Page 1 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

2307409 Cosgrave Vergeer Kester LLP 

Attorneys 

888 SW Fifth Avenue, Suite 500 

Portland, Oregon 97204 

Telephone: (503) 323-9000 Facsimile: (503) 323-9019 

Thomas M. Christ, OSB No. 834064 

tchrist@cosgravelaw.com 

Paul A. C. Berg, OSB No. 062738 

pberg@cosgravelaw.com 

COSGRAVE VERGEER KESTER LLP 

888 S.W. 5th Ave, Suite 500 

Portland, Oregon 97204 

Telephone: (503) 323-9000 

Facsimile: (503) 323-9019 

Attorneys for Defendant 

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. 

Case No. 3:15-cv-00217 HZ

Defendant’s Reply Memorandum in 

Support of Cross-Motion for Summary 

Judgment

PGE’s response to Liberty Mutual’s cross-motion is a combination of denial and 

obfuscation. We’ll start with the denials. 

PGE is Not an “Insured” 

 PGE begins its response by asserting that Liberty Mutual “fails to address” whether PGE 

is an “insured” under Liberty Mutual’s policy with NAES and whether Belgarde’s complaint 

against PGE alleges Belgarde’s injuries were caused by the fault of NAES rather than PGE. See
Page 2 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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Doc. 13, p. 1. The court will see that, in fact, Liberty Mutual’s motion addresses both issues at 

considerable length. 

 The first part of the motion explains that PGE is an “insured” under the additionalinsured endorsement to NAES’s policy only if NAES agreed to procure insurance for PGE, see

Doc. 11, pp. 4-5; that NAES’s agreement to procure insurance for PGE is void under ORS 

30.140, because it requires insurance for injury caused by the fault of PGE in whole or in part; 

and, therefore, that PGE is not an “insured” under the endorsement, see id. at 7-8. The motion 

goes on to explain that, even if ORS 30.140 does not invalidate the agreement to procure in toto, 

it invalidates the agreement to the extent that it requires NAES to procure insurance for injury 

caused by PGE, even in part, and, therefore, that PGE is an “insured” only to the extent that it is 

liable for injury not caused by PGE, even in part. See id. at 9-10. 

 The second part of the Liberty Mutual’s motion explains how Belgarde’s suit against 

PGE alleges that his injury was caused, at least in part, by PGE’s (not NAES’s) negligence and 

by PGE’s (not NAES’s) violation of the Employer’s Liability Law. The motion also explains 

that Belgarde’s suit alleges that PGE (not NAES) “controlled, directed and monitored” 

Belgarde’s work, and that PGE (not NAES) “owned,” “maintained,” and “supplied” the 

defective “air cannon” that caused the accident. See id. at 10-12. 

 PGE is in denial if it thinks that Liberty Mutual’s motion didn’t address whether PGE is 

an “insured” or whether Belgarde alleges fault by NAES. Let’s turn, then, to the obfuscations. 

 

The Indemnity Provision is Irrelevant 

 PGE complains that Liberty Mutual’s motion focuses on the insurance provision in the 

PGE-NAES contract and ignores the contract’s indemnity provision. See Doc. 13, pp. 1-2. 
Page 3 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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According to PGE, the indemnity provision is valid under ORS 30.140, even if the insurance 

provision is not. 

There is, however, a good reason for ignoring the indemnity provision: it’s not relevant 

to this case in which PGE is seeking insurance coverage from Liberty Mutual, not indemnity 

from NAES. Whether PGE is an insured under the endorsement to Liberty Mutual’s policy 

depends on whether NAES has lawfully agreed to insure PGE, not whether NAES has lawfully 

agreed to indemnify it. The endorsement amends the “who-is-an-insured” section of the policy 

“to include as an insured any person or organization for whom you [i.e., NAES] have agreed in 

writing to provide liability insurance.” Ex. 3 (Doc. 8, p. 26). It doesn’t matter, then, whether the 

indemnity provision in NAES’s contract with PGE complies with ORS 30.140 – which, by the 

way, it doesn’t.1

 What matters in this insurance coverage case is whether the insurance provision 

complies with that statute, and it doesn’t, for reasons set forth in the cross-motion. 

