ocaa news april 2015 24 pg - oregon casualty adjusters … news april... · 2015-04-08 · ocaa —...
TRANSCRIPT
Bowl for Charity! See pg 23
Proceeds from this event, including the 50-50 Raffle, will be donated to My
Father’s House and/or Rafael House.
April 2015 www.oregoncasualtyadjusters.org | PO Box 87 • Dexter, OR 97431
Claims
Adjusters
Association
Oregon Providing
informational and educational resources to the
Insurance Claim Professional since 1935
Case Study
— Legislative Alert — See page 7
— Case Study — See page 16
Message from OCAA President Tammi McEnaney, Liberty Mutual
— See page 3
Medical Notes Fibromyalgia — Fact or Fiction?
— See page 9
See also… Oregon OSHA Recordkeeping & Reporting… pg 19
Visit us online at www.oregoncasualtyadjusters.org
MARK YOUR CALENDAR! 2015 OCAA Spring Symposium & Vendor Fair
April 30 ~ Holiday Inn, Wilsonville
General Session Topics include: • Live Fire Burn in Canby • Non Verbal Communications
• Ethics in Claims Handling ~ Panel Discussion Marijuana (Cannabis) is coming to Oregon
Part I & II ~ Panel Discussion
See page 12 for more details! Live Fire Burn
in Canby marijuana
in Oregon
OCAA — Apri l 2015 - 2 -
Time 11:30am to 1:00pm Location Old Spaghetti Factory 715 SW Bancroft St, PDX Menu Choices $15 Chicken Parmigana, Spinach & Cheese Ravioli, or BLT Salad Checks, cash or credit card accepted RSVP Requested www.oregoncasualtyadjusters.org
This newsletter is a publication of the Oregon Casualty Adjusters Association It is produced and distributed monthly by
Alquemie Publishing Ink (541) 937-2611 www.alquemiepublishing.com
Mail correspondence to: PO Box 87, Dexter, Oregon 97431
Fax to: (541) 937-4286 Email to: [email protected] or [email protected]
OCAA Vital Statistics 2014-15 PO Box 87, Dexter, OR 97431 Website: www.oregoncasualtyadjusters.org Email: [email protected]
BOWLING TAMMI MCENANEY, 503/736-8356 BUDGET & FINANCE COMMITTEE POSITION OPEN CONSTITUTION & BYLAWS PAST PRES. & CHAIR SPUNKY GRAY, 800/788-3933 PAST PRES. RON GRAY EMPLOYMENT KAYLA BEWERSDORFF, 503/736-8335 [email protected] GOLF PAST PRES. MARK JOHNSON, 503/565-2833 PAST PRES. MIKE MEADOWS, 503/736-7802
MEMBERSHIP PAST PRES. PATTY FERGUSON, 800/242-2923 X2551 MEETING PROGRAM & SPEAKERS TREVOR ARNOLD, 503/505-7534 [email protected] NEWSLETTER, SYMPOSIUM & WEBSITE COORDINATOR BARB TYLER, ALQUEMIE PUBLISHING 541/937-2611, [email protected] PARLIMENTARIAN PAST PRES. RON GRAY, 855/426-8898 SCHOLARSHIP KAYLA BEWERSDORFF, 503/736-8335 SYMPOSIUM TREVOR ARNOLD, 503/505-7534
LEGISLATIVE LIAISON PAST PRES. SPUNKY GRAY, 800/788-3933
FAIR USE NOTICE: This publication contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. News and informational articles posted here are for
the non-profit purposes of education and news reporting. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in 17 U.S.C § 107.
PRESIDENT TAMMI MCENANEY LIBERTY MUTUAL 503/736-8356 [email protected]
PRESIDENT-ELECT TREVOR ARNOLD MCLARENS 503/505-7534 [email protected]
TREASURER SEAN MCGUIRE LIBERTY MUTUAL 503/736-8357 [email protected]
SECRETARY KAYLA BEWERSDORFF LIBERTY MUTUAL 503/736-8335 [email protected]
IMMEDIATE PAST PRESIDENT ERICA MCDANIEL LIBERTY MUTUAL 503/736-8428 [email protected]
Standing Committees
Who will take home the pot?
YOU MUST BE PRESENT TO WIN!
