EXHIBIT -- A

Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 1 of 28
Case 6:15-cv-00260-AA Document 11 Filed 03/27/15 Page 1 of 25

John E. Zehnder, OSB No. 054979

Robert P. Schulhof, Jr., OSB No. 000018

SCHEER & ZEHNDER LLP

101 SW Main St., Suite 1600

Portland, OR 97204

Phone: (503) 542-1200

Fax: (503) 542-5248

E-Mail: jzehnder@scheerlaw.com

rschulhof@scheerlaw.com

Attorneys for Defendants Monica Drummer, and

Arthur J. Gallagher Risk Management Services, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DEPARTMENT OF EUGENE

UNIVERSITY OF OREGON,

Plaintiff,

v.

MONICA DRUMMER and ARTHUR J.

GALLAGHER RISK MANAGEMENT

SERVICES, INC., an Illinois Corporation.

Defendants.

MONICA DRUMMER and ARTHUR J.

GALLAGHER RISK MANAGEMENT

SERVICES, INC., an Illinois Corporation.

Third-Party Plaintiffs,

v.

MARSH U.S. CONSUMER a service of

SEABURY & SMITH, INC., a Delaware

Corporation.

Third- Defendant.

NO. 6:15-CV-00260-AA

SECOND AMENDED ANSWER

AFFIRMATIVE DEFENSES AND

THIRD-PARTY CLAIMS OF

MONICA DRUMMER AND

ARTHUR J. GALLAGHER RISK

MANAGEMENT SERVICES, INC.

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The Defendants Monica Drummer ("Drummer") and Arthur J. Gallagher Risk

Management Services, Inc., ("AJG"), collectively hereinafter "Defendants" answer the

allegations of Plaintiff's Amended Complaint as follows:

JURISDICTIONAL FACTS

1.

In response to the allegations raised in paragraph I of the Amended Complaint, upon

information and belief, Defendants admit.

2.

In response to the allegations raised in paragraph 2 of the Amended Complaint, to the

extent plaintiff seeks to plead legal conclusions, Defendants object, and no answer is

necessary. To the extent an answer is required; Defendants admit that Drummer is an

individual in the employ of AJG and that her primary residence and place of business are in

the State of Colorado. Except as specifically admitted above, Defendants otherwise deny.

3.

In response to the allegations raised in paragraph 3 of the Amended Complaint,

Defendants admit that AJG is an insurance broker, approved to do business in Oregon, with

its principal place of business and incorporation in the State of Illinois. Except as

specifically admitted above, Defendants otherwise deny.

4.

In response to the allegations raised in paragraph 4 of the Amended Complaint,

Defendants deny.

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OPERATIONAL FACTS 

5.

In response to the allegations raised in paragraph 5 of the Amended Complaint,

Defendants have no firsthand knowledge as to the veracity of the events, occurrences or other

allegations claimed in this paragraph and, therefore, cannot admit or deny. To the extent an

answer is required, Defendants must deny.

6.

In response to the allegations raised in paragraph 6 of the Amended Complaint,

Defendants have no firsthand knowledge as to the veracity of the events, occurrences or other

allegations claimed in this paragraph and, therefore, cannot admit or deny. To the extent an

answer is required, Defendants must deny.

7.

In response to the allegations raised in paragraph 7 of the Amended Complaint, to the

extent plaintiff cites particular statutes, those statutes speak for themselves. To the extent

Plaintiff is attempting to plead a conclusion of law, Defendants object and no response is

necessary. Defendants admit that, at the time of the subject transaction, the Oregon

University System ("OUS") was the governing authority responsible for Plaintiff. Subject to

its objections and except as specifically admitted above Defendants are without sufficient

information or knowledge to form an opinion or belief as to the veracity of the claims

asserted in this paragraph, and must therefore deny same.

8.

In response to the allegations raised in paragraph 8 of the Amended Complaint, to the

extent Plaintiff cites statute, the statute speaks for itself, and no answer is required. To the

extent that Defendants must answer, upon information and belief, Defendants admit that

OUS was the party responsible for negotiating and procuring insurance for the schools in the

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Oregon University System. Subject to their objections and except as specifically admitted

above, Defendants are without sufficient information or knowledge to form an opinion or

belief as to the veracity of the claims asserted in this paragraph, and must therefore deny

same.

9.

