47 Trial Lawyer • Summer 2023 See Sheets 48 Insurer’s policy term that excluded transportation devices with less than four wheels impermissibly provided less favorable coverage to the insured than that required by statute. Cantu v. Progressive Classic Ins. Co., 325 Or App 184 (2023); Pagán, J. The plaintiff was represented by Derek Larwick. While the plaintiff was riding a motorcycle purchased only eight days earlier, he was severely injured by a negligent underinsured driver. The defendant insurer denied underinsured motorist insurance benefits, asserting a policy term that excluded from coverage vehicles having less than four wheels. On a record of stipulated facts, both parties moved for summary judgment, and the trial court granted summary judgment in favor of the plaintiff. On appeal, the Court of Appeals affirmed, construing ORS 742.504(2)(d) (A), which requires an insurer to provide coverage on “newly acquired vehicles,” to include the motorcycle that the plaintiff had recently acquired. The Court of Appeals concluded that although the defendant’s policy excluded coverage for transportation devices with less than four wheels, the exclusion impermissibly provided “less favorable” coverage to the plaintiff than required by law. Under Haas, the trial court did not err in declining to give the substantial factor causation instruction. Sodaro v. Boyd, 325 Or App 511 (2023), Mooney, J. Kathryn Clarke represented plaintiff. In this negligence action, the plaintiff passenger suffered permanent painful injuries after a sudden stop in an intersection from a car running a red light and by the defendant’s vehicle immediately rear-ending his vehicle. At trial, the defendant claimed that the plaintiff’s injuries were not caused by the rear impact, but by the sudden stop and/or the plaintiff’s degenerative neck and back conditions which preexisted the collision. 3% of the plaintiff’s requested past and future medical expenses, and less than 1% of the alleged noneconomic damages. The plaintiff appealed. The Court of Appeals commenced its analysis under the Supreme Court’s recent decision in Haas. The court, on the one hand, recognized that the “[p]laintiff focused on the evidence, which included, among other things, the testimony of three expert witnesses, and argued that a jury could conclude that multiple factors or events concurred or combined to cause his injuries.” On the other hand, the court determined the plaintiff did not argue that any of the exceptional circumstances warranting the substantial-factor instruction were present, including concurrent causes of harm as specified in Haas. Accordingly, the court concluded that, under Haas, the but-for causation instruction was proper and the trial court did not err. Lastly, because the jury found that the The plaintiff requested that the trial court instruct the jury on “substantial factor causation,” arguing that it is the appropriate instruction to address his evidence that plaintiff’s injuries could have been caused by the sudden stop, the rear-end collision, or a combination of those concurring multiple causes in this case. Among other things, the substantial factor instruction includes the statements that “many factors may operate either independently or together to cause injury,” and that the jury “may find that defendant’s conduct caused the injury even though it was not the only cause.” The plaintiff argued that the multiple causes of harm under the defendant’s requested “but-for causation” instruction might encourage the jury to apportion damages between the sudden stop and the rear-end collision. The trial court gave only the “but-for causation” instruction and further gave the damages instruction on preexisting conditions. At the conclusion of trial, the jury awarded
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