At each monthly meeting someone could be
the lucky winner! Will you be present to
win at the May meeting?
Up for grabs in May: $50
Ron White of Oregon Mutual won $100 at the March meeting!
Crying Corner A winner was drawn so no one has to cry that their name was drawn and they weren’t there to win...
Featured Topic: May meeting topic yet to be determined
To provide topic and speaker suggestions for upcoming meetings please contact President-Elect Trevor Arnold
What better way to enjoy a meeting than to bring a friend!
lquemie ublishing nk
Tailored services for nonprofit organizations
“The next best thing to a volunteer!”
Barb Tyler (541) 937·2611
Fax: (541) 937-4286 [email protected]
PO Box 87, Dexter, Oregon 97431 WWW.ALQUEMIEPUBLISHING.COM
Newsletter Publishing • Executive Assistance • Event Planning Website Development/Maintenance and more!
Next OCAA Meeting
May 12, 2015
OCAA — Apri l 2015
The board has been discussing ways to save money for the organization and we have decided that be-ginning in May, the newsletter will be sent in an electronic form, as a PDF file. This April issue will be the last printed issue. This decision was made after several discussions and it was conceded that eliminating printing and postage was a significant savings as those costs only continue to go up. I hope that each of you will not just hit the “delete” key when it arrives in your inbox, but rather save the monthly issues in a file for reading later or take time to read it when you receive it.
On another note, it’s getting to that time of year when we need to start thinking about running for an officer position on the OCAA board. We have re-ceived news that Sean McGuire will have to step down from the board after this year, which means we will need to fill two positions going forward. Kayla Bewersdorff will advance to President-Elect so we will need to fill the Secretary and Treasurer positions. I am really hoping we can get some inter-ested candidates so the organization will not be af-fected. It really does take a team to run the organi-zation. Also, Vendor Partners and Associate mem-bers can now occupy two seats as non-voting mem-bers of the board. If someone is interested in those positions, please contact any current officer. A Ven-dor can add valued perspective and input to the de-cision making process.
Last but certainly not least, please remember to reg-ister for the bowling tournament by April 30. If you don’t have a team, you can sign up as a single and we’ll match you up with other singles to create teams. Also mark your calendar for the upcoming golf tournament on July 24 at Stonecreek Golf Course with a 1pm start [more info to come].
I hope to see you all at the Annual Spring Sympo-sium on April 30!
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OCAA President’s Message Tammi McEnaney, Liberty Mutual
~ Welcome New Vendor Partners ~
~ Welcome New Website Sponsors ~
OCAA — Apri l 2015
SB 735 — The Oregon legislature is considering a bill (SB 735) creating a task force to review insur-ance-fraud issues in the state. Legislators, insurers and several Oregon consumer groups would be rep-resented. Oregon has no anti-fraud infrastructure. It's the only state without either a fraud law or fraud bureau. Several attempts to enact a fraud law have fizzled. A looming proposal to make third-party bad faith a prominent task-force agenda item could complicate the panel's work. Insurers strongly op-pose such bad-faith laws.
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Find your legislative representative or track a bill at http://gov.oregonlive.com DCBS Rule Change
Limitation on the use of discretionary clauses in insurance contracts
This new rule, OAR 836-010-0026 defines discre-tionary clause and prohibits an insurer from includ-ing a discretionary clause in an insurance policy, contract, or agreement that would grant deference to the insurer in proceedings subsequent to the in-surer's decision, denial, or interpretation of terms, coverage, or eligibility for benefits.
This rule is applicable on and after March 12, 2015 to any new or renewal of an insurance policy, con-tract, or agreement in Oregon.
For further information we invite you to visit our website at: http://www.oregon.gov/DCBS/insurance/legal/laws/Pages/recentrules.aspx.
OCAA — Apri l 2015 - 7 -
Big Changes for Oregon UM/UIM and PIP Coverage
From the desk of Cliff J. Wilson: Senate Bill (SB) 411, which was recently signed into law by Ore-gon's Governor, significantly impacts automotive insurance carriers by expanding uninsured/underinsured (UM/UIM) motorist and personal in-jury protection (PIP) coverages. The changes result in “stacking” of UM/UIM limits on top of the at-fault driver's liability limits. The changes increase the PIP coverage period for medical purposes from one year to two, and significantly alters Oregon PIP reimbursement. Read on in detail below to learn more about this landmark change to Oregon’s auto-mobile insurance landscape.
