Opinion
3:22-CV-00802-YY
05-17-2024
ALEX STENGEL and KATIE STENGEL, Plaintiffs, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant. AMERICAN FAMILY INSURANCE COMPANY, Counterclaim Plaintiff, v. ALEX STENGEL and KATIE STENGEL, Counterclaim Defendants. AMERICAN FAMILY INSURANCE COMPANY, Third-Party Plaintiff, v. DANIEL THOMAS BARKER, ADAM BLAGG, and N.W. CLAIMS MANAGEMENT, LLC Third-Party Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Plaintiffs Alex and Katie Stengel originally brought suit against defendant American Family Insurance (“American Family”) in Clackamas County Circuit Court and the matter was removed to this court based on diversity jurisdiction. See Not. Removal, Ex. A (Complaint), ECF 1-1. Thereafter, American Family filed a counterclaim against the Stengels and a Third-Party Complaint against Daniel Thomas Barker, Adam Blagg, and N.W. Claims Management, LLC. ECF 12. All claims by and against the Stengels have been dismissed, ECF 53, and the claims brought by American Family against third-party defendants Blagg and N.W. Claims Management, LLC have been dismissed. ECF 76.
The only claims remaining are American Family's claims of intentional interference with contractual relations and contribution against third-party defendant Barker. ECF 26. Barker has filed a motion for summary judgment against those claims. ECF 59. The motion for summary judgment should be granted and the claims against Barker should be dismissed with prejudice.
I. Background
This matter arises from an insurance claim that the Stengels filed with their insurer, American Family, following damage to their residential property due to water. See Am. Compl. ¶¶ 1, 7, ECF 23. To assist in presenting their claim to American Family, the Stengels hired a licensed public adjuster, Adam Blagg, owner of N.W. Claims Management LLC, to prepare an estimate of the cost to repair the damage. Blagg and American Family could not reach an agreement on the cost of repair, which led the Stengels to invoke the appraisal clause of their insurance policy.The appraisal clause states that, where American Family has confirmed that the damage due to a loss is covered but does not agree with the insured on the dollar amount of the damage, each party hires a “competent and disinterested” appraiser to calculate the dollar amount of the damage. If the appraisers fail to agree on the amount, they submit their valuations to a “competent and disinterested” umpire. Agreement between any two of these three individuals-i.e., the two appraisers and the umpire-binds the parties. The Stengels hired third-party defendant, Daniel Barker, and American Family hired Gary Halpin to serve as their respective appraisers, and retired judge Steve Scott was selected as the umpire.
See Am. Answer, Ex. A at 33, Section I - CONDITIONS, 3. Appraisal (“Policy”), ECF 26-1.
II. Legal Standard-Motion for Summary Judgment
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact by citing to the record, including “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then “go beyond the pleadings” and identify in the evidentiary record “specific facts showing that there is a genuine issue for trial.” Id. at 324.
Only disputes over facts that are outcome determinative preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, the dispute must be genuine, “such that a reasonable jury could return a verdict for the nonmoving party.” Id. There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v.Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). All rational and reasonable inferences are drawn in the nonmoving party's favor. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989).
III. Intentional Interference with Contractual Relationship
To prove a claim for intentional interference with a contractual relationship, a plaintiff must show “(1) the existence of a professional or business relationship (which could include, e.g., a contract or a prospective economic advantage); (2) intentional interference with that relationship or advantage; (3) by a third party; (4) accomplished through improper means or for an improper purpose; (5) a causal effect between the interference and the harm to the relationship or prospective advantage; and (6) damages.” Allen v. Hall, 328 Or. 276, 281 (1999) (citing McGanty v. Staudenraus, 321 Or. 532, 535 (1995)). The defendant must have acted with intent to interfere or knowledge that interference is “substantially certain to occur from his action,” and the interference cannot be merely inadvertent or incidental. Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 621 (1987) (citations omitted). The salient inquiry is “whether defendant's tortious conduct damaged plaintiff's economic or contractual relationship.” Id. at 622.