In response to the allegations raised in paragraph 9 of the Amended Complaint,

Defendants admit that OUS was responsible for obtaining insurance for OUS. Defendants

deny that OUS did so "for the benefit of the University." Except as specifically admitted

above, Defendants otherwise deny.

10.

In response to the allegations raised in paragraph 10 of the Amended Complaint,

Defendants admit that OUS contacted AJG regarding certain insurance. Except as

specifically admitted above, Defendants otherwise deny.

11.

In response to the allegations raised in paragraph 11 of the Amended Complaint,

Defendants admit that Drummer was provided certain correspondence relating to Roedl and

Marsh, and had certain contact with Marsh regarding a potential insurance policy.

Defendants further admit that, at the time OUS contacted them, the subject football season

had already begun. Except as specifically admitted above, Defendants otherwise deny.

12.

In response to the allegations raised in paragraph 12 of the Amended Complaint,

Defendants deny.

13.

In response to the allegation in paragraph 13 that Roedl made something "clear,"

Defendants deny anything was made clear to Defendants. In response to the remaining

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allegations raised in paragraph 13 of the Amended Complaint, Defendants have no firsthand

knowledge as to the veracity of the events, occurrences or other allegations claimed in this

paragraph and, therefore, cannot admit or deny. To the extent an answer is required,

Defendants must deny.

14.

In response to the allegations raised in paragraph 14 of the Amended Complaint, to

the extent that plaintiff cites to a document, that document speaks for itself. To the extent an

answer is required regarding plaintiff's characterization of said document, and/or the

events/circumstances relating to the document, Defendants must deny.

15.

In response to the allegations raised in paragraph 15 of the Amended Complaint, to

the extent that plaintiff cites to a document, that document speaks for itself. To the extent an

answer is required regarding Plaintiff's characterization of said document, and/or the

events/circumstances relating to the document, Defendants must deny.

16.

In response to the allegations raised in paragraph 16 of the Amended Complaint, to

the extent that plaintiff cites to a document, that document speaks for itself. To the extent an

answer is required regarding Plaintiff's characterization of said document, and/or the

events/circumstances relating to the document, Defendants must deny.

17.

In response to the allegations raised in paragraph 17 of the Amended Complaint, to

the extent that Plaintiff cites to a document, that document speaks for itself. To the extent

Plaintiff asserts legal conclusions, no answer is required. Defendants deny that anything was

done for the benefit of "the University." Except as specifically denied above, Defendants

otherwise deny.

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18.

In response to the allegations raised in paragraph 18 of the Amended Complaint,

Defendants have no firsthand knowledge as to the veracity of the events, occurrences or other

allegations claimed in this paragraph and, therefore, cannot admit or deny. To the extent an

answer is required, Defendants must deny.

19.

In response to the allegations raised in paragraph 19 of the Amended Complaint,

Defendants have no firsthand knowledge as to the veracity of the events, occurrences or other

allegations claimed in this paragraph and, therefore, cannot admit or deny. To the extent an

answer is required, Defendants must deny.

20.

In response to the allegations raised in paragraph 20 of the Amended Complaint,

Defendants have no firsthand knowledge as to the veracity of the events, occurrences or other

allegations claimed in this paragraph and, therefore, cannot admit or deny. To the extent an

answer is required, Defendants must deny.

FIRST CLAIM FOR RELIEF

(Negligent Failure to Procure Insurance against Drummer and Arthur Gallagher)

21.

Paragraph 21 of the Amended Complaint attempts to incorporate and reassert the

allegations raised in paragraphs 1-20. Defendants by way of reply incorporate as if fully set

forth herein, all prior responses to same.

22.

In response to the allegations raised in paragraph 22 of the Amended Complaint,

Defendants admit that at the end of August 2012 Defendants were contacted by OUS

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regarding certain insurance. Except as specifically admitted above, Defendants otherwise

deny.

23.

In response to the allegations raised in paragraph 23 of the Amended Complaint,

Defendants deny.

24.

In response to the allegations raised in paragraph 24 of the Amended Complaint,

Defendants deny.

25.

In response to the allegations raised in paragraph 25 of the Amended Complaint, to

the extent that Plaintiff cites to a document, that document speaks for itself To the extent

Plaintiff asserts legal conclusions, no answer is required. Defendants otherwise deny.

26.

In response to the allegations raised in paragraph 26 of the Amended Complaint,

Defendants deny.

27.

In response to the allegations raised in paragraph 27 of the Amended Complaint,

Defendants deny.

