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`Page 1 – DEFENDANT EUGENE WATER & ELECTRIC BOARD’S REPLY IN SUPPORT OF
`ITS MOTION TO CONSOLIDATE CASES
`
`CABLE HUSTON LLP
`1455 SW BROADWAY, SUITE 1500
`PORTLAND, OREGON 97201-3412
`TELEPHONE (503) 224-3092, FACSIMILE (503) 224-3176
`
`
`
`
`
`IN THE CIRCUIT COURT OF THE STATE OF OREGON
`
`FOR THE COUNTY OF LANE
`
`ACE AMERICAN INSURANCE
`COMPANY, et al.,
`
`Plaintiffs,
`
` v.
`
`EUGENE WATER & ELECTRIC BOARD,
`an Oregon registered electric utility; and
`LANE ELECTRIC COOPERATIVE, INC.,
`an Oregon registered electric utility,
`
` Defendants.
` Case No. 22CV29054
`
`
`DEFENDANT EUGENE WATER &
`ELECTRIC BOARD’S REPLY IN
`SUPPORT OF ITS MOTION TO
`CONSOLIDATE CASES
`
`Hearing: January 30, 2023, at 1:30 p.m.
`Hon. Debra E. Velure
`
`
`
`
`Defendant Eugene Water & Electric Board (“EWEB”) submits the following Reply in
`Support of Its Motion to Consolidate Cases (“Motion”), which was filed in Lane County Circuit
`Court Case Nos. 21CV48782 (“Estate of Perry”), 22CV28172 (“21st Century”), 22CV29054
`(“ACE”), 22CV29657 (“Markel”), 22CV29793 (“Hartford”), and 22CV29890 (“AIG”). This
`Reply addresses the arguments filed in partial opposition by plaintiffs in ACE (“ACE Opp’n”),
`21st Century (“21st Cent. Opp’n”), Hartford (“Hartford Opp’n”), AIG (“AIG Opp’n”),1 and
`Estate of Perry (“Perry Opp’n”) (collectively, “Opposition Briefs”). EWEB’s Reply is supported
`by the following points and authorities and the pleadings on file herein.
`
`
`
`1 The partial opposition briefs filed in 21st Century, Hartford, and AIG are identical. For convenience, EWEB refers
`only to the 21st Century brief in its citations.
`1/20/2023 12:40 PM
`22CV29054
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`Page 2 – DEFENDANT EUGENE WATER & ELECTRIC BOARD’S REPLY IN SUPPORT OF
`ITS MOTION TO CONSOLIDATE CASES
`
`CABLE HUSTON LLP
`1455 SW BROADWAY, SUITE 1500
`PORTLAND, OREGON 97201-3412
`TELEPHONE (503) 224-3092, FACSIMILE (503) 224-3176
` All Parties Agree That These Cases Should Be Consolidated.
`When EWEB filed its Motion, six Holiday Farm Fire cases had been assigned to Judge
`Velure, and six2 Holiday Farm Fire cases had been assigned to Judge Conover, including the two
`Anderson3 cases that were filed nearly a year before any other Holiday Farm Fire case. Just as
`EWEB had moved to consolidate the Anderson cases nearly a year earlier, EWEB brought this
`Motion in December 2022 to consolidate the six cases that had been assigned to Judge Velure for
`all purposes, including trial. EWEB anticipated bringing a similar motion to consolidate the two
`Anderson cases with the other five cases that had been assigned to Judge Conover. On January
`12, 2023, the seven Holiday Farm Fire cases previously assigned to Judge Conover were re-
`assigned, and all 13 cases are now assigned to Judge Velure.
`All parties to EWEB’s Motion unanimously agree that consolidation is appropriate.
`4 The
`one plaintiff—Estate of Perry—that initially opposed consolidation completely has since
`withdrawn that opposition. (Perry Opp’n at 1.) While nominally opposing EWEB’s Motion, the
`21 Century and ACE Opposition Briefs extensively quote EWEB’s argument for why
`consolidation is logistically and practically imperative here. (See e.g., 21
`st Century Opp’n at 5;
`ACE Opp’n at 3.) They “partially oppose” EWEB’s Motion claiming that all the Holiday Farm
`Fire cases should be consolidated. Although that issue is not before the Court on this Motion,
`EWEB agrees that all cases—which are now all before Judge Velure—should be consolidated
`and will further elaborate on this issue in its upcoming responses to various plaintiffs’ motions to
`consolidate. The only dispute remaining on EWEB’s Motion is whether all parties agree to
`consolidate the subject cases for all purposes, including trial. Consolidating the cases for pre-
`
`2 A seventh case was assigned to Judge Conover three days after EWEB filed its Motion. See 12/8/2022 Order
`Assigning Case to Hon. R. Curtis Conover, Giustina Land & Timber Co., LLC et al. v. Eugene Water & Electric
`Board et al., Lane Cty. Cir. Ct. Case No. 22CV25836.