Claims Pointer: Effective January 1, 2016, the new law will significantly alter UM/UIM and PIP claims handling for all Oregon automobile insurance poli-cies issued or renewed after that date. Adjusters and underwriters should be aware of the new law be-cause the changes expand the level of coverage for UM/UIM and PIP policies and will assuredly lead to increased payments. This is a substantial change to Oregon insurance law that will undoubtedly re-sult in increased litigation and claims handling cost. Below are the three changes that we believe to be especially significant as a result of the passage of SB 411:
(1) UIM “Stacking” UIM coverage is currently determined by comparing the amount of liability insurance of the at-fault motorist with the UIM policy limits. Under the current statutory scheme, UIM is only available when the UIM limit exceeds the at-fault driver’s liability limit, and only in the amount of the difference be-tween the two. For claims on all Oregon UIM policies issued or renewed after January 1, 2016, the UIM coverage will “stack” on top of the at-fault driver's liability limit. While UIM “stacking” is a new concept in Oregon, it is the rule in many other states, including Washington.
Multiple UM/UIM policies will also stack. Accordingly, when a passenger rides in a non-owned vehicle, the vehicle’s UM/UIM coverage will be primary and the passenger’s UM/UIM coverage, if any, will be stacked on an excess basis.
(2) PIP Time Extended for Medical Benefits The new law also extends the coverage time of PIP medical benefits from one year after the date of injury to two years after date of injury. The amount of minimum PIP cover-age remains at $15,000. This change in time period will undoubtedly lead to increased PIP payments because insureds will have an addi-tional year in which to accrue medical costs up to the policy limits.
(3) PIP Reimbursement Further Limited Under the new law, PIP reimbursement will only be available to the PIP insurer to the ex-tent that the amount recovered exceeds the
(See Legislative Alert… continued on page 9)
Oregon Governor Signs SB 411 By Cliff J. Wilson
Case Study
Legislative Alert
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Portland, OR 97219
Phone: 503-768-9600 Fax: 503-768-9133
www.lerlaw.com
OCAA — Apri l 2015 - 9 -
injured party's total damages (which includes both economic and non-economic damages). This is a significant change from the current statute, which allows PIP reimbursement to the extent the amount recovered exceeds eco-nomic damages only. As a result of the change, we anticipate that the recovery of PIP benefits paid, particularly involving cases with smaller liability policy limits will become less frequent.
— View full text of the passed bill at: https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/SB411/Enrolled
Legislative Alert… (Continued from page 7) Medical Notes Fibromyalgia Fact or Fiction By Donald Schroeder, MD, Orthopedic Surgeon Reprinted from INFORM Software Corp Newsletter, February 2015
Few topics in medicine generated as much contro-versy as the diagnosis of fibromyalgia/myofascial pain or as it was originally called “fibrositis.” The latter name was coined by Sir William Gowers in 1904 when he published an article in the British Medical Journal. The diagnosis, however, was scarcely used for decades and even then only by a small cadre of physicians to explain musculoskele-tal disorders.
Dr. Janet Travell in a 1942 publication described a condition with trigger points, taut bands, nodules, and twitch responses which merited little attention or fanfare. Finally in 1983, Dr. Travell co-authored a book “Myofascial Pain and Dysfunction. The Trigger Point Manual.” This publication became a “Bible” for many physiatrists, rheumatologists, an-esthesiologists, and chiropractors who became be-lievers and vocal proponents of both fibromyalgia syndrome or its more focal myofascial pain.
In 1990, the American College of Rheumatology added its official criteria for fibromyalgia which legitimized its existence and provided a quotable diagnosis allowing reimbursement to their provid-ers. The criteria included widespread pain, insom-nia, fatigue, depression, stiffness, headaches, pares-thesia, irritable bowel syndrome and trigger points in 11 of 18 randomly selected sites. Despite a multi-tude of symptoms, there has never been objective evidence to verify the diagnosis either with hema-tologic, urine, biochemical, electrodiagnostic, imag-ing, or histopathologic testing. Hence, the diagnosis is made by accepting subjective complaints without corroborating objective validation.