No Coverage By Estoppel 

More obfuscation: PGE argues that Liberty Mutual is estopped to deny that PGE is 

insured for the Belgarde lawsuit because of representations to the contrary that were made, PGE 

 1

 As explained in the cross-motion, ORS 30.140 invalidates any provision in a 

construction contract that requires one party to indemnify another party against liability for 

personal injury or property damage caused by the negligence of other party “in whole or in part.” 

See Doc. 11, p. 5-6. The indemnity provision in the NAES-PGE contract requires NAES to 

indemnify PGE against any claim “resulting from, arising out of, or in any way connected with 

any act, omission, fault or negligence of” NAES. Ex. 13. That language encompasses claims 

resulting from the negligence of NAES in part and the negligence of PGE in part. The last 

sentence of the provision confirms that interpretation: “INDEMNITY OBLIGATION * * * 

SHALL NOT EXTEND TO ANY LIABILITY CAUSED BY THE SOLE NEGLIGENCE OF” 

PGE. Id. (emphasis added.) To the extent the provision requires indemnity for injuries caused in 

part by PGE and in part by NAES, it is unlawful. 
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says, in a certificate of insurance by Liberty Mutual’s agent, and that PGE relied upon to its 

detriment. See Doc. 13, pp. 4-6. This argument is wrong on the law and wrong on the facts. 

First, the law. Oregon does not recognize coverage by estoppel. In this state, unlike 

some others, “estoppel cannot be invoked to expand insurance coverage or the scope of an 

insurance contract.” ABCD...Vision v. Fireman’s Fund Ins. Cos., 304 Or. 301, 306, 744 P.2d 

998 (1987). It can’t be used to negate an exclusion, id. at 307, or to eliminate a condition of 

coverage. Farmers Ins. Co. of Oregon v. Munson, 127 Or. App. 413, 418, 873 P.2d 370, rev.

den., 320 Or. 109 (1994). Under Oregon law, a policy says what it says, and covers what it 

covers, and nothing the insurer’s agent says or does can change that fact, just as nothing the 

insured says or does can change it. The insured can’t rely on the agent’s representations to 

broaden the coverage, just as the insurer can’t rely on the insured’s representations to narrow it. 

In sum, coverage by estoppel is not a viable legal theory in Oregon. There are many cases so 

holding, besides those cited above. They include DeJonge v. Mutual of Enumclaw, 315 Or. 237, 

843 P.2d 914 (1992), Wyoming Sawmills v. Transportation Ins. Co., 282 Or. 401, 410, 578 P.2d 

1253 (1978), Day-Towne v. Progressive Halcyon Insurance, 214 Or. App. 372, 164 P.3d 1205 

(2007), Richardson v. Guardian Life Insurance Company of America, 161 Or. App. 615, 984 

P.2d 917, rev. den., 329 Or. 553 (1999), Holman Erection Co., Inc. v. Employers Ins. of Wausau, 

142 Or. App. 224, 226 n 3, 920 P.2d 1125 (1996), Allstate Ins. Co. v. Stone, 122 Or. App. 202, 

205, 857 P.2d 196 (1993), rev’d on other grounds, 319 Or. 275, 876 P.2d 313 (1994), and, most 

recently, Deardorff v. Farnsworth, 268 Or. App. 844, 849, 343 P.3d 687 (2015). 

Now for the facts. First, it’s not true that the certificate of insurance, Ex. 2 (Doc. 8, p. 

24), was issued by Liberty Mutual’s agent. The certificate itself indicates that it was “produced” 

by “Marsh USA, Inc.,” whoever that is. But there is no reason to believe that Marsh USA, Inc. 
Page 5 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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was Liberty Mutual’s agent. Citing ORS 744.078, PGE says that, “[u]nder Oregon law, as the 

‘producer[,]’ Marsh is Liberty Mutual’s agent.” Doc. 13, p. 6. What that statute actually says is 

almost the opposite of that. It says that “an insurance producer shall not act as an agent of an 

insurer unless,” among other things, the producer is actually appointed by the insurer to be its 

agent. ORS 744.078(1) (emphasis added). Thus, under the statute, just being a producer of a 

policy doesn’t make one an agent of the insurer of the policy produced. See, e.g., 5 Star, Inc. v. 

Atl. Cas. Ins. Co., 269 Or. App. 51, 344 P.3d 467 (2015) (so holding). 

