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Oregon to Permit Substantial Extra-Contractual Claims for Insureds

CAs of January 1, 2024, Oregon insurance law will experience a paradigm shift—for the first time, Oregon will allow insureds to present a meaningful and substantial extra-contractual claim for damages.

After the resolution of a legislative impasse that threatened to derail the entire legislative session, the Oregon State Senate returned to business this week and advanced a series of bills to the governor’s desk. Included amongst them was House Bill 3242, which amends Oregon’s Unfair Claims Settlement Practices Act (ORS 746.230) to allow a private right of action for insureds to recover actual damages, treble damages, attorney fees, and litigation costs for an insurer’s unreasonable conduct in violation of the act.

Oregon Governor Tina Kotek is expected to sign the bill in the coming weeks.

Once signed and in effect, an insured may bring a cause of action under ORS 746.230 for violation of the statute, which identifies familiar unfair claim settlement practices such as the following:


(a)        Misrepresenting facts or policy provisions in settling claims;

. . .

(d)        Refusing to pay claims without conducting a reasonable investigation based on all available information;

. . .

(g)        Compelling claimants to initiate litigation to recover amounts due by offering substantially less than  amounts ultimately recovered in actions brought by such claimants;

. . .

The statute does contain two important exceptions. The statute does not allow a suit to be brought on medical malpractice claims. The statute also specifically excludes claims against attorneys, “in the attorney’s personal capacity,” for any acts taken on behalf of an insurer.

The statute also contains a 45-day notice requirement with an opportunity to cure on the part of the insurer.

Regarding treble damages, the statute is explicit in stating that the decision whether to award treble damages rests with the “court”. This would appear to signal that, as a practical matter, trebling would be subject to post-trial motions practice. However, it should be noted that in other jurisdictions, the Federal Courts have held that trebling must be decided by a jury as a matter of United States Constitutional Law. This is an issue certain to be litigated as policyholders and insurers begin confronting the practical impacts of the new statute.

Finally, the statute will carry a two-year statute of limitations. The statute is triggered not on the date of the loss, but on the date of the alleged violation of the statute.

House Bill 3243, which would have amended Oregon’s Unlawful Trade Practices Act (UTPA) to create yet another private cause of action for insureds, died in committee.

Lether Law Group has attorneys licensed and actively practicing in the State of Oregon.  To the extent that you have any questions about Oregon law, please feel free to contact Tom Lether or Eric Neal at (855) 467-5444 .

Pride in Practice: Upholding Ethical Standards at Lether Law Group

As many of you are aware, there have been several recent news stories showcasing the various levels of workplace misconduct from a large national law firm. The in-depth reporting highlights the dangers of profound greed and leveraging the assistance of clients to better one’s firm. These actions are stimulated by immoral company culture and a lack of leadership.

At Lether Law, we take pride in our team-oriented ethos; each action we commit displays a vision. Whether that be our work with our clients or weekly employee softball games, everything we do at Lether Law centers around our Ohana (family).



Lether Law Group Enjoying our Annual Softball team games together.

Whenever someone steps foot into our office, the first thing they see is a giant sign relaying the company’s central message– The Canoe Theory. The principle of the message states everyone needs to show up and paddle, or the boat does not move forward. The underlying mantra also communicates that we care for each other by showing loyalty and respect.

Lether Law Group espouses the goal of Pono, which in Hawaiian means doing the right thing. We all take fulfillment in our actions of ourselves and how they reflect upon the company.

We PRIDE ourselves on being an equal opportunity employer and respect every employee’s unique qualities.

To read more blog posts from Lether Law Group, please visit our News & Updates page.


Washington State Court of Appeals New Decision On Covenant Judgments

On January 30, 2023, Division One of the Washington State Court of Appeals issued a published opinion further addressing covenant judgments in Washington. In Garza v. Perry, No. 83377-4-I, 2023 Wash. App. LEXIS 144, at *8 (Ct. App. Jan. 30, 2023), the Court of Appeals issued a decision primarily holding that an insurer cannot nullify a stipulated settlement based on mutual release language in the agreement because the insurer is not a party to the agreement.

