James T. McDermott

j mcdermott@ballj anik.com

OSB No.933594

Gabriel M. \ileaver

gweaver@ballj anik.com

OSB No. 125970

BALL JANIK llp

101 SW Main Streeto Suite 100

Portland, OR 97 20 4-3219

(so3) 228-2s2s

(503)226-3910 fax

Attorneys for Third-Party Defendant Marsh

UNIVERSITY OF OREGON,

Plaintiff,

v

MONICA DRUMMER and ARTHUR J.

GALLAGHER RISK MANAGEMENT

SERVICES, INC., an lllinois Corporation,

Defendants

MONICA DRUMMER and ARTHUR J.

GALLAGHER RISK MANAGEMENT

SERVICES, INC., an lllinois Corporation,

Third-Party Plaintiffs'

MARSH U.S. CONSUMER a service of

SEABURY & SMITH, INC., a Delaware

Corporation,

Third-Parfy Defendant.

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DEPARTMENT OF EUGENE

Case No. 6:15-CV00260-AA

RE,PLY MEMORANDUM IN SUPPORT

OF THIRD.PARTY DEFENDANT

MARSH'S MOTION TO DISMISS

THIRD-PARTY COMPLAINT FOR

FAILURE TO STATE A CLAIM

Request for Oral Argument

v

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 1 of 16
INTRODUCTION...

REPLY ARGUMENT .........

3

Liable to Plaintiff in Tort

CONCLUSION

TABLE OF CONTENTS

Page

2

The Third-Party Complaint Does Not State a Plausible Claim for Relief

There is no Special Relationship Between Third-Party Plaintiffs and

Marsh

.,.2 I

2

.4

This Court Should Dismiss Third-Party Plaintifß' Contribution Claim

Because Third-Party Plaintiffs Fail To Plausibly Allege that Marsh is

.'..,.....,7

A Third-Party Plaintiffs' Breach of the Sub-Broker Agreemett is

Relevant tó this court's Resolution of Marsh's Motion to Dismiss.. ...10

.....11

t1

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 2 of 16
TABLE OF AUTHORITIES

CASES

Amfac Mortg. Clorp. tt. Ariz. Attall of Tempe, Inc.,

583 F.2d 426 (gth Cir. 1978)

Ashcroft v. Iqbal.

129 S. Ct. te37 (2009)

Bell Atluntic C'orp. v. Tu'ontbly,

sso u.s. s44 (2007)

Bivens v. S¡r Unknov,n Nantecl Agenls,

403 U.S. 388 (1971)

Broolcç v. Ro,sJ,

s78 F.3d 574 (7fh Cir. 2007)

Conway v. PaciJìc Unit:ersitY,

243 Or.23l (ln special relationships, as o....'......'.'

Culpepper v. Wells Fargo Bank, N.A.,

2ot: wr 3ú9673 at *4 (D.Or., .Iune 19,2013) ....

Decker v. GEMB Lending, Inc..

2012WL 5304144 (D.Or., Sep. 13, 2012)............,'

Fazzolari v. Portland School Disl.,

No. lJ, 303 Or. 1 (1987)

Fleshman v. Wells Fargo Bank, N.4.,

27 F. Supp.3d 1127 (D. Or. 2014)

Galbraith v. MML Investor Services, Inc.,

2009 WL 4955617 (D.Or. Dec. 11.2009)

Georgelov'n Realty, Inc. v. Home Ins. Co',

313 Or. 97 (1992)..

Hqle v. Groce,

304 Or. 281, 744 P.2d 1289 (1987) ."..

Knievel r.'. ËSPN,

393 F.3d 1068 (gth Cir. 2005)

Landers v. Quality Communicatiotts, Inc.'

77 t F .3d 63 8 (gth Cir. 2014)

McTernan t¡. City ol'I'ork,

577 F.3d 521 (3rd Cir. 2009)

Medici t,. J.P. Morgan Chase, N.4,,

No. 03:1 1-cv-00959 -HA, 2014 WL 199232 (D.Or. Jan. 1 5, 2014)

3,4,5, l0

...2,4,5,l0

................. 3

............. 3

.............7

............. 5

5

4

Meininger v. Henris Roofing and Suptrtly o/'Klumath Co

137 or. App.45l (1995)....

