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Foraker v. USAA Casualty Insurance Co.

United States District Court, D. Oregon

February 7, 2019

PEGGY FORAKER, Plaintiff,
v.
USAA CASUALTY INSURANCE COMPANY, Defendant.

          Stephen Hendricks, Hendricks Law Firm, Heather A. Brann, Heather A. Brann, Attorney at Law, Portland, Of Attorneys for Plaintiff.

          Robert S. McLay and Joshua N. Kastan, DKM Law Group, LLP, San Francisco, Matthew C. Casey, Bullivant Houser Bailey, P Portland, Of Attorneys for Defendant.

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff Peggy Foraker moves that the Court certify the following three questions for consideration by the Oregon Supreme Court:

1. Ivanov v. Farmers Ins. Co., 344 Or. 421, 430 (2008), held that “[o]bedience to that prohibition [of ORS § 746.230(1)(d)] is a component of [an insurer's] good faith obligation in this context.” Would Oregon law extend the reasoning of Ivanov to a violation of ORS 746.230(1)(g)?
2. Is a violation of ORS 746.230(1)(g), without more, a breach of the implied covenant of good faith and fair dealing by an insurer as a matter of Oregon law under similar reasoning to that of Ivanov v. Farmers Ins. Co., 344 Or. 421 (2008)?
3. To recover at trial for breach of the implied covenant of good faith and fair dealing related to a violation of ORS 746.230(1)(g), must the plaintiff prove “something more” in terms of unreasonable insurer conduct, apart from the fact that the insurer compelled its insured to litigate by offering substantially less than amounts recovered at trial? Conversely, would it be a defense to a violation of ORS § 746.230(1)(g) that the insurer's claims handling was “reasonable but wrong” in formulating a substantially small prelitigation offer?

         For the following reasons, Plaintiff's motion to certify these questions to the Oregon Supreme Court is denied.

         STANDARDS

         Certification of questions to the Oregon Supreme Court is governed by Oregon Revised Statutes (“Or. Rev. Stat.”) § 28.200, et seq. (“Certification Act”). These statutory provisions are Oregon's adopted form of the Uniform Certification of Questions of Law Act. See Or. Rev. Stat. § 28.255; F.D.I.C. v. Smith, 328 Or. 420, 423 (1999). Because Oregon's Certification Act is based on a uniform act, commentary relating to the uniform act and other cases interpreting similar statutes based on the uniform act may be instructive. See W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 363 n.2 (1991) (“Because our statute is based on a uniform law there exist[s] useful commentary on the Uniform Act, instructive case law from other uniform-law jurisdictions, and informative academic treatment of the subject.”).

         The primary statutory provision relating to certification establishes that the Oregon Supreme Court may answers questions of law certified to it from certain courts, including this United States District Court, “if there are involved in any proceedings before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court and the intermediate appellate courts of this state.” Or. Rev. Stat. § 28.200. Oregon's Certification Act also requires that the certifying court set forth the questions to be answered and a statement of all facts relevant to the questions and “showing fully the nature of the controversy.” Or. Rev. Stat. § 28.210. “The decision to certify a question to a state supreme court rests in the ‘sound discretion' of the district court.” Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1087 (9th Cir. 2003) (quoting Louie v. United States, 776 F.2d 819, 824 (9th Cir. 1985). “Even where state law is unclear, resort to the certification process is not obligatory.” Id.

         DISCUSSION

         The Court previously denied Plaintiff's motion for summary judgment in which Plaintiff argued that a violation of Or. Rev. Stat. § 746.230(1)(g) is a per se violation of an insurer's duty of good faith and fair dealing. The Court also denied Plaintiff's subsequent motion for reconsideration. Plaintiff now argues that because the Court noted in its Opinion and Order denying Plaintiff's motion for summary judgment ...


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