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From scofflaw boats to deathbed marriages, a look into Portland's niche litigation practices

Portland Business Journal
October 14, 2016

Overview

Some lawyers might balk at being classified as a specialist in one field of law or another, while others gravitate toward a specialty. Often this happens by means of personal interests. David Ernst’s love of science helped shape his interest in food safety litigation at Davis Wright Tremaine LLP in Portland, while James Parker’s past career as an insurance broker made for an easy transition into the practice of insurance defense at the same firm. Here’s a deeper look at the practices of several Portland area litigators whose specialties could be defined as niches.

Bill Ohle | Schwabe, Williamson & Wyatt

The niche: Architecture/engineering malpractice

What it is: “As a litigator focused on malpractice in the architecture and engineering space, I am dedicated to resolving conflicts around the ‘achievable parameters’ of building design. Architecture and engineering are governed by unique professional standards and legal requirements. Each discipline has its own applicable laws, ethical standards and regulatory bodies, requiring legal counsel that understands both design technique, which can often be cutting edge, and the particular laws governing the professions.”

An example: “I’m often asked to defend clients against claims of design defects involving novel construction techniques or materials. Such designs usually arise from demands of the building owner to achieve some distinctive ‘new’ look or goal, such as net-zero energy use. My job is to demonstrate that the building performed within the achievable parameters consistent with the professional standard of care, that is, what other competent professionals in the field also could have achieved given the demands of the owner and all the applicable building, safety and accessibility requirements.”

Steven Wilker | Tonkon Torp LLP

The niche: First Amendment cases

What it is:“Part of my litigation practice involves representing news organizations in matters arising from the gathering or publication of news stories.

An example:“The work involves advising reporters, editors and producers about what kinds of things reporters can do lawfully to gather the news; reviewing scripts or drafts of stories prior to broadcast or publication to determine whether the report is potentially defamatory and, if so, whether the report is sufficiently sourced and accurate to warrant publication; reviewing and responding to demands for retractions or corrections, and defending the broadcaster or publisher in the event of a lawsuit. I have also assisted our broadcaster client in seeking media access to allow cameras at court proceedings. And I worked with both our media and non-media clients in pursuing requests for public records.”

Elizabeth Milesnick | Miller Nash Graham & Dunn LLP

The niche: Vessel arrests

What it is:“When a ship buys fuel oil from a supplier, anywhere in the world, it typically gives the supplier a ‘maritime lien’ against the ship in U.S. federal courts. So instead of chasing the company that bought the oil (which has usually only chartered and does not own the ship), the ship itself, as the defendant in a lawsuit, can be arrested and seized to foreclose the maritime lien. The ship’s owner is then on the hook to satisfy — or defend against — the lien claim, to avoid the court selling the vessel to pay off the fuel supplying creditor.

An example:“Last year, a bit before Christmas, we received word from a worldwide fuel supplier that a grain tanker coming into the Port of Portland was subject to a maritime lien because its (now bankrupt) charterers had purchased fuel but — when invoiced — not paid for it. Before the ship could load its grain and move on to its next destination, we rushed to get about 12 different pleadings on file, including a verified complaint, seeking a court order authorizing arrest of the vessel. We simultaneously coordinated with the U.S. Marshal’s office to get someone out to the port that same night, in the dark and pouring rain, to inform the captain and crew that the vessel was being seized and would not be permitted to leave port until its owner dealt with the lien.”

Hilary Newcomb | Han Legal

The niche: The “slayer statute”

What it is:“Slayer statute cases involve crimes, yet it is in the probate court where we address the succession of a decedent’s property and disinherit a slayer. The concept of the slayer statutes is wrongdoers cannot profit from their wrongdoing. It is also possible to apply the slayer statutes in probate court to disinherit defendants absent a criminal conviction of murder, whether the defendant is awaiting trial (think years) or not yet criminally charged (think never). A benefit here is the civil probate courts use the lower preponderance of the evidence standard of proof to determine whether the killing was felonious and intentional, in contrast to the higher ‘beyond a reasonable doubt’ evidentiary standard required in criminal law.”

