Schnitzer Steel Industries, Inc. et al v. Continental Casualty Company et al

Filing 242

STIPULATED ORDER RESOLVING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT REGARDING THE RETROACTIVITY AND CONSTITUTIONALITY OF SB 814 237 . Signed on 10/25/13 by Judge Michael W. Mosman. (dls)

Scott J. Kaplan, OSB No. 913350
[e-mail]
STOEL RIVES LLP
900 SW Fifth Avenue, Suite 2600
Portland, OR 97204
Telephone: [phone]
Facsimile: [phone]
Joseph W. Montgomery, III (admitted pro hac vice)
[e-mail]
John E. Iole (admitted pro hac vice)
[e-mail]
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219-2514
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
SCHNITZER STEEL INDUSTRIES, INC.,
an Oregon corporation; and MMGL CORP.,
a Washington corporation,
Plaintiffs,
v.

Case No.: 3:10-cv-01174-MO
STIPULATED XXXXXXXXX ORDER
[PROPOSED]
RESOLVING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
REGARDING THE RETROACTIVITY
AND CONSTITUTIONALITY OF SB 814

CONTINENTAL CASUALTY
COMPANY, an Illinois corporation; and
TRANSPORTATION INSURANCE
COMPANY, an Illinois corporation,
Defendants.
The parties by and through their undersigned counsel hereby stipulate and move the
Court to enter an order resolving the relief sought in defendants’ October 1, 2013 (corrected
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- STIPULATED [PROPOSED] ORDER RESOLVING DEFENDANTS’ MOTION
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CONSTITUTIONALITY OF SB 814

74850120.1 0068163-00092

October 2, 2013) Motion for [partial] Summary Judgment Regarding the Retroactivity and
Constitutionality of SB 814 (ECF No. 237) (“Summary Judgment Motion”).
RECITALS
A.

Defendants’ (collectively “Continental”) Summary Judgment Motion asserts that

Section 6 of Oregon Senate Bill 814 (“Section 6”), enacted and effective June 10, 2013, does not
apply retroactively to, and could not constitutionally be construed to subject an insurance
company to liability for, alleged unfair environmental claims settlement practices occurring
before June 10, 2013.
B.

In a letter dated July 19, 2013, Schnitzer requested that Continental reimburse

Schnitzer for alleged unpaid defense expenses and further stated that its July 19 letter constituted
notice of a claim under Section 6. Schnitzer maintains and confirms that it does not seek
recovery pursuant to the July 19 letter in its Amended and Supplemental Complaint (ECF No.
226).
C.

Schnitzer maintains and confirms that its operative pleading in this action, its

Amended and Supplemental Complaint, does not seek recovery under Section 6, including
recovery of enhanced damages, for alleged unfair environmental claims settlement practices
occurring prior to June 10, 2013. Rather, Schnitzer alleges a right to relief under Section 6 only
for any unfair environmental claims settlement practices that have allegedly occurred or may
occur after June 10, 2013.
D.

Schnitzer maintains and confirms that it has not taken the position in its Amended

and Supplemental Complaint that Section 6 applies retroactively to any defense costs submitted
by Schnitzer to Continental for reimbursement prior to June 10, 2013.

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74850120.1 0068163-00092

E.

By entering into this stipulation to avoid unnecessary motion practice, no party

intends to waive any arguments or positions about whether Section 6 of SB 814 or any other
provision of SB 814 applies retroactively or whether such retroactive application would be
constitutional, nor is this stipulation intended to be an admission of any kind by any party.
OPERATIVE TERMS
1.

Schnitzer’s Amended and Supplemental Complaint seeks recovery under Section

6 only as follows:
a.

Pursuant to paragraph 48 of the Amended and Supplemental Complaint,

Schnitzer alleges a right to enhanced damages for any unfair environmental claims
settlement practices within the meaning of Section 6 only with respect to defense costs
first submitted by Schnitzer to Continental for reimbursement on or after June 10, 2013.
b.

Pursuant to paragraph 51(f) of the Amended and Supplemental Complaint,

Schnitzer alleges a right to recover interest under Section 6 for invoices first submitted on
or after June 10, 2013 and not paid in full by Continental within 30 days of receipt by
Continental.
c.

Pursuant to paragraph 51(g) of the Amended and Supplemental

Complaint, Schnitzer seeks enhanced damages in an amount determined by the Court
only as to any unfair environmental claims settlement practices within the meaning of
Section 6 with respect to defense costs first submitted by Schnitzer to Continental for
reimbursement on or after June 10, 2013.
2.

Schnitzer does not seek under its Amended and Supplemental Complaint

enhanced damages under Section 6 for defense costs first submitted to Continental for
reimbursement before June 13, 2013.
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74850120.1 0068163-00092

3.

This stipulation fully resolves the issues raised in the Summary Judgment Motion.

IT IS SO STIPULATED this 24th day of October, 2013.

s/ Scott J. Kaplan
SCOTT J. KAPLAN, OSB NO. 913350
[e-mail]
STOEL RIVES LLP
900 SW Fifth Avenue, Suite 2600
Portland, OR 97204
Telephone: [phone]
Facsimile: [phone]

s/ Lawrence Gottlieb
LAWRENCE GOTTLIEB, OSB NO. 070869
[e-mail]
BETT PATTERSON & MINES, PS
One Convention Place, Suite 1400
701 Pike Street
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiffs

Attorneys for Defendants

DECLARATION REGARDING SIGNATURES
I, Scott J. Kaplan, declare under penalty of perjury that I obtained concurrence to file this
document from other signatory to this document.

s/ Scott J. Kaplan
SCOTT J. KAPLAN
25th
Oct.
IT IS SO ORDERED this _____ day of _______, 2013

/s/Michael W. Mosman
THE HONORABLE MICHAEL W. MOSMAN
United States District Court Judge

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- STIPULATED [PROPOSED] ORDER RESOLVING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT REGARDING THE RETROACTIVITY AND
CONSTITUTIONALITY OF SB 814

74850120.1 0068163-00092