`3 Jody Anderson, et al. v. Eugene Water & Electric Board, et al. Lane Cty. Cir. Ct. Case No. 21CV15031
`(“Anderson 1”), and Karen Anderson, et al. v. Eugene Water & Electric Board, et al., Lane Cty. Cir. Ct. Case No.
`21CV21063 (“Anderson 2”) (collectively, the “Anderson cases.”)
`4 The plaintiffs in Markel and the Lane Electric Cooperative, Inc. (“LEC”) defendants did not file briefs related to
`EWEB’s Motion. However, both indicated support of EWEB’s Motion as written during conferral.
`
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`Page 3 – DEFENDANT EUGENE WATER & ELECTRIC BOARD’S REPLY IN SUPPORT OF
`ITS MOTION TO CONSOLIDATE CASES
`
`CABLE HUSTON LLP
`1455 SW BROADWAY, SUITE 1500
`PORTLAND, OREGON 97201-3412
`TELEPHONE (503) 224-3092, FACSIMILE (503) 224-3176
`trial purposes only is not supported by either the language or purpose of ORCP 53 A.
`Accordingly, EWEB asks the Court to grant its Motion to consolidate for all purposes, including
`trial.
`A. The Language of ORCP 53 A Does Not Contemplate Consolidation for Pre-trial
`Purposes Only.
`With little explanation, the plaintiff in Estate of Perry expressly opposes consolidating
`these cases for trial. The plaintiffs in the ACE and 21st Century Opposition Briefs state that they
`join the “Motion to Consolidate Cases for Pre-Trial Purposes” filed in several of the Holiday
`Farm Fire cases, and consequently, also appear to oppose consolidation for trial. (See ACE
`Opp’n at 2; 21st Century Opp’n at 4; Perry Opp’n at 2.) Plaintiffs do not explain what they
`envision “for pre-trial purposes only” to mean. And the plaintiffs’ consolidation motion
`referenced in the Opposition Briefs is not before the Court on this Motion.5 EWEB moved the
`Court for an order consolidating these cases for all purposes, as contemplated by ORCP 53 A,
`and plaintiffs provide no basis for doing so on an undefined “pre-trial purposes only” basis.
`First, plaintiffs’ position goes against the express language of ORCP 53 A. The focus of
`consolidation under ORCP 53 A is for trial—not “pre-trial” purposes:
`Upon motion of any party, when more than one action involving a
`common question of law or fact is pending before the court, the
`court may order a joint hearing or trial of any or all of the matters
`in issue in such actions; the court may order all such actions
`consolidated; and it may make such orders concerning proceedings
`therein as may tend to avoid unnecessary costs or delay.
`ORCP 53 A (emphasis added). Consolidation of multiple actions allows the Court to decide
`common questions of law and the jury to decide common questions of fact—thus avoiding
`inconsistent results for common issues. Here, there is no question that the cases all arise from
`the same underlying set of facts and involve the same legal theories. A joint trial on common
`questions of law or fact is appropriate under ORCP 53 A.
`
`5 EWEB will be filing its response to that motion on January 27, 2023.
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`Page 4 – DEFENDANT EUGENE WATER & ELECTRIC BOARD’S REPLY IN SUPPORT OF
`ITS MOTION TO CONSOLIDATE CASES
`
`CABLE HUSTON LLP
`1455 SW BROADWAY, SUITE 1500
`PORTLAND, OREGON 97201-3412
`TELEPHONE (503) 224-3092, FACSIMILE (503) 224-3176
`As EWEB made clear in its Motion, consolidation of these cases now is not a waiver of
`any party’s right to later request for bifurcation under ORCP 53 B. That rule provides the Court
`and the parties latitude to bifurcate issues to further promote efficiency. Indeed, in the Anderson
`cases, EWEB moved to bifurcate6 the cases into liability and damages phases for exactly that
`reason: to further promote efficiency for the Court and the parties in litigating these behemoth
`cases. EWEB also reserved the right to seek further bifurcation of each of these liability and
`damages phases. Such an approach, in particular, would resolve the vague concerns raised by
`the plaintiff in Estate of Perry regarding any alleged differences presented by its wrongful death
`claim (which is still based on a theory of negligence).
`B. Failing to Consolidate for All Purposes Would Obviate the Purpose of
`ORCP 53 A.
`The Opposition Briefs proclaim the merits of consolidating all 13 Holiday Farm Fire
`cases, emphatically arguing that consolidating only some of the cases would be “ultimately self-
`defeating”, as “such a half measure thwarts the intended purpose of ‘improv[ing] trial court
`efficiency by avoiding unnecessary duplication of evidence and procedures and to avoid the risk
`of inconsistent adjudications.’” (21
`st Century Opp’n at 5 (internal citations omitted).) The same
`rationale applies, to an even greater extent, here. Using plaintiffs’ own words, consolidation for
`pre-trial purposes only “doesn’t go far enough” (Id.) Failing to consolidate for all purposes—
`including trial—“is the antithesis of judicial efficiency” and “a recipe for inconsistent
`adjudications.” (Id. at 6.)
