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Jeff Eberhard

Attorney Profile

Top Rated Personal Injury Attorney in Portland, OR

Smith Freed Eberhard P.C.
111 SW Columbia St, Suite 800
Portland, OR 97201
Phone: 503-227-2424
Fax: 503-227-2535
Email: Jeff Eberhard
Selected to Super Lawyers: 2006 - 2007, 2009 - 2022
Licensed in Oregon Since: 1987
Practice Areas: Personal Injury - General: Defense, Civil Litigation: Defense, Professional Liability: Defense
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Attorney Profile

With a career spanning over 30 years, successfully representing a wide range of clients in complex and high profile cases, Managing Partner Jeff Eberhard is a recognizable and reputable force within the industry.

Jeff’s practice focuses on civil litigation throughout Oregon and Washington with an emphasis on the defense of complex liability claims, most notably, in dram shop/liquor liability. By successfully defending hundreds of cases, Jeff’s expert knowledge of Oregon’s Dram Shop Act, and how to defend against it, is unparalleled.

 

Relevant Cases

In Deckard v. Bunch (2016), the most significant liquor liability case decided in the last 20 years – the Oregon Supreme Court cited extensively to Jeff’s amicus curiae brief, which detailed more than 35 years of legislative history of Oregon’s Dram Shop Act. The court ultimately adopted Jeff’s position that the legislature intended the Dram Shop Act to shield commercial alcohol providers from liability, thus rejecting the position of the entire plaintiffs’ bar (and the court of appeals) that the Dram Shop Act had created a new, plaintiff-friendly “statutory liability” claim, and bringing much-needed clarity to this area of law.
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In Shutz v. La Costita III, Inc. (2019), Jeff took part in an important Supreme Court decision that reaffirmed that restaurants and taverns have immunity for “first party” claims of over-service of alcohol. In 2017, a surprising decision by the Oregon Court of Appeals held that a section of Oregon’s liquor liability statute was unconstitutional because it denied a severely injured, intoxicated driver a remedy for her injuries allegedly caused by a social host. When the case was in front of the Oregon Supreme Court, Jeff submitted an amicus curiae brief with a detailed history of the legislative history and its constitutionality. The Court held that the statute does provide for immunity related to the service of alcohol and to the extent the Plaintiff’s claims are related to the service of alcohol, they are barred.
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In Mason v. BCK Corporation (2018) and Balzer v. Moore (2018), Jeff was able to secure summary judgment on all claims against his clients under the complicity doctrine of the Dram Shop Act. In each case, the plaintiff suffered catastrophic injuries after leaving a tavern as a passenger in another patron’s vehicle. In both cases, the court ruled in Jeff’s client’s favor, finding that as a matter of law the plaintiff could not recover when he had substantially contributed to that driver’s intoxication – not by buying alcohol, but instead by drinking with the driver at the tavern. The plaintiff in each case appealed to the Oregon Court of Appeals, and in both cases the court affirmed the trial court’s decision to grant summary judgment in Jeff’s client’s favor under the complicity doctrine of the Dram Shop Act. 
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In Shields v. Enterprise Leasing Company (2007), Jeff established new law in that a self-insured rental car company does have to provide liability insurance to a renter. The Washington Court of Appeals ultimately held in Shields that the Financial Responsibility Act did not require a self-insured rental car company to provide minimum third-party liability coverage. The trial court also properly dismissed the Bad Faith and Consumer Protection Act claims.
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Publications & Thought Leadership

Jeff prepares and delivers a number of presentations on civil litigation and professional liability defense matters for various insurance companies and trade organizations including multiple presentations at the national CLM and PLRB Conferences. Jeff serves as the editor of the firm’s Claims Executive Reporter - a weekly periodical that provides claims professionals with updates and reviews of new and significant case law that affect claims in Oregon and Washington.

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About Jeff Eberhard

First Admitted: 1987, Oregon

Professional Webpage: https://www.smithfreed.com/attorneys/jeffrey-eberhard/

Honors/Awards

  • Oregon Super Lawyer - 2006 - 2020, Super Lawyers
  • