1 PORTLAND GENERAL ELECTRIC COMPANY’S 

 RESPONSE AND REPLY ON CROSS-MOTIONS 

 FOR SUMMARY JUDGMENT 

fucile & reising LLP 

800 nw 6th ave, ste 211 portland or 97209 

p 503.224.4894 

f 503.224.4332 

DANIEL K. REISING, OSB No. 96410 

dan@frllp.com 

Fucile & Reising LLP 

Portland Union Station 

800 NW 6th Ave., Ste 211 

Portland OR 97209 

Telephone: 503.224.4894 

Facsimile: 503.224.4332 

Attorneys for Portland General 

Electric Company 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

PORTLAND GENERAL ELECTRIC 

COMPANY, an Oregon corporation, 

 Plaintiff, 

 v. 

LIBERTY MUTUAL INSURANCE 

COMPANY, a Massachusetts corporation, 

 Defendant. 

 No. 3:15-cv-00217 HZ 

PORTLAND GENERAL ELECTRIC 

COMPANY’S RESPONSE AND REPLY 

ON CROSS-MOTIONS FOR SUMMARY 

JUDGMENT 

__________________________________ 

INTRODUCTION 

 Three subjects Liberty Mutual fails to address establish PGE’s right to its 

requested relief. 1. PGE is an “insured”; 2. The underlying complaint alleges facts 

demonstrating NAES was at fault; and, 3. The evidence that Liberty Mutual owes PGE a 

duty of indemnity is unrebutted. Sections A through C of the Discussion below address 

the first issue, Section D addresses the second and Sections E through G the third. 
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DISCUSSION 

A. The NAES Contract and Indemnification Clause and Liberty Mutual’s Straw- 

 man Argument. 

 Liberty Mutual attempts to cobble an “overbroad” indemnity provision out of the 

liability insurance requirements of the PGE/NAES contract. Liberty Mutual fails to 

advise the Court that the parties’ agreement contains a separate indemnity provision 

that specifically spells out NAES’s indemnity obligation. Article 26 (“Indemnification”) is 

unaffected by ORS 30.140, regardless of Liberty Mutual’s misdirected focus on the 

contract’s insurance requirement or how the Oregon Supreme Court might decide any 

case now pending. It provides: 

“. . . Contractor shall indemnify, defend and hold harmless 

[PGE] . . . from any and all claims, demands, suits, losses, 

costs and damages of every kind and description, including 

attorney’s fees, . . . brought or made against or incurred by 

[PGE] resulting from, arising out of, or in any way 

connected with any act, omission, fault or negligence of 

the Contractor . . . CONTRACTOR’S INDEMNITY 

OBLIGATION UNDER THIS ARTICLE SHALL NOT 

EXTEND TO ANY LIBIALITY CAUSED BY THE SOLE 

NEGLIGENCE OF [PGE]. Ex. 13 (emphasis added, 

capitalization in original).1

 ORS 30.140(1) voids indemnity provisions in construction contracts that require 

indemnification for damage arising out of “death or bodily injury to persons or damage to 

property caused in whole or in part by the negligence of the indemnitee.” ORS 

30.140(1) (emphasis added). The section does not, however, “affect any provision in a 

construction agreement that requires . . . [indemnity] to the extent [the injury] arises out 

of the fault of the indemnitor . . .” ORS 30.140(2) (emphasis added). NAES’s 

 

1

 Article 26 is not relevant to PGE’s motion for summary judgment and was not included in its 

submissions. It is reproduced as Exhibit 13 to this brief. 
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indemnity obligation passes muster under both clauses. Indemnity is only triggered 

when the injury is due to NAES’s act, omission, fault or negligence and NAES owes no 

duty to indemnify for PGE’s sole negligence. 

 But Liberty Mutual’s counsel argued a case before the Oregon Supreme Court 

that involved different underlying facts—most notably what Liberty Mutual calls an 

“overbroad” indemnity provision. Liberty Mutual concedes the Oregon Supreme Court 

has not accepted its construction of the statute. Liberty Mutual does not even address 

how it thinks a ruling by the Supreme Court could possibly invalidate an insurance 

policy it has already issued or why Liberty Mutual even has standing in this proceeding 

to challenge NAES’s contractual obligation to insure PGE. But Liberty Mutual’s defense 

here is to pound the square peg of the current dispute into the round hole of that 

pending, undecided, case—Montara Owners Association v. La Noue Development, 

LLC, 259 Or. App. 657, 317 P.3d 257 (2013), rev. allowed, 355 Or. 567 (2014). 

 So, rather than address the indemnity provision in the PGE/NAES contract, 

Liberty Mutual drafts a provision that suits its purposes. And, Liberty Mutual fails to 

acknowledge, much less reconcile, the distinguishing facts of Montara Owners 

Association. These include that the general contractor was sued for construction 

defects, not death, personal injury or property damage and, in turn, sued its 

subcontractor seeking, among other things, economic damages; the relevant 

indemnification provision (not an insurance requirement in the contract) required the 

subcontractor to indemnify the general contractor for the general contractor’s own 

negligence; the general contractor’s complaint alleged a common law indemnity claim 
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unaffected by ORS 30.1402

; and, no issues of insurance coverage are involved in the 

dispute. Montara Owners Association, 259 Or. App. at 660-63 and 677. 

