The Ninth Circuit affirmed the district court's issuance of the insurer's motion for summary judgment, thereby rejecting the insureds' negligence per se claim for failure to pay benefits. Braun-Salinas v. Am Family Ins. Group, 2016 U.S. App. LEXIS 19555 (9th Cir. Oct. 28, 2016).

    The insureds argued that Oregon recognized a negligence per se claim based on an insurer's failure to pay benefits in violation of the statutory standard under state law. Oregon appellate courts, however, only allowed a negligence per se claim only where a negligence claim otherwise existed. The Oregon courts had previously rejected a statutory theory, holding that a violation of the statute did not give rise to a tort action.

    The insureds argued that Oregon cases barred a statutory claim, meaning a private right of action created by statute, whereas their claim was a common law claim for negligence per se claim that relied on the statute only to determine the claim's "standard of care" element. This argument was unpersuasive because the Oregon Court of Appeals had also declined to recognize a common law negligence claim for failure to pay first-party insurance benefits. 

    Because the insureds could not bring a negligence claim under a statutory or common law theory, they were also barred from bringing a hybrid negligence per se claim.

    Thanks to my fellow Damon Key blogger, Mark Murakami (blog here), for the heads up on this case.