Nelson v. Liberty Mutual Insurance Company

Under Pfaendler v. Bruce, 195 Or App 561 (2004), a duty to speak giving rise to estoppel by silence develops when “the party to speak against whom estoppel is urged knows or should know that the failure to speak will likely mislead the other party to act to his or her detriment.”

Liberty Mutual Insurance Company appealed a verdict awarding Nelson damages, attorney’s fees, costs, and interest on a contract claim. Liberty Mutual assigned error to the trial court’s summary judgment ruling against their assertion of interference with subrogation as an affirmative defense. Liberty Mutual argued that there was a genuine issue of material fact as to whether it had a duty to speak that would give rise to estoppel by silence regarding its subrogation rights. In response, Nelson argued that Liberty Mutual’s non-participation in mediation with the tortfeasor and failure to secure an assignment of rights before Nelson’s settlement with said tortfeasor caused Nelson to believe Liberty Mutual had waived its subrogation rights. Under Pfaendler v. Bruce, 195 Or App 561 (2004), a duty to speak giving rise to estoppel by silence develops when “the party to speak against whom estoppel is urged knows or should know that the failure to speak will likely mislead the other party to act to his or her detriment.” The Court found that “an objectively reasonable juror could find that * * * [Liberty Mutual] had no duty to speak, as it had reminded [Nelson] of its subrogation rights[,] * * * was [ ] adjusting the claim[,] and had not made payment yet, and could reasonably expect [Nelson] to take [its] subrogation rights into account in any settlement negotiations.” Reversed and Remanded.