Second, the certificate does not represent that PGE is an “insured” for all lawsuits, or for 

any lawsuit in particular, including Belgarde’s. The certificate says that PGE is a “certificate 

holder” and an additional insured to the extent “required by contract and allowed by law.” As 

explained in the cross-motion and elsewhere in this memorandum, the contract doesn’t require 

coverage for Belgarde’s claim, and the law, in particular, ORS 30.140, doesn’t allow it. 

Third, PGE did not rely to its detriment upon the representations in the certificate. At 

least, there is no evidence that it did. And, even if it did rely, it had no right to, not in view of 

the disclaimers in the certificate itself, printed in boldface type and/or capital letters: 

“THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION 

ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 

HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 

ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.

“* * * * * 

“* * * THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED 

HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND 

CONDITIONS OF SUCH POLICIES.” 

 In Stallworth v. Sam Yoder Trucking, 109 Or. App. 280, 284-185, 819 P.2d 316 (1991), 

the court held that a similar-worded certificate of insurance did not confer any rights on the 

certificate holder. And in Baylor v. Continental Casualty Co., 190 Or. App. 25, 34, 78 P.3d 108 
Page 6 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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(2003), the court held that a certificate of insurance which said that it “is not the Policy” and that 

otherwise referred to “the Policy” did not itself create coverage but “simply embodied notice that 

defendant had issued a policy providing certain benefits in return for prescribed premiums.” So, 

too, here. 

PGE ignores Stallworth and Baylor, which are cited in the cross-motion, and instead 

relies on Hayes Truck Lines, Inc., v. Investors Ins. Corp., 269 Or. 565, 525 P.2d 1289 (1974), as 

support for its estoppel theory of coverage. But that reliance is misplaced. Hayes is 

distinguishable – assuming it is still good law. 

Hayes was an action to recover the proceeds of a “group credit life insurance” policy 

issued on the life of the plaintiff’s decedent, Hayes, who was indebted to NAC under a lease of 

some trucks. The main issue was whether there was in fact a policy on his life. The evidence 

showed that a “master policy” had been issued to NAC, allowing it to issue “certificates” of 

insurance to debtors on particular transactions. Hayes, 269 Or. at 567. There was also evidence 

that a certificate was issued for the life of Hayes, but no policy was delivered to him. Id. at 568. 

Later, when Hayes died and NAC made a claim against the insurer for payment of the debt, the 

insurer denied there was any insurance in force. The trial court ruled that the insurer was 

“estopped to deny coverage and that the policy of insurance was issued to NAC and Hayes.” Id.

at 572-73. The Supreme Court agreed, based on the certificate: 

“The certificate of insurance in defendant’s home office and as sent to NAC and, 

presumably, to Hayes, represented that the defendant had issued insurance to 

Northwest Acceptance Corporation as creditor and Sidney Hayes as insured 

debtor. Both NAC and Hayes relied on this representation and thereby failed to 

seek credit life insurance from another insurer. Defendant cannot justly be 

permitted to assert, after Hayes’ death, that no insurance policy was issued by 

defendant to NAC and Hayes. * * *” 

Id. at 573. 
Page 7 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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 Hayes does not apply here. In that case, as noted, a certificate of insurance was offered to 

prove that there was insurance covering a loss. Indeed, the trial court in Hayes ruled that the 

certificate was itself a sort of insurance policy – that it “had individual contractual efficacy and 

could be enforced against defendant as written.” Id. at 571-72. The certificate was not used in 

that case to negate or vary the terms of a separate policy of insurance, which is how PGE tries to 

use the certificate of insurance here. Use of the certificate for that purpose – to estop Liberty 

Mutual from relying on the policy’s terms and conditions, and thus expand the coverage beyond 

those terms and conditions – is forbidden by DeJonge and the other cases cited above, all of 

which post-date Hayes. If Hayes survives those cases,2

 it does so only for the proposition that an 

insurer can be estopped to deny that there is a policy – not for the proposition, rejected in 

DeJonge and progeny, that an insurer can be estopped to rely on the policy’s terms and 

conditions in determining coverage. 

 In sum, even if estoppel were a viable legal theory, there is no ground for an estoppel 

here. 

ORS 30.140 Applies to Defense, Not Just Indemnity 

 PGE argues that, because ORS 30.140 refers to “indemnity,” it does not apply to an 

insurer’s duty to “defend” and thus does not limit Liberty Mutual’s obligation to defend PGE 

against Belgarde. According to PGE, the statute “would only void NAES’s, and by extension 

Liberty Mutual’s, indemnity obligation to PGE.” Doc. 13, p. 8. 

