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Important Policyholder Win in the Oregon Court of Appeals: Contractors—This Is Good News

On May 10, 2017, the Oregon Court of Appeals made several significant holdings in the appeal of an insurance policy garnishment proceeding. The court of appeals held that a liability insurer’s exclusion for multi-unit new residential construction was ambiguous and, when construed against the insurer, did not apply to defeat coverage for construction-defect claims in … Continue Reading

BEWARE—The Pollution Exclusion Is Alive in Oregon

This article was originally posted on The Northwest Policyholder, Miller Nash Graham & Dunn’s insurance coverage blog. Contractors, builders, real estate managers, and others should be aware of a March 9, 2017, decision by an Oregon federal judge who found that carbon monoxide is included in the plain meaning of “pollutant” as defined in a … Continue Reading

Isn’t One Trial Enough? Jury Award Reversed and Remanded for Insufficient Evidence of Damages in Construction Contract Claim.

On October 26, 2016, the Oregon Court of Appeals reversed a general judgment and money award in favor of a general contractor because (1) the general contractor had failed to support its claim for damages for bonding and insurance costs with sufficient evidence, and (2) the money award improperly included a contractual markup on costs … Continue Reading

Opening the Door to Owner and General Contractor Liability Under Oregon’s Employer Liability Law

General contractors and other employers (even some owners) have greater exposure under Oregon’s Employer Liability Law (the “ELL”) to injured workers based on the recent Oregon Supreme Court decision in Yeatts v. Polygon Northwest Co. The ELL imposes liability on all “owners, contractors or subcontractors and other persons having charge of, or responsibility for,” work … Continue Reading

Lack of Evidence of Prior Use Not Fatal to Implied Easement Claim

On August 10, 2016, the Oregon Court of Appeals issued a decision on an implied easement claim, finding that the lack of evidence regarding the use of the easement before the initial conveyance of the benefited property was not fatal to the claim. Dayton v. Jordan, 280 Or App 236 (2016).  In Dayton, the parties own abutting … Continue Reading

Smelter Not Liable Under CERCLA as an Arranger for Disposal

A Ninth Circuit panel reversed a district court’s denial of a smelter owner’s motion to dismiss, holding that the owner/operator of a facility that emits airborne hazardous substances cannot be held liable as an arranger for disposal under CERCLA. The case involves a smelter owned and operated by Teck Cominco Metals, Ltd., and located about ten … Continue Reading

Next Dispute Headed Out of State? Better Check Your Forum-Selection Clause

Large businesses operating in multiple states received the green light to litigate their civil disputes in their home jurisdiction regardless of where the construction project is located. This decision could likewise serve as a serious threat to mom-and-pop subcontractors that provide most of the labor and materials for a project but typically lack any negotiating … Continue Reading

In Oregon, Insurers Must Defend Against a CERCLA Information Request

On August 30, 2013, the Ninth Circuit Court of Appeals issued a groundbreaking decision, requiring an insurance company that has issued comprehensive general liability policies to defend a policyholder that has received an information request from the U.S. Environmental Protection Agency (“EPA”) under Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). See … Continue Reading

Cause vs. Convenience: New Court of Appeals Decision Suggests That Choice in Termination of Subcontract May Limit Ability to Recover for Defective Work

A general contractor cannot offset the cost of defective work performed by a subcontractor if the subcontractor sues to recover unpaid fees after being terminated for convenience. According to a new Oregon case, termination for convenience denies the subcontractor an opportunity to cure any defects before it has completed its work and therefore cuts off … Continue Reading
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