Once a diagnosis has been “elucidated,” most pa-tients latch onto it as if they have discovered the Holy Grail and applaud their physician for his/her diagnostic acumen. The large majority are middle-aged women who join fibromyalgia support groups where similarly affected patients are able to discuss their aches and pains in a non clinical setting.
(See Medical Notes… continued on page 11)
OCAA — Apri l 2015 - 11 -
The medical community is splintered into three groups: (1) Believers who are adamant and vocal as they defend the legitimacy and veracity of fi-bromyalgia. (2) “Quasi believers or diagnostic ag-nostics” who admit the syndrome may exist but have no verifiable proof to support it. (3) The non-believers who dispel the diagnosis completely and attribute the symptoms to mood disturbance, de-pression, decreased pain threshold and poor coping skills.
Some patients labeled with fibromyalgia have been declared totally disabled and are on social security. Others have claims purporting that some trauma, even trivial, caused or permanently aggravated their symptoms preventing them from working. The so-cial and economic implications are enormous. Pa-tients portray themselves as fragile and almost help-less to be productive citizens affecting their quality of life and those around them.
Treatment modalities including physical therapy, chiropractic, medication, cognitive behavioral ther-apy, acupuncture, and massage therapy have pro-vided less than optimal benefit. Trigger points (AKA tender points) have been injected with lido-caine and steroids. Some creative chiropractors have hired Independent nurse practitioners to do the injections to improve their revenue stream.
So the irreconcilable controversy continues as pa-tients with ambivalent subjective symptoms unsub-stantiated by objective findings seek an answer to their pain. In the 21st century, science fails to an-swer our question, fibromyalgia – fact or fiction?
Fibromyalgia – Background & References By Tami Rockholt, RN, BSN, INFORM Director of Business Development
Dr. Schroeder has certainly written a thought pro-voking article on Fibromyalgia. Along with the controversy, an ICD-9 Diagnosis Code (729.1) has been assigned for Fibromyalgia and there is much research being done about the “diagnosis.”
According to Mayo Clinic, “Fibromyalgia is a dis-order characterized by widespread musculoskeletal pain accompanied by fatigue, sleep, memory and mood issues. Researchers believe that fibromyalgia
Medical Notes… (Continued from page 9)
amplifies painful sensations by affecting the way your brain processes pain signals. Symptoms some-times begin after a physical trauma, surgery, infec-tion or significant psychological stress. In other cases, symptoms gradually accumulate over time with no single triggering event.” Some good re-sources about the controversial diagnosis can be found on this website: http://www.mayoclinic.org/diseases-conditions/fibromyalgia/basics/definition/con-20019243.
A few of the topics listed on the website are: – Definition – Symptoms – Causes – Risk Factors – Complications – Preparing for your appointment – Tests and diagnosis – Treatments and drugs – Lifestyle and home remedies – Alternative Medicine – Coping and Support
(See Medical Notes… continued on page 15)
OCAA — Apri l 2015 - 12 -
Up in Smoke! Controlled Burn, Controlled Substances & Controlling Claims
7:00-7:45am Registration — Vendor Trade Fair Opens & Continental Breakfast Available 7:45am Welcome & Introductions — Tammi McEnaney OCAA President, Liberty Mutual — Trevor Arnold Symposium Chair, McLarens 8:00-9:00am Live Fire Burn (Off-site in Canby)
— Facilitated by Unified Investigations & Engineering Fire!! Property claims professionals are familiar with the aftermath of a catastrophic fire loss, but very few people ever witness first-hand a fire from it’s ignition, through spread, and eventually suppression. This is your one-time opportunity to fully experience the devastation of a fire loss as it's actually happening in real time right in front of you. Sign up now, because space is limited. Location is in Canby at the local fire station. Further info and directions will be available soon. .
8:00-9:00am The Science of Forensic Evaluations (On-site at the Hotel) — with Susan Evans, CIH, CSP, P.E. of MDE Inc. The use of case studies to show how various areas of forensic engineering, chemistry, and industrial hygiene are used to evaluate claims.