 2

 No Oregon case has cited Hayes for its estoppel language in the four decades since it 

was decided. 
Page 8 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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 The Oregon Court of Appeals rejected the same argument just four months ago in Sunset 

Presbyterian Church v. Andersen Const. Co., 268 Or. App. 309, 341 P.3d 192 (2014), pet. for 

rev. pending. In that case, a subcontractor argued that ORS 30.140 limited its duty to defend the 

general contractor. The general responded that “the text of ORS 30.140 refers only to indemnity, 

which, in its view, does not include the duty to defend.” 268 Or. App. at 317. The Court of 

Appeals disagreed. Reviewing the language of the statute and its legislative history, the court 

said: “[W]e reject the contention that the legislature intended to protect subcontractors from 

agreements requiring them to indemnify general contractors against damages caused by the 

general contractors' negligence, but nonetheless intended that general contractors still be 

permitted to require subcontractors to defend them against claims for such damages.” Id. at 320. 

NAES’s Fault is Immaterial 

 Still more obfuscation: PGE asserts that Belgarde’s complaint against PGE contains 

“ample” allegations of fault by NAES. Doc. 13, p. 9. Actually, it contains no allegations that 

NAES was at fault. It alleges, instead, that PGE was solely to blame – that PGE was in control 

of Belgarde’s work while on PGE’s premises and that PGE owned and maintained the defective 

air cannon and supplied it to Belgarde. See Doc. 11, pp. 10-11. 

 PGE says the reason that Belgarde didn’t allege that NAES’s caused his injury is because 

NAES is his employer and thus immune from liability under the workers’ compensation law. 

But that’s just speculation on PGE’s part. In any event, it only explains why Belgarde didn’t 
Page 9 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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name NAES as an additional defendant. Even without joining NAES as a party to the case, 

Belgarde could have alleged that NAES was partly to blame, if that were the case.3

 

 In any event, this speculation serves no purpose, for at least two reasons. First, as 

explained in the cross-motion, an insurer’s duty to defend depends entirely on the allegations of 

the complaint. See Doc. 11, pp. 11-12. It doesn’t matter what “facts” might be proved outside of 

that pleading. “Extrinsic evidence” is not allowed for duty-to-defend purposes. See id. at 11 

(citing Ledford v. Gutoski, 319 Or. 397, 399, 877 P.2d 80 (1994)); see also Doc. 11 at 14-15 

(citing Richardson v. Howard S. Wright Const. Co., CV-05-1419-ST, 2007 WL 1467411 (D. Or. 

May 18, 2007), Clarendon Nat. Ins. Co. v. Am. States Ins. Co., 688 F. Supp. 2d 1186 (D. Or. 

2010), and Arch Ins. Group, Inc. v. Travelers Prop. Cas. Co., 03:10-CV-801-HZ, 2011 WL 

6778757 (D. Ore. Dec. 23, 2011). 

 The second reason why it’s pointless to speculate whether Belgarde could have alleged

that NAES was negligent is that he did allege that PGE was negligent. As explained earlier, ORS 

30.140 applies to agreements to indemnify or insure against liability caused by the negligence of 

the indemnitee (in this case, PGE) in whole or in part. The statute would apply, then, even if 

Belgarde’s injury was caused by NAES’s negligence in addition to PGE’s. 

Indemnity Is Premature 

 Liberty Mutual’s duty to indemnify is found in the policy’s insuring agreement, which 

provides in part that Liberty Mutual ‘will pay those sums that the insured becomes legally 

 3

 The complaint does, in fact, mention NAES, identifying it as Belgarde’s employer. 

But, contrary to PGE’s suggestion, that doesn’t mean that his injury was necessarily caused by 

NAES’s. Not every on-the-job injury is the employer’s fault. The whole workers’ compensation 

system – a no-fault system – is built on that premise. 
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obligated to pay as damages” for a covered bodily injury. Ex. 5 (Doc. 8, p. 32). At present, of 

course, PGE is not liable to pay any damages in the underlying lawsuit. And it might not ever 

become liable to pay them. It might win that case, which it hasn’t yet conceded. For that reason, 

the duty-to-indemnify claim is premature, or un-“ripe.” See Scott v. Pasadena Unified Sch. Dist., 