Nuntrich v. Nlekpere,

2013 WL 10545382 at *3 (D.Or.. Feb. 14,2013)'.....

Onita Pacific Corp. v. Tru,çtees of'Bronson,

unty, Inc.,

STATUTORY AUTHORITIES

RULES AND REGULATIONS

................. 5, 6

................. 8, 9

........6

...,'.'.4

...... 10

........ 3

........ 3

...,,...6

........9

........ 5

........4

........ 5

7

Wright v. Kia Motors America Inc.,

jooz wl 316351 at*4-5, (D.Or., Jan.29,2047).

oRS 31.800

Fed. R. Civ. P. 12(bX6).

r11

4,5,10,7r

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 3 of 16
INTRODUCTION

Marsh should not be a third-party defendant in this case. This case is a dispute between

the University of Oregon (the "University") and its insurance broker, Arthur J. Gallagher Risk

Management Services ("AJG") over an insurance policy the University purchased to cover

certain incentive bonuses for the University's football coaching staff in the 2012-2013 college

football season. Marsh's role in the transaction was limited and brief. Before being replaced as

broker by AJG, Marsh assisted the University in obtaining a quote for contractual bonus

insurance. Ultimately, the University chose to complete the transaction through its own broker

of record, AJG. From the time that AJG replaced Marsh as broker, Marsh had no further

communications with the University regarding the insurance quote Marsh had obtained.

Ultimately, AJG was not able to obtain a policy that offered better terms than the quote obtained

by Marsh, so AJG entered into a sub-broker agreement with Marsh and asked Marsh to bind the

coverage Marsh had originally quoted for the University.

The following facts are undisputed:

(1) This case is governed by Oregon law;

(2) Marsh and AJG are parties to a contract (the "Sub-Broker Agreement"), which

dictates the terms of their relationship;

(3) AJG has not alleged that Marsh violated the Sub-Broker Agreement;

(4) All of AJG's third-party claims against Marsh sound in negligence and are subject to

the economic loss doctrine;

(6) The University has not accused Marsh of any wrongdoing in connection with the

procurement of the policy; and

page I - REpLy IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY

Ball Janik u-p

I 0l Sw Main St¡eet, Suhe | 100

Ponland, Oregon 9'7?04-3219

lelephone 501.228.2525

COMPLAINT

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 4 of 16
(7) AJG has not identified a single case in which a court has determined that co-brokers,

such as AJG and Marsh, were in a special relationship with each other.

In light of these undisputed facts, this Court should dismiss each of Third-Party

Plaintiffs' three remaining claims for failure to state a claim under Oregon law.l This Court

should dismiss the third-party negligence and negligent misrepresentation claims because both

negligence-based claims seek damages for pure economic losses but do not plausibly allege the

existence of a special relationship between Marsh and AJG.2 This Court should similarly

dismiss Third-Party Plaintifß' contribution claim, because neither the complaint nor the thirdparty complaint plausibly alleges that Marsh is liable to the plaintiff in tort, without which ThirdParty Plaintiffs cannot maintain a cause of action for contribution. Accordingly, this Court

should dismiss the third-party complaint in its entirety for failure to state a claim upon which

reliefcan be granted.

REPLY ARGUMENT

l. The Third-Partv Complaint Does Not State a Plausible Claim for Relief

This Court should dismiss AJG's third-party complaint because it fails to state a plausible

claim for relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,556 (2007) (holding that, at

a minimum, a plaintiff must plead "enough fact[s] to raise a reasonable expectation that

discovery will reveal evidence" of alleged wrongdoing in order to state a "plausible" claim for

relief and survive a motion to dismiss). Courts apply a two-part test to determine if a pleading is

' third-larty Plaintiffs originally asserted four causes of action in its third-party complaint against Marsh,

but have agreed to voluntarily dismiss their indemnity claim'

' Third-Party Plaintiffs concede that their third-party negligence and negligent misrepresentation claims

are subject to the economic loss doctrine.

page2 - REpLy IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY COMPLAINT 

Bl'J.,^1î;i1f.i::,,.-",,*

Ponland, Oregon 91204-32l,9

Telephone 503 228.2525

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 5 of 16
suffrciently plausible to survive a motion to dismiss. First, courts must identify "pleadings that

because they are mere conclusions, are not entitled to the assumption of truth. After identifying

and disregarding mere conclusions, courts determine whether the remaining well-pleaded factual

allegations "plausibly give rise to a claim for relief." Ashcroft v. Iqbal,129 S. Ct. 1937,1950

(200e).

