United States District Court, D. Oregon
Stephen Hendricks, Hendricks Law Firm, Heather A. Brann,
Heather A. Brann, Attorney at Law, Portland, Of Attorneys for
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.
Peggy Foraker moves that the Court certify the following
three questions for consideration by the Oregon Supreme
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?
following reasons, Plaintiff's motion to certify these
questions to the Oregon Supreme Court is denied.
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.”).
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.”
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 ...