 The PGE/NAES contract requires NAES to purchase commercial general liability 

coverage for all operations by or on NAES’s behalf (not PGE’s) covering bodily injury 

and property damage liability and to make PGE an additional insured on that policy. Ex. 

1 at 3 and 4. The term “indemnify” is only used in Article 28 in relation to future 

subrogation rights, although the provision does require NAES’s insurer to “defend any 

suit against the Additional Insureds.” Ex. 1 at 5. 

 No verbiage in Article 28 states directly, or even implies, that NAES must 

indemnify PGE against harm, “no matter whose negligence might be the cause, 

including PGE’s, whether in whole or in part.” Dkt. 11 at 7. Those words are provided 

by counsel, not the contract. No matter how much Liberty Mutual wishes, this action is 

not about PGE seeking indemnity for its own negligence. The insurance provision is not 

an indemnity provision and Liberty Mutual’s strained interpretation of a contract to which 

it is not even a party should be rejected. 

B. Liberty Mutual is Estopped from Arguing PGE Is Not an Insured. 

 Liberty Mutual’s defense relies on the PGE/NAES contract, rather than the 

insurance policy, regarding which PGE has asked the Court to declare the parties’ 

respective rights and obligations. Regardless whether the indemnity provision of the 

PGE/NAES contract is theoretically enforceable by the parties to that contract, the fact 

is NAES procured insurance on PGE’s behalf and Liberty Mutual’s agent issued PGE a 

Certificate of Insurance establishing that coverage. There is no evidence NAES 

 

2

 All other things being equal, PGE also has a common law right to indemnity from NAES. 
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withdrew the coverage, or would have any intent to do so (even if it could) under the 

circumstances. Liberty Mutual has no basis to even ask this Court to interpret the 

PGE/NAES contract and is estopped now from denying PGE is an insured. 

 Liberty Mutual is not a party to the PGE/NAES contract. It has not made a 

showing it has standing to raise any statutory defenses NAES might have to its 

indemnity obligation to PGE. Of course, PGE is not seeking indemnity from NAES and 

the present action is not an appropriate proceeding to determine NAES’s indemnity 

obligations under the separate contract with PGE. Smith v. Truck Ins. Exchange, Inc., 

242 Or. App. 202, 214-15, 255 P.3d 615 (2011) (Party to contract is necessary for 

adjudication of interest that would be affected by declaratory judgment). 

 This action is, however, the appropriate proceeding to determine PGE’s rights 

and Liberty Mutual’s obligations under the Certificate of Insurance and policy that 

names PGE as an additional insured. And, the Certificate of Insurance is much more 

significant than Liberty Mutual lets on.3

 Oregon authority establishes, not only that PGE 

is an additional insured, but that Liberty Mutual is estopped from contesting that fact. 

 

3 Counsel for Liberty Mutual has previously argued in this District that a Certificate of Insurance is 

“informational only” and not evidence of coverage. Judge Jones declined to reach the issue, effectively 

rejecting it in Clarendon National Insurance Company v. American States Insurance Company, 688 

F.Supp.2d 1186, 1191 (D. OR. 2010). There, consistent with the present facts, the Court found the 

insurance company was bound to provide coverage under a Certificate of Insurance and policy defining a 

general contractor as an additional insured under a commercial general liability policy. Id. Undeterred, 

Liberty Mutual makes the same argument here, relying on two cases that are entirely inapposite. In one, 

the question was whether providing a certificate of insurance only as proof of insurance, rather than the 

complete policy, voided the policy’s exclusion for death by drug overdose. The Court of Appeals reached 

the unremarkable conclusion that the certificate of insurance could not nullify an otherwise enforceable 

exclusion. Baylor v. Continental Casualty Co., 190 Or.App. 25, 33, 78 P.3d 108 (2003). In the second 

case, whether Illinois’ Workers Compensation Law was an injured plaintiff’s exclusive remedy was not 

affected by the fact that the defendant was identified as a “certificate holder” on a workers’ compensation 

policy issued to the plaintiff. The court concluded on the underlying facts that plaintiff was not defendant’s 

employee and the certificate of insurance was not evidence to the contrary. Stallworth v. Sam Yoder 

Trucking, 109 Or.App. 280, 285, 819 P.3d 316 (1991). 
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Liberty Mutual has not even tried to present evidence that the Certificate of Insurance 

was not issued by its authorized agent. The Certificate is signed by a representative of 

Marsh USA, Inc., which is identified on page 5 of the policy NAES provided to PGE as 

the policy “producer.” Ex. 14 at 5. Under Oregon law, as the “producer” Marsh is 

Liberty Mutual’s agent. ORS 744.078. 

 Even more important, the Certificate was provided to PGE as evidence that 

NAES had procured insurance for PGE. PGE relied upon the Certificate of Insurance in 

its course of dealing with NAES. If Liberty Mutual did not intend to insure PGE, it should 

not have issued the Certificate. For those reasons, Liberty Mutual is estopped from 

arguing PGE is not an insured. The Oregon Supreme Court dealt with a similar issue 

Hayes Truck Lines, Inc. v. Investors Ins. Corp., 369 Or. 565, 572-73, 525 P.2d 1289 

(1974). There, the insurer’s agent issued a Certificate of Insurance to an applicant for 

insurance, but when a claim was made the insurer took the position that no policy was 

actually issued. The court held that the Certificate of Insurance, relied upon by the 

insured, estopped the insurance company from subsequently claiming there was no 

policy. See also McDaniel v. Ins. Co. of Oregon, 243 Or. 1, 6, 410 P.2d 814 (1966) 

(same); United Pac. Ins. v. Meyer, 305 F.2d 107, 118 (9th Cir. 1962) (insurer estopped 

from denying subcontractor was additional insured on general contractor’s liability policy 

after issuing certificate of insurance identifying subcontractor as additional insured). 