An example:“An example of a slayer statute case would be a murder-suicide, commonly spouses, where an estate needs to be opened for each decedent to disinherit the slayer and transfer the assets to the victim’s rightful heirs.”

David Ernst | Davis Wright Tremaine LLP

The niche: Food safety litigation

What it is:“I work with the food industry on nationwide food safety litigation and outbreak crisis response.”

An example:“I am involved right now with the legal response to two large Hepatitis A outbreaks involving food, one in Hawaii and the other in Virginia.”

Ginger Skinner | Skinner Law

The niche: Deathbed marriages

What it is:“Unmarried couples are much more common today, which can have some unanticipated consequences when one partner dies and there is no will. Oregon does not have common law marriage, so if a couple was not married, the surviving partner is not entitled to anything from the deceased partner’s estate. If the couple was married, the surviving spouse has priority to serve as executor of the estate and will receive between 50 percent and 100 percent of the deceased spouse’s assets. When one partner is close to dying, some couples believe a marriage is a quick-fix that avoids the need to sign a will. This can raise all sorts of interesting legal issues, such as, if the dying partner was on morphine, how could he or she have the capacity to get married?”

An example:“If the dying partner has kids, as soon as the marriage license is signed the kids lose 50 percent of their inheritance to the new spouse. If there are no kids, the new spouse is entitled to receive 100 percent of the decedent’s assets, and the decedent’s other family (parents, or siblings) lose out.

Christine Reinert | MacMillan, Scholz & Marks PC

The niche: subrogation

What it is:“Insurance carriers hire our firm to ‘stand in the shoes of’ their insured customers and pursue at-fault third parties to recoup damages the insurer paid out to its insureds. Sometimes the third party has no insurance, so we attempt to secure a judgment to the benefit of the insurer. Other times, the third party has insurance, but liability or damages are disputed, in which case we litigate those issues.”

An example:“You are rear-ended driving home from work. You are insured, and not at fault. If the person who rear-ended you has no insurance, your insurer will pay you your damages, but retains the right to pursue the person that rear-ended you for reimbursement, and hires our firm to litigate that process. Perhaps the person who rear-ended you does have insurance, but they and their insurer don’t think they are at fault; or, they agree they are at fault, but do not think it caused your injury, or they dispute the amount of damages.

Loren Podwill | Bullivant Houser Bailey PC

The niche: Fidelity and surety law

What it is:“My area, in addition to commercial litigation, is fidelity and surety law and bond and insurance claims related to banks, including failed banks. Surety bonds include payment and performance bonds on private, but usually public works, projects. If the bond principal fails to complete the project or fails to pay subcontractors or suppliers, the surety may be required to do so up to the penal limit of the bond. My fidelity practice often involves failed banks throughout the western states and claims brought by regulatory agencies after a bank has been closed.”

An example:“A school district contracts with a general contractor for a new school to be completed by opening day in September. Performance and payment bonds are issued by a surety. If the contractor is terminated or abandons the project, the school district can make a claim on the performance bond. If the claim is valid, the surety can either hire a completion contractor to finish the school or pay the district up to the penal limit of the bond.”

James Parker | Davis Wright Tremaine LLP

The niche: Insurance defense

What it is:“I represent insurance brokers (and other kinds of insurance intermediaries, such as wholesalers and third-party administrators) with their legal needs. These can include defense of “errors and omissions” claims, non-competition litigation, M&A, and regulatory counseling.”

An example:“Here’s a recent case with a typical fact pattern: A company that processes and packages seafood became contaminated with bacteria that caused it to shut down for cleaning/repairs and recall of product. When the company submitted an insurance claim to cover its costs and lost revenues, the claim was denied based on a common property exclusion for bacteria and virus. The company sued its broker for negligence, asserting that they were misled about their coverage. We were able to show the court that our client had informed the insured of what they were purchasing and had secured the coverage the insured requested. We won summary judgment and the claim was dismissed earlier this month.”

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