28.

In response to the allegations raised in paragraph 28 of the Amended Complaint,

Defendants deny.

29.

In response to the allegations raised in paragraph 29 of the Amended Complaint,

Defendants have no firsthand knowledge as to the veracity of the events, occurrences or other

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allegations claimed in this paragraph and, therefore, cannot admit or deny. To the extent an

answer is required, Defendants must deny.

30.

In response to the allegations raised in paragraph 30 of the Amended Complaint,

Defendants deny.

31.

In response to the allegations raised in paragraph 31 of the Amended Complaint,

Defendants deny.

32.

In response to the allegations raised in paragraph 32 of the Amended Complaint,

Defendants deny

SECOND CLAIM FOR RELIEF 

(Negligent Misrepresentations against Drummer and Arthur Gallagher)

33.

Paragraph 32 of the Amended Complaint attempts to incorporate and reassert the

allegations raised in paragraphs 1-20. Defendants by way of reply incorporate as if fully set

forth herein, all prior responses to same.

34.

In response to the allegations raised in paragraph 34 of the Amended Complaint,

Defendants deny.

35.

In response to the allegations raised in paragraph 35 of the Amended Complaint, to

the extent that Plaintiff cites to a document, that document speaks for itself. To the extent

Plaintiff asserts legal conclusions, no answer is required. Defendants otherwise deny.

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36.

In response to the allegations raised in paragraph 36 of the Amended Complaint, to

the extent that Plaintiff cites to a document, that document speaks for itself. To the extent

Plaintiff asserts legal conclusions, no answer is required. Without admitting, and specifically

denying, any particular conduct by Defendant Drummer, where conduct by Defendant

Drummer is alleged to be in connection with issues raised by Plaintiff regarding certain

insurance that is the subject of the Amended Complaint, Defendants admit Drummer was

acting as the agent ofAJG. Except as specifically admitted above, Defendants otherwise

deny.

37.

In response to the allegations raised in paragraph 37 of the Amended Complaint,

Defendants have no firsthand knowledge as to the veracity of the events, occurrences or other

allegations claimed in this paragraph and, therefore, cannot admit or deny. To the extent an

answer is required, Defendants must deny.

38.

In response to the allegations raised in paragraph 38 of the Amended Complaint,

Defendants deny.

39.

In response to the allegations raised in paragraph 39 of the Amended Complaint,

Defendants deny.

40.

In response to the allegations raised in paragraph 40 of the Amended Complaint, to

the extent that Plaintiff cites to a document, that document speaks for itself. To the extent

Plaintiff asserts legal conclusions, no answer is required. To the extent an answer is required,

Defendants deny.

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41.

In response to the allegations raised in paragraph 41 of the Amended Complaint,

Defendants deny.

42.

In response to the allegations raised in paragraph 42 of the Amended Complaint,

Defendants deny.

THIRD CLAIM FOR RELIEF

(Breach of Contract against Arthur Gallagher)

43.

Paragraph 43 of the Amended Complaint attempts to incorporate and reassert the

allegations raised in paragraphs 1-20. Defendants by way of reply incorporate as if fully set

forth herein, all prior responses to same.

44.

In response to the allegations raised in paragraph 44 of the Amended Complaint, to

the extent that Plaintiff cites to a document, that document speaks for itself. To the extent

Plaintiff asserts legal conclusions, no answer is required. Defendants deny the University of

Oregon was an intended beneficiary. To the extent a further answer is required, Defendants

deny.

45.

In response to the allegations raised in paragraph 45 of the Amended Complaint,

Defendants deny.

46.

In response to the allegations raised in paragraph 46 of the Amended Complaint,

Defendants deny.

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47.

In response to the allegations raised in paragraph 47 of the Amended Complaint,

Defendants deny.

48.

In response to the allegations raised in paragraph 48 of the Amended Complaint,

Defendants deny.

FOURTH CLAIM FOR RELIEF

(Breach of Contract — Promissory Estoppel against Arthur Gallagher)

49.

Paragraph 49 of the Amended Complaint attempts to incorporate and reassert the

allegations raised in paragraphs 1-20. Defendants by way of reply incorporate as if fully set

forth herein, all prior responses to same.

50.

In response to the allegations raised in paragraph 50 of the Amended Complaint,

Defendants deny.

51.