Here, too, having issued the Certificate of insurance, Liberty Mutual is estopped from 

denying coverage. 
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C. ORS 30.140 Does Not Apply to Mr. Belgarde’s ELL Claim. 

 Mr. Belgarde makes two separate legal claims against PGE. One for negligence. 

The other for violation of Oregon’s Employer Liability Law. If the Court is convinced by 

Liberty Mutual’s argument and concludes that Article 28 of the PGE/NAES contract is 

an “overbroad” indemnification provision as argued by Liberty Mutual’s counsel in 

Montara Owners Association (and that the Oregon Supreme Court will accept that 

argument and then apply Walsh to invalidate the insurance policy, and Liberty Mutual 

has standing to ask this Court to decide NAES’s contractual obligations), the Court 

should nevertheless find an enforceable duty to indemnify PGE on the underlying ELL 

claim. The language of ORS 30.140(1) compels this result. 

 As noted above, ORS 30.140(1) voids a provision in a construction contract 

requiring indemnification for “the negligence of the indemnitee.”4

 But the ELL claim is 

not based on PGE’s negligence. “The ELL imposes a heightened statutory standard of 

care on a person or entity who either is in charge of, or responsible for, any work 

involving risk or danger.” Woodbury v. CH2MHill, Inc., 335 Or. 154, 159, 61 P.3d 918 

(2003). The ELL requires the use of “every device, care and precaution that is 

practicable to use for the protection and safety of life and limb.” ORS 654.305. A party 

can be in violation of its statutory duty under the ELL, without also being negligent. E.g. 

Boothby v. D.R. Johnson Lumber Co., 341 Or. 35, 137 P.3d 699 (2006) (discussing 

different standards of ELL liability and common law negligence). To the extent this 

Court determines that PGE cannot be indemnified for either its own or NAES’s alleged 

 

4

 By contrast, ORS 30.140(2) exempts from the sweep of ORS 30.140(1) any claims arising out of the 

indemnitor’s “fault” rather than merely its negligence. 
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negligence owing to ORS 30.140(1), it should still conclude that PGE is entitled to be 

indemnified (i.e. covered by the insurance policy) for its (and NAES’s) alleged violation 

of the ELL’s heightened statutory standard of care. 

D. Liberty Mutual’s Duty to Defend is Premised on Facts Alleged in the 

 Complaint. 

 Another of Liberty Mutual’s straw-man arguments is that PGE relies upon 

extrinsic evidence to support its argument that Liberty Mutual owes it a duty of defense. 

This is untrue. Liberty Mutual’s duty to defend PGE arises solely from the allegations of 

Mr. Belgarde’s complaint. First, simply, PGE is an insured under the policy and is being 

sued for Mr. Belgarde’s bodily injury, which is undeniably a covered claim. There is no 

reason to limit PGE to coverage only for NAES’s fault. PGE is an insured and is entitled 

to a defense. See Hartford Accident and Indemnity Company v. U.S. Natural 

Resources, Inc., 897 F.Supp 466, 471 (D. Or. 1995) (additional insured entitled to 

coverage to same extent as named insured). 

 Second, ORS 30.140(1), as interpreted by Liberty Mutual, would only void 

NAES’s, and by extension Liberty Mutual’s, indemnity obligation to PGE. The statute 

says nothing of a contractor’s or its insurer’s duty to defend an action—a duty 

separately set forth in Article 28 of the PGE/NAES contract. Ex. 1 at 5. In Walsh the 

Supreme Court’s focus was on the meaning of the term “indemnify” used in ORS 

30.140(1). The court concluded that an agreement to indemnify encompasses 

agreements where one party is obligated to assume “financial responsibility for the 

other party’s liability.” Walsh Construction Co. v. Mutual of Enumclaw, 338 Or. 1, 7, 
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104 P.3d 1146 (2005) (emphasis added). There is no discussion in Walsh of whether 

ORS 30.140(1) even touches upon the separate duty to defend. 

 Turning to the allegations of the complaint, Mr. Belgarde did not name NAES as 

a defendant in the underlying action because NAES is immune from liability. ORS 

656.018(a)(1). As Judge Jones noted in Clarendon, it is not surprising Mr. Belgarde did 

not expressly allege his employer caused his injury for that very reason. Clarendon 

National Insurance Company v. American States Insurance Company, 688 F.Supp.2d 

1186, 1192 (D. Or. 2010). Rather, “the more important question is whether the 

allegations raise by implication the possibility that [the employer] was at fault in a 

way that triggers coverage.” Id. at 1192 (emphasis added). See also Ledford v. 

Gutoski, 319 OR 397, 399-400, 877 P2d 80 (1994) (“The insurer has a duty to defend if 

the complaint provides any basis for which the insurer provides coverage.”) (emphasis 

in original). 

