IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WILLIAM H. COULTAS, CHRISTINE COULTAS, 

and CHRISTINE SCHWANENBERG, filing 

individually and in her capactity as personal 

representative of the Estate of Roark Schwanenberg, 

Plaintiffs, 

v. 

LIBERTY MUTUAL FIRE INSURANCE CO., 

Defendant. 

PAPAK, Magistrate Judge: 

3:15-cv-0237-PK 

OPINION AND ORDER 

Plaintiffs William H. Coultas and Christine Coultas, as well as Christine Schwanenberg, 

filing individually and as a personal representative of the Estate of Roark Schwan en berg 

(collectively, "Plaintiffs"), filed the instant action against defendant Liberty Mutual Fire 

Insurance Company ("Libe1iy Mutual"), alleging two counts of conversion in violation of Oregon 

law. This court has jurisdiction over those claims pursuant to 28 U.S.C. § 1332. 

Now before the court is Liberty Mutual's motion to dismiss (#10) pursuant to Federal 

OPINION AND ORDER- 1 

Case 3:15-cv-00237-PK Document 46 Filed 05/18/15 Page 1 of 12
Rule of Civil Procedure ("Rule") 12(b )( 6) for failure to state a claim upon which relief can be 

granted. For the reasons discussed below, Liberty Mutual's Motion is denied. 

PROCEDURAL BACKGROUND 

On December 10, 2014, Plaintiffs filed a complaint in the Circuit Court of Oregon for the 

County of Multnomah alleging conversion, wrongful use of civil proceedings, and a breach of the 

duty of good faith and fair dealing on behalf of all Plaintiffs, as well as one count of fraud on 

behalf of Plaintiff Schwanenberg. Plaintiffs later filed their Amended Complaint (# 1-1) 

eliminating all but their fraud and conversion claims. 

On February 11, 2015, Libetiy Mutual removed Plaintiffs' lawsuit to this court (#1). On 

February 18,2015, Libetiy Mutual filed the current Motion to Dismiss Plaintiffs' claims pursuant 

to Rule 12(b)(6) (#10). 

On March 4, 2015, Plaintiffs filed a Notice of Voluntary Dismissal (#20) of their fraud 

claim pursuant to Rule 4l(a). That same day, Plaintiffs filed their Response (#21) to Liberty 

Mutual's Motion to Dismiss. 

On April 7, 2015, the court heard Oral Argument on Liberty Mutual's Motion. This 

matter is fully submitted and prepared for decision. 

FACTUAL BACKGROUND' 

In August 2008, Roark Schwanenberg and Plaintiff William Coultas were involved in a 

tragic helicopter crash that proved fatal for Mr. Schwanenberg and caused Mr. Coultas to suffer 

,~ 

1 I note that, in ruling on a Rule 12(b )( 6) motion to dismiss, I must take the Complaint's 

allegations of material fact as true and construe them in a light most favorable to the nonmoving 

party. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247--48 (9th Cir. 2013); see also Keams v. 

Tempe Tech. Inst., 39 F.3d 222,224 (9th Cir. 1994). 

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an extended coma and severe bums. Amended Complaint, #1, Ex. A, 20, ~~ 6, 8, 12. Thereafter, 

Libetiy Mutual, which contracted with the employer of the individuals involved in the crash, 

began paying workers' compensation benefits to Mr. Coultas and Mr. Schwanenberg's widow, 

Plaintiff Christine Schwanenberg. Id. ~~ 12-14. 

In October 2008, Liberty Mutual sent letters to Mr. Coultas and Mrs. Schwanenberg 

allowing them to elect whether to file suit themselves against the patiies potentially responsible 

for the helicopter crash or, alternatively, to assign their right to file suit to Libetiy Mutual. !d. ~~ 

16, 20. Mrs. Schwanenberg received her letter from Liberty Mutual on October 14, 2008. !d. ~ 

17. Mr. Coultas received his letter on October 16,2008. !d. The letters instructed the recipients 

to sign and return their election to Libetiy Mutual "within 60 days of receipt" of the letters. !d. ~ 

20. The letters fmiher informed the recipients of Oregon's two-year Statute of Limitations 

governing their claim. I d. ~ 21? 

Both Mr. Coultas and Mrs. Schwanenberg elected to file suit themselves. !d. ~~ 22-23. 

