54 Trial Lawyer • Spring 2023 the many millions of dollars in additional profit to be gained from those monies through float interest just by the insurer engaging in practices or policies to delay evaluation, negotiations and payment on all or many claims by several months. Imagine the amount of interest gained by delaying many claims by years, which many insurers do as well. There are numerous insurer practices to create such delays. The insurer can simply understaff adjusters to slow claims into a backlog. The insurer can set policies that gum up claim resolution such as declining to evaluate the claim until the claimant has provided as much information as possible or asking for more time and information after receipt of a demand package or simply taking extra weeks or months between exchanging settlement offers or to take months to send the eventual settlement check. In the end, when it comes to float, time is the insurer’s number one tool to make money, so many insurers will delay, delay and delay unless and until their hand is forced. Our role There are few things more noxious in society than a lucrative billion-dollar corporation whose greed for even more lucrative profit motivates them to deprive injured persons what is rightfully theirs. For that reason, all of the bad conduct discussed above has been outlawed by states who have adopted the Uniform Unfair Clams Settlement Practices Act, which prohibits unfair and inequitable denials, investigations, and delays of claims. Oregon adopted that uniform act through its passage of ORS 746.230. However, for decades Oregon has stood alone among those other adopting states, in the effect of those lawful prohibitions. Oregon trial courts have consistently held that insurers could violate those laws, refuse to pay claims, and suffer no consequence other than the risk that they may have to pay the benefits that were owed in the first place. Indeed, the Oregon approach has likely motivated insurers to act contrary to the statutory prohibitions, because the insurer had nothing to lose and everything to gain. Last year, in Moody v. Oregon Community Credit Union, an Oregon appellate court finally and correctly rejected such thinking as inconsistent with the doctrines of negligence per se and the Oregon common law rules governing economic and emotional injuries. That case is now under advisement at the Oregon Supreme Court. At the recent oral argument before that court, it was clear that several justices were reluctant to let go of the old thinking to allow insurers to act in such ways that violate Oregon statutes and harm Oregonians without consequence. But it is unclear which direction the court will go. That decision should come down sometime this year. But even if Moody does not stand, the noxious quality of such greed-driven conduct by insurance companies does not change. Therefore our role as plaintiff-side trial lawyers to stand in the way does not change. So, I urge you, even if Moody falls, to still use every tool at our disposal to prevent this conduct. Continue to learn how to effectively read an insurance policy. Closely read the governing insurance statutes. Continue to improve in your ability to cross-examine and challenge charlatan insurance defense experts. Continue to read the cases to apply the insurer liability theories that are still available and to develop new theories of accountability. Last but not least, go to trial against these billiondollar corporations and win. Travis Eiva is a personal injury lawyer at Eiva Law and is a member of the OTLA Guardians of Civil Justice at the Guardians Club level. Eiva Law is located at 1165 Pearl St., Eugene, OR 97403. Eiva can be reached at travis@eivalaw.com or 541636-7480. Corporate Greed Continued from p 53
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