306 F.3d 646, 662 (9th Cir. 2002) (generally, a matter is not ripe “if it rests upon contingent 

future events that may not occur as anticipated, or indeed may not occur at all.”) (quotations 

omitted). It calls for the court to issue what would be, for all practical purposes, an advisory 

opinion – an opinion that Liberty Mutual will (or will not) owe a duty to indemnify PGE, if 

something happens in the future, which it might not. PGE concedes as much. It says: “If, and 

when, PGE pays Mr. Belgarde in connection with the underlying action, PGE will seek 

indemnity from Liberty Mutual.” Doc. 13, p. 15 (emphasis added). That’s a big if, given that 

PGE has denied liability in the underlying lawsuit and is mounting a vigorous defense. 

 Contrary to PGE’s assertion, Liberty Mutual is not contending that if the claim were ripe, 

which it isn’t, this court would otherwise lack jurisdiction to decide the indemnity claim. That 

claim satisfies the case-and-controversy requirement of the federal constitution, see, e.g., 

American States Ins. Co. v. Kearns, 15 F.3d 142, 144 (9th Cir. 1994), and PGE and Liberty 

Mutual are citizens of different states for purposes of 28 U.S.C. § 1332. So jurisdiction seems in 

order. But even so, the fact that the court has jurisdiction doesn’t mean that it must, or even 

should, exercise it. Relief under the Declaratory Judgment Act is “permissive,” not 

“mandatory.” Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1222-23 (9th Cir. 1998); see 

also Public Affairs Associates v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 581-82 (1962) (the 

Declaratory Judgment Act “gave the federal courts competence to make a declaration of rights; it 

did not impose a duty to do so.”). And, in deciding whether to entertain a request for such relief, 
Page 11 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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the court should take care to: (1) avoid needless determination of state law issues; (2) discourage 

litigants from filing declaratory actions in an attempt to forum shop; and (3) avoid duplicative 

litigation. Dizol, 133 F.3d at 1225 (citing Continental Cas. Co. v. Robsac Industries, 947 F.2d 

1367, 1371-73 (9th Cir. 1991)). 

 All three factors come into play here. In the first place, the indemnity issue turns, in part, 

on the meaning and effect of a state law, ORS 30.140, which the Oregon Supreme Court is 

reviewing in a pending case, Montara Owners Assn. v. La Noue Development, LLC, 259 Or. 

App. 657, 317 P.3d 257 (2013), rev. allowed, 355 Or. 567 (2014), as explained in Liberty 

Mutual’s cross-motion. See Doc. 11, pp. 9-10. Second, it would encourage forum-shopping if 

this court were to rule on the duty-to-indemnify issue now, before an adverse judgment in the 

underlying case, because there is no question that PGE could not obtain such a ruling now if it 

had filed this action in state court. As explained in the cross-motion, Oregon courts don’t allow 

pre-judgment determinations of an insurer’s indemnity obligations. See Doc. 11 at p. 16-17 

(discussing Hale v. Fireman’s Fund Ins. Co. et al., 209 Or. 99, 302 P.2d 1010 (1956)). Third, a 

ruling now would lead to duplicative litigation. If anything is clear from the briefing so far it’s 

that the duty-to-indemnify issue is wrapped up in questions about whether Belgarde’s injury was 

the result of negligence by PGE, or NAES, or both. Those, of course, are the key questions in 

the state court action. To that extent this action duplicates the Belgarde lawsuit. 

 This court has “unique and substantial discretion to decide whether to issue a declaratory 

judgment,” Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137 (1995), but is “under no 

compulsion to exercise that jurisdiction.” Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 

494, 62 S.Ct. 1173 (1942). In this case, for reasons identified above, the court should decline, on 

prudential grounds, to entertain PGE’s duty-to-indemnify claim at this time. The court should, 
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instead, summarily dismiss that claim without prejudice to re-filing it if and when PGE is held 

liable to Belgarde in the underlying lawsuit. Alternatively, the court should stay proceedings on 

that claim until that lawsuit concludes. 