In response to the allegations raised in paragraph 51 of the Amended Complaint, to

the extent that Plaintiff cites to a document, that document speaks for itself. To the extent

Plaintiff asserts legal conclusions, no answer is required. Without admitting, and specifically

denying, any particular conduct by Defendant Drummer, where conduct by Defendant

Drummer is alleged to be in connection with issues raised by Plaintiff regarding certain

insurance that is the subject of the Amended Complaint, Defendants admit Drummer was

acting as the agent of AJG. Except as specifically admitted above, Defendants otherwise

deny.

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52.

In response to the allegations raised in paragraph 52 of the Amended Complaint,

Defendants deny.

53.

In response to the allegations raised in paragraph 53 of the Amended Complaint,

Defendants deny.

54.

In response to the allegations raised in paragraph 54 of the Amended Complaint,

Defendants deny.

55.

In response to the allegations raised in paragraph 55 of the Amended Complaint,

Defendants deny.

56.

In response to the allegations raised in paragraph 56 of the Amended Complaint,

Defendants deny.

57.

In response to the allegations raised in paragraph 57 of the Amended Complaint,

Defendants deny.

58.

In response to the allegations raised in paragraph 58 of the Amended Complaint,

Defendants deny.

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AFFIRMATIVE DEFENSES 

59.

By way of further answer, Defendants allege the following Affirmative Defenses as

follows:

60.

Plaintiff has failed to state a cause of action upon which relief may be granted.

61.

The damages, if any, claimed by Plaintiff were caused solely or substantially by

plaintiff's own fault or negligence.

62.

Plaintiff lacks standing to bring any of the claims asserted, otherwise lacks any right

whatsoever to pursue the claims asserted, and is otherwise not the proper party in interest.

63.

Plaintiff lacks privity as to its contractual claims and is therefore barred from bringing

them.

64.

That the damages sustained, if any, were proximately caused by the negligent actions

and/or omissions of third persons over whom Defendants bad no control. To the extent that

Plaintiff's alleged damages were caused by such third parties, Defendants have no liability

and/or Defendants are entitled to a reduction of their proportional liability, if any.

65.

Plaintiff's claims for relief are limited and/or barred due to Plaintiff's failure to

mitigate their damages.

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66.

Plaintiff's claims are barred in whole or in part by the doctrines of waiver, estoppel,

laches and/or by the applicable statutes of limitations and/or repose.

67.

Plaintiff had ample opportunity to review and assess the coverage contracted for and

to object to any deficiencies therein prior to any payment and engagement of services, such

that it is now barred from asserting claims deficiencies now.

68.

Plaintiff by omission or design has failed to name and implead parties necessary to

this litigation.

69.

Defendants owed no duty to Plaintiff, no special or other relationship existed between

defendants and Plaintiff, and Plaintiff was not an intended beneficiary of anything alleged in

the Complaint.

70.

Having rushed into the placement of the alleged insurance policy, and otherwise

creating an emergency situation that was entirely of their own making, Plaintiff's claims are

not only barred by their own negligence as alleged above, Plaintiff's claims are barred by

their assumption of the risk.

71.

Plaintiff's claims are barred by all defenses under/pursuant to FRCP Rule 12.

THIRD-PARTY COMPLAINT

72.

Subject to and without waiving its defenses and denials to Plaintiff's Complaint,

Drummer and MG, hereinafter "Third-Party Plaintiffs", do allege as follows:

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73.

The underlying action was originally filed in State Circuit Court for Lane County,

Oregon, and removed to Federal Court, based upon the diversity of citizenship of the parties

involved under 28 USC § 1332. This Third-Party Complaint maintains the diversity required,

as Third-Party Defendant Marsh U.S. Consumer, a service of Seabury & Smith, Inc.

("Marsh" or "Third-Party Defendant") is a corporate entity organized under the laws of

Delaware, with its principal place of business in New York. The amount in controversy

remains greater than $75,000.

FACTS GIVING RISE TO THIRD-PARTY ACTION

74.

Marsh is a company engaged in brokering insurance products for various parties and

risks.

75.

On information and belief representatives and agents of Marsh, on or about 2012

approached and solicited the Plaintiff's Athletic Department, with a proposal for an insurance

product to cover potential contractual bonuses and payments that may come due to the

coaches of Plaintiff's various sports teams.

76.