The third-party complaint falls far short of this standard. Much of the third-party

complaint consists of mere conclusory statements (e.g.,that Marsh was in a superior position vls

ø vis AJG) that this Court should disregard. The remaining factual allegations do not state a

claim for relief because they do not plausibly allege the existence of a special relationship

between Marsh and AJG, nor do they plausibly allege that Marsh is liable to the University in

tort.

Third Party Plaintiff attempt to sidestep lqbal s pleading standard by arguing that the

Iqbat decision is limited to Bivens actions against the federal govemment for violations of

constitutional rights. Opposition to Marsh's Motion to Dismiss ("Opp."), p. 4, citing Bivens v.

Six Unknown Named Agents,4O3 U.S. 3SB (1971). Third-Party Plaintifß are incorrect. Federal

circuit courts, including the Ninth Circuit, have routinely applied the lqbal two-part plausibility

analysis outside of the context of Bivens actions. See, e.g. Landers v. Quality Communication.ç,

Inc.,77l F.3d 638 (9th Cir. 2014) (applying lqbal plausibility standard to Fair Labor Standards

Act claims and dismissing action for failure to state a claim); McTernan v. City of York, 577 F.3d

521, 530 (3rd Cir. 2009) (noting that the lqbal and Twombþ "plausibility" standard applies to

motions to dismiss in all cases); Brooks v. Ross,578 F.3d 574, 580-81 (7th Cir.2007) (holding

that factual allegations are insufficient if they are "sketchy or implausible" or if they are mere

Page 3 - REPLY IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY

Ball Janik np

l0l SW Main Srreer, Su¡te I 100

Porlland, Oregon 97204-3219

Telephone 503.228.2525

COMPLAINT

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 6 of 16
"abstract recitations of the elements of a cause of action"). As discussed below, this Court

should dismiss the third-party complaint because it does not state a plausible claim for relief

under any cognizable legal theory, as required by lqbal and Twombly.

2, There is no Special Relationship Between Third-Partv Plaintiffs and Marsh

Third-Party Plaintiffs do not dispute that each of their claims is subject to the economic

loss rule. As such, Third-Party Plaintiffs' negligence and negligent misrepresentation claims are

barred by the economic loss doctrine unless Third-Party Plaintiffs can show that Marsh owed

special duties of care to Third-Party Plaintiffst . Suu Onita Pacific Corp. v. Trustees of Bronson,

3 l5 Or. 149, 159 (1992); Fazzolari v. Portland School Dist. No. I J, 303 Or. 1 ( I 987) (Oregon

does not recognize negligence claims for economic loss in the absence of a specific duty); Hale

v. Groce,304 Or. 281,284,744P.2d 1289 (1987) ("[O]ne ordinarily is not liable for negligently

causing a stranger's purely economic loss without injuring his person or property.")

Third-Party Plaintiffs erroneously assert (absent citation to any authority) that this Court

cannot determine the existence (or lack thereofl of a special relationship in the context of a Fed'

R. Civ. P. 12(bX6) motion to dismiss. Plaintiff is quite mistaken. On multiple occasions, this

Court has granted motions to dismiss under Fed. R. Civ. P. 12(bX6) because the complaint fails

to plausibly allege the existence of a special relationship'

For example, in Fleshman v. Wells Fargo Bank, N.A., plaintifß sued their mortgage

lender and servicer for breach of contract, negligence, and breach of the Oregon Unlawful Trade

Practices Act, alleging that the lender/servicer mishandled loan documents, applied loan

3 Not surprisingly, Third-Party Plaintiffs apparently concede that there is no special relationship between

Marsh and Thiid-Party Plaintiff Monica Drummer. Therefore, at an absolute minimum, this Court should

dismiss Drummer's claims for negligence and negligent misrepresentation v¿s a vls Marsh.