 Even if the Court is inclined to limit policy coverage to what would be available to 

NAES for its own fault, and ignore the distinction between indemnity and a duty to 

defend, there are ample factual allegations in the underlying complaint that raise by 

implication (and directly) that NAES was at fault as that term is used in ORS 30.140(2). 

Mr. Belgarde alleges in Paragraph 1 he was a boilermaker employed by NAES to work 

at Boardman. Ex. 6 at ¶ 1. He alleges PGE is engaged in the production and sale of 

power (Complaint ¶ 2) and his work was controlled, directed and monitored by PGE 

(Complaint ¶ 3).5

 These allegations raise, both directly and by implication, the 

possibility—indeed, if proven, the certainty—that NAES was at fault in permitting its 

 

5

 PGE denies it controlled, directed or monitored Mr. Belgarde’s work. 
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employee to be told how to do his job by a company engaged in the production and sale 

of power. Mr. Belgarde is a boilermaker and PGE is not a contractor. Mr. Belgarde 

makes no allegations that even imply PGE was capable of directing the maintenance 

project it hired NAES to perform, or his work as a boilermaker. 

 Mr. Belgarde also alleges PGE was at fault in designing/commissioning an 

inherently dangerous device, in failing to maintain the device in proper and safe working 

order, in allowing plaintiff to use the device and in failing to properly install a safety 

catch on the main valve of the device. Id. ¶ 10. These allegations imply, at least, that 

NAES allowed Mr. Belgarde to use a device that was inherently dangerous and not 

properly maintained. 

 Under Oregon common law, an employer owes a duty of care to its employees to 

provide a safe workplace and warn of dangerous conditions. Smothers v. Gresham 

Transfer, Inc., 332 Or. 83, 131, 23 P.3d 333 (2001). An employer also owes a duty to 

inspect and furnish its employees with safe equipment, free of defects. Mildenberger v. 

Cargill, Inc., 220 Or. 629, 636-37, 350 P.2d 413 (1960). It is certainly foreseeable that 

allowing a power producer to direct a maintenance project, and, in turn, direct NAES’s 

boilermaker employee as to what tools to use and how to do his job, is NAES’s fault. 

See Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17-18, 734 P.2d 1326 (1987) 

(discussing roles of duty and foreseeability in negligence action). As broadly alleged in 

the underlying complaint, this is what caused Mr. Belgarde’s injury. 

 Given the allegation that NAES was his employer, the complaint also raises by 

implication the possibility that NAES assigned Mr. Belgarde to install the heavy heating 

elements (Ex. 6 ¶ 4) and instructed him to move the air cannon from station to station. 
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Ex. 6 ¶ 7. The complaint does not specify who told him to take these actions. As pled, 

it could have been PGE (with NAES’s negligent acquiescence as pointed out above), or 

it could have been NAES. Either way, the facts imply that NAES was at least possibly 

at fault. 

 Finally, and very specifically, Mr. Belgarde contends: 

“On May 2, 2012, Plaintiff was working with a co-worker. 

The lever of the main valve of the air cannon caught in a 

loop in Plaintiff’s work overalls while the air cannon was 

being moved, which activated the air supply to the air 

cannon. With the noise of the activation, Plaintiff’s co-worker 

instinctively reached for the safety valve and closed it which 

caused the air cannon to shoot backwards with great force, 

causing severe injury to plaintiff. . . . “ Ex. 6 at ¶ 9. 

 Mr. Belgarde’s allegations state directly that both he and his co-worker were at 

fault in the specific acts leading directly to his injury—i.e. Mr. Belgarde in looping the 

main valve in his overalls and allowing the valve to accidentally open; and his co-worker 

in shutting off the safety valve. Clearly, both occurrences were causes-in-fact of Mr. 

Belgarde’s injury. Fazzolari, 303 Or. at 13; Towe v. Sacagawea, Inc., 357 Or. 74, 87, 

___ P.3d ___ (2015) (cause-in-fact is assessment of actual causal link between action 

and harm). As the employer, NAES is responsible for both Mr. Belgarde’s and his coworker’s fault. Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988). 

 As Liberty Mutual points out, Mr. Belgarde also alleges that his injuries were a 

“direct and proximate” result of PGE’s negligence and that PGE violated the Employer 

Liability Law. Dkt # 11 at 10. These are merely the conclusions of law Mr. Belgarde 

would have the state court and jury draw from his factual allegations. And, they do not 
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erase the implication of his factual allegations that Mr. Belgarde’s injury was at least 

possibly NAES’s fault. 

E. The Extrinsic Evidence is Admissible on Summary Judgment. 

 Exhibits 10 and 11 to PGE’s motion are excerpts from Joel Belgarde’s deposition 

transcript taken in the underlying action and a handwritten letter he prepared to detail 

the circumstances of his injury. FRCP 56(c)(2) permits a party to object to material 

cited in support of a motion for summary judgment on the basis that the material “cannot 

be presented in a form that would be admissible in evidence.” (Emphasis added). 