9:00-9:30am Networking Break 9:30-10:30am Non-Verbal Communication for Claims Professionals
— with Laura Dominic of Tsongas Litigation Consulting Unfortunately, there are times when claimants don't hear what we're telling them because our body language is drowning out our words. Conversely, we need to be able to read their body language while they're explaining the circumstances of their claim. This presentation will help us to better understand the critical nuances of non-verbal communication.
10:30-11:30am Ethical Crossroads: Which Way Do I Go? — Panel discussion facilitated by Katharyn Thompson of RGL, with Spunky Gray, General Adjuster from Mutual of Enumclaw, Maria Louise Cousineau attorney from Cozen O’Conner, and other panelists to be announced Adjusting insurance claims requires skill and knowledge that must be applied in an ethical fashion. The adjuster and the adjusting team have a variety of duties: duties to the policyholder; duties to their employer, whether it be an insurance company or and an independent adjusting firm; and duties to the applicable regulatory agencies or insurance departments. When confronted with choices, how can we best ensure that our decision-making is ethical? What tools can we bring to the task? How can we test the ethics of our choices?
Oregon Casualty Adjusters Association
About the OCAA Annual Spring Symposium & Vendor Fair The 2015 OCAA Spring Symposium is designed to provide Claim Professionals with information that will broaden their knowledge base and help improve claim handling skills. Again this year we are staying with an all day general session with no breakout sessions. As always, topics are pre-sented by knowledgeable and talented speakers. A plated lunch is provided and the overall agenda allows for ample time to network with industry vendors and other claim professionals.
April 30, 2015 OCAA Spring Symposium & Vendor Fair
MARK YOUR CALENDAR! 2015 OCAA Spring Symposium & Vendor Fair
April 30 ~ Holiday Inn, Wilsonville
General Session Topics include: • Live Fire Burn in Canby • Non Verbal Communications
• Ethics in Claims Handling ~ Panel Discussion Marijuana (Cannabis) is coming to Oregon
Part I & II ~ Panel Discussion
More details below! Live Fire Burn
in Canby marijuana
in Oregon
OCAA — Apri l 2015 - 13 -
Pay with a check or credit card
Here’s how to pay:
Pay online with credit card and use the RSVP form to submit your name, contact
information, and lunch selection. www.oregoncasualtyadjusters.org
~ Or ~ Mail this application with check payable to:
OCAA, PO Box 87, Dexter, OR 97431
Questions?
Barb Tyler, Coordinator 541/937-2611 or [email protected] • Trevor Arnold, Chairman [email protected]
For Vendor opportunities visit our website at www.oregoncasualtyadjusters.org
11:30-12:30pm Lunch Break Choice of Chicken, Fish or Vegetarian—Please mark your selection when registering 12:30-1:30pm Cannabis Claims Part 1
— Panel discussion (Presenters to be announced) This session is a two part exploration of the insurable consequences of legalized marijuana- whether medical or recreational. Our panel of experts will examine cannabis claims from the perspective of producers, retailers, consumers, the legal system, law enforcement, insurance coverage, and claims investigation. The first session will provide us with a foundational understanding of the commerce and consumption of legalized cannabis, and the second session will delve more deeply into the claims-handling challenges of first and third party coverages.
1:30-2:00pm Networking Break 2:00-3:00pm Cannabis Claims Part 2 (Note: this session could go beyond 3:00pm if necessary)
— Be ready to tweet your questions for our panel of experts! 3:00-4:00pm Networking Reception with Appetizers, Raffles & Announcements
Register Early
to SAVE $10 Register Early to SAVE $10
Registration includes Lunch, Snacks, and Symposium Workbook
_____ $40 Member Registration ($50 at the door) _____ $50 Non-Member Registration ($60 at the door) Check your membership status at www.oregoncasualtyadjusters.org
_____ FREE Retired OCAA Past President (Complimentary registration)
Registration fees are transferable. Registration fees are nonrefundable after April 24, 2015.
If registration form & payment cannot be submitted prior to April 24, please plan to register at the door.
. . . Please print legibly . . .
Name Company
Claims Discipline: Property Casualty Auto Workers Comp Liability Other
Lunch Choice: Chicken Fish Vegetarian First time attending an OCAA Symposium? Yes No
Attending Live Fire Burn in Canby: Yes No Attending Closing Reception: Yes No
Address City, State, Zip
Phone Email I would like an email confirmation that my registration has been received.
