OTLA Trial Lawyer Fall 2020

60 Trial Lawyer • Fall 2020 petitioned the Oregon Supreme Court for review of that dismissal. The Supreme Court allowed review, reversed the dis- missal and remanded the case to the Court of Appeals to decide the case on its merits. The plaintiff argued to the Court of Appeals, as it did to the trial court, that the agreement, as a whole, was procedur- ally and substantively unconscionable, and, therefore, unenforceable by being offered on a “take it or leave it” basis, and by unlawfully depriving him and others similarly situated of their lawful protec- tions and remedies as employees under Oregon’s wage and hour law. In a foot- note to a discussion of those arguments, the Court of Appeals acknowledged the plaintiff ’s notice to the court of a recent and related case in which the same defendants respecting the same indepen- dent contractor agreement had entered into a consent judgment with the U.S. Secretary of Labor to resolve similar federal wage and hour claims. The Court of Appeals noted the con- sent decree was important in that “these defendants stipulated to a judgment, among other things, that they shall not fail to classify anyone who provides delivery services as non-exempt employ- ees.” However, it appears the Court of Appeals concluded the terms of the in- dependent contractor agreement and federal law require it to decide only the validity of the arbitration provisions and to leave challenges to the agreement as a whole to the arbitrators. Accordingly, the court concluded the consent decree had no bearing on “the question of uncon- scionability of the arbitration provisions at issue here.” With the scope of its analysis so nar- rowed, the court concluded the arbitra- tion provision was not procedurally unconscionable because its terms “were plainly expressed and * * * routinely ex- pressed” to all drivers who executed the same independent contractor agreement. The Court of Appeals further con- cluded the provision was not substan- tively unconscionable. While recognizing arbitration would deny the plaintiff “his procedural opportunity” to pursue his relatively small wage claim recovery in a class action, the court did not find the plaintiff ’s evidence and argument of be- ing unable to afford and pursue arbitra- tion as cost-prohibited compelling. The court claimed it did “not know that plaintiff will bear any costs in arbitra- tion,” because the plaintiff might prevail and be awarded fees under the agreement by the arbitrators. The court also claimed that, despite the alleged entitlement to statutory pen- alties and fees, “the relative significance of [the arbitration payment provisions], in relation to the amount [of damages the plaintiff may recover in arbitration] is unknowable.” That was so, the court opined, because the plaintiff did not plead any specific “‘amount’ of ‘recovery of money or damages’” in this putative class action. The court purported to “recognize” that alleging an individual Sheets Continued from p 59 plaintiff ’s amount of damages in a puta- tive class action is not the norm, but resolved that concern by concluding it was the “plaintiff ’s burden to establish unconscionability.” The court lastly concluded the terms of the arbitration provision, restricting the arbitrators to deciding claims arising only under the terms of the independent contractor agreement, permitted the arbitrators to conclude that state wage and hour law controls and to resolve plaintiff ’s statu- tory wage, penalties and fee claims pursu- ant to that law. In action to recover UIM benefits, the insurer is not liable for fees under ORS 742.061 by raising plaintiff ’s compara- tive fault as a defense; such defense qualifies as a limitation of the dispute to the at-fault driver’s liability within the meaning of the statutory “safe har- bor” requirement. Berger v. Safeco Insurance Co ., 305 Or App 380 (2020) Kamins, J. Willard Merkel represented the plaintiff. Cody Hoesly specializes in appeals, finan- cial fraud and commercial cases. He con- tributes to OTLA Guardians at the Sus- taining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SW Morrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-222- 4424 or choesly@lvklaw.com. Lisa T. Hunt specializes in appeals, general civil litigation, and full-scale trial and motions support for plaintiff ’s attor- neys. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Christine Moore specializes in appeals, aviation and general civil litigation. She contributes to OTLA Guardians at the Sustaining Member level. She is a partner with Richardson Wright LLP, 805 SW Broadway, Ste. 470, Portland, OR 97205. She can be reached at 503-546-4637 or christine@richardsonwright.com. K e s t e n M e d i a Your client has a story to tell. Hire a communication professional to help tell it. VIDEOS • MULTIMEDIA PRESENTATIONS for mediation, arbitration or trial Michael Kesten, Emily Smith Harrington 503-246-1126, michael@kestenmedia.com, emily@kestenmedia.com