This Rule was adopted by 2010 Amendments. Even prior to adoption of the 2010 

amendments, the Ninth Circuit rule was that a party on summary judgment did not have 

to produce evidence in a form that would be admissible at trial, as long as the 

requirements of Rule 56 were met. Block v. City of Los Angeles, 253 F.3d 410, 419 (9th

Cir. 2001). The intent of the amended Rule is to provide for the equivalent of a trial 

objection to evidence at the pretrial stage of the proceedings. FRCP 56(c)(2) 2010 

Advisory Committee Notes. When such objection is made, the burden is on the 

proponent of the materials to either show that the material is admissible as presented 

“or to explain the admissible form that is anticipated.” Id (emphasis added). 

 As stated by Magistrate Judge Stewart: “First, the content, not the form, 

determines the admissibility of evidence at the summary judgment stage.” Doby v. 

Sisters of St. Mary of Oregon Ministries Corp., 2014 WL 3943713 * 3 (D. Or. April 11, 

2014). See also Metcalf v. Blue Cross and Blue Shield of Michigan, * 10 (D. Or. Aug. 5, 

2013) (demonstration that evidence will not lack foundation if and when offered at trial 

suffices under FRCP 56(c)(2)). 
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 Here, in response to Liberty Mutual’s objection that Joel Belgarde’s deposition 

was taken in another matter and, therefore, not admissible at trial under FRCP 32, PGE 

explained that at trial Mr. Belgarde will be a witness at trial. Reising Dec. Ex.1. He is a 

resident of this District, subject to the subpoena power of the Court and will give live 

testimony when this case is tried. All other things being equal, the deposition transcript 

will not be evidence at trial.6

 But Mr. Belgarde’s testimony in another form will be 

evidence at trial and Liberty Mutual has no basis to contend that the content of that 

testimony will differ in any material way from his testimony in the state court deposition. 

 Likewise, in response to Liberty Mutual’s authentication and hearsay objection to 

a handwritten letter prepared by Mr. Belgarde, PGE explained that Mr. Belgarde would 

authenticate the letter and would testify that he prepared it soon after he learned he had 

been injured. Id. The letter was part of the process for Mr. Belgarde to receive workers’ 

compensation benefits. It is a recorded recollection and was used to refresh his 

recollection during his deposition (FRE 803(5)) and is a business record. (FRE 803(6)). 

Id. It is not hearsay. 

 In spite of PGE’s explanations of the “admissible form that is anticipated” for the 

evidence, Liberty Mutual refused to withdraw its objections to the submissions. As 

PGE’s counsel explained during the Rule 16 scheduling conference with the Court, PGE 

does not want an evidentiary ruling to create an arguable question of fact for trial. The 

 

6

 FRCP 32(a)(8) permits a deposition in another matter to be used as evidence at trial where the same 

parties, representatives or successors in interest are involved. The point of this action is for a declaration 

that Liberty Mutual is PGE’s successor in interest as to the underlying state court action. PGE was 

present during Mr. Belgarde’s deposition. Thus, even under Rule 32 Mr. Belgarde’s deposition may be 

admissible as evidence at trial, depending on the Court’s ruling on the present motion and cross-motion. 
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parties both have stated, at least orally, that there are no facts in dispute. Liberty 

Mutual’s request that certain facts be excluded from consideration belies that position. 

 Out of an abundance of caution, and to avoid any argument that a question of 

fact remains for trial, PGE obtained a declaration from Mr. Belgarde transforming the 

excerpts from his deposition and the handwritten letter into a declaration made under 

penalty of perjury in this proceeding. PGE now relies on that declaration in support of 

its motion. There is no argument against the testimony’s admissibility. Declarations 

based upon the personal knowledge and certified to be true under penalty of perjury, 

properly support a motion for summary judgment. FRCP 56(c)(1)(A) and 56(c)(1)(4). 

 F. The Extrinsic Evidence is Unrebutted and Establishes a Right to Indemnity. 

Discovery in the underlying action has, without exception, disproven all factual 

allegations of fault directed at PGE in Mr. Belgarde’s complaint. Importantly, Mr. 

Belgarde admits PGE did not control, direct and monitor his work, as alleged in 

paragraph 3. And, he admits PGE did not supply him with the air cannon, as alleged in 

paragraph 5. The air cannon was supplied, his work was controlled and direction was 

given to him by his foreman at NAES. Mr. Belgarde was not trained on the safe use of 

the tool by NAES. Ex. 10 52:3-53: 10. Liberty Mutual does not object to the workers 

compensation payment summary (Ex. 12), which establishes, in addition to NAES’s 

“fault” for which its workers compensation insurer paid a claim, that Mr. Belgarde has 

substantial damages as a result of the injury. 

 Again, belying its stated position that there are no disputed facts, Liberty Mutual 

asks the Court for time to take discovery if the Court considers Mr. Belgarde’s 

deposition excerpts and handwritten letter. In order to obtain this relief, however, FRCP 
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56(d) requires that Liberty Mutual show by affidavit or declaration that “for specified 

reasons it cannot present facts essential to justify its opposition.” FRCP 56(d) 

(emphasis added). Liberty Mutual has not tried to make this showing. There are no 

facts it will learn in discovery that can avoid NAES’s own fault as detailed by Mr. 

Belgarde in Exhibits 10 and 11. Indeed, Liberty Mutual has failed to present any facts in 

rebuttal to those presented by PGE, and the Court should consider PGE’s factual 

submissions undisputed. FRCP 56(e)(2) and (3). 