The Garza case arose out of a motor vehicle accident. After failed negotiation attempts with the defendant’s insurer, the plaintiffs and defendant entered into a stipulated settlement with a covenant judgment in the amount of $2.5M and an assignment of rights against the defendant’s insurer. The settlement agreement contained a paragraph that stated the parties would mutually release each other including from the assignment of rights if the insurer provided written proof that it would fully indemnify defendant from any final judgment.  As required, the parties sent a copy of the settlement agreement to the insurer with an email offering to settle for $2.5M if paid within 10 business days.

The insurer did not agree to pay the $2.5M, but instead waived its limits and advised that it would indemnify the defendant for any judgment. Based on that letter, the insurer asserted that Plaintiffs’ and Defendant had therefore mutually released each other. The parties to the agreement disagreed and made a written addendum to their agreement to accurately reflect the actual meeting of the minds. Nevertheless, the insurer intervened and asserted that it had a valid settlement agreement with the parties.

The trial court rejected the argument and the Court of Appeals affirmed on appeal. The Court of Appeals noted that purpose of a covenant judgment is to protect the insured from the bad faith of an insurer. It does not form a contract with the insurer or for the insurer’s benefit. The Court also rejected the insurer’s argument because the agreement as a whole, including the written reformation, evidenced that the agreement was only between Plaintiffs and Defendants and also required that the intent was to only release the covenant judgment if the insurer agreed to pay the $2.5M.

The insurer also attempted to attack the trial court’s reasonableness determination on appeal based upon three arguments: 1) that the trial court had made oral statements regarding a lack of basis for the $2.5M amount at the reasonableness hearing; 2) that the Plaintiffs’ experts were not credible. and 3) that there was no substantial evidence supporting the conclusion that the agreement was not the product of collusion and fraud. All three arguments were rejected on appeal.

With respect to the oral statements of the trial judge, the Court of Appeals reiterated Washington law that a trial court’s oral statements have no binding effect unless explicitly incorporated into the court’s written order. The statements at issue were not incorporated into the order and, as such, were treated as having no import on the case.

The second and third arguments were effectively rejected for the same reason. Specifically, they were rejected because the substantial evidence review standard for review of reasonableness hearings requires the appellate court to view the evidence in the light most favorable to the prevailing party.  

The bad faith evidence argument was rejected because there was evidence that the settlement agreement was subject to review, revisions, and input by independent coverage counsel. The credibility argument was also rejected because a factfinder’s credibility determination are not subject to review under the substantial evidence standard.

The Garza case provides a two main takeaways for any insurer facing a covenant judgment. First, collateral attacks on the language of the covenant judgment settlement agreement are unlikely to prevail because an insurer is not a party to the agreement. Second, the standard of appellate review for reasonableness hearings is a difficult standard to overcome on appeal.

Because of this, an insurer that fails to fully develop the record at a reasonableness hearing runs the significant risk of being unable to successfully challenge a reasonableness finding on appeal. As a result, insurers need to be fully prepared to fully present their case at any reasonableness hearing. Moreover, insurers and insurer counsel should specifically request that the judge explicitly incorporate any helpful oral statements into its final order.

Lether Law Group has been successfully defending insurers against covenant judgments before the trial court and on appeal for more than 30 years. If you would like to discuss covenant judgment defense or any other matter, please do not hesitate to contact us.

Insurance Coverage & Volcanic Activity

After nearly 40 years of silence, Moku‘āweoweo, the summit caldera of Mauna Loa on the Big Island of Hawaii, began erupting. The eruption lasted for approximately twelve days from November 27, 2022 until December 10, 2022. Big Island residents are no stranger to volcanic activity, but the unpredictable nature of these eruptions can often leave local residents and insurers unprepared. Outside of the insurance industry, most people do not consider or think about whether there is coverage for volcanic related activity under an insurance policy. 

