30 Trial Lawyer • Spring 2023 By Bob Bonaparte OTLA Guardian In 1988, after practicing six years in New York City and Washington D.C., I joined the Portland firm of Tooze Shenker Duden Creamer Frank & Hutchison. The firm encouraged associates to bring in business and handle their own cases. In my first plaintiff’s insurance coverage case, I represented a Northwest Airlines pilot named Michael Gerlicher, who lived in Minnesota. He owned a rental cabin in Rhododendron, which he rented for a long weekend to a nice couple. Without his knowledge, the “nice couple” sublet it to meth cooks. They cooked $600,000 of meth product in four days, and Gerlicher’s cabin was trashed. He submitted the claim to his property insurer, Allstate, which denied his claim. Gerlicher hired an attorney, who (due to unrelated time-management challenges) did nothing until the last couple of days before the expiration of the suit limitation period. The attorney then called his old law school buddy at the Tooze firm, Mike Gentry, and begged: “Help me out.” Gentry agreed to take the case and filed it. The case bounced from attorney to attorney at the Tooze firm until it landed with a thud on my desk because I was the newest attorney at the firm. Allstate had just filed a motion for summary judgment. However, Allstate’s reasoning was odd. Allstate’s expert stated that there was “no physical loss” arising from the mere vapors of the meth cooking. I argued that Allstate’s expert’s affidavit demonstrated the physical presence of particulates that caused noxious odors. Pro tem judge Jeff Spere of the Sussman Shank firm granted our cross motion for summary judgment. Having established liability, we proceeded to negotiate damages. At a judicial settlement conference, Allstate would not budget above $20,000. Our client would not go below $25,000. We went to trial. The jury awarded close to $30,000 in damages, and a judgment was entered. Then we went to the second trial on attorney fees. I was the sole witness for plaintiff Michael Gerlicher. Allstate brought three experts to the attorney fee trial. The judge awarded most of the $50,000 in attorney fees requested. Bob Bonaparte I then called the legal editor of the Wall Street Journal and told him about this unusual case. The reporter made it his lead article, “Insurer Forced to Pay to Clean Drug House.” That was the first of several hundred meth cases I have handled over the past 30 years, because Oregon had the distinction of leading the nation in the number of meth labs per capita. Getting started Filing an action is the key first step you need to take to get an award of attorney fees under my favorite one-way statute — ORS 742.061. The other rules (e.g., “proof of loss” and failure to settle within six months of submission of proof of loss) are just details by comparison. Small claims require suit too I was a fairly experienced first party plaintiff’s lawyer when I got a call from Andrew Stamp, a lawyer for the respected local firm of Martin Bischoff. In addition to being a land use lawyer, Stamp was also a proficient amateur photographer. A thief had broken into his car trunk and stolen $10,000 of his photographic equipment. Stamp’s insurer, USAA, asserted the claim was fraudulent because “statistically,” insureds generally do not keep $10,000 worth of property in their car trunk. As I typically did, I agreed to handle the claim on a contingent fee basis. I was confident I could resolve the claim with Lessons Learned along my Attorney Fee journey
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