“Either the pursuit of an improper objective of harming plaintiff or the use of wrongful means that in fact cause injury to plaintiff's contractual or business relationships may give rise to a tort claim for those injuries.” Top Serv. Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 205 (1978). Thus, “even when [a] defendant's objectives are not improper, for instance the pursuit of competition or other legitimate interests, [a] defendant may still be liable for using improper means to achieve these objectives.” Id. at 209.
A plaintiff may establish improper means by showing that the defendant's conduct violated “a statute or other regulation, or a recognized rule of common law, or perhaps an established standard of a trade or profession.” Id. at 209-10. Improper means include, for example, “violence, threats, intimidation, deceit, misrepresentation, bribery, unfounded litigation, defamation and disparaging falsehood.” Church v. Woods, 190 Or.App. 112, 118 (2003) (internal quotation omitted).
To establish improper purpose, also referred to as improper motive, the plaintiff must show that the defendant intended to “inflict injury on the plaintiff as such.” Ride PDX, LLC v. Tee & B, LLC, 322 Or.App. 165, 168 (2022), opinion adhered to as modified on reconsideration, 323 Or.App. 739 (2023) (quoting Nw. Nat. Gas Co. v. Chase Gardens, Inc., 328 Or. 487, 498 (1999)). “Generally, a defendant's subjective judgment as to its own business purposes will control.” Nw. Nat. Gas, 328 Or. at 498.
The Oregon Supreme Court expounded on what evidence is demonstrative of improper motive in Lewis v. Oregon Beauty Supply. There, when the plaintiff's romantic relationship with the defendant, who was a supervisor, turned sour, the defendant told other employees that the plaintiff had given him a venereal disease, called the plaintiff a whore, glared at her from outside her office, searched her personal belongings, and threw things at her. 302 Or. at 618. He also told other employees that the plaintiff would not be working for the company much longer, and told the plaintiff, “I don't have to work with you. You've dug your hole, and you're out.” Id. at 621. The court found that the defendant “knew that he was interfering with plaintiff's job performance and therefore had the requisite knowledge that he was interfering” with the plaintiff's relationship with her employer. Id. at 622.
In contrast, the Oregon Supreme Court found in Top Service Body Shop, Inc. v. Allstate Insurance Company that there was insufficient evidence of improper motive. In that case, the plaintiff, an operator of an automobile body repair shop, made a claim for tortious interference with business relations against the defendant, an insurance company. The evidence showed that the insurer had “a practice of designating certain repair shops in the locality as ‘competitive shops' to which it prefer[red] to send insurance claimants for whose repairs [the insurer] [was] obligated,” and the insurer's adjusters “would actively discourage claimants under its insurance policies from taking work to be paid for by [the insurer] to [the plaintiff], sending them instead to other shops on its preferred list.” 283 Or. at 211-12. On two occasions, the adjusters “disparaged the quality of [the plaintiff's] work (apart from its relative cost),” and on one occasion, the insurer took its “option to ‘total' a car, i.e., pay off its value, when the insured wanted it repaired” by the plaintiff. Id. at 212. The court found that these actions were “wholly consistent with [the insurer's] own business purposes” and did not “support an inference of the alleged improper purpose to injure” the plaintiff's business. Id.
Oregon courts have made clear that “to be actionable under the ‘improper purpose' prong, the purpose must be to inflict injury on the plaintiff.” Ride PDX, 322 Or.App. at 174 n.5 (emphasis in original) (citing Nw. Nat. Gas., 328 Or. at 498 (holding that “if liability in tort is to be based on an actor's purpose, then the purpose must be to inflict injury on the plaintiff ‘as such'”)). In Ride PDX, the plaintiffs and defendants were tenants of a retail space leased to them by a third-party landlord. Id. at 167. The defendants had filed noise complaints against the plaintiffs and had threatened to file a lawsuit against the building's landlord if the noise problem was not immediately remedied. Id. Shortly thereafter, the landlord sought to evict the plaintiffs. Id. The plaintiffs then filed a complaint for intentional interference with economic relations alleging that the defendants had misrepresented the noise issue to extract rent concessions from the landlord. Id. at 169-70. The court found that the plaintiffs' allegation that the defendants possessed an improper purpose “to obtain rent concessions from [the landlord] for their own benefit” could not support an intentional interference claim. Id. at 174 n.5 (emphasis in the original); see also Eusterman v. Northwest Permanente, P.C., 204 Or.App. 224, 238 (2006) (rejecting the assertion that the defendant acted with improper purpose when it sought to “maximize its profits” by encouraging the plaintiff's employer to terminate the plaintiff).
