OTLA Trial Lawyer Winter 2021

61 Trial Lawyer • Winter 2021 whistleblower claim, the Supreme Court concluded any failure to further define “an adverse employment action” did not constitute reversible error. Lastly, the Supreme Court concluded that neither the plaintiff nor OTLA car- ried their burden to prove the trial court abused its discretion in denying the plaintiff ’s motion for equitable relief. As argued by the plaintiff, there is no cate- gorical rule that may be derived from the single Court of Appeals case cited that requires a trial court to award equitable relief after proving a whistleblower claim. As argued by OTLA under Title VII and federal cases applying that law, the Su- preme Court concluded that “given the way the case was litigated and the lack of specificity of the jury’s verdict” it was unclear whether the jury found the type of violations that would warrant a grant of equitable relief. DECISIONS OF THE OREGON COURT OF APPEALS Landlord was entitled to insurance coverage for defense of action by tenant alleging that landlord’s negligence caused tenant to suffer degraded indoor air quality in a manner not dependent on the excluded factors of carbon mon- oxide or pollution. Rogowski v. Safeco Ins. Co. , 306 Or App 505 (2020); Shorr, J. The landlord was represented by Brooks Foster. A tenant sued his landlord for negli- gent maintenance of the dwelling’s HVAC appliances, among other things, which negligence allegedly resulted in degraded indoor air quality. The landlord tendered the defense of that case to his insurer. The insurer declined to defend the landlord, relying on an exclusion in the policy for carbon monoxide and pol- lution claims. The landlord sued the insurer for beach of the insurance policy, and the trial court granted summary judgment to the landlord, reasoning that the policy was ambiguous as to whether it provided coverage for claims based on degraded indoor air quality, as opposed to carbon monoxide or pollutants (which were excluded from coverage), and the ambiguity must be resolved in favor of the insured-landlord. The insurer appealed, but the Court of Appeals affirmed. The court held the tenant’s complaint alleged a negligence claim premised on theories of degraded indoor air quality based on reduced oxygen levels that are not dependent on the pres- ence of carbon monoxide or other pollutants, irritants, or contaminants. Because those allegations reasonably can be interpreted as falling within the cover- age, the insurer owed a duty to defend the landlord. A defamation claim may lie against a non-media defendant who makes asser- tions of objective fact, even if those as- sertions are only implicit and even if actual malice is not proven. Lowell v. Wright , 306 Or App 325 (2020); Aoyagi, J. The plaintiff was rep- resented by Linda Williams. The plaintiff, the owner of a piano store, brought a defamation action against a competitor and one of its em- ployees, after the employee posted a negative review about the plaintiff ’s store on the internet. The employee had taken down the review, and the plaintiff could not obtain a copy of it, so the plaintiff relied on his and other witness’ recollec- tions of what it had said. The trial court granted summary judgment in favor of the defendants, concluding that the plaintiff ’s inability to produce a copy of the actual review precluded him from prevailing on his defamation claim, even if a reasonable factfinder could find the employee’s statements in the review im- plied assertions of objective fact, such that they were not entitled to First Amendment protection. The Court of Appeals reversed, hold- ing the absence of the actual review from the record was not dispositive. To the extent there was a dispute about the content of the review, the trial court should have viewed the evidence in the light most favorable to the plaintiff. As for the defendants’ assertion that the employee’s statements were fully pro- tected by the First Amendment, the court held that while the employee was speak- ing on a matter of public concern, his review implied assertions of objective fact, so the defendants were not entitled to summary judgment on that basis. Finally, because the defendants were not media defendants, the plaintiff was not required to prove actual malice, and, even if he were, the evidence was sufficient to defeat summary judgment as to that issue because there was evidence the employee lied in his review. Plaintiffs do not need to have a judg- ment to pursue a fraudulent transfer claim or veil-piercing theory. Rowden v. HoganWoods, LLC , 306 Or App 658 (2020); James, J.; Dissent by DeVore, J. The plaintiff was represented by Adam S. Heder and Roger K. Harris. The plaintiffs, Darin and Natalie Rowden, worked as property managers at apartments owned by the defendant, Hogan Woods, LLC and lived onsite with their children, who are also plaintiffs in this case. The plaintiffs experienced health is- sues they attributed to mold in the apart- ments and eventually moved to an off- site residence but continued to manage the apartments. Hogan Woods paid for the plaintiffs’ rent offsite per terms of their employment contract. Eventually, the plaintiffs’ doctor told them they could not come into contact with any- thing from the apartment complex. They informed Hogan Woods, and, a few months later, their employment was terminated. The plaintiffs filed suit against Hogan Woods and the McNutt family on the grounds the McNutt family had used Hogan Woods as their alter ego without regard to corporate form. The plaintiffs brought various claims including under See Sheets 62