After noting his election, Mr. Coultas mailed the letter to Liberty Mutual. Amended Complaint, 

#1, Ex. A, 20, ~ 23. After noting her election, Mrs. Schwanenberg gave the letter to a family 

friend, Mr. Johnson, to mail to Liberty Mutual. Id. ~ 22. 

Liberty Mutual acknowledged receipt of Mr. Coultas's letter and election but maintains 

that it did not receive Mrs. Schwanenberg's letter and election. Id. ~ 24. Liberty Mutual's 

intemal documents indicate that the Schwanenberg election letter was mailed to Libetiy Mutual 

2 The Oregon Workers' Compensation Board and the Oregon Conti of Appeals later 

found that the letters sent by Libetiy Mutual contained false or misleading statements and did not 

comply with statutory requirements for an effective assignment of the rights at issue. Amended 

Complaint, #1, Ex. A, 20, ~ 27. 

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but was then returned to sender. Id. 

At no point did Libe1ty Mutual inform Plaintiffs that their responses were invalid, that 

Libe1ty Mutual was not in receipt of their responses, or that Liberty Mutual intended to proceed 

against the potentially responsible pmties. I d. ~ 25. 

On December 10, 2008, fifty-seven days after Mrs. Schwanenberg received her election 

letter, Liberty Mutual filed a lawsuit in the United States District Comt for the Nmthern District 

of California on behalf of Roark Schwanenberg and his survivors and beneficiaries against 

multiple defendants, including Columbia Helicopters, an entity insured by Libe1ty Mutual. Jd. ~ 

30. 

On Februmy 11, 2009, Mr. Johnson contacted Libe1ty Mutual via telephone to notify it 

that Mrs. Schwa11enberg had elected to bring suit herself. Jd. ~~ 24, 30. 

Thereafter, Libe1ty Mutual moved to dismiss its claims against Columbia Helicopters. !d. 

~ 31. That motion was granted on April!, 2009. Id. 

On January 23, 2009, Libe1ty Mutual filed a lawsuit in the United States District Court 

for the District of Connecticut on behalf of Mr. Coultas against multiple defendants, again 

including Columbia Helicopters. Jd. ~ 32. 

Thereafter, Libe1ty Mutual filed a Notice ofVoluntmy Dismissal of its claims against 

Columbia Helicopters. Jd. ~ 33. That notice was endorsed by the presiding comt on February 

11' 2009. I d. 

Plaintiffs then hired a law fi1m to separately file suit against the potentially responsible 

pmties involved in the crash, despite Liberty Mutual's pending suits. That f'ilm, AndersonGlenn 

LLP, asked Libe1ty Mutual to dismiss its suits in order for Plaintiffs to file their own suits in their 

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Case 3:15-cv-00237-PK Document 46 Filed 05/18/15 Page 4 of 12
own choice of coutts. Id ,; 36-37. Liberty Mutual refused and sought to consolidate its cases 

brought on behalf of Plaintiff Coultas and Mr. Schwanenberg before the Panel on Multi-District 

Litigation ("MDL"). !d. ,; 40. Thereafter, on February 24, 2010, AndersonGlenn went forward 

with litigation in Oregon state comt on behalf of Plaintiffs Coultas and Schwanenberg against 

Columbia Helicopters, Inc., and two other defendants. !d. ,; 45. 

On April 8, 2011, the Oregon Workers Compensation Board ruled that Libetty Mutual's 

claimed assignments of the right to sue on behalf of Plaintiffs were void due to 

misrepresentations within the 2008letters containing the election forms. !d.,; 47. This order 

was forwarded by AndersonGlenn to Liberty Mutual, which did not immediately desist its stillpending litigation, but did so after receiving direction to do so from the U.S. District Court for 

the District of Connecticut. !d. 

In response, Liberty Mutual appealed the board decision as it applied to the assignment by 

Plaintiff Schwanenberg. !d. While the appeal was pending, Plaintiffs continued to try their case 

in Oregon state court and were ultimately awarded $70,455,000 by ajmy on March 27, 2012. !d. 

,; 48. Nonetheless, Liberty Mutual pursued its appeal. Id. It lost that appeal sixteen months after 

the Board's decision and four months after the Oregonjmy verdict, and ultimatlely dismissed the 

case brought on behalf of Mrs. Schwanenberg. !d. ,; 4 7. 

