The Briefing with Smith Freed Eberhard: Recent Episodes
Smith Freed Eberhard
Smith Freed Eberhard is The Pacific Northwest's premier insurance defense law firm. We believe every problem has a solution and we play to win.
The Briefing will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Partner Brian Schiewe publishes Smith Freed Eberhard's latest Legal Alert, "Spoiler Alert! Spoliation Combined with Discovery Violations Are Sanctionable by Default Judgment". A default judgment on liability is an appropriate discovery sanction when spoliation - combined with multiple discovery violations – makes it difficult for the opposing party to uncover the spoliation.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Partner Josh Hayward publishes Smith Freed Eberhard's latest Legal Alert, "When Underlying Conditions Don’t Automatically Prove Causation". The Oregon Court of Appeals examined an appeal by Roberta and Kevin Haas (“Plaintiffs”) who claimed that the trial court erred when it refused to give the substantial-factor jury instruction in addition to the but-for instruction.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Partner Brian Schiewe discusses Smith Freed Eberhard's latest Legal Alert, "Au Contraire: Even the Smallest Contradictions in Deposition Testimony Can Make or Break a Case". Division One of the Washington State Court of Appeals analyzed the testimony of a plaintiff who claimed she was injured when a King County Metro bus clipped her parked car.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Partner Gordon Klug discusses Smith Freed Eberhard's latest Legal Alert, "Arbitration Agreements Trump Elder Care". The Court of Appeals of Washington Division Two, held that the trial court erred in denying an assisted living facilities motion to compel arbitration because RCW 70.129.105 does not prohibit its arbitration agreement with a resident.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Partner Gordon Klug discusses Smith Freed Eberhard's latest Legal Alert, "It’s All in The Fine Print – Are Arbitration Clauses Unconscionable and Do They Apply Retroactively?". The Washington Court of Appeals held that the trial court erred in denying a motion to compel arbitration without first having an evidentiary hearing, because the facts were insufficient to support a finding that the arbitration agreement was unconscionable.
Welcome to The Briefing – a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week’s episode Partner Cliff Wilson discusses Smith Freed Eberhard’s latest Legal Alert, “First-Party Bad Faith in Oregon? Are the floodgates about to open? Violations of the Oregon Insurance Code Held to Give Rise to the Pursuit of Emotional Distress Damages”. The Oregon Court of Appeals has recently held that a negligence per se claim brought by an insured based on alleged violations of Oregon’s Unfair Claims Settlement Practices Statute (ORS 746.230) can give rise to emotional distress damages against an insurer who denied coverage.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Abby Ferguson, Marketing Manager, discusses Smith Freed Eberhard's latest Legal Alert, "Airbnb and Hot Tub Liability: Read This Before Your Next Vacation".
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Abby Ferguson, Marketing Manager, discusses Smith Freed Eberhard's latest Legal Alert, "Silence Isn't Always Golden".
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Abby Ferguson, Marketing Manager, discusses Smith Freed Eberhard's latest Legal Alert about Senate Bill 180, "Insurers Downwind of Lawyer Theft: Must Send Notice Directly To Claimant Whenever They Settle Their Claim".
The Court of Appeals held that a plaintiff does not need to produce evidence that shows the plaintiff was exposed to the asbestos-containing product at a particular time and location. Rather, a plaintiff only needs to provide evidence sufficient for a jury to believe exposure occurred. Further, the Court found that a jury can award damages based on the largest numbers that appear in the Complaint—even if the damages alleged in the body of the Complaint do not total the prayed for amount. The Court placed responsibility on defendants to clarify typos or inconsistencies in a plaintiff’s pleading to mitigate any increased damage exposure that may result.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Cliff Wilson, Partner, discusses Smith Freed Eberhard's latest Legal Alert, A costly miscalculation. Oregon Court of Appeals Finds that Multiple Defendants' Separate Settlement Offers May Not be Aggregated when Determining Whether to Award Attorney Fees Under ORS 20.080". This case highlights how important it is to consider how a Court might calculate the amount of an Offer of Judgment against multiple defendants, when those defendants had previously made separate pre-filing settlement offers.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode Abby Ferguson, Marketing Manager, discusses Smith Freed Eberhard's latest Legal Alert, "Love Thy Neighbor, but Don't Ignore Your Property Rights". In this case, the Oregon Court of Appeals determined that Defendants gained a prescriptive easement over Plaintiff's property through open, notorious, adverse, continuous, and uninterrupted use of the property.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode, Cliff Wilson, a Partner in the Oregon office, discusses Smith Freed Eberhard's latest Legal Alert, "Oregon Supreme Court Allows UM/UIM Stacking Among Multiple Policies Issued by Same Insurer". In this case, the Oregon Supreme Court determined that an anti-stacking provision in an uninsured/underinsured (UM/UIM) policy was unenforceable, holding that any attempt to limit the amount of UM/UIM coverage from multiple applicable policies to the policy limit of just one of them through an “other similar coverage” provision was less favorable to the insured than allowed by Oregon’s statutory UM/UIM model policy language.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode, Cliff Wilson, a Partner in the Oregon office, discusses Smith Freed Eberhard's latest Legal Alert, "The Third Times the Charm. Oregon Supreme Court Examines Wright III to Explain the Difference Between Fault and Causation in an Underinsured Motorist Claim". In this case, the Oregon Supreme Court ultimately decided that (1) the underlying liability of the negligent drivers did not determine the limits of Plaintiff’s UIM coverage; (2) the jury could properly conclude that it could not apportion damages between two accidents; and (3) the jury was permitted, but not required, to find that both accidents caused Plaintiff’s injuries under settled principles of causation.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode, Abby Ferguson, Marketing Manager, discusses Smith Freed Eberhard's latest Legal Alert, "Words Heard Beyond the Grave. Washington Appellate Court Determines When a Deceased Party's Statements Are Admissible". The Washington Appellate Court concluded that post trial statements made by a party to a case before his death are a “statement by a party opponent”; which is an exception to the hearsay rule.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode, Abby Ferguson, Marketing Manager, discusses Smith Freed Eberhard's latest Legal Alert, "Oregon Federal Court Joins Growing List of Courts to Decide Whether Lost Business Income From COVID-19 Closures Are Covered Under Insurance Policies". This case arose from a business’s claim for lost business income under a Business owner’s Protection Policy for direct physical loss or damage to covered property resulting from the closure of the business during COVID-19. Here, the Oregon District Court considered several policy provisions and whether damages to the business’s property must be physical for coverage to apply under the policy’s provisions. The court found that there was no direct loss or damage to property so there was no coverage under the policy.