Page 4 - REPLY IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY

Ball Janik rr-p

l0l SW Ma¡n Street, Suite I I 00

Portland, Oregon 91204-3219

Telephone 50i.228.2525

COMPLAINT

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 7 of 16
payments to the wïong account, and inadvertently disclosed plaintiffs' sensitive personal and

financial information to another borrower. Fleshman v. Wells Fargo Bank' N.A.,27 F. Supp' 3d

lI2j, 1137 (D. Or.2014). Pursuant to Fed. R. Civ. P. 12(bX6), this Court dismissed plaintiffs'

negligence claim with prejudice because, as a matter of law, no special relationship existed

between the defendant, as lender/servicer, and plaintiffs, as borrowets. Id. This Court has also

granted a motion to dismiss for failure to state a claim based on the absence of a special

relationship between an employee and his employer. Numrichv. Ntekpere,2013 V/L 10545882

at *3 (D.Or., Feb. 14,2013).

In Decker v. GEMB Lending, Inc.,this court granted a motion to dismiss plaintiff s

negligence claim against a lender and debt collector who allegedly attempted to collect on a

previously-settled debt on the grounds that ihe law does not recognize a special relationship

between debt holder or collectors and borrowers. Decker v. GEMB Lending, Inc ',2012 WL

5304144,(D.Or., Sep. 13, 2012) (holding that "the relationship between [plaintiff and defendant]

was contractual, which does not give rise to a special relationship"); see also Culpepper v. Wells

Fargo Bank, N.A.,2013 WL 3199673 at*4, (D.Or., June 19, 2013) (dismissing negligent

inflection of emotional distress claim against lender due to the lack of special relationship

between borrower and lender).

Even under the older, pre-Twombly and lqbal pleading standards, this Court has long

recognized that dismissal of a negligence-based complaint for economic loss is proper unless the

complaint demonstrates the existence of a legally cognizable special relationship between the

parties. See Wright v. Kia Motors America hnc.,2007 V/L 31635 | at*4-5, (D.Or., Jan.29,2007)

(dismissing negligence lawsuit against vehicle manufacturer because court could "find no

page 5 - REpLy IN SUPPORT OF MARSH',S MOTION TO DISMISS THIRD-PARTY

Ball Janik r-r-r

l0l S\ry N4a¡n Street, Suite I loo

Poûland, Orego¡ 97204-42l'9

Telephone 501.228.2525

COMPLAINT

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 8 of 16
authority to support a claim for negligent misrepresentation against a seller or manufacturer

engaging in an arm's length transaction with the purchaser of their products."). So too here.

This Court should dismiss Third-Party Plaintiffs' negligence and negligent misrepresentation

claims because the third-party complaint does not plausibly allege the existence of a special

relationship between Third-Party Plaintiffs and Marsh.

Third-Party Plaintiffs attempt to sidestep the third-party complaint's deficiencies by

adding new- unpleaded-allegations to their opposition brief. Specifically, Third-Party

Plaintiffs now contend that the sub-broker agreement was the basis for a "symbiotic" and "nonadversarial" relationship "to service a single client." Opp. at 7. Even taking this unpleaded

allegation as true, Third-Party Plaintiffs could not point to a single case in which any court-in

any jurisdiction-held that co-insurance brokers were in a special relationship with each other.

Indeed, by Third-Party Plaintiffs' logic, any two parties to any contract could be deemed to be in

a special relationship, which utterly defeats the purpose of the economic loss rule, and is contrary

to well-established law.

As this Court has held, "when the relationship between two parties arises out of a

contract, one party cannot bring a negligence claim against the other party unless the other party

is subject to a standard of care independent of the terms of the contract." Fleshman 27 F. Supp.

3d at 1137 (holding that no special relationship exists between lender and borrower, ot loan

servicer and borrower), citing Georgetown Reølty, Inc. v. Home Ins. Co.,313 Or. 97, 106 (1992);

Medici v. J.P. Morgan Chase, N.1., No. 03:11-cv-00959-HA, 2014WL 199232, atx3, (D.Or.