On information and belief, on or about July 2012, Mr. Eric Roedl, as the Chief

Financial Officer for the University of Oregon, Athletic Department opened negotiations for

an insurance product with John Laskowski, a broker and agent of Marsh. Over the course of

July-August 2012, Roedl and Laskowski, and another agent of Marsh's Jon Gorman

negotiated coverage for Plaintiff's potential bonus liability.

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77.

On information and belief, by August 30, 2012, Plaintiff and Marsh had negotiated a

coverage plan for Plaintiff covering the 2012-2013 football season. Marsh had by then

solicited and procured an insurance quote to provide for the insurance under the terms,

conditions and pricing negotiated between Plaintiff and Marsh and Marsh had communicated

this fact to Plaintiff.

78.

On or about August 30, 2012, Plaintiff and Marsh were aware that the insurance quote

was extremely time sensitive due to the fact that the 2012-2013 football season had started.

Plaintiff and Marsh understood that if the insurance policy was not bound before

approximately 3:00 p.m. PST on September 7, 2012, that the terms and price could change

drastically and not in Plaintiff's favor, making the insurance unavailable or only available at

greatly increased premiums.

79.

On or about August 30, 2012, the Plaintiff was not a legal entity capable of entering

the insurance contract it had negotiated with Marsh. All contracting for the insurance

services contemplated by Plaintiff and Marsh at that time only could be entered into by the

State of Oregon, via their chosen administrator the Oregon University System ("OUS"). On

information and belief the Plaintiff informed Marsh of the necessity of involving OUS and

contacted OUS about contracting for the insurance.

80.

On information and belief having contacted OUS, Plaintiff and Marsh learned that

OUS would only procure the insurance requested through use of their preferred broker of

record ("BOR"), Third-Party Plaintiff AJG.

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81.

On the afternoon of August 31, 2012, OUS contacted Drummer, an agent and

employee of AJG and inquired about Third-Party Plaintiffs assisting OUS in procuring

insurance to cover bonus payments for the football coaching staff for the 2012-2013 season.

Third-Party Plaintiffs were not provided any details at that time, and OUS delayed until after

the 3-day weekend, to September 4, 2012, to discuss.

82.

On information and belief, on or about September 4, 2012, OUS first discugsed with

Third-Party Plaintiff the type of insurance plan Plaintiff sought, and Third-Party Plaintiff

agreed to work with OUS to secure the policy previously negotiated by Marsh and Plaintiff

83.

Third-Party Plaintiff, despite its best efforts could not — in the limited time available

before the September 7, 2012 deadline — separately procure an alternate insurance quote.

84.

Marsh would not work with Third-Party Plaintiff or share information regarding the

negotiated quote until they were provided a letter indicating that Third-Party Plaintiff was the

BOR for OUS and AJG entered into a Sub-Broker Agreement with Marsh. On information

and belief, Marsh received official confirmation of Third-Party Plaintiff's BOR status from

OUS on or about September 6, 2012, and received a signed Sub-Broker Agreement from

AJG. Only at this time did Marsh cooperate with Third-Party Plaintiffs. Per the Sub-Broker

Agreement, Marsh controlled the quote, the binding of insurance and received the majority of

the commission.

85.

Third-Party Plaintiff worked with Marsh to secure the insurance quote Marsh had

previously convinced Plaintiff to pursue. Throughout this time, and up through the binding

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of the policy on September 7, 2012, Marsh continued to work and discuss with Plaintiff the

terms and conditions of the insurance. Third-Party Plaintiff had no direct contact with

Plaintiff and worked only through OUS and its representatives.

86.

Upon the close of the transaction, Marsh took two-thirds of the available brokerage

commission. Marsh was actively involved in all aspects of the negotiation of the insurance

terms and premiums with plaintiff, and Marsh secured the underwriter and was the party

responsible for the binding of the insurance coverage for Plaintiff. Marsh was not under the

direction or control of Third-Party Plaintiffs and was, in fact, an independent entity that owed

its own and separate duty of care and fair dealing to Plaintiff.

87.

Plaintiff has alleged that at the end of the 2012-2013 College Football season, that

despite its teams performance, it was not entitled to any insurance payout under the policy

and that this was contrary to what it believed it had bargained for. Plaintiff has filed suit

against Third-Party Plaintiff's alleging claims for breach of contract and negligence.

FIRST CAUSE OF ACTION-CONTRIBUTION

88.

Third-Party Plaintiffs reallege and incorporate by reference all prior paragraphs as if

set forth fully herein.

89.

