St. Paul Fire and Marine Ins. Co., v. Continental Casualty Co., 112 Or App 209 (1992).
Contribution
Plaintiff insurance company settled a claim brought against a hospital and physician in which the plaintiff insurance company was the hospital’s insurer. Plaintiff then sought contribution against the insurer of a nurse against whom a claim was not asserted by the patient nor was a third party claim asserted by the hospital. Plaintiff sought to prove in the contribution action that the nurse was liable, but dropped its claim against the nurse after the trial court ruled in favor of the defendant insurance company. The Court of Appeals affirmed the trial court’s dismissal, holding there was no theory under which plaintiff could recover contribution under those facts.
Stumpf v. Continental Casualty Co., 102 Or App 302 (1990).
Excess Liability
Physician brought an excess liability case against its insurer for negligent investigation, evaluation, and negotiation of a medical malpractice claim. Insurer was not entitled to refer to or examine witnesses about the peer review committee which reviewed the underlying case against the insured physician. ORS 41.675 provides that communications submitted to the peer review committee or findings of that committee are privileged and are not admissible in any judicial proceeding. The insurer intended to offer the testimony of a member of the peer review committee that the committee reviewed the care given by insured physician and that such review affected insurer’s evaluation of the underlying case. The court held that such testimony was inadmissible because the necessary inference is that the case was defensible which would convey the substance of the committee’s findings.
An insurer may be vicariously liable for the negligence of counsel it hired to handle the defense of the insured based on insured’s contractual duty to provide counsel and the degree of control exercised over the defense. In an excess case, the insurer may not affirmatively allege comparative negligence because it is not relevant to contractual liability of insurer. Insurer was not subjected to the possibility of multiple actions where an insured assigns only a portion of cause of action but all plaintiffs are joined in a single action against the insurance company. The judgment is binding on all plaintiffs and therefore does not violate rule against splitting causes of action.
Aetna Casualty & Surety Co. v. Oregon Health Sciences University, 310 Or 61 (1990).
Indemnity and Contribution
Insurer of a hospital brought an action for indemnity and contribution against the state and the state medical school. The original case for medical malpractice of a resident on rotation at the defendant hospital was settled and payment was made by the hospital’s insurer and a payment for the state and state medical school. Insurer of hospital failed to state a cause of action for statutory indemnification under ORS 30.285(1) because the statute does not create any rights in third parties against public agencies or bodies. Insurer’s claim for contribution was barred by
ORS 18.440(3) and ORS 18.450(4) because insurer did not discharge the common liability in full.
In the Matter of the Constitutional Test of House Bill 3017, Oregon Laws, 1977, 281 Or 293 (1978).
Deals solely with the constitutionality of ORS Chapter 752, regarding medical malpractice insurance.
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