Stumpf v. Continental Casualty Co.6/27/1990
COURT OF APPEALS OF OREGON
CA No. A46240
1990.OR.40792 ; 794 P.2d 1228; 102 Or. App. 302
June 27, 1990
WILLIAM H. STUMPF, CARL E. STIFF, M.D. AND MILWAUKIE WOMEN'S CLINIC, P.C., RESPONDENTS,
v.
CONTINENTAL CASUALTY COMPANY, APPELLANT
Appeal from Circuit Court, Multnomah County. Harl H. Haas, Judge. No. A8404-02347.
William L. Hallmark, Portland, argued the cause for appellant. With him on the briefs were William G. Earle and Hallmark, Keating & Abbott, P.C., Portland.
Richard P. Noble, Lake Oswego, argued the cause for respondents Stumpf. With him on the brief was Kathryn H. Clarke, Portland.
Garry L. Kahn, Portland, argued the cause for respondents Stiff and Milwaukie Women's Clinic, P.C. With him on the brief was Emerson G. Fisher, Portland.
Buttler, Presiding Judge, and Warren and Rossman, Judges. Buttler, P. J., dissenting.
Rossman
In this excess liability case, defendant insurance company (CNA) appeals a judgment entered in favor of Stiff, its insured, and the Stumpfs, his assignees, for damages allegedly resulting from its negligent evaluation, investigation and negotiation of a medical malpractice claim against Stiff. CNA makes forty-seven assignments of error, arguing, inter alia, that (1) it was entitled to make certain references at trial to the Professional Assessment Committee that reviewed the malpractice claim against Stiff; (2) it is not vicariously liable for conduct of counsel that it hired to defend Stiff; (3) it was entitled to assert defenses based on the comparative fault and non-cooperation of its insured; (4) Stiff's assignment to the Stumpfs impermissibly split his cause of action; (5) plaintiffs should have been required to produce certain documents; (6) plaintiffs' damages should be limited to the amount of Stiff's leviable assets; and (7) the amount of attorney fees awarded the Stumpfs was unreasonable. We affirm.
Stiff, a physician, was insured under CNA's liability policy for $1,000,000. In 1983, the Stumpfs brought an action against him for medical malpractice, seeking $3,000,000 in damages for his alleged failure to diagnose Mrs. Stumpf's breast cancer. Under its policy, CNA undertook Stiff's defense. On the day before trial, the Stumpfs offered to settle for the $1,000,000 policy limits, but Stiff would not consent. Three days later, he demanded that CNA settle for the policy limits. CNA subsequently made settlement offers of $100,000 and $150,000, which the Stumpfs rejected. The jury returned a verdict against Stiff for $3,000,000.
Stiff assigned his excess liability claim against defendant to the Stumpfs but retained his claim for lost income and general damages. Stiff, Milwaukie Women's Clinic and the Stumpfs then brought this action against CNA, alleging that its negligent evaluation, investigation and negotiation of the claim against Stiff resulted in a judgment for $2,000,000 in excess of its policy limits. A jury found for all plaintiffs, and
the trial court entered judgment in favor of Stiff for general damages of $4,916, lost income of $102,500 and attorney fees of $35,805.33 and in favor of the Stumpfs for the excess judgment of $2,000,000, plus attorney fees of $692,325 and prejudgment interest of $769,300.
CNA first argues that the court misapplied ORS 41.675 when it ruled that CNA could not refer to or examine witnesses in any respect about the Professional Assessment Co
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