At all times relevant Marsh was an independent entity, not under the control or

direction of Third-Party Plaintiffs. As such Marsh owed a separate and independent duty of

care and fair dealing to Plaintiff It was foreseeable that Marsh's failure to properly advise

and assist Plaintiff and Third-Party Plaintiffs could cause potential harm to Plaintiff

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90.

Third-Party Plaintiffs deny the allegations in Plaintiff's Complaint. However to the

extent Plaintiffproves its alleged allegations and damages, such allegations and damages

were caused by Marsh breaching its duties to Plaintiff and Third-Party Plaintiffs directly or

through the acts of its agents, by failing to provide proper advice and guidance and/or other

breaches of the fiduciary duties owed Plaintiff and Third-Party Plaintiffs by Marsh, and that

said actions by Marsh caused or significantly contributed to Plaintiff's alleged damages.

Accordingly, Marsh is liable for its percentage shire of Plaintiff's alleged damages.

SECOND CAUSE OF ACTION-INDEWNITY

91.

Third-Party Plaintiffs reallege and incorporate by reference all prior paragraphs as if

set forth fully herein.

92.

At all times relevant Marsh was an independent entity, not under the control or

direction of Third-Party Plaintiffs. As such Marsh owed a separate and independent duty of

care and fair dealing to Plaintiff and Third-Party Plaintiffs. It was foreseeable that Marsh's

failure to properly advise and assist Plaintiff and Third-Party Plaintiffs could cause potential

harm to Plaintiff.

93.

Third-Party Plaintiffs deny the allegations in Plaintiff's Complaint. However to the

extent Third-Party Plaintiffs together or individually are found liable to Plaintiff for any of

the acts or omissions described in Plaintiff's Complaint, then the Third-Party Defendant

Marsh is also liable for the reasons articulated above. Further while the fault of Third-Party

Defendant Marsh is active and primary, any fault of the Third-Party Plaintiffs is passive and

secondary.

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94.

As between Third-Party Defendant Marsh and Third-Party Plaintiffs, any damages

and harm to Plaintiff ought to be discharged by the Third-Party Defendant Marsh as its

conduct was the active and primary cause of the damages and harm, if any.

95.

If either or both of the Third-Party Plaintiffs are found liable to Plaintiff in whole or

in part, then the Third-Party Defendant Marsh is liable to the Third-Party Plaintiffs in the

amount of any such liability, including but not limited to Third-Party Plaintiffs' reasonable

attorney fees and costs in defending themselves from Plaintiff's Claims. If or both of

the Third-Party Plaintiffs are found not liable to Plaintiff, the Third-Party Defendant Marsh is

nevertheless liable to the Third-Party Plaintiffs in the amount of reasonable attorney fees and

costs incurred in defending against Plaintiff's Claims.

THIRD CAUSE OF ACTION-NEGLIGENT MISREPRESENTATION

96.

Third-Party Plaintiffs reallege and incorporate by reference all prior paragraphs as if

set forth fully herein.

97.

Without admitting Plaintiff's claims or waiving any defenses thereto, at all times

relevant Marsh was an independent entity, not under the control or direction of Third-Party

Plaintiffs. Third-Party Plaintiffs allege that Marsh had assumed a role superior to that of

Third-Party Plaintiffs by virtue of both the dealings between the parties and Plaintiff and

through contract, by which Third-Party Plaintiffs assumed a role of Sub-Broker to Marsh's

position of Broker.

//

//

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Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 21 of 28
Case 6:15-cv-00260-AA Document 11 Filed 03/27/15 Page 21 of 25

98.

Marsh had a pecuniary interest in the success of the procurement of insurance for

Plaintiff. Marsh had been, throughout the pendency of Plaintiff seeking coverage, the

primary entity interacting with Plaintiff, and was in a superior position as between Marsh and

Third-Party Plaintiffs to know what coverage and what terms Plaintiff sought. Marsh in

providing Third-Party Plaintiffs a quote for coverage represented that said quote and

coverage met the needs, expectations and desires of Plaintiff and was in fact the coverage

Plaintiff had wanted and bargained for.

99.

Third-Party Plaintiffs deny the allegations in Plaintiff's Complaint. However to the

extent Third-Party Plaintiffs together or individually are found liable to Plaintiff for any of

the acts or omissions described in Plaintiff's Complaint, then the Third-Party Defendant

Marsh is liable because Marsh knew or should have known that the quote and coverage were

not what Plaintiff wanted and/or was not as Marsh represented and would not meet the stated

desires of Plaintiff. Marsh failed to exercise reasonable care to ensure the accuracy of the

information it provided, and Marsh otherwise failed to properly and accurately advise ThirdParty Plaintiffs.