On the Big Island of Hawaii, homeowner’s policies typically cover property damage caused by lava flow. Volcanic eruptions are not specifically excluded under standard homeowner’s policies. Additionally, some homeowner’s policies may include a specific endorsement extending coverage for property damage to dwellings or other structures caused by volcanic eruptions. Under this type of endorsement, coverage is often available for losses caused by eruption, explosion, effusion of a volcano, or a moving outpour of lava.

Homeowners and insurance coverage professionals should also be aware that coverage may be limited under homeowner’s policies that include an earth movement exclusion. When an eruption begins, earthquakes and other seismic activity oftentimes occur throughout the course of the eruption. Pursuant to standard earth movement exclusions in Hawaii, coverage for property damage may be excluded if the property damage is caused by earthquake, land shock waves or tremors before, during, or after a volcanic eruption as opposed to damage from lava and/or the eruption itself. This requires an examination of the proximate cause of the damage itself and can be a complicated issue.

The nature and extent of available insurance coverage after a volcanic eruption can be a complicated issue requiring a careful examination of causation, the nature and extent of the damages involved, and a thorough review of the terms and conditions of the applicable insurance policy. Needless to say, with the proper awareness of exactly what is and is not covered under homeowners’ respective insurance policies, the Big Island of Hawaii remains a dream destination to live and/or vacation. Our firm proudly represents clients across the Hawaiian Islands and we are always happy to answer any coverage related questions you may have.

Hau’oli Makahiki Hou (Happy New Year) to all!



The Washington State Consumer Protection Act (CPA) prohibits the use of unfair methods of competition and unfair or deceptive acts or practices in the insurance industry. The Washington Supreme Court has held that in order to prevail on a private CPA claim, a plaintiff must establish 5 elements: (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) with public interest impact, (4) an injury to the plaintiff’s business or property, and (5) causation. Hangman Ridge, 105 Wn.2d at 780. While this case law provides some guidance, it is silent as to whether a particular practice is “unfair” or “deceptive” under the CPA.

On November 28, 2022, the Washington Court of Appeals further defined what constitutes an unfair or deceptive practice under the CPA. The case of Stan Shiff, M.D., Ph.D. v. Liberty Mutual Fire Insurance Co., et. al, dealt with whether an insurer violates the CPA by “relying solely on a mechanistic, formulaic approach” to determine the reasonableness of a medical providers bill. The Court held this practice to be a violation of the CPA.

Shiff arises out of a dispute between a medical provider and an insurer regarding payment of medical bills. Stan Shiff, M.D., Ph.D, is a neurologist who treated patients insured by Liberty Mutual Fire Insurance Company. Shiff submitted bills to Liberty Mutual for his treatment of its insureds, however Liberty Mutual refused to pay these bills in full. Instead, Liberty Mutual used its “80th percentile practice” to determine whether these bills were reasonable and warranted full payment. In using its 80th percentile practice, Liberty Mutual determined that payment of the full amount of the charges submitted by Shiff was not reasonable. As such, Liberty Mutual reduced its payment on the bills to the 80th percentile amount.

In using the 80th percentile practice to determine whether payment of the full amount of a provider’s bill was reasonable, Liberty Mutual relied solely on the FAIR Health Database. The FAIR Health database “compares billed charges to the charges submitted by other medical providers within the same broad geographical area.” Liberty Mutual relied on this database to determine that Shiff’s charges were unreasonable, as the exceeded the 80th percentile of charges in the FAIR Health database for the same services in the same broad geographical area.

With regard to liability under the CPA, Shiff relied on the precedent in Folweiler Chiropractic, PS v. Am. Fam. Ins. Co., 5 Wn. App. 2d 829, 429 P.3d 813 (2018). In Folweiler, the Court established that an insurer had a duty to conduct an individualized investigation, including the duty to evaluate the identity, background, credentials, experience, or any personal characteristic of the individual provider in evaluating the reasonableness of the bill. Folweiler, 5 Wn. App. 2d at 838. The Court found in favor of Shiff, ruling that it was undisputed that Liberty Mutual did not conduct the kind of individualized investigation as required by Folweiler.