Jan. 15, 2014) (holding that one is not liable for economic loss outside the ability of plaintiff to

show some sort of duty outside the common law of negligence). Third-Party Plaintiffs have not

Page 6 - REPLY IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY ..MPLAINT 3l'J,,iffilli:î, ,",," 

Ponland. Oregon 97204-32l,9',,,

Telephone 50-ì.228 2525

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 9 of 16
shown-because they cannot show-that Marsh owed any duties to Third-Party Plaintifß

independent of the terms of the sub-broker agreement. Third-Party Plaintiffs do not allege they

were clients of Marsh, or even that Marsh's wotk was intended to benefit Third-Party Plaintiffs,

which are threshold requirements for the existence of a special relationship . See, e.g. Conway v.

pacific (Jniversity,243 Or.231,240-41 (1996) (In special relationships, as opposed to ordinary

contractual agreements, ooone party has authorized the other to exercise independent judgment in

his or her behalf and, consequently, the party who owes the duty has a special responsibility to

administer, oversee, or otherwise take care of certain affairs belonging to the other party.")

If Third-Party Plaintiffs had a good faith belief that Marsh violated its obligations to AJG

under the Sub-Broker Agreement, Third-Party Plaintiffs should have pursued an action for

breach of the Sub-Broker Agreement. Third-Party Plaintifß did not do so, presumably because

Marsh (in contrast to AJG) did not violate the sub-broker agreement. Regardless, Third-Par"ty

Plaintiffs do not possess cognizable negligence or negligent misrepresentations claims against

Marsh because, as a matter of law, there was no special relationship between Marsh and ThirdParty Plaintiffs.

J. This Court Should T)ismiss Third- Plaintiffs'C Claim

Because -Partv Plaintiffs F To Plausiblv Allese Marsh is Liable to Plaintiff in

Tort

To state a claim for contribution, Third-Party Plaintiffs must show that it is plausible that

Marsh is liable to the University in tort. Under ORS 31.800, "where two or more persons

become jointly or severally in tort for the same injury to person or property . . . there is a right of

contribution among them even though judgment has not been recovered against all or any of

paseT - REpLy IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY

Ball Ja4ik I-r-r,

l0l SW MaiD Street. Suile I 100

Ponland, Oregon 97204-3219

Telephone 501 228.2525

COMPLAINT

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 10 of 16
them." Crucially, there "is no right of contribution from a person who is not liable in tort to the

claimant." Id. Here,the third-party complaint fails because it does not make the required

showing that Marsh is liable to the University in tort.

Third-Party Plaintiffs seek to rescue their contribution claim by arguing, for the first time

in their opposition brief, that a special relationship existed between Marsh and the University,

which Third-Party Plaintiffs contend gives rise to the possibility that Marsh could be liable to the

University in tort. Opp. at 8-9. Even if this Court is somehow inclined to consider this

unpleaded allegation, which appears nowhere in the Complaint or the third-party complaint, the

undisputed facts show that no such special relationship existed. And even if a special

relationship did at some time exist between Marsh and the University, that relationship was

severed when the University elected to use AJG as its insurance broker instead of Marsh. In

Galbraith v. MML Investor Services,this Court dismissed a negligence claim filed against MML

Investor Services ("MML"), which employed a securities broker, Charles Rhodes, who engaged

in a Ponzi scheme to the detriment of his clients. Galbraith v. MML Investor Services, [nc.2009

WL 4955617 at * 1-2 (D.Or. Dec. 1 l, 2009). On August 3 1, 1998, Rhodes left MML, and the

Plaintiff moved his brokerage account to Rhodes's new firm. Id. When Rhodes's Ponzi scheme

inevitably collapsed, plaintiff sued MML for negligence in its capacity as Rhodes's former

employer, even for investments plaintiff made after Rhodes was no longer employed at MML.

Id. at*4. This Court granted MML's motion to dismiss, reasoning that "MML's duties to

[plaintiff] extend only to investments made while [] Rhodes acted as MML's representative.

Once the special relationship ended, MML had no right of control with respect to [plaintiffls]

subsequent investments with Mr. Rhodes." Id. Consequently, this Court concluded that

Page 8 - REPLY IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY

..MPLAINT BruJiåif*:, sui,e, oo

Porrland. Oregon 91204^3219

Telephone 501.228.2525

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 11 of 16
..MML's duty did not extend to these subsequent investments, even though the act of future

investment itself may have been a foreseeable consequence of duties breached during the special

relationship." Id.

Here, it is undisputed that the University elected to use AJG-not Marsh-as its broker.

To the extent a special relationship existed at the time that the University purchased its

contractual bonus insurance policy, any such relationship was between AJG and the University.

Assuming that aspecial relationship ever existed between Marsh and the University with regard

to the transaction at issue, the special relationship ended when the University decided not to

engage Marsh's services, and instead purchased the insurance through its own broker of record,

AJG.