Amount Enclosed: $_______
Please do not include me on any electronic correspondence if not related to the OCAA Symposium.
April 30, 2015 Spring Symposium PRE-REGISTRATION
Holiday Inn Select 25425 SW 95th Ave Wilsonville, Oregon
(Exit 286 off I-5) • 503/682-2211
OCAA — Apri l 2015
medical condition. To do this, medical records prior to the date of loss need to be obtained.
Many of us have had some of these symptoms listed above at various times in our life. But, as a RN, it is hard for me to understand how a diagnosis of Fi-bromyalgia can be made without some kind of ob-jective medical test such as a blood test, muscle bi-opsy, nerve conduction study or ??? But the diagno-sis of Fibromyalgia does exist in United States and needs to be addressed when reviewing medical re-cords and medical bills.
Another website with additional information is: http://www.webmd.com/fibromyalgia.
It has some interesting approaches to this diagnosis which include: 1. Physical Therapy – Can it help your fibromyalgia flare-ups? 2. Finding Balance – It’s hard but we’ve got tips 3. Working with Fibro: Tips to modify your work-space is one step. 4. Fibro Health Check: Get treatment options and copying skills. It also lists the Symptoms of Fibromyalgia which include: 1. Chronic muscle pain, muscle spams, or tightness 2. Moderate or severe fatigue and decreased energy 3. Insomnia or waking up feeling just as tired as when you went to sleep 4. Stiffness upon waking or after staying in one po-sition too long 5. Difficulty remembering, concentrating, and per-forming simple mental tasks (“fibro fog”) 6. Abdominal pain, bloating, nausea and constipa-tion alternating with diarrhea (irritable bowel syn-drome) 7. Tension or migraine headaches 8. Jaw and facial tenderness 9. Sensitivity to one or more of the following: odors, noise, bright lights, medications, certain foods, and cold 10. Feeling anxious or depressed 11. Numbness or tingling in the face, arms, hands, legs, or feet 12. Increase in Urinary urgency or frequency (irritable bladder) 13. Reduced tolerance for exercise and muscle pain after exercise 14. A feeling of swelling (without actual swelling) in the hands or feet
Whether this diagnosis is real or not, many in the audience reading this article should be aware of concerns that can occur after a Motor Vehicle Acci-dent (MVA) or slip and fall. It may be necessary to have an apportionment performed by a Physician Consultant such as a Rheumatologist or Neurologist regarding what symptoms may be related to the ac-cident in question versus related to a pre-existing
Medical Notes… (Continued from page 11)
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Helping You Solve The Puzzle
Ready to assist you now with: • Structural Evaluation • Origin & Cause Fire Investigation • Accident Reconstruction • Construction Defect Investigation • Vehicle Component Failure • Product Safety Analysis • Electrical Analysis and Evaluation
503.736.1106 Portland 1.877.736.1106 [email protected]
www.case4n6.com Denver * Anchorage * Honolulu * Seattle
Las Vegas * Salt Lake * Spokane * Tacoma
Consultants Architects Scientists Engineers
www.oregoncasualtyadjusters.org If you are an employer seeking Claim Professionals and
would like to post a job opening on our website at no charge, please contact OCAA Secretary, Kayla Bewersdorff at
Employment Opportunities OCAA Website Puts You in Touch with Local Employment
Opportunities
OCAA — Apri l 2015
From the desk of Jack Levy: This case represents a significant departure from well-established in-demnity law for “construction agreements” gov-erned by ORS 30.140. The case holds that subcon-tractors are not required to defend general contrac-tors to the extent the general contractor is at fault for the damages being claimed.
Claims Pointer: ORS 30.140 limits a subcontrac-tor’s duty to defend a general contractor to only those allegations that are within the sub’s scope of work. Even when the sub’s duty to defend is trig-gered, the general has the burden of proving what, if any, portion of defense fees the sub owes.