100.

Third-Party Plaintiffs were justified in relying upon the representations of Marsh in

regards to the nature and scope of the insurance quote and coverage being procured.

101.

By nature of the business engaged in and by the separate Sub-Broker Agreement that

the parties were subject to, Marsh owed a duty of care and fair dealing to Third-Party

Plaintiffs. It was foreseeable that if Marsh breached its duties and failed to properly advise

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Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 22 of 28
Case 6:15-cv-00260-AA Document 11 Filed 03/27/15 Page 22 of 25

and assist Third-Party Plaintiffs, that Third-Party Plaintiffs would sustain injury and be

subject to monetary losses such as the lawsuit now prosecuted by Plaintiff.

102.

As a result of Marsh's actions, Third-Party Plaintiffs have incurred attorney fees and

expenses in defending this matter and additional monetary damages to be determined at trial.

FOURTH CAUSE OF ACTION-NEGLIGENCE

103.

Third-Party Plaintiffs reallege and incorporate by reference all prior paragraphs as if

set forth fully herein.

104.

Without admitting Plaintiff's claims or waiving any defenses thereto, at all times

relevant Marsh was an independent entity, not under the control or direction of Third-Party

Plaintiffs. Third-Party Plaintiffs allege that Marsh had assumed a role superior to that of

Third-Party Plaintiffs by virtue of both the dealings between the parties and Plaintiff and

through contract, by which Third-Party Plaintiffs assumed a role of Sub-Broker to Marsh's

position of Broker.

105.

Marsh had been, throughout the pendency of Plaintiff seeking coverage, the primary

entity interacting with Plaintiff, and was in a superior position as between Marsh and ThirdParty Plaintiffs to know what coverage and what terms Plaintiff sought. Marsh owed a duty

to both Plaintiff and to Third-Party Plaintiffs, to procure the quote and coverage Plaintiff

desired and an additional duty to Third-Party Plaintiff to accurately convey both what

Plaintiff wanted and bad bargained for and the nature and limits of the quote and coverage

Marsh represented as responsive to the Plaintiff's needs. Third-Party Plaintiffs reasonably

relied upon Marsh's representations throughout the course of the transaction.

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AND THIRD-PARTY COMPLAINT

Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 23 of 28
Case 6:15-cv-00260-AA Document 11 Filed 03/27/15 Page 23 of 25

106.

Third-Party Plaintiffs deny the allegations in Plaintiff's Complaint. However to the

extent Third-Party Plaintiffs together or individually are found liable to Plaintiff for any of

the acts or omissions described in Plaintiff's Complaint, then Third-Party Defendant Marsh is

liable because Marsh was negligent in that it failed to communicate fully and fairly with

Third-Party Plaintiffs, it failed to meet the standard of care applicable to one in the position

of Marsh in this transaction, and it otherwise failed to act with proper due diligence toward

Third-Party Plaintiffs regarding the insurance product and likewise failed to procure the

insurance product it represented it had. Marsh knew or should have known that its acts

and/or omissions could cause Third-Party Plaintiffs to sustain injury and losses, such as the

lawsuit now prosecuted by Plaintiff.

107.

As a result of Marsh's actions Third-Party Plaintiffs have incurred attorney fees and

expenses in defending this matter and additional monetary damages to be determined at trial.

108.

Defendants/Third-Party Plaintiffs reserve the right to amend their Answer and/or

Third-Party Complaint to include potential additional defenses, facts and claims as may be

warranted as discovery continues.

WHEREFORE, Defendants/Third-Party Plaintiffs pray that:

I. Plaintiff's Complaint be dismissed with prejudice and that plaintiff take

nothing thereby;

2. That Defendants be awarded their reasonable costs and expenses in defense of

this matter;

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AND THIRD-PARTY COMPLAINT

Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 24 of 28
Case 6:15-cv-00260-AA Document 11 Filed 03/27/15 Page 24 of 25

3. That Defendants/Third-Party Plaintiffs be awarded judgment against ThirdParty Defendant Marsh and in favor of Defendants/Third-Party Plaintiffs on

their Third-Party Claims as follows:

a. For Defendants/Third-Party Plaintiffs' Contribution Claims, a

judgment for Third-Party Plaintiffs equal to Third-Party Defendant

Marsh's share of fault in causing Plaintiff's damages.