LEGAL STANDARD 

I. Applicable Law 

. When sitting in diversity, a distdct coutt applies the substantive law of its forum state and 

federal procedural law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 

1188 (1938); see also, e.g., Takahashi v. Loomis Armored Car Service, 625 F.2d 314,316 (9th 

OPINION AND ORDER- 5 

Case 3:15-cv-00237-PK Document 46 Filed 05/18/15 Page 5 of 12
Cir. 1980). I therefore apply Oregon substantive law and federal procedural law in deciding the 

motions now before the court. 

II. Motion to Dismiss for Failure to State a Claim 

To survive a Rule 12(b )( 6) motion to dismiss for failure to state a claim, a complaint must 

contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell 

At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To raise a right to relief above the speculative 

level, "[t]he pleading must contain something more ... than ... a statement of facts that merely 

creates a suspicion [ ofJ a legally cognizable right of action." Id (citation omitted). Instead, "for 

a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable 

inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to 

relief." lvfoss v. US. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft v. Iqbal, 

556 u.s. 662, 678 (2009)). 

In ruling on a Rule 12(b)(6) motion to dismiss, a court must take the complaint's 

allegations of material fact as true and construe them in the light most favorable to the 

nonmoving party. Keams v. Tempe Tech. Inst., Inc., 39 F.3d 222, 224 (9th Cir. 1994). All 

reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. 

Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n. 2 (9th Cir. 2008). Moreover, the 

"court may generally consider only allegations contained in the pleadings, exhibits attached to the 

complaint, and matters properly subject to judicial notice." Swartz v. KPlvfG LLP, 476 F.3d 756, 

763 (9th Cir. 2007). 

OPINION AND ORDER - 6 

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ANALYSIS 

Defendants move to dismiss Plaintiffs' conversion claim on the grounds that Oregon law 

does not recognize a claim for conversion for the right to sue another party and, in the alternative, 

even if such a claim is recognized by Oregon law, Plaintiffs cannot meet the requirements to state 

such a claim under the circumstances. 

I. Prima Facie Conversion Claim 

To establish a prima facie conversion claim, a plaintiff"must prove an intentional 

exercise of dominion or control over a chattel which so seriously interferes with the right of 

another to control it that the actor may justly be required to pay the full value of the chattel." 

Cron v. Zimmer, 255 Or. App. 114,296 P.3d 567, 576-77 (2013), quoting }vfustola v. Toddy, 253 

Or. 658, 663, 456 P.2d 1004 (1969) (adopting the definition of conversion found in Restatement 

(Second) ofTorts § 222A(l) (1965)). 

Plaintiffs argue that the chattel at issue in this case is "the right to assett a cause of action 

" Pl.'s Response, #21, 7. Plaintiffs essentially allege that Liberty Mutual's filing of 

subrogation lawsuits on behalf of Plaintiffs without their valid assignment suffices to establish 

Libetty Mutual's exercise of dominion or control over Plaintiffs' personal prope1ty in a way that 

seriously interfered with Plaintiffs's claims against the responsible third pmties. Amended 

Complaint, #1, Ex. A, 20, ~ 64. 

In analyzing conversion claims, Oregon courts apply the methodology of the Restatement 

(Second) of Torts § 222A. Courts look to: (1) the extent and duration of the exercise of 

dominion or control; (2) the actor's intent to assert a right that is inconsistent with the other's 

right; (3) the actor's good faith, or lack thereof; (4) the extent m1d duration of interference; (5) the 

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Case 3:15-cv-00237-PK Document 46 Filed 05/18/15 Page 7 of 12
hatm done to the chattel in question; and (6) the inconvenience and expense caused to the other. 

Fogh v. i'v!cRill, 153 Or. App. 159, 166 (1998). 

II. Conversion of a Chose in Action or a Right to Bring Suit 

Here, the primmy contention at issue in Liberty Mutual's motion is whether the right to 

assert a cause of action, or a "chose in action,"3 is a chattel subject to conversion. Liberty Mutual 

argues that a simple review of conversion jurisprudence establishes that a chose in action is 

simply not a chattel subject to conversion. Def.'s Reply, #25, 3. Courts in Oregon and other 

jurisdictions, however, have found that a chose in action can, in some situations, be subject to 

conversion. See Nichols v. Jackson Cty. Bank, 136 Or. 302,307-08 (1931) (allowing a 

mortgagee to bring a conversion claim for mortgaged sheep based upon a viable mortgage); see 

also Eade v. First Nat'/ Bank of Condon, 17 Or. 47 (1926) (distinguishing between ordinaty 

conversion cases and an action for conversion of mortgaged chattels, holding that where a chattel 

mortgage had been given a secure note and, because of conversion, is lost or destroyed, the 

mmigagee could recover in a conversion action); South Trust bank v. Done/y, 925 So.2d 934, 940 

n.9 (2005) (noting that negotiable instrument is a chose in action subject to conversion). 