G. It is Not Premature to Declare the Parties’ Respective Rights. 

 Federal law creates the remedy sought – a declaration that Liberty Mutual owes 

PGE a duty of indemnity under the policy. 28 U.S.C. § 2201(a). PGE is not asking the 

Court to order Liberty Mutual to pay indemnity. If, and when, PGE pays Mr. Belgarde in 

connection with the underlying action, PGE will seek indemnity from Liberty Mutual. 

But, until that happens, PGE is entitled to a declaration by this Court of the “rights and 

other legal relations” of the parties. Id. The Declaratory Judgment Act is exactly the 

statutory vehicle to determine an insurer’s duty to defend and indemnify, even where 

the underlying action is still pending. Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 

U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed.2d 826 (1941) (That complaint seeking 

declaration of insurer’s duty to defend and indemnify insured presents controversy 

under Declaratory Judgment Act “is plain.”) See also Home Indem. Co. v. Stimson 

Lumber Co., 229 F.Supp.2d 1075, 1079 (D. Or. 2001), citing American States Ins. Co. 

v. Kearns, 15 F.3d 142, 144 (9th Cir. 1994) (District court properly exercises jurisdiction 

to resolve insurance coverage dispute when underlying action is pending in state court). 
16 PORTLAND GENERAL ELECTRIC COMPANY’S 

 RESPONSE AND REPLY ON CROSS-MOTIONS 

 FOR SUMMARY JUDGMENT 

fucile & reising LLP 

800 nw 6th ave, ste 211 portland or 97209 

p 503.224.4894 

f 503.224.4332 

 Oregon law is not inconsistent. In Hale v. Fireman’s Fund Ins. Co., et al., 209 

OR. 99, 113, 302 P.2d 1010, an injured plaintiff sued the tortfeasor’s insurers for a 

declaration that the insurers would be responsible for paying any judgment he obtained 

against the tortfeasor in a separate action. In other words, the facts of the Hale case 

are as if Mr. Belgarde sued Liberty Mutual directly seeking a declaration that in his 

underlying action against PGE, Liberty Mutual would be responsible for paying any 

judgment. The court simply found that the fact scenario contained too many 

contingencies to present a justiciable issue—not the least of which being the 

relationship between the insurers and a non-party tortfeasor. 

Hale did not involve, as the present case does, an insured (PGE) seeking a 

declaration that its insurer owes it a duty of indemnity in an underlying action. The 

difference between these scenarios was addressed by the Oregon Supreme Court in 

State Farm Fire and Cas. Co. v. Reuter, 295 Or. 446, 453, 657 P.2d 1231 (1983), where 

the court found no impediment to declaring the rights and other legal relations between 

an insured tortfeasor and his insurance company. “[I]n this case declaratory relief is 

particularly appropriate to determine the liabilities of the insurer.” Reuter, 295 Or. at 

454. See also North Pac. Ins. Co. v. Forest Industries Ins. Exchange, 280 Or. 313, 317, 

571 P.2d 138 (1977) (declaratory judgment is appropriate method to determine 

“coverage” under insurance policy).7

 

 

7

 To the extent there is any substantive difference between a declaration regarding PGE’s “coverage” 

under the policy and a declaration regarding PGE’s right to “indemnity” under the policy, PGE will accept 

a declaration that it is entitled to coverage under the policy. 
17 PORTLAND GENERAL ELECTRIC COMPANY’S 

 RESPONSE AND REPLY ON CROSS-MOTIONS 

 FOR SUMMARY JUDGMENT 

fucile & reising LLP 

800 nw 6th ave, ste 211 portland or 97209 

p 503.224.4894 

f 503.224.4332 

CONCLUSION

 For all of these reasons, PGE respectfully requests that the Court grant summary 

judgment in its favor.8 PGE further requests that the Court: 

 1. Declare that Liberty Mutual owes PGE a duty of defense in the underlying 

action; 

 2. Declare that Liberty Mutual owes PGE a duty of indemnity in the 

underlying action; and 

 3. Enter a money judgment in favor of PGE for the costs and expenses it has 

incurred defending itself in the underlying action, in an amount to be determined. 

 Dated: April 17, 2015. 

 FUCILE & REISING LLP 

 /s/ Daniel K. Reising __________ 

 Daniel K. Reising, OSB No. 96410 

 Portland Union Station 

 800 NW 6th Ave., Ste 211 

 Portland OR 97209 

 Tel. 503.224.4894 

 Fax 503.224.4332 

 Attorneys for Plaintiff Portland General 

 Electric Company 

CERTIFICATE OF COMPLIANCE

 This brief complies with the applicable word-count limitation under LR 7-2(b) 

because it contains 4,943 words. 

 /s/ Daniel K. Reising __________ 

 Daniel K. Reising, OSB No. 96410 

 

8

 PGE reserves the right to petition for an award of its attorney fees incurred in this action. 
PGE RESPONSE-REPLY APPENDIX OF EXHIBITS

Exhibit Number Description

Exhibit 13 ....................................... Excerpt from PGE/NAES Contract 

Exhibit 14 ....................................... Excerpt from Liberty Mutual Policy 
EXHIBIT 

13 
EXHIBIT 13

( 

g

p

p

y 

701.620 to 701.640. 

Article 25. Protection of Work - Preservation of PubliclPrivate Access. 