Based on Liberty Mutuals violation of its duty to conduct an individualized investigation, Shiff argued Liberty Mutual’s 80th percentile practice violated the CPA. Liberty Mutual disagreed asserting that because the practice was approved by the Office of the Insurance Commissioner (OIC), it was not a violation of the CPA. Liberty Mutual asserted that, even if the 80thpercentile practice constituted an unfair practice, it is exempt from CPA liability pursuant to the statutes regulated industries exemption, RCW 19.86.170. Liberty Mutual argued that because insurers are prohibited from obtaining regulatory approval of its policies prior to issuing them, conduct arising from those policies is “permitted” pursuant to the CPA’s exemption provision. The Court rejected this argument, finding “Liberty Mutual’s 80th percentile practice is indistinguishable from the practice we held unlawful in the Folweiler decision.” Additionally, the Court found Liberty Mutuals exemption provision argument unconvincing, noting that it is contrary to the “legislature’s clear mandate” that violations of the insurance regulations are subject to CPA liability. The court clarified that to agree with Liberty Mutual would “exempt broad swaths of insurer conduct from CPA liability, in direct contravention of our legislatures express intention that such conduct be subject to our states’ consumer protection law.” Therefore, the Court rejected Liberty Mutual’s reading of the CPA exemption provision.

As a result of the Shiff decision, use of any formulaic approach to determining the reasonableness of a provider’s medical bill constitutes a violation of the Washington Consumer Protection Act. Pursuant to the Folweiler and Shiff decisions, insurers are required to conduct an individualized investigation before reducing a medical bill.

Lether Law Group currently represents multiple insurers in coverage litigation in state and federal courts in Washington involving claims under CPA. If you have questions about the implications of Shiff or general questions in regard to pending insurance claims and compliance with Washington insurance law, please feel free to contact our office.

Thanksgiving and a Cornucopia of Potential Insurance Claims

   Thanksgiving is a time to spend with family and friends and celebrate all that we are thankful for. It is also a time for a cornucopia of potential insurance claims. Thanksgiving-related insurance claims can run the gamut from auto accidents, to slip-and-falls, fire losses, and even business losses.

   This year, it is estimated that 54.6 million people will travel more than 50 miles for their Thanksgiving celebrations, which greatly increases the risk of an auto accident or other travel-related insurance claim. In addition, the National Fire Protection Association (“NFPA”) has noted that Thanksgiving is the leading day of the year for home cooking fires in the United States.[1]  In fact, the NFPA has reported that home cooking fire reports increase over 200% on Thanksgiving Day versus the daily average for the rest of the year.[2]

   Increased risks of insurance claims are also not limited to homeowners and/or auto claims and the risks do not end on Thanksgiving Day. Millions of Americans will also venture out on Black Friday to take advantage of the many deals that can be found on the biggest shopping day of the year. This leads to increased exposure for businesses from parking lot accidents, slip-and-falls, miscellaneous property damage, and theft.  

   The increased number of losses over the Thanksgiving Weekend also results in an uptick in insurance claims under auto policies, homeowners policies, and business insurance policies. This means that insurers need to be ready to staff and handle a potentially large volume of new claims, both first-party and third-party, in the days and weeks surrounding the Thanksgiving Holiday.

   With these increased risks in mind, the Lether Law Group Family encourages everyone to use extra caution as you enjoy time with family and friends and/or as you venture out on Black Friday.

   If something unexpected should occur or if you need advice for post-Thanksgiving-related insurance claims, please keep in mind that the attorneys at Lether Law Group have over 33 years in combined experience in advising insurers and defending first and third-party claims. This includes providing coverage advice and defending large property losses, catastrophic accident injuries, and other spontaneous and unexpected claims. Please feel free to contact us at any time if you would like to discuss any Thanksgiving-related claims or any other matter.


[1] NFPA urges extra caution when preparing your feast this Thanksgiving, by far the leading day of the year for U.S. home cooking fires

[2] NFPA Keep everyone safe from fire hazards this Thanksgiving | NFPA