59 Trial Lawyer • Spring 2023 from Food Design was defective. The trial court granted summary judgment in favor of Food Design, concluding that the sales contract between the parties unambiguously immunized Food Design from tort liability. On appeal, Lloyd’s of London assigned error to the trial court’s grant of summary judgment, contending that the sales contract did not clearly and unequivocally express an intent to shield Food Design from liability. The Court of Appeals affirmed. The court concluded that, by disclaiming liability of the seller “in any event,” in a section separate from the one titled “warranties” and with broad language as to the types of damages disclaimed, the contract unambiguously limited Food Design’s tort liability. The court concluded that immunizing Food Design from liability for the consequences of its own negligence was neither a harsh nor inequitable result given the parties’ relationship, expectations and respective bargaining power. In the context of Oregon’s Unlawful Trade Practices Act, a corporation qualifies as a “person” entitled to bring a claim, and litigation fees and expenses incurred for the purpose of recovering money owed constitute objectively verifiable losses sufficient to establish ascertainable loss. Providence Health & Services-Oregon v. Mancuso, 323 Or App 573 (2023); Shorr, J. The plaintiff was represented by Aaron Landau. The estate was represented by Kristopher Alderman. The plaintiff in this case is Providence Health & Services-Oregon, which provided services to an individual who passed away after spending 12 days in the plaintiff’s care. The defendants are Mancuso, the personal representative of the decedent’s estate, and ELAP Services, LLC, the administrator of the decedent’s employer-funded healthcare plan. The plaintiff billed the decedent a total of $740,263.46 for the services it had provided. After ELAP’s assessment of those services, the decedent’s healthcare plan paid the plaintiff $304,491.29, leaving $435,502.17 unpaid. After notifying Mancuso of that unpaid balance, the plaintiff filed a claim against the estate, which Mancuso denied. The plaintiff then sued Mancuso, claiming breach of contract and breach of fiduciary duty by both failing to pay the unpaid balance and denying the plaintiff’s claim against the estate. The plaintiff also named ELAP in the lawsuit, alleging that ELAP provided Mancuso with false information leading to her denial of the plaintiff’s claim. Against ELAP, the plaintiff alleged claims for misrepresentation in violation of Oregon’s Unlawful Trade Practices Act (UTPA) and intentional interference with economic relations. ELAP moved for summary judgment, which the trial court granted. The trial court ruled there was no evidence that ELAP had made the alleged misrepresentations, that a portion of the plaintiff’s claims against ELAP were preempted under ERISA, and that it lacked jurisdiction to adjudicate the wrongfulness of ELAP’s actions that were the subject of the tortious interference claim. The Court of Appeals reversed. On the plaintiff’s UTPA claim, the appellate court held that genuine disputes of material fact on the question whether ELAP made the misrepresentations that the plaintiff had alleged foreclosed summary judgment. The court further held that the trial court’s order was overly inclusive with respect to ERISA preemption. The court remanded for the trial court to narrow its ruling regarding what portions of the plaintiff’s claims were preempted. ELAP raised several alternative grounds for affirming summary judgment on the plaintiff’s UTPA claim, including that the plaintiff, as a corporation, could not avail itself of the protections afforded under the UTPA, and that the plaintiff did not suffer an “ascertainable loss” within the meaning of ORS 646.638(1). The Court of Appeals rejected both arguments. Construing ORS 646.638 and ORS 646.605(4), the court held that the plaintiff, as a corporation, qualifies as a “person” entitled to bring a claim under the UTPA. The court further held that the litigation expenses the plaintiff had incurred to recover the money it was owed was an objectively verifiable loss and thus an “ascertainable loss” within the meaning of the UTPA. Finally, with respect to the plaintiff’s tortious interference claim, the Court of Appeals held the trial court erred in concluding that it did not have jurisdiction to adjudicate the plaintiff’s theory of tortious interference based on a violation of the Oregon Rules of Professional Conduct (ORPC). The court concluded that an adjudication or finding of a violation of the ORPC was not a necessary predicate for the trial court to find that ELAP engaged in improper conduct. Cody Hoesly specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Guardians Club level. Hoesly is a shareholder at Barg Singer Hoesly PC, 121 SW Morrison St., Ste. 600, Portland, OR 97204. He can be reached at 503-2418521 or choesly@bargsinger.com. Lisa T. Hunt specializes in appeals and full-scale trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 707 SW Washington St., Ste. 600, Portland, OR 97205. She can be reached at nadia@sugermandahab.com or 503228-6474.
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