17 Trial Lawyer • Spring 2023 See Emotions Run High 18 just quote the provisions in the narrative. Or provide a restatement in the narrative, as I suggest above. Similarly, it’s rarely necessary to provide entire repair scopes and personal property inventories. Instead, just describe the qualifications of the provider and circumstances of the assignment, provide a summary of scope and dollar conclusions, and explain why your expert analyses are correct and the opponent’s expert analyses are wrong. Share submissions For some time now, I’ve suggested that counsel share premediation submissions. This facilitates communication and leads to a more efficient mediation. It’s helpful to the mediation process if claimants’ submissions are provided to defense counsel sufficiently in advance of the mediation session to allow the claims representative time to get settlement authority. You can redact portions if desired, advising opposing counsel that you are providing a version redacted from what you are sending to the mediator, but you don’t have to show the locations of the redactions. The Moody decision Let’s look at the Oregon Court of Appeals decision in Moody v. Oregon Community Credit Union and Federal Insurance Company, 317 Or App 233 (2022), rev. allowed, 369 Or 855 (June 23, 2022). In this unexpected decision, the court held that first party insureds can state a claim for noneconomic damages/emotional distress under a theory of negligence per se arising under the Oregon Unfair Claims Settlement Practices Act (ORS 746.230). Relying in part on the Oregon Supreme Court decisions on Farris v. US Fid. and Guar. Co., 284 Or 453 (1978) (claim sounds only in contract) or Paul v. Providence Health System-Oregon, 351 Or 587 (2012) (physical impact rule), judges in the U.S. District Court for the District of Oregon considering the issue under diversity jurisdiction have declined to follow Moody. See, e.g., Runyan v. Foremost Ins. Co., No. 6:21-cv-01341-MC (Judge McShane, Oct. 26, 2022); Bryant v. Allstate Indem. Co., No. 3:22-CV-00201YY (Magistrate Judge You, June 3, 2022) As noted in the citation above, the Oregon Supreme Court granted the insurer’s petition for review. The court heard oral argument in November 2022. The court hasn’t issued its decision as of the time I am submitting this article for publication. It’s anyone’s guess as to what the result will be. I get varying predictions from lawyers who attended the hearing. Meanwhile, what’s the effect on negotiation and mediation of first party claims? Claimants and insurers have always had to consider the financial impact of ORS 742.061, providing for payment of claimants’ attorney fees if recovery
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