25 Trial Lawyer • Spring 2023 See Insurance p 26 situation, there are many extremely powerful tools at your disposal. The following case study illustrates the importance of understanding the insurance coverage landscape. The plaintiff’s counsel was faced with an insurance company’s wrongful denial of the duty to defend. Rather than engage in a letter writing campaign to provide the insurance company a third, fourth or fifth opportunity to make the right decision, the plaintiff simply proceeded with a motion for default judgment against the defendant. The motion for default included facts and argument establishing the defendant’s liability (as it must). Importantly, it also included facts to establish liability that unambiguously triggered coverage under the defendant’s insurance policy. With that judgment in hand, plaintiff had several independent avenues to recover, including attempting to collect directly against the defendant’s non-insurance assets or initiating actions to proceed with collection directly against the insurance policies. Follow the money If there’s one thing all attorneys can agree is a positive about insurance companies, it’s that they sit on abundant resources and have the financial ability to satisfy practically all judgments. The key for plaintiffs’ attorneys is to find a way to get access to that money. Fortunately, Oregon law provides several paths for a plaintiff to attack insurance companies’ resources directly. The first is garnishment, which is a statutory right available to all plaintiffs to collect against a defendant’s assets after a judgment. The defendant’s insurance policy is one asset that can be pursued through garnishment. Although there are technical aspects involved with pursuing garnishment that are not the focus of this article (please refer to ORS 18.600 et seq), generally speaking there are benefits of pursuing a writ of garnishment. Because a defendant’s insurance policy is an asset of the defendant, plaintiffs may proceed with issuing a writ of garnishment directly to the defendant’s insurance company(ies) following a judgment. Upon receipt of a writ, the insurance company has several statutory duties that are triggered, including providing a response to the writ within seven days. With this response, a plaintiff can immediately challenge the insurance company’s coverage position. Because garnishment is a collection tool following a judgment, all steps for pursuing a garnishment occur within the original lawsuit in which the judgment was entered. There is no need to file a new lawsuit that may be litigated in a separate forum (i.e., federal court). Instead, the plaintiff can simply challenge the insurance company’s response to the writ of garnishment in the same court where the underlying matter was decided. The statutory scheme for garnishment has promptness and efficiency in mind. This is the principal benefit of electing to challenge the insurance company through garnishment. A typical garnishment is akin to a summary judgment hearing (with witnesses). Importantly, however, this hearing “shall be held as soon as possible.” ORS 18.710. At the hearing, the plaintiff is armed with the carefully crafted default judgment establishing coverage for defendant’s liability. Garnishment provides a rather efficient and quick means to challenge the insurance company’s denial. In most tort-based claims, there is no attorney fee right available. That changes with a garnishment action (or through any of the other methods described in this article). Through garnishment, the plaintiff steps into the shoes of the defendant and has the same rights to recover against the defendant’s insurance company, including statutory attorney fees. ORS 742.061 is a unilateral attorney fee statute permitting only policyholders (or those standing in their shoes) to recover attorney fees from the insur-
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