This case bears no resemblanc e to Meininger v. Henris Roofing and Supply of Klamath

County, Inc., whichis the sole authority Third-Party Plaintiffs rely on for the proposition that

there was a special relationship between the University and Marsh. Opp. at 9, citing Meininger

v. Henris Roofingandsupplyof KlamathCounty, Lnc.,737 Or. App.451 (1995). InMeininger,

a home seller hired a roofing expert specifically to opine on the condition of the home's roof for

the prospective buyer. The buyer relied on the expeft's opinion, which turned out to be

inaccurate. In the instant case, the alleged facts are much different. The University asked Marsh

to obtain an insurance quote, and Marsh did so. Amended Complaint, fl5, Ultimately, the

University elected to use the services of a different broker, AJG, and the University directed its

questions regarding the prospective coverage to AJG, not Marsh. Amended Complaint, flfll0,

14-16. Crucially, Third-Party Plaintiffs do not deny these allegations. Third-Party Complaint

11T14-16. The only plausible inference from these allegation is that AJG, not Marsh, had a

Page 9 - REPLY IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY ..MPLAINT ål!*lilllr'*:, ,,,n",,.,

Poft land, O¡egon 9'l 204 -32 19

Telephone 503 228.2525

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 12 of 16
special relationship with the University at the time that the University purchased the insurance

policy at issue. Viewing the third-party complaint as a whole, Third-Party Plaintiffs fail to

plausibly allege that Marsh had a special relationship with the University, or that Marsh is

otherwise liable to the University in tort. Accordingly, this Court should dismiss Third-Party

Plaintifß' contribution claim pursuant to Fed. R. Civ. P. l2(bX6).

A. Third-Partv Plaintiffs' Breach of the Sub-Broker Asreement is

Relevant This Court's on of Marshos Motion to Dismiss

Third-Party Plaintiffs argue that this Court should disregard Third-Party Plaintiffs' breach

of the Sub-Broker Agreement for purposes of Marsh's Motion to Dismiss.o Opp. at 9' Not so'

Third-Party Plaintiffs' breach of the Sub-Broker Agreement is relevant to this Courl's resolution

of the Motion to Dismiss because the breach illustrates and gives further weight to the sheer

implausibility of Third-Party Plaintiffs' tort claims against Marsh, and shows that Third-Party

Plaintiffs cannot possibly meet the heightened Twombly atd lqbal pleading standards. As

described above, the Sub-Broker Agreement dictates the terms of the relationship between Marsh

and Third-Party Plaintiffs, including the parties' respective rights and obligations. S¿e ThirdParty Complaint fl84. Third-Party Plaintiffs cannot allege that Marsh violated the Sub-Broker

Agreement (because, in fact, Third-Party Plaintiffs are the ones who violated the Sub-Broker

Agreement by interpreting coverage for the University without Marsh's written consent). As

o Third-Party Plaintiffs apparently concede that the Sub-Broker Agreement is appropriately part of the

record for purposes of thìi Motion to Dismiss because it was incorporated by refer-ence into the thirdparty complaiit. See Antfac Mortg. Corp. v. Ariz. Mall of Tempe, lnc.,583 F '2d 426, 429-30 (9th Cir.

ìqZb) (Ooôuments attachêd to complaint are properly part of coutt's review because the coutt is not

limitéd to the mere allegations contained in the complaint); Knievel v. ESPN,393 F.3d 1068, 1076 (gth

Cir. 2005) (courts may õonsider materials that are not attached to the complaint but that are incorporated

by reference).

page 10 - REpLy IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY

Ball Janik rrp

l0l SW Mai¡ Slreer, Suite I 100

Portland, Oregon 91204-32l,9

Telephone 50:ì.228.2525

COMPLAINT

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 13 of 16
described in Marsh's Motion to Dismiss, Third-Party Plaintiffs' breach of the Sub-Broker

Agreement is obvious in light of the terms of the Sub-Broker Agreement (forbidding Third-Pafty

Plaintiffs to give written interpretations of coverage without Marsh's consent) and Third-Party

Plaintiffs' admission that Ms. Drummer did exactly that by emailing the University with an

interpretation of coverage without consulting Marsh. Third-Party Complaint, fil4-16.