In its third-party complaint, American Family alleged that Barker “is an employee of Mr. Blagg's business and therefore, is not a disinterested appraiser.” Am. Answer ¶ 62, ECF 26. American Family also alleged that Barker, “in an effort to interfere with [American Family's] rights under the insurance policy, . . . intentionally altered the appraisal award” that Halpin and Barker had “agreed to.” Am. Answer ¶¶ 71, 78, ECF 26.
American Family's theory has shifted somewhat on summary judgment. In response to Barker's motion for summary judgment, American Family contends that Barker “was at some point an employee of Mr. Blagg's business-or at a minimum had entered into a contractual relationship with Mr. Blagg to be an employee on or about June 26, 2020-and therefore, was not a disinterested appraiser.” Resp. 3, ECF 66. American Family asserts that Barker possessed a “close business relationship” with N.W. Claims Management and altered the appraisal award to “benefit himself and N.W. Claims Management.” Id. at 3, 11. American Family argues that Barker's “conflict of interest constitutes an improper purpose while his intentional alteration of the appraisal award constitutes improper means.” Id. at 11.
Barker insists that there was “no employment or business relationship between [himself] and Blagg” and that he had no financial interest in the outcome of the appraisal. Reply 3, ECF 68; Vance Decl., Ex. 13 (“Blagg Dep.”), 27:17-22, ECF 69. Barker contends that American Family has not shown that he acted with the requisite improper motive-rather, Barker asserts that his decision to send a revised award form to Halpin was in furtherance of “his job as appraiser by correcting Halpin's deliberate mistake that [American Family] intended to use as an illegitimate means to try to deny paying part of a covered loss.” Mot. Summary J. 15, ECF 59.
Even viewing the evidence in the light most favorable to American Family and drawing all reasonable inferences in its favor, the record is unequivocal that Barker did not act with either the improper purpose or improper means required to establish an intentional interference claim. The uncontroverted evidence shows that, at the time of the alleged misconduct, Barker and Halpin, as appraisers retained by the Stengels and American Family respectively, were engaged in negotiations over the appraisal award. Barker and Halpin agreed on the actual cash value and the replacement cost value of the loss to the Stengels' property-the appraisers found that the actual cash value was $98,245.19 and the replacement cost value was $104,507.58-but the appraisers disputed the proper characterization of a remaining sum of $9,880.98. Barker Decl., Ex. 2, ECF 74 at 6; id., Ex. 3, ECF 74 at 8.
Halpin characterized the $9,880.98 as “matching,” which American Family asserts is not covered under the policy. See Resp. 3, ECF 6. The policy states, in pertinent part, “[w]e will not pay to refinish, repair, or replace any undamaged property that does not match new materials used to refinish, repair, or replace damaged property.” Am. Answer, Ex. A at 37, ECF 26-1. Barker and the Stengels, on the other hand, have maintained that the correct characterization is “contents,” i.e., “the reasonable and necessary cost to manipulate contents while remediation and restoration work is being performed,” which would be “part of the covered claim for property damage to the Dwelling.” First Am. Compl. ¶ 19, ECF 23; Barker Decl. ¶ 1, ECF 60 (attesting that “contents manipulation is a covered category of damage related to repairs”).
