31 Trial Lawyer • Spring 2023 a short telephone call to USAA’s Portland counsel Bullivant Houser. Wow, was I naïve. In my first call, I explained: “My client is a LAWYER! He cannot lie. He would be disbarred! And no lawyer is going to risk getting disbarred for $10,000! Please send me a check!” No dice. USAA’s counsel told me he intended thoroughly to investigate the claim. I, of course, supplied responses to all the information and documents requested by USAA’s counsel establishing my client’s ownership of the photographic equipment. The claim remained unpaid one full year following the theft. Acting on my client’s frustration and my own impatience, I finally filed suit in Multnomah County Circuit Court — for $10,000, plus reasonable attorney fees under ORS 742.061. Naturally, USAA’s lawyer vigorously complained that I had filed prematurely. After a couple of months of skirmishing, I proceeded to a stipulated judgment. The client recovered the full amount of his loss, and I recovered all my attorney fees. In first party insurance claims, the filing of the lawsuit is the essential “trigger” for entitlement to attorney fees. See ORS 742.061. Examination under oath Warning! I have blundered in the past by exercising an itchy trigger-finger. Many years ago I represented Yan and Tamara Batazhan, Russian immigrants who spoke limited English. They had suffered a burglary loss, and their homeowners insurer, Allstate, became suspicious and initiated an investigation. Allstate hired outside counsel to conduct an examination under oath (EUO) of Yan Batazhan. He (who was not represented at the time) was sufficiently uncomfortable with the tone and manner of Allstate’s counsel’s questioning that he eventually left the Allstate lawyer’s office with his wife and daughter. The Batazhans hired me, and I promptly filed suit against Allstate. Even though I ultimately agreed to make the Batazhans available for a continued EUO, the district court held that the plaintiffs’ initial curtailment of the EUO provided the defendant with a defense to liability for attorney fees under ORS 742.061. The Ninth Circuit affirmed. See Batazhan v. Allstate Ins. Co., 256 F. App'x 904 (9th Cir. 2007). The lesson here is clear. Among an insured’s many enumerated duties under the policy, compliance with the duty to submit to an EUO, in particular, is an essential precondition of suit. Reasonable opportunity In Rubin v. State Farm, Multnomah County Circuit Court Case No. 03066448, I represented Len and Tammy Rubin, who moved to East Portland from the Bay Area and suffered a devastating fire loss. The Rubins, of course, promptly reported the claim, and spent hundreds of hours in responding to State Farm’s requests for documents, and in photographing and cataloging their firedamaged, smoke-damaged and waterdamaged property. Nine months after the loss, when State Farm had paid just 5% of the claim and had stopped paying monthly rent on their substitute housing, the Rubins hired me, and I promptly filed suit. State Farm filed a motion for summary judgment based on breach of policy conditions, including “failure to cooperate.” The court rejected State Farm’s motion for summary judgment, relying on Sutton v. Fire Ins. Exch., 265 Or 322, 509 P.2d 418 (1973) (“substantial, as distinguished from strict, compliance of the proof of loss requirement is all that is required”). The case then proceeded to a judicial settlement conference with Judge Jean Maurer, who facilitated a favorable resolution that included attorney fees. Defer You should generally defer litigation See Lessons Learned 32
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