Contractor shall continuously maintain protection of the Work, including materials 

furnished by Company. from damage. Contractor shall conduct its operations so as not to 

damage, close or obstruct any highway, road or other public or private easement until permits 

therefor have been obtained. If such facilities are closed, obstructed, damaged or rendered 

unsafe by Contractor's operations, Contractor shall, at its sole expense, make such repair in a 

manner acceptable to Company and shall also provide such temporary guards, lights and other 

signals as necessary or required for safety or as reasonably requested by Company. 

Article 26. Indemnification. 

In addition to ally other indemnification stated in this Contract, Contractor shall 

indemnifY, defend and hold harmless Company, its parent and affiliated companies and their 

directors, officers, empJoyees and agents (hereinafter collectively "lndemnitees") from any and 

all claims, demands, suits, losses, costs and damages of every kind and description, including 

attorneys' fees, whether or not the suit is commenced and on trial and appeal, brought or made 

against or incurred by any of the Indemnitees resulting from, arising out of, or in any way 

connected with any act, omission. fault or negligence of Contractor, its employees, agents, 

representatives or subcontractors of any tier, their employees, agents or representatives in the 

performance or nonperformance of Contractor's obligations under this Contract or in any way 

related to this Contract. The indemnity obligations under this Article shall include without 

limitation (i) loss of or damage to any property of Company, Contractor or any third party; (ii) 

injury, bodily or personal, to or death of any person(s), including without limitation employees 

of Company, Contractor or Contractor's subcontractors of any tier; and (iii) claims arising out of 

Workers' Compensation, Unemployment Compensation or similar such laws or obligations 

applicable to employees of Contractor or its subcontractors of any tier. CONTRACTOR'S 

INDEMNITY OBLIGATION UNDER THIS ARTICLE SHALL NOT EXTEND TO ANY 

LIABILITY CAUSED BY THE SOLE NEGLIGENCE OF ANY OF THE INDEMNITEES. 

Notwithstanding anything else to the contrary in this Contract, neither party nor any of its 

shareholders, partners, principals, affiliates, officers, directors, agents, subcontractors, suppliers, 

or employees shall be liable hereunder for consequential, special or indirect loss or damage to the 

other party including, but not limited to, loss of revenues, loss of profit and anticipated revenues, 

cost of capital, loss of goodwill, increased operating costs or any other special, indirect, 

consequential, or incidental damages. 

Article 27. Protection of Workers. 

Prior to COllunencement of the Work, all of Contractor's workers engaged in the Work 

shall be protected under applicable Workers' Compensation Acts ofthe states having jurisdiction 

Page 11 - CONSTRUCTION CONTRACT 

C:\Documenli IUld Sellings\Steve\I.Ocal SeCllngS\Temporary In{clne! Fik:s\Collltlll.Ou!looklQ7UIlNII0GITBDMOOOI2S NAES· BoardmlUl 

Maintenance Contr3<;t (2).dot: 
EXHIBIT 

14 
EXHIBIT 14

C MM 

TB 1-691-544505-011 

bertx 

M tual® 

CIAL P 

AEGIS Insurance Services, Inc. 

1 Meadowlands Plaza 

East Rutherford NJ 07073 

LICY 

Liberty Mutual Is the marketlng name for the property and casualty Insurance operaHons of Liberty 

Mutual Group Inc. Products may be written In the following slock insurance company subsidiaries 

of Liberty Mutual Group Inc..: 

Uberty Mutual Insurance Company Uberty Mutual Fire Insurance Company 

liberty Insurance Corporation 

LM Insurance Corporation 

The First Liberty Insurance Corporation 

Liberty Insurance Company of America 

Uberty Surplus Insurance Corporation Uberty County Mutual Insurance Company 

Wausau Business Insurance Company Wausau General Insurance Company 

Wausa." Underwriters Insurance Company 

Employers Insurance Company of Wausau 

Not all products and coverages are available In all companIes or jurisdictions, 

GPO 4613 R1 Copyright 2009 Liberty Mutual Insurance Company. All rights reserved. 

NAES000001 
EXHIBIT 14

Address I Meadowlands Plaza 

East Ruthelford. NJ 07073 

The named insured is: Corporation 

Business of named Insured Is: Utility 

lIem2. Period From 11 01 2011 10 11 01 2012 

12:01 A.M., 5tandald lime allhe adcka55 of lhe named insured as staled herein. 

Item 3. In return for the payment ollha premium, and subject 10 all of the tel'll'lS of Ihls policy. we agree wilh you to provide the 

insuratlce as stated In IhIs poIIcv 

LIMITS OF INSURANCE 

EACH OCCURRENCE LIMIT 

DAMAGE TO PREMISES RENTED TO YOU UMIT 

MEDICAL EXPEN$E LIMIT 

PERSONAL 8. ADVERTISING INJURY LIMIT 

GENERAL AGGREGATE LIMIT 

PRODUCTS I COMPLETED OPERATIONS AGGREGATE UMIT 

Deducllble Endorsement Yes !:ill NoD 

THIS POLICY CONTAINS AGGREGATE lIMlTSj REFER TO 

SECTION III· UMITS OF INSURANCE FOR DETAILS 

TERRORISM RISK INSURANCe ACT 

TOTAL ADVANCE PREMIUM 

The premium for thfs polIcy Is payable $ In advance. $ 

and S on the second anniversary. 