While Oregon courts have determined that chases in action in the form of mortgaged 

items governed by formalized and negotiated instruments can be subject to conversion, they have 

not addressed whether other chases in action, such as the right to bring a lawsuit to recover for a 

3 In its Reply, Libe1iy Mutual co11'ectly identifies the legal definition of such a right. 

Black's Law Dictionary defines a "chose" as "[a] thing, whether tangible or intangible; a 

personal miicle; a chattel." BLACK's LAW DICTIONARY (lOth ed. 2014), "chose." Black's also 

includes under that definition the term "chose in action," which includes the following: "a claim 

for damages in tort" as well as "the right to bring an action to recover a debt, money, or thing." 

Id at "chose in action." FU!iher, American Jurispmdence 2d notes that a "chose in action" is a 

property right to "recover a personal chattel or sum of money." 18 Am. Jur. 2d Conversion§ 8. 

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Case 3:15-cv-00237-PK Document 46 Filed 05/18/15 Page 8 of 12
tort, can be subject to conversion. However, this district has, in recent years, determined that 

Oregon courts would likely find that intangible personal prope1ty may be considered chattels for 

the purposes of a conversion claim. See Joe Hand Promotions, Inc. v. Jacobsen, 874 F. Supp. 2d 

1010, 1016 (D. Or. 2012). In Joe Hand, the comt conducted a thorough and careful survey of 

common law, the definition of chattel, and accommodations in conversion jurisprudence to 

include intangible goods in the general definition of chattels. See id. (Citing Kremens v. Cohen, 

337 F.3d 1024, 1030 (9th Cir. 2003)). The comt noted that vittually every jurisdiction "has, to 

some degree, discarded the traditional limitation that applied conversion actions only to tangible 

goods." Id The court further explained that, "[a]s the nature of property interests began to 

change, so, too, did the law relating to the type of property that is capable of conversion." I d. at 

1018. The Joe Hand court therefore "[found] it likely" that the Oregon courts would extend the 

definition of "chattel" to include a broadcasting license for a television program, based on the 

fact that such a license provides the holder with the right to "receive a transmitted signal; to 

rebroadcast the signal; and to determine when, where, and by whom the program contained 

within the signal can be displayed or exhibited .... " Id. at 1019. 

Based on similar reasoning, this district has also found that Oregon comts would likely 

extend the definition of chattel to include patent rights due in pmt to the fact that they provide a 

patent holder an intangible right to control the use of patented technology. See Lyden v. Nike, 

Inc., 2013 WL 5729727 at *4 (D. Or. Oct. 23, 2013). The Lyden court reached this conclusion 

both by applying Joe Hand and by referring to the following definition: a "chattel personal" is a . 

. . type of chattel and ... is defined as "a tangible good or an intangible right (such as a patent)." 

Lyden, 2013 WL 5729727 at *4. 

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Given these findings regarding the likelihood of Oregon cout1s to extend the definition of 

chattel to intangible propet1y rights, Plaintiffs in this case argue that 

If a broadcast license, the right to control when, where and how a television show is 

presented, and a patent, the right to control when, where and how cettain technology 

is used, are protected intangible propetty subject to conversion, so too is the right to 

control when, where and how a lawsuit is brought. 

PI's. Response, #21, 10. 

Liberty Mutual contends that the courts mentioned above dealt with "newly developed or 

recently recognized type[s] of property," Def.'s Reply, #25, 4, and points to an anay of cases 

from other jurisdictions that considered these and other f01ms of new technology intangible 

personal propet1y subject to conversion. See Joe Hand, 874 F. Supp. 2d. 1018-21 (collecting 

cases that analyzed satellite signals, authorization codes, stock options, and more). On these 

grounds, Libet1y Mutual attempts to distinguish a right to bring a cause of action from those 

other "newly developed or recently recognized type[s] of property." Libe11y Mutual's argument 

falls sh011, however, as the patent rights that Lyden considered chattel subject to conversion are 

by no means a "newly developed" or "recently recognized" type of property, and have long been 

defined as intangible chattel. See Belding v. Turner, 3 F. Cas. 84, 85 (D. Conn. 1871)(A patent 

is "defined as an incorporeal chattel, which the patent impresses with all the characteristics of 

personal estate"); see also Carr v. Rice, 5 F. Cas. 140, 145 (S.D.N.Y. 1856) ("assignees [of a 

patent] became the owners of the discovery, with a perfect title," and thus "[p]atent interests are 

not distinguishable, in this respect, from other kinds of property"). 