Questions of Fact on Indemnity 

 If the court does not dismiss or stay the duty-to-indemnify issue, it should still deny 

PGE’s motion for summary judgment, because there is a material question of fact – namely, 

whether PGE was at fault, even in part, in causing Belgarde’s injury. PGE argues that there is no 

question about that – that it was completely blameless. In support of that argument, PGE relies – 

incredibly – on Belgarde’s deposition testimony in the underlying case, the case in which he 

alleges just the opposite: that PGE was entirely to blame.4

 PGE suggests that Belgarde’s 

testimony refutes all of his allegations against PGE, but the court will find, on review, that it 

does no such thing.5 

 In any event, PGE would not be entitled to summary judgment on the indemnity claim 

even if Belgarde’s said in his deposition the opposite of what he said in his pleading. In that 

event, the inconsistency between the two exhibits to the motions – between Belgarde’s testimony 

(Doc. 13-1) and his complaint, Ex. 6 (Doc. 8, p. 34) – would create a question of fact and thus 

preclude summary adjudication of the claim. 

 4

 PGE submitted excerpts from the deposition as Ex. 10 to its motion, and resubmitted 

them as an exhibit to Belgarde’s declaration (Doc. 13-1), filed with PGE’s response to Liberty 

Mutual’s motion. 

5

 For instance, PGE asserts that Belgarde admitted that “PGE did not control, direct and 

monitor his work,” and “did not supply him with the air cannon,” as alleged in his complaint. In 

fact, no such admissions appear in the deposition excerpts. At most, the deposition excerpts 

suggest that others may also have exerted some control or direction over plaintiff’s work. 
Page 13 - Defendant’s Reply Memo. in Support of Cross-Motion for Summary Judgment

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Proposed Rulings 

 The court should conclude that PGE is not an insured under the additional-insured 

endorsement to Liberty Mutual’s policy with NAES, because NAES’s agreement to insure PGE 

– the trigger of coverage under the endorsement – is void under ORS 30.140. Accordingly, the 

court should hold that Liberty Mutual owes no duty to defend or indemnify PGE in Belgarde’s 

lawsuit. On that basis, the court should grant Liberty Mutual’s motion for summary judgment 

and deny PGE’s. 

 Alternatively, the court should conclude that PGE is insured only against claims for 

injury caused by the fault of NAES and not also the fault, even in part, of PGE, because NAES’s 

agreement to insure PGE is valid under ORS 30.140 to that extent only. Accordingly, the court 

should hold that Liberty Mutual owes no duty to defend PGE in Belgarde’s lawsuit, because his 

complaint, on its face, alleges that PGE was negligent, at least in part, if not in whole, in causing 

his injury, and does not allege negligence by NAES. On that basis, the court should grant 

Liberty Mutual’s motion for summary judgment, and deny PGE’s motion, on the duty-to-defend 

claim. 

 As for the duty-to-indemnify claim, the court should conclude that that claim is 

premature, even if PGE is insured under NAES’s policy against Belgarde’s claims, because there 

is, as yet, no judgment for Belgarde and against PGE and thus nothing to indemnify, and because 

there might not ever be a judgment and something to indemnify. At the very least, the court 

should postpone proceedings on the duty-to-indemnify issue until the conclusion of Belgarde’s 

lawsuit, or until Liberty Mutual has had time to conduct discovery on the factual issues presented 

by that claim, including whether PGE was at fault, at least in part, in causing Belgarde’s injury, 

as he alleges. For those reasons, the court should grant Liberty Mutual’s motion for summary 
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judgment on the duty-to-indemnify claim and deny PGE’s motion, or stay both motions. But, in 

all events, the court should deny PGE’s motion, because of a question of fact regarding PGE’s 

fault. 

DATED: May 1, 2015. 

Respectfully submitted, 

COSGRAVE VERGEER KESTER LLP 

/s/ Thomas M. Christ 

Thomas M. Christ 

Paul A. C. Berg
2307409

CERTIFICATE OF SERVICE 

 I hereby certify that I served a true and correct copy of the foregoing Defendant Liberty 

Mutual Insurance Company’s Reply Memorandum in Support of Cross-Motion for 

Summary Judgment on the date indicated below by: 

 mail with postage prepaid, deposited in the US mail at Portland, Oregon, 

 hand delivery, 

 facsimile transmission, 

 overnight delivery, 

 electronic filing notification. 

I further certify that said copy was delivered as indicated above and addressed to said 

attorney at the address listed below: 

Daniel K. Reising 

Fucile & Reising LLP 

800 NW Sixth Avenue, Suite 211 

Portland, OR 97209 

Attorneys for Plaintiff 

 DATED: May 1, 2015 

/s/ Thomas M. Christ 

Thomas M. Christ