Audil Basis: O· Flal Charge 

Any one premises 

Any one person Anyone person or organization 

on first anniversary 

The declarations are completed on Ihe schedules designated DeclarationS ExtensIon &:heduleS 

These declarations, togethet with the Common PoQcy CondiUon. and Coverege Form(s) and any endorsemenl(s) 

complete the above numbered policy. 

Forms and endorsements attached 10 this policy: See aUeched lorms and endorsements I/Chedula 

Ttis poIIGy. including all endorsemen1s Issued herewilll./s herebyoourdarsigned by 

'N"9LOO' 

GPO 4051 R3 

NAES000002 
EXHIBIT 14

y 

GPO 4051 R3 02 99 Commercial General Liability Declaration 

GPO 4977 02 09 

GPO 4078 R2 11 01 

LD 25 311111 

IL 00 171198 IL 01460810 

IL0021 0502 

IL00210908 

IL 01980908 

Il01 41 0908 

IL01420906 

IL 01680908 

Il 02 080907 

Inventory Coverage Forms I Parts, Endorsements. Enclosures . 

PrOducer Name and Mall Address Schedule 

Mutual Conditions 

AEGIS Additional Named Insured and Reimbursement Endorsement 

Common Policy Conditions 

Common Policy Conditions 

Nuclear Energy liability Exclusion Endorsement Nuclear Energy Uability exclusion 

Nuclear Energy liability Exclusion EndOf'Sement 

New Jersey Changes - Civil Union 

Otegon Changes - Domestic Partnership 

Texas Changes - Dulles 

New Jersey Changes. cancellation and Nonrenawal 

GENERAL LIABILlTV COVERAGE PART FORMS 

COVERAGES 

GPO 4053 

CG 000112 07 

CG00680509 STATE EORM§ 

CG 01030606 

CG 012212 07 

Declarations Extension SChedule 

Commercial General Liability Coverage Form (Occurrence Version) 

Recording and D1strlbUUon of Material or Information In Violation of Law 

Exclusion 

Texas Changes . 

Minnesota Changes - Contractual liability exClusion and Supplementary 

Payments 

CG 01 81 05 08 Washington Changes 

CG 01 86 12 04 Utah Changes 

CG 01 97 12 07 Washington Changes - Emptoyment-Related Practices Exclusion 

CG 26 05 02 07 Minnesota Changes . 

CG 26 20 10 93 New Jersey Changes - Loss Information Endorsement 

CG 2639 12 07 Texas Changes - Employment Related Practices EXClusion 

CG 26 611204 Minnesota Changes. Duties Condition 

ADDIDONAL COVERAGES 

LN 20 01 06 05 Blanket AdOdionallnsured 

EXCLUSIONS 

CG21160798 CG21421204 

CG21471207 

CG 21490999 CG21 510989 CG 21671204 CG 21730108 CG 223307 98 

CG22430798 CG22501188 

CG 26 8801 oa 

LC 210106 05 

Exclusion Designated Professional Services 

Exclusion - ExploSion. Collapse and Underground Property Damage Hazard 

(Specified Operations) 

Employment· Related Practices Exclusion 

Tolal Pollution Exclusion 

Amendment of Liquor liability 

Fungi or Bacteria Exclusion 

ExclusIon of certified Acts of T errorisrn 

Exclusion· Testing or Consulting Errors end Omissions 

Exclusion - Engineers. Architects or Surveyors Professional Liability 

Exclusion Endorsement - Failure 10 SUpply 

Exclusion of Certified Acts of T errorisrn 

Asbestos Exclusion 

Page1of2 

NAES000003 
EXHIBIT 14

LC 21390607 

LC21420607 LC21650807 

LC 32 380605 

LC 32740605 LC 99020607 

CG 24040509 

CG 24171001 

LC03070605 LC25130806, 

LC29 060808 

LC 9901 0605 

LC 99 030607 ' 

LC99130311 

LN 2401 0605 LN 290406 05 

LN 29 0606 05 

LN 9904 06 05 

Radioactive Matter exClusion 

Electromagnetic Fields and Electromagnetic Radiation exclusion 

MTSE Exclusion 

New Jersey Lead exclusion 

Asbestos Exclusion Endorsement 

Knowledge of Occurrence 

Waiver of Transfer RIghts of Recovery AgaInst Others to Us 

Contractual Uabillly • Railroads 

Deductible - Damage and Supplementary Payments 

Non-Cumulation of liability (Same OCCUl'rence) Personal and Advertising Injury - Occurrence Redefined 

Notice of Occurrence 

Unln!tmtional Failure to Disclose 

Texas Disclosure Form 

Confractual Liability Exclusion Amended 

Personal and Advertising Injury Redefined 

Advertisement Redefined 

Premium Responsibility Endorsement 

NOTICE TO POUCYHOLOER 

GPO 4839 02 04 Notice of !he Availability of Loss Control Information 

GPO 488712 07. Policyholder Disylosure Terrorism Risk Insurance Act 

Page 2 of2 

NAES000004 
EXHIBIT 14

NlU'Xle: 

M2il 

Adcb:ess: 

MARSH USA INC 

111 SW COLUMBJA ST #500 

PORTLAND OR 97201 

Policy Number. 

GpO 4917 1)209 

NAES000005