Lacking a breach of contract claim, Third-Party Plaintiffs instead improperly attempt to

assert negligence-based claims against Marsh. But those claims fail as a matter of law because

of the lack of a special relationship between Marsh and Third-Party Plaintiffs. Third-Party

Plaintifß' contribution claim also fails because the third-party complaint does not plausibly

allege that Marsh is liable to the University in tort. Instead, the only plausible explanation is that

Third-Party Plaintiffs' potential liability to the University is the result of Third-Party Plaintiffs'

own e11ors and omissions (i.e., allegedly incorrectly interpreting the terms of the proposed

insurance policy in response to Plaintiff s questions). The key allegation in the University's

complaint is that the University asked Third-Party Plaintiffs to confirm that the proposed policy

would cover every single bonus award that the University's football coaches could potentially

receive, and that Third-Party Plaintiffs answered that question incorrectly. All of the

University's claims rely on Third-Party Plaintiffs' alleged misstatements, not on any effors or

omissions on the parl of Marsh. As such, the third-party complaint fails to plausibly assert any

actionable claims against Marsh.

CONCLUSION

This Court should dismiss all of Third-Party Plaintiffs' claims against Marsh, with

prejudice, pursuant to Fed. R. Civ. P. 12(bX6), for failure to state a claim upon which relief can

Page 11 - REPLY IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY

Ball Janik rr-p

l0l SW Main Sl¡eet. Suite I 100

Portland, Oregon 9'1204-3219

Telephone 503.228.2525

COMPLAINT

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 14 of 16
be granted. This Court should dismiss Third-Party Plaintiffs' negligence and negligent

misrepresentation claims because the third-party complaint seeks damages for economic losses

but does not plausibly allege the existence of a special relationship between Marsh and ThirdParty Plaintiffs. In addition, this Court should dismiss Third-Party Plaintiffs' contribution claim

because the third-party complaint does not plausibly allege that Marsh is liable in tort to the

University, which is a required element of any cause of action for contribution.

DATED: September 8, 2015 Respectfully submitted,

By: /s/ Gabriel M. Weaver

James T. McDermott, OSB # 933594

Gabriel M. Vy'eaver, OSB 125970

Telephone: 503 -228-2525

Áttorneys for Third-Party Defendant Marsh

Page 12- REPLY IN SUPPORT OF MARSH'S MOTION TO DISMISS THIRD-PARTY

..MPLAINT BruJnlI*:, suire,,oo

Portland, Oregon 9?204-3219

Telephone 501.228.2525

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 15 of 16
CERTIFI OF'SERVICE

I hereby certify that I served the foregoing REPLY IN SUPPORT OF THIRD-PARTY

DEFENDANT MARSH'S MOTION TO DISMISS THIRD-PARTY COMPLAINT FOR

FAILURE TO STATE A CLAIM AND MEMORANDUM OF LAV/ IN SUPPORT bY:

U.S. PosraL SERVICE;

CM/ECF;

Fncsrvrle SpRvtce'

Er-pcrRoNIc MAIL;'

ARRRNcTNc FoR H¡No DEt-lvenv;

FpneRer- ExpREss.

addressed as follows on the date stated below:

Bob Steringer

Harrang Long Gary Rudnick, PC

lool sfu ¡'ifr'tr Rvênue, 16il'Floor

Portland, OR97204

Attorneys þr Plaintiff

John E. Zehnder

Scheer &, Zehnder LLP

701 Pike Street, Suite 2200

Seattle, WA 98101

Robert P. Schulhof

Scheer &ZehnderLLP

101 SV/ Main Street, Suite 1600

Portland, OR97204

Attorneys for Defendants Monica Drummer, and Arthur J. Gallagher Risk

Management Services, Inc.

DATED: September 8, 2015

/.s/ Gahriel M. Weaver

Gabriel M. Weaver, OSB 125970

Ball Janik LLP

Telephone: 503 -228-2525

Attorneys .for Third-P arty Defendant Marsh

Ball Janik r-rp

l0l SW Main Street. Suite I 100

Portland, Oregon 97204-3219

Telephone 503.228.2525

Page 1 - CERTIFICATE OF SERVICE

Case 6:15-cv-00260-AA Document 37 Filed 09/08/15 Page 16 of 16