On March 28, 2022, Halpin emailed Barker a proposed “compromise” in which he characterized the $9,880.98 as “matching.” Barker Decl., Ex. 1, ECF 74 at 5. Barker responded by email, stating: “I do not accept this. Please send this back with no column for ‘matching.'” Id., Ex. 2, ECF 74 at 6. When Halpin instead sent back a signed award form that continued to describe the amount as “matching,” Barker removed the term “matching” himself, relabeled the amount as “contents,” affixed his signature to the form, and returned it to Halpin. Id., Ex. 3, ECF 74 at 8. Then, Halpin revised the award form to describe the loss as a “water” event instead of a “fire” event and, without obtaining authority for the change from Barker, emailed the award form to the umpire. Id., Ex. 8, ECF 74 at 12. Shortly afterwards, Halpin emailed the umpire that Barker changed the form after Halpin had affixed his signature to it and stated that he would “not [be] going forward with this appraisal” until instructed by American Family. Id., Ex. 4, ECF 74 at 10. At that point, American Family declined to provide the Stengels any further payment on their claim. Pyasetkyy Decl., Ex. 1, 22:19-22, ECF 67-1.
In sum, the record reflects that Barker returned the modified award form to Halpin as part of a continuing dispute they were having over how to characterize the remaining $9,880.98. Halpin's refusal to remove the characterization of “matching” per Barker's request caused Barker to correct the award form to reflect his assessment of the proper characterization of the costs. In his declaration, Barker states, “I advised Mr. Halpin that I would not sign any proposed appraisal award if ‘Matching' was listed as a category of damage. Despite this, Halpin sent me a proposed appraisal award with ‘Matching' listed as a category anyway.” Barker Decl. ¶ 1, ECF 60. Notably, Barker sent the form back to Halpin; at no point did Barker send the award form to the umpire or otherwise represent that the document was complete and enforceable. It was then that Halpin, not Barker, attempted to enforce the award form by altering it again and sending it to the umpire. Barker Decl., Ex. 8, ECF 74 at 12. And it was Halpin, not Barker, who terminated the appraisal process. Id., Ex. 4 at 10.
American Family contends that Barker used improper means when he “intentionally altered the appraisal award” that he and Halpin had “agreed to.” Am. Answer ¶¶ 71, 78, ECF 26. But, as the evidence indisputably shows, there was no agreement. Barker made it clear to Halpin that he “d[id] not accept” Halpin's characterization of the $9,880.89 as “matching.” Barker Decl., Ex 2, ECF 74 at 6. Nor did Barker use improper means by recharacterizing the $9,880.98 as “contents” before returning the form to Halpin, where Barker had previously told Halpin in no uncertain terms, “I do not accept this,” and Halpin failed to delete the term “matching” as Barker had asked him to.
There is also no evidence from which a rational trier of fact could find that Barker acted with an improper purpose. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”). Like the insurer in Top ServiceBody Shop, Barker's actions were “‘wholly consistent' with the proper purpose of advancing his business purposes”, i.e., as an appraiser selected by the insured to provide his opinion regarding the dollar amount of the damage. 283 Or. at 212. Barker contends that he “did his job as appraiser by correcting Halpin's deliberate mistake that [American Family] intended to use as an illegitimate means to try to deny paying part of a covered loss.” Mot. Summary J. 15, ECF 59. American Family maintains that it did not direct Halpin to act in any way. True, there is no evidence of this in the record on summary judgment. However, there is uncontroverted evidence that Barker believed he was performing his job as an appraiser, believed that the correct characterization was “contents,” and believed that “contents manipulation is a covered category of damage related to repairs.” Barker Decl. ¶ 1, ECF 60. As the Oregon Supreme Court has instructed, “[g]enerally, a defendant's subjective judgment as to its own business purposes will control.” Nw. Nat. Gas, 328 Or. at 498.
Contrary to American Family's assertion, the record is devoid of evidence showing that Barker acted with an improper motive due to a “conflict of interest.” Resp. 11, ECF 66. American Family contends that Barker “had a close business relationship” with Blagg and acted with the motive to “secretly benefit himself as a business partner with Mr. Blagg and N.W. Claims Management-who stood to receive more money with the newly altered award by altering the award.” Resp. 3, 11, ECF 66. In support of its claim that Barker modified the award for surreptitious financial gain, American Family relies upon an apparent employment agreement between Barker and N.W. Claims Management from June 2020 to show that Barker “was at some point an employee of Mr. Blagg's business-or at a minimum had entered into a contractual relationship with Mr. Blagg to be an employee ....” Id. at 2 (citing Answer, Ex. B, ECF 12-2).