Welcome to The Briefing - a legal podcast by Smith Freed Eberhard. We will provide insight and analysis on new Oregon and Washington case law, litigation innovation and technology, the insurance marketplace, and firm news.
In this week's episode, Abby Ferguson, Marketing Manager, discusses Smith Freed Eberhard's latest Legal Alert, "Washington Court of Appeals Paves the Road to Costly Attorneys’ Fees in Cases Affecting Title to Real Property". The Washington Court of Appeals held that if a claim brought for a statutory claim against real property (otherwise known as lis pendens) does not affect the rights incident to title to real property, the court may then award attorney fees pursuant to the defending party. This includes fees the prevailing party incurred in canceling the lis pendens.
Justin Wickizer, Director of Legal Operations, discusses Smith Freed Eberhard’s latest Legal Alert, “Indemnification Promises: The Risks of Risk Transfer”. This case arose out of an insurance company’s action seeking contribution from other insurers for claims and defense costs that it paid on behalf of its insured. Here, the Oregon Supreme Court considered the question of whether the current insurer of the defendant in the Complaint was entitled to common-law equitable contribution from previous insurers who covered the insured’s predecessor in interest during the time period in which damages were alleged to have accrued.
In this week's episode, Justin Wickizer, Director of Legal Operations, discusses Smith Freed Eberhard's latest Legal Alert, "Washington Supreme Court Says Termination of a Contract, Not for Default, Equals a Termination for Convenience."
Here, the Washington Supreme Court illustrates how the standard specifications incorporated into the subject contract –between a contractor and the City of Puyallup –automatically converts an improper termination for default into a termination for convenience and the financial impact of the same.
Cliff Wilson, Partner in the Portland, Oregon office, discusses his latest Legal Alert, "Is UIM Coverage for Claimants in Insured Vehicles on the Horizon in Oregon?"
In this case, Plaintiff argued that Oregon statutes governing UM/UIM coverage require automotive insurers to provide UIM coverage for injuries incurred by occupants of an insured vehicle where the liability limits of the policy are insufficient to cover all damages incurred.
Justin Wickizer, Director of Legal Operations, discusses Smith Freed Eberhard’s latest Legal Alert, "A Substantial Benefit Leads to Substantial Fees."
In this opinion, the Oregon Court of Appeals held that vindication of constitutional right(s) has never been the sole requirement in awarding attorney fees under a court’s equitable powers, and that the substantial benefit theory is a form of the attorney fee doctrine that does not require protection of a constitutional right, but rather requires the prevailing party to vindicate a right that applies to others, beyond the party itself.
Gordon Klug, Partner in the Seattle, Washington, office, discusses his latest Legal Alert, "Don’t Just WISHA that Your Evidence Will Speak for Itself: Washington Court of Appeals Dismisses the Need to Re-Weigh the Value of Substantial Evidence."
In this opinion, the Washington Court of Appeals reviewed the Board’s decision in a WISHA appeal based on the record presented before the agency, without re-weighing the evidence, but instead construing the evidence in the light most favorable to the prevailing party. Further reiterating that the Board’s findings of fact are conclusive if supported by substantial evidence and providing greater clarity to the construal of substantial evidence.
Justin Wickizer, Director of Legal Operations, discusses Smith Freed Eberhard’s latest Legal Alert, "Premises Liability: The Impact of the “Going or Coming” Rule on Tort Liability".
In this opinion, the Oregon Court of Appeals found that a slip-and-fall injury in an icy parking lot was covered by workers’ compensation. Notably, the parking lot was not owned by the employer, but rather considered a common area for which the employer’s landlord had “sole control” over. Regardless, the court found the injury compensable because the employer had the ability to request maintenance or repairs of the parking lot.
Justin Wickizer, Director of Legal Operations, discusses Smith Freed Eberhard’s latest Legal Alert, "Pit Bull Attack: Is Landlord Liable for Dog Bite on Leased Property?". In this opinion, the Washington Supreme Court held that a landlord cannot be liable for a tenant’s dog biting a guest under a theory of premises liability. This opinion explicitly lays out when a landlord can be considered a possessor of property, which is a paramount first-step in determining liability for a premises liability claim.
Justin Wickizer, Director of Legal Operations, discusses Smith Freed Eberhard's latest Washington Legal Alert, "Hospitals Do Not Owe a Duty to Protect Others Against Violence of a One-Time Patient." In a recent case before The Washington Court of Appeals, Konicke v. Evergreen Emergency Servs., the court held that a hospital cannot be held liable for the actions of an individual experiencing a mental health crisis, if the individual only came to the hospital for a single emergency department visit. This is true even if the hospital chose not to call a mental health professional to decide if the individual should have been committed to involuntary treatment.