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Good News for Subcontractors: Limited Defense Obligation Under Indemnity Clauses By Jack Levy
Case Study
OCAA — Apri l 2015 - 17 -
Heather Becker Cell: (503) 575-6161
14200 SE McLoughlin Blvd Suite #G Milwaukie, OR 97267 Office: (503) 594-0545
Toll Free: (866) 993-3817 Fax: (503) 594-0262
court reasoned that because the intent behind ORS 30.140 was to prevent general contractors from shifting liability for their own negligence to subcon-tractors, it follows that subcontractors should not have to pay for a general contractor’s defense ei-ther. The court of appeals concluded that ORS 30.140 applies to both the duty to defend and the duty to indemnify.
Applying its rule, the court affirmed the trial court ruling that B&B’s duty to defend was triggered when the church alleged negligence against B&B. However, the court held that the church, standing in the place of Andersen, had the burden to show what fees B&B owed under its duty to defend. The church only proved the total amount of fees and costs but did not set out what portion of those costs applied to B&B. Because Sunset failed to attribute specific fees to B&B, the court affirmed the trial court’s award of $0.
— View the full case opinion at: file:///C:/Users/HLarson/Downloads/OR_Sunset_Presbyterian_Church_v_Brockamp_And_Jaeger_Inc.pdf
— If you would like to be notified of these new cases, please send an email to: [email protected]. This article is to inform our clients and others about legal matters of current interest. It is not intended as legal advice. Readers should not act upon this information without seeking professional counsel.
Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., 355 Or. 286 (2014)
After construction of Sunset Presbyterian Church, the church filed a claim against Andersen Construc-tion Company for various construction defects. An-dersen’s contract with all its subcontractors con-tained an indemnity provision which said: “…the Subcontractor shall indemnify and hold harmless…the Contractor…from all claims, damages, loss and expenses, including but not limited to attorney’s fees, arising out of or resulting from the perform-ance of the Subcontractor’s Work.” Andersen sent letters to its subs demanding they defend Andersen in the suit. The subs, including B&B Title and Ma-sonry, refused to step in and defend Andersen, so Andersen filed third-party complaints against them for breach of the indemnity agreement. B&B per-formed masonry work on the project and one of the allegations in the church’s complaint involved B&B’s masonry work.
Andersen settled with the church and assigned its claims against the subs to the church. The church moved for summary judgment against the subs. All of the subs but B&B settled with the church prior to the court’s decision. As to B&B, the trial court con-cluded that under ORS 30.140, B&B had a duty to defend Andersen, but only to the extent that B&B’s work was implicated in the church’s allegations. The court further stated that the church had the bur-den to show what costs were incurred by the de-fense of the claim, and that the church had failed to provide any proof of what B&B owed. The trial court awarded the church $0 in damages and found B&B to be the prevailing party. The church ap-pealed.
On appeal, the church argued that the trial court in-correctly ruled that ORS 30.140 applies not only indemnity, but also the duty to defend. The church maintained that the duty to defend is separate from the duty to indemnify because the duty to defend arises sooner than the duty to indemnify and it has a broader scope than indemnity. The church further argued that because the subs owed a duty to defend, they were obligated to pay all of Andersen’s de-fense costs based on the language of the indemnity provision. In reaching its decision, the court looked to legislative history to find that in the context of ORS 30.140, the legislature used the word “indemnify” to include the duty to defend. The
OCAA — Apri l 2015
866-737-1331 [email protected]
• PIP and Legal IMEs • Record Reviews • Educational Seminars
Washington & Oregon Experts www.physiciandirectservices.com
“Your Personal IME Service Provider”
On March 18, 2015 Oregon OSHA adopted changes to the recordkeeping and reporting rules in response to federal OSHA’s September 18, 2014, final rule. Oregon’s rule will not go into effect until January 1, 2016. The recordkeeping and reporting requirements are now separate rules. This memo provides policy guidance related to these rule changes.
Recording Workplace Injuries and Illness (OAR 437-001-0700):
These changes update the list of industries that are exempt from the requirement to routinely keep OSHA injury and illness records, due to relatively low occupational injury and illness rates. The new list is based on the North American Industry Classi-fication System (NAICS).
For those employers who are newly exempt from the general requirement to maintain an OSHA 300 Log and 300A Summary form, Oregon OSHA will not require that they maintain those records for 2014 or 2015, nor will we require that they post the 300A Summary form for 2014. Additionally, em-ployers that are newly exempt from keeping these records no longer have to keep or update the prior 300 logs or 300A summary forms. Employers still must maintain each DCBS form 801 or equivalent for each occupational injury or illness that may re-sult in a compensable claim.