American Family has further presented evidence that the Stengels were not aware of any employment relationship between Barker and Blagg. Pyasetskyy Decl., Ex. B (Alex Stengel Dep.), 24:20-24, ECF 67-2.
But the uncontroverted evidence is that Barker in fact never went to work for Blagg or N.W. Claims Management and otherwise had no business relationship with Blagg. Reply 3, ECF 68; Blagg Dep. 23:13-25; 27:20-22, ECF 69. Blagg testified that he and Barker are not business partners, Barker has never been his partner or employee, and Barker has no financial interest with Blagg or any of Blagg's companies, including N.W. Claims Managment. Blagg Dep., 23:1324:4, ECF 69; Blagg Decl. ¶¶ 7-8, ECF 73.
Blagg states, in his declaration, that this contract “never went into effect” because Barker was “severely injured” in a motor vehicle accident that incapacitated him from working as a public adjuster, which often requires climbing ladders and crawling underneath houses. Blagg Decl. ¶ 9, ECF 73; see also Blagg Answer ¶ 5, ECF 31.
The fact that Blagg had offered Barker employment in June 2020, almost two years before the events at issue here took place in March 2022, does not establish a “conflict of interest” or “close business relationship.” It also does not prove how Barker would have benefited by modifying the award form to correct what was, in his professional opinion, a mischaracterization that would have prevented the Stengels from recovering an additional $9,880.89 under the policy. Pursuant to the appraisal clause, the Stengels were responsible for paying Barker his hourly fee, and there is no evidence that Barker would have received more money if the Stengels obtained a higher award. See Am. Answer, Ex. A at 33, ECF 26-1 (“We will pay our appraiser. You will pay your appraiser.”); Blagg Decl. ¶¶ 5, 7 ECF 73 (attesting that appraisers are paid on an hourly basis and he has never paid an appraiser a percentage of the amount he recovered from the insurer).
American Family argues that Barker acted not only to financially benefit himself but also to benefit Blagg. As a public adjuster, Blagg's “compensation is based upon a percentage of the money recovered from the insurance company,” and Blagg had an agreement with the Stengels to receive 10% of the money they recovered from American Family. Blagg Decl. ¶ 2, ECF 73. Blagg attests that when the Stengels invoked the appraisal clause, he “selected” Barker as the Stengel's appraiser because Barker “has extensive experience with property damages claims and his rates are reasonable.” Id. ¶ 5.
There is no evidence to support the conclusion that Barker recharacterized the $9,880.89 as “contents” so that American Family would have to pay more money to the Stengels and, in turn, Blagg would receive a higher fee. On summary judgment, the nonmoving party “must respond with concrete evidence and cannot rely on “mere speculation[.]” O.S.C. Corp. v. AppleComputer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986). Moreover, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
It is pure speculation to conclude from the existence of a nearly two-year old employment contract that never went into effect, that Barker's motive in correcting the award form was so that Blagg would receive a higher fee from the Stengels. And, while Blagg “selected” Barker as the Stengel's appraiser, his uncontroverted testimony is that he did so because Barker has “extensive experience with property damages claims” and his rates, which the Stengels would be paying, were “reasonable.” Blagg Decl. ¶ 5, ECF 73. The mere fact that Blagg selected Barker as the Stengels' appraiser is not enough to prove that Barker, in return, acted with the improper motive to characterize the damages as “contents” so that Blagg would receive a higher fee.Because American Family offers only speculation without evidence, it has failed to create a genuine issue of material fact on summary judgment. See Carmen v. San Francisco Unified Sch.Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) (“A plaintiff's belief that a defendant acted from an unlawful motive, without evidence supporting that belief, is no more than speculation or unfounded accusation about whether the defendant really did act from an unlawful motive.”); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.”).
