart. 17 regarding Pittman s failure to timely deliver the policy to Stuart. 18 Similarly, determinations regarding the contractual relation- 19 ship between Country and Pittman, Pittman s duties and obligations 20 to Country, and whether those duties and obligations were breached, 21 were neither included in the jury s verdict in the Stuart case, nor 22 necessary thereto. Further, the Stuart jury made no findings at all 23 79 Dkt. #9, ¶ 25. 80 Id. 26 81 Id. 27 82 Dkt. #20-5, Question 1. 28 83 Id., Question 2. 24 25 31 - MEMORANDUM OPINION AND ORDER 1 On this record, all of these matters constitute genuine issues 2 of material 3 judgment. 4 fact in the present case that preclude summary denied.84 Accordingly, Country s motion for summary judgment is 5 6 7 CONCLUSION For the reasons discussed above, Country s motion for summary 8 judgment (Dkt. # 18) is denied. 9 judgment is granted as to Country s Second Cause of Action for 10 common-law indemnity, but is 11 Pittman s motion for summary Country s claims are untimely. 12 denied to the extent he argues IT IS SO ORDERED. 13 Dated this 16th day of November, 2012. 14 15 16 /s/ Dennis James Hubel Dennis James Hubel Unites States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 84 The court does not reach the issue of privity, because the court has found the issues in the two cases were not identical. See Century Home, 275 Or. at 104-05, 550 P.2d at 1188-89. 32 - MEMORANDUM OPINION AND ORDER

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