I find no sufficient legal distinction between the property at issue here and Joe Hand's 

broadcasting license or Lyden's patent that would cause me to refrain from applying those courts' 

reasoning to the cunent case. Chases of action, as here, have long been recognized as assignable 

OPINION AND ORDER - 10 

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personal prope1ty, and the very trait of assignability gave rise to the present dispute. As a result 

of the legal evolution of"chattels personal," choses of action have long been characterized, 

alongside patents, trademarks, prints, labels, and copyrights, as personal prope1ty falling within 

the definition of "chattel": 

Choses in action, though valuable rights, had not in early times the 

ordinary incident of prope1ty, namely, the capability of being 

transferred; for, to pe1mit a transfer of such a right was, in the 

simplicity of the times, thought to be too great an encouragement to 

litigation . . . . It was impossible, however, that this simple state of 

things should long continue. 

In process of time . . . an indirect method of assignment was 

discovered, the assignee being empowered to sue in the name of the 

assignor; and in the reign of Hemy VII, it was dete1mined that a 

"chose in action may be assigned over for lawful cause as a just debt, 

... and that where a man is indebted to me in, and another owes him, 

by bond, he may assign this bond and debt to me in satisfaction, and 

I may justifY for suing it in the name of the other at my own costs." 

Choses in action, having now become assignable, became an 

important kind of personal property. 

JOSEPH J. DARLINGTON, A TREATISE ON THE LAW OF PERSONAL PROPERTY 6-10 (1891) 

(citations omitted, emphases added); BLACK's LAw DICTIONARY 286 (1Oth ed. 2014). Given the 

fact that choses in action, like the right at issue here, are legally indistinct from other forms of 

chattels personal for present purposes, I adopt the reasoning of the Joe Hand and Lyden courts 

and find that same reasoning applies to the property at issue in this case, and that an assignable 

cause of action does indeed constitute a chattel subject to conversion. 

II. Liberty Mutual's Exercise of Dominion and Damages 

Liberty Mutual argues, in the alternative, that even if Plaintiffs' cause of action is a 

chattel subject to conversion, Libe1ty Mutual did not exercise sufficient dominion or control over 

or cause harm to the chattel in question to support Plaintiffs' claim for conversion. Def.'s 

OPINION AND ORDER- 11 

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Motion, #10, 23. Plaintiffs rebut by arguing that Liberty Mutual's action "opened the plaintiffs 

up to defense arguments to dismiss any separately filed lawsuits under the 'first filed' rule and 

prohibitions on splitting of causes of action, effectively preventing plaintiffs from filing their 

own lawsuits." Pl.'s Response, #21, 11. Plaintiffs allege that Liberty Mutual's conduct 

increased litigation expenses, caused emotional distress, delayed Plaintiffs' ability to exercise 

their right to bring action, forced Plaintiffs' to intervene in Liberty Mutual's federal action, and 

forced the initiation of actions in the Oregon Workers Compensation Board. Amended 

Complaint, #1-1, '\['\[ 40-42, 44. Plaintiffs also allege that Liberty Mutual continued to pursue 

claims even with knowledge it was operating under invalid pretenses. !d. '\[52. 

Taking the Complaint's allegations of material fact as true and construing them in the 

light most favorable to Plaintiffs, I find that Plaintiffs' allegations that Liberty Mutual asserted 

dominion and control over their causes of action, resulting in the above injuries and impediments 

to Plaintiffs' ability to exercise those rights, satisfY the Rule 12(b)(6) standard and are sufficient 

to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. 

CONCLUSION 

For the foregoing reasons, Defendant's motion to dismiss (#10) is denied. 

IT IS SO ORDERED. 

Dated this 18th day of May, 2015. 

Honorable Paul Papak 

United States Magistrate Judge 

OPINION AND ORDER- 12 

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