b. For Defendants/Third-Party Plaintiffs' indemnity claim, an

amount equal to any judgment or settlement reflecting fault as against

either or both Defendants/Third-Party Plaintiffs, in Plaintiff's legal

action, including attorney fees, expert witness fees and costs incurred

by Defendants/Third-Party Plaintiffs in prosecuting and defending

these claims.

c. For Defendants/Third-Party Plaintiffs' negligent

misrepresentation claim, for costs and damages relative to the claims

as determined at trial.

d. For Defendants/Third-Party Plaintiffs' negligence claims, for

costs and damages relative to the claims as determined at trial.

4. Such other relief as the Court deems just and proper.

DATED this 27th day of March, 2015.

SCHEER & ZEHNDER LLP

By is/

John E. Zehnder, OSB No. 054979

Robert P. Schulhof Jr., OSB No. 000018

Attorneys for Defendants Arthur J. Gallagher

Risk Management Services, Inc.,

and Monica Drummer.

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AND THIRD-PARTY COMPLAINT

Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 25 of 28
COUNSEL FOR PLAINTIFF

Joshua P. Stump

Harrang Long Gary Rudnick PC

1001 SW Fifth Ave., Ste. 1600

Portland, OR 97204

obin Westwood, Paralegal

Case 6:15-cv-00260-AA Document 11 Filed 03/27/15 Page 25 of 25

John E. Zehnder, OSB No. 054979

Robert P. Schulhof, Jr., OSB No. 000018

SCHEER & ZEHNDER LLP

101 SW Main St., Suite 1600

Portland, OR 97204

Phone: (503) 542-1200

Fax: (503) 542-5248

E-Mail: jzehnder@scheerlaw.corn

rschnlhof@scheerlaw.com

Attorneys for Defendants Gallagher Risk Management

Services, Inc., and Monica Drummer

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DEPARTMENT OF EUGENE

UNIVERSITY OF OREGON,

Plaintiff;

v.

MONICA DRUMMER and ARTHUR J.

GALLAGHER RISK MANAGEMENT

SERVICES, INC., an Illinois Corporation.

NO. 6:15-CV-00260-AA

CERTIFICATE OF SERVICE

Defendants.

I hereby certify that on March 27, 2015, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which will send notification of such filing to

the following:

Page 25-SECOND AMENDED ANSWER,

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AND THIRD-PARTY COMPLAINT

28 807 1c269304

Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 26 of 28
John E. Zehnder, OSB No. 054979

Robert P. Schulhof, Jr., OSB No. 000018

SCHEER & ZEHNDER LLP

101 SW Main St., Suite 1600

Portland, OR 97204

Phone: (503) 542-1200

Fax: (503) 542-5248

E-Mail: jzehnder@scheerlaw.com

rschulhof@scheerlaw.com

Attorneys for Defendants Gallagher Risk Management

Services, Inc., and Monica Drummer

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DEPARTMENT OF EUGENE

UNIVERSITY OF OREGON,

Plaintiff,

v.

MONICA DRUMMER and GALLAGHER

RISK MANAGEMENT SERVICES, INC., an

Illinois Corporation.

Defendants.

NO. 6:15-CV-00260-AA

CERTIFICATE OF SERVICE

MONICA DRUMMER and ARTHUR J.

GALLAGHER RISK MANAGEMENT

SERVICES, INC., an Illinois Corporation.

Third-Party Plaintiffs,

v.

MARSH U.S. CONSUMER a service of

SEABURY & SMITH, INC., a Delaware

Corporation.

Third-party Defendant

CERTIFICATE OF SERVICE

Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 27 of 28
I hereby certify that on August 20 th, 2015, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system which will send notification of such filing

to the following:

COUNSEL FOR PLAINTIFF

C. Robert Steringer

Harrang Long Gary Rudnick PC

1001 SW Fifth Ave., Ste. 1600

Portland, OR 97204

COUNSEL FOR THIRD-PARTY

DEFENDANT 

Gabriel M. Weaver

Ball Janik, LLP

101 SW Main Street, Suite 1100

Portland OR 97204

Robin Westwood, Paralegal

CERTIFICATE OF SERVICE

Case 6:15-cv-00260-AA Document 33-1 Filed 08/20/15 Page 28 of 28