18 Trial Lawyer • Spring 2023 Emotions Run High Continued from p 17 can’t (or at least shouldn’t) wait for a Supreme Court decision in Moody. Counsel for insureds have been saying that cases are worth more, especially when insureds can contend there has been a tangible impact on their lives (such as ruptured family relationships, as discussed above). Counsel for insurers have been saying that little or no consideration is being given to Moody damages (because insurers expect reversal of the Court of Appeals decision or because the particular case doesn’t have much factual support for noneconomic damages). In that regard, claimants’ lawyers are now obtaining reports from mental health professionals to provide expert support of noneconomic damage claims. I suggest defense counsel consider requesting or, if necessary, moving for independent medical examinations (IMEs) in Moody cases. When you factor in the usual disputes over coverage and value, consideration, or lack thereof, of defense costs, uncertainty of recovery of plaintiff’s attorney fees, the effect of prejudgment interest, and sense of urgency, or lack thereof, for each side in a given case, it’s hard to say how much impact Moody is having on current settlements. Each side just needs to assert its arguments. You don’t have to agree on how to get to a settlement number. You just have to agree on a number. In the shadow of the courthouse I suspect I’ve mediated well over 100 first party cases, and very few went to trial. Claimants want closure (financial and emotional) and insurers want to control exposure and defense costs by settling in a realistic range. However, some cases can and should be tried. Be sure that opposing counsel and the insurer (if you represent the insured) know that you’ll work hard to try to settle, but are ready, willing and able to try the case, if necessary. Reputation and perceived experience matter in achieving reasonably favorable settlements, especially in this subject area in which it seems that few cases are actually tried. This is often not an issue for lawyers in defense firms, but less experienced plaintiff's counsel should consider associating lawyers with track records. My sense is the experienced first party claimants’ bar is open to these arrangements. Predicting trial results We all know it’s difficult to predict jury (or bench or arbitrator) decisions in any kind of case. There’s actually research to prove that. Take a look at GoodmanDelahunty, et al., “Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes.” That study concludes that lawyers “erred most often in the direction of overconfidence.” Id., at 140-41. I think the results of first party cases are especially difficult to predict. Will the jury have anti-insurance company bias, or will the insureds be seen as overreaching? Will the jury understand (or even read) lengthy scopes and estimates? Will the jury understand technical construction issues? Will the jury have the patience to work through voluminous contents inventories? How will the court rule on coverage issues? What about Moody (legally and factually)? Settlement details To facilitate settlement and avoid derailing agreements in principle, consider the following suggestions. • Don’t forget the bank. If a lender is identified in the policy, the insurer might insist on issuing a two-party check or possibly negotiate an allocation between payment on the structure loss (two-party check) and payment on contents and additional living expense (single-party check). The claimant’s counsel should talk with the lender early on (which can be challenging in this age of megabanks and assigned loans) and try to get a letter waiving any claim to settlement proceeds. • Confidentiality provisions aren’t exceeds insurers’ tenders after six months following submission of proof of loss. But now, at least in Oregon state courts, there’s a right to try to recover five and six figure emotional distress damages. So, for the time being, pending clarification of the law from the Oregon Supreme Court, what’s the impact on current settlements? It’s difficult to tell. Cases are still getting settled. As Magistrate Judge You commented in Bryant, above, after considering waiting for final resolution of Moody before rendering her decision, “postponing a decision on the motion would be contrary to the principles surrounding the timely resolution of claims and administration of justice. Even if the Oregon Supreme Court chooses to accept review in Moody (which has happened, as noted above), a decision would likely take months, and perhaps even years.” Bryant, at *4. Similarly, in most cases, settlement
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