51 Trial Lawyer • Summer 2022 See Sheets 52 under ORS 742.061 and ORS 20.075 in UIM case. Thoens v. Safeco Insurance Co. of Oregon, 317 Or App 727 (2022), Schorr, J. Shenoa Payne represented the plaintiff. This is the second appeal in the plaintiff ’s underinsured motorist (UIM) action commenced over nine years ago. After a jury trial, reversal and remand in the plaintiff ’s favor, arbitration and a referee’s determination of the plaintiff ’s attorney fees under ORS 742.061, the defendant insurer disputed the fee award and filed this appeal. As pertinent here, the defendant first argued the referee erred in awarding fees because the defendant had satisfied the safe harbor provisions of the fee statute, and limited its dispute to liability and the amount of damages. The Court of Appeals clarified its earlier decisions interpreting the requirements of ORS 742.061. After sending an adequate safe harbor letter consenting to arbitration, the defendant remains within safe harbor prohibited issue at trial before taking the opposite approach on remand.” Lastly, the Court of Appeals disagreed with the defendant’s argument that an award of statutory fees was improper in a contingent fee case in which attorneys are compensated out of a percentage of the recovery. Neither did the court agree with the defendant that, under the statutory factors in ORS 20.075, the referee erred in awarding a $695,605.25 lodestar fee. Conduct between teachers and students that occurs outside school hours, off school grounds and at a time when a student is outside the school’s custodial control falls outside the scope of the educator/student relationship and therefore does not automatically give rise to a heightened duty of care. F.T. v. West Linn-Wilsonville School District, 318 Or App 692 (2022); Mooney, P.J. The plaintiff was repreprotections by (1) “arguing the plaintiff ’s comparative fault, disputing the nature and extent of the plaintiff ’s injuries, or disputing the reasonableness and necessity of the plaintiff ’s medical expenses” and (2) not subsequently injecting the case with additional issues that are outside that allowable dispute. Because the defendant failed to stipulate at trial the plaintiff was underinsured and further moved to exclude all evidence of policy limit amounts, the Court of Appeals concluded the defendant had “sail[ed] out of the safe harbor” by injecting a preliminary coverage issue into the parties’ dispute. The defendant next appeared to argue it somehow reentered the safe harbor when it conceded in arbitration on remand that the plaintiff was underinsured. The Court of Appeals found no authority (including the inapposite cases defendant cited) for the proposition that an insurer “could move in and out of the safe harbor by actually contesting a
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