If a formerly exempt employer is now required to keep records, they will not need to start keeping records until January 1, 2016.
The 300A annual summary requirements were modified and allow the employer to designate a rep-resentative to sign and certify that the information is correct as long as the information is shared with a company executive.
The revised rule retains the exemption for any em-ployer with ten or fewer employees, regardless of their industry classification, from the requirement to routinely keep records.
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Reporting Fatalities and Injuries to Oregon OSHA (OAR 437-001-0704):
The newly adopted reporting rule retains the current requirement to report all work-related fatalities and catastrophes to Oregon OSHA within 8 hours. It modifies the requirement to report overnight hospi-talizations to report all work-related in-patient hos-pitalizations within 24 hours. It adds a requirement to report amputations and avulsions that include bone or cartilage loss and the loss of an eye within 24 hours.
You only need to report a fatality to Oregon OSHA if the fatality occurs within 30 days of the work-related incident. For an in-patient hospitalization, amputation, avulsion, or loss of an eye, you only need to report the event if it occurs within 24 hours of the workrelated incident.
Need more information? Oregon OSHA contact: Dave McLaughlin at 503-947-7457 or [email protected]
Oregon OSHA Recordkeeping & Reporting
OCAA — Apri l 2015 - 21 -
April is… Earthquake
Preparedness Month
Nat’l Distracted Driving Awareness Month
Go to www.propertycasualty360.com
for articles and information on the graphics below
OCAA Minutes from 3/10/15 Meeting called to order by President, Tammi McEnaney. Past presidents in attendance were Mike Meadows; Guests in-cluded: Steve Martinez – Restoration 1, Alfredo Miranda – Restoration 1, Trent Brown – Liberty Mutual Insurance. Treasurer, Sean McGuire provided the treasurer report: $15,147.05, with $121.00 in the Scholarship fund. Bowling Committee: President, Tammi McEnaney announced a reminder to sign up for bowling by April 30. Flyer is in the newsletter and online. Symposium Committee: President, Tammi McEnaney announced a reminder to sign up for the symposium. Going to be a good one this year! Golf Committee: Mike Meadows announced the tournament is July 24 @ Stonecreek with a shot gun start at 1pm. Treasurer, Sean McGuire announced the speaker – Dan Has-son of Davis Rothwell Earle Xochihua. Raffle donated by Christopher Nestlerode of Property Dam-age Solutions, LLC – Picnic basket full of goodies. Ron White of Oregon Mutual won the Member drawing of $100.00. Respectfully submitted by Kayla Bewersdorff, Secretary.
OCAA — Apri l 2015 - 23 -
OCAA 14th Annual Bowling Tournament
Friday May 15, 2015 50-50 Raffle! Win half the pot! Tickets: $2 each or 3 for $5
Tournament Play Teams of 3 (singles will be matched to create teams)
Regular bowling rules will apply
For more information contact Trevor Winter @ Norcross
503/236-7360, [email protected] or
Tammi McEnaney @ Liberty Mutual 503/736-7829, [email protected]
Bowler #1 Name: Company:
Email: Bowler #2 Name: Company:
Email: Bowler #3 Name: Company:
Email:
To avoid duplication, bowlers included on this form should NOT mail in their own form.
Send this portion with a check for appropriate fees made payable to OCAA. Or pay online with a credit card at www.oregoncasualtyadjusters.org/paypalpage.html. This registration must accompany all payment methods!
MAIL to: Trevor Winter, Norcross, 5319 SW Westgate Dr #225, PDX, 97221 or FAX this form and credit card receipt to 503/297-5035
Space is Limited - Sign up NOW!
Please register by April 30
Time 3:00pm to 6:00pm
Cost (Price includes shoe rental)
$20 per person for 3 games, or
3-person team for $50
Bowl for Charity!
Proceeds from this event, including the 50-50 Raffle, will be donated to My
Father’s House and/or Rafael House.
Mt. Hood Lanes 2311 E Powell Blvd, Gresham, OR 503/492-9820