If so, then any adjuster who stands to benefit from an appraisal award in the insured's favor would be incapable of selecting or recommending an impartial appraiser, and under similar reasoning, an insurance company that stands to benefit as the result of an appraisal award in its favor would be incapable of selecting, and paying for, an impartial appraiser. This is illogical and contrary to what is contemplated by the appraisal clause, which allows the parties to each “choose” an impartial appraiser.
Finally, while American Family contends that Barker acted with the improper purpose to financially benefit himself and Blagg, there can be no viable claim for intentional interference without evidence that Barker acted with the improper purpose to harm American Family. As Oregon courts have repeatedly held, “to be actionable under the ‘improper purpose' prong, the purpose must be to inflict injury on the plaintiff.” Ride PDX, 322 Or.App. at 174 n.5; see also Nw. Nat. Gas, 328 Or. at 498 (holding “if liability in tort is to be based on an actor's purpose, then the purpose must be to inflict injury on the plaintiff ‘as such'”) (citing Top Serv., 283 Or. at 211). Here, there is only speculation, or at best “the mere existence of a scintilla of evidence,” that Barker acted with the “improper objective” of harming American Family, neither of which is sufficient to survive summary judgment. Anderson, 477 U.S. at 252; Top Serv. Body Shop, 283 Or. at 205.
Without evidence of the requisite improper motive or improper means, American Family's claim for intentional interference with a contractual relationship fails. Additionally, American Family has offered no evidence to support the elements of causation and damages. American Family contends that Barker should have disqualified himself because he was not a disinterested appraiser; however, there is no evidence that a different appraiser would have agreed with Halpin that the proper characterization was “matching,” or if not, that the umpire would have ultimately agreed with Halpin on this point. Moreover, the appraisal clause was invoked by the Stengels because they disagreed with American Family as to what damages were covered under the policy. Barker's recharacterization of the term “matching” to “contents” on the award form did not alter this dispute or add harm to the existing relationship between American Family and the Stengels. And, again, Barker returned the modified appraisal form to Halpin; he did not send the form to the umpire, and it was Halpin who ultimately terminated the appraisal process. Thus, there is no evidence that Barker's conduct “damaged [American Family's] economic or contractual relationship” with the Stengels. Lewis, 302 Or. at 621.
As noted, the appraisal clause requires that, if the appraisers do not agree, the appraisers “submit their differences to the umpire” and a “[w]ritten agreement signed by any two of these three will set the dollar amount of the damage.” Am. Answer, Ex. A at 33, ECF 26-1.
IV. Contribution
O.R.S. 31.800 sets forth the legal standard for common law contribution claims. It provides in relevant part:
(1) Except as otherwise provided in this section, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. There is no right of contribution from a person who is not liable in tort to the claimant.
(2) The right of contribution exists only in favor of a tortfeasor who has paid more than a proportional share of the common liability, and the total recovery of the tortfeasor is limited to the amount paid by the tortfeasor in excess of the proportional share. No tortfeasor is compelled to make contribution beyond the proportional share of the tortfeasor of the entire liability.
(3) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what is reasonable.O.R.S. 31.800. “In a suit for contribution, the third party defendant is liable to the original defendant-third party plaintiff for a portion of the total liability only if the original plaintiff could have recovered against the third party defendant.” Miller v. City of Portland, 288 Or. 271, 274 (1980), abrogated on other grounds by Fulmer v. Timber Inn Rest. & Lounge, Inc., 330 Or. 413 (2000).
American Family is entitled to contribution from Barker only if it can prove that Barker would have been liable to the Stengels in tort. American Family's third-party complaint alleges a single tort against Barker-the intentional interference claim analyzed above. At the hearing on the motion for summary judgment, American Family was unable to identify any other tort that Barker committed against the Stengels. Where American Family has not presented evidence on which to find that Barker intentionally interfered in the relationship between American Family and the Stengels, American Family has not identified a tort for which Barker is liable to the Stengels. American Family's failure to support a cause of action that the Stengels could have brought against Barker bars its recovery of contribution from Barker.
RECOMMENDATIONS
Third-party defendant Daniel Barker's motion for summary judgment against third-party plaintiff American Family (ECF 59) should be GRANTED and American Family's claims against Barker should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, May 10, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.