`In addition, consolidation for all purposes, including trial, would also alleviate “claim
`splitting” concerns raised by several of the subrogation plaintiffs. Although the subrogation
`plaintiffs mistakenly conflate consolidation with joinder, EWEB agrees that defendants will need
`
`6 EWEB’s motion to bifurcate in the Anderson cases is pending; EWEB anticipates filing similar motions in all other
`Holiday Farm Fire cases.
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`Page 5 – DEFENDANT EUGENE WATER & ELECTRIC BOARD’S REPLY IN SUPPORT OF
`ITS MOTION TO CONSOLIDATE CASES
`
`CABLE HUSTON LLP
`1455 SW BROADWAY, SUITE 1500
`PORTLAND, OREGON 97201-3412
`TELEPHONE (503) 224-3092, FACSIMILE (503) 224-3176
`to engage in further motion practice, upon additional discovery of the insurers and their insureds.
`At a minimum, it would be necessary to consolidate these cases for trial.
`Failing to consolidate these cases for all purposes, including trial, would unquestionably
`subject the parties—and the Court—to unnecessary costs and delay, obviating the very purpose
`of consolidation under ORCP 53 A.
`Conclusion
`For all the reasons provided above, the Court should grant EWEB’s Motion to
`Consolidate for all purposes, including trial.
`DATED: January 20, 2023.
`CABLE HUSTON LLP
`
`
`s/ Nicole A.W. Abercrombie
`G. Kevin Kiely, OSB No. 833950
`gkkiely@cablehuston.com
`Jon W. Monson, OSB No. 102650
`jmonson@cablehuston.com
`Nicole M. Swift, OSB No. 141419
`nswift@cablehuston.com
`Nicole A.W. Abercrombie, OSB No. 144581
`nabercrombie@cablehuston.com
`Brian S. Epley, OSB No. 204790
`1455 SW Broadway, Suite 1500
`Portland, OR 97201-3412
`Telephone: (503) 224-3092
`
`Attorneys for Defendant Eugene
`Water & Electric Board
`
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`Page 1 – CERTIFICATE OF SERVICE
`CABLE HUSTON LLP
`1455 SW BROADWAY, SUITE 1500
`PORTLAND, OREGON 97201-3412
`TELEPHONE (503) 224-3092, FACSIMILE (503) 224-3176
`CERTIFICATE OF SERVICE
`
`I hereby certify that I caused the foregoing DEFENDANT EUGENE WATER &
`ELECTRIC BOARD’S REPLY IN SUPPORT OF ITS MOTION TO CONSOLIDATE
`CASES to be served on:
`Bryan Campbell
`Nathaniel Simons
`COZEN O’CONNOR
`999 3rd Ave., Suite 1900
`Seattle, WA 98101
`bcampbell@cozen.com
`nsimons@cozen.com
`
`Attorneys for Plaintiffs ACE
`American Insurance Company,
`et al.
`Julie A. Smith
`Andrew T. Burns
`Joshua R. Kennedy
`COSGRAVE VERGEER KESTER LLP
`900 SW 5th Ave., 24th Floor
`Portland, OR 97204
`jsmith@cosgravelaw.com
`aburns@cosgravelaw.com
`dslaughter@cosgravelaw.com
`along@cosgravelaw.com
`sbatman@cosgravelaw.com
`abrown@cosgravelaw.com
`
`Scott C. Cifrese
`Paul Stewart
`PAINE HAMBLEN LLP
`717 W. Sprague Ave., Suite 1200
`Spokane, WA 99201
`Scott.cifrese@painehamble.com
`paul.stewart@painehamblen.com
`hollie.jenkins@painehamblen.com
`
` Attorneys for Defendant
` Lane Electric Cooperative, Inc.
`
`by the following method(s)
`
` [] by notice of ELECTRONIC FILING by using the Odyssey File & Serve
`at the party’s email address as recorded on the date of service in the
`eFiling system (UTCR 21.100(4)), if applicable.
`
` [] by causing a full, true and correct copy thereof by ELECTRONIC
`MEANS to the party, at the party’s last known email address listed above
`on the date set forth below.
`
`
`
`
`
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`Page 2 – CERTIFICATE OF SERVICE
`CABLE HUSTON LLP
`1455 SW BROADWAY, SUITE 1500
`PORTLAND, OREGON 97201-3412
`TELEPHONE (503) 224-3092, FACSIMILE (503) 224-3176
` DATED: January 20, 2023.
`
`CABLE HUSTON LLP
`
`
` s/ Nicole A.W. Abercrombie
`Nicole A.W. Abercrombie, OSB No. 144581
`nabercrombie@cablehuston.com
`1455 SW Broadway, Suite 1500
`Portland, OR 97201-3412
`Telephone: (503) 224-3092
`Facsimile: (503) 224-3176
`
`Attorneys for Attorneys for Defendant
`Eugene Water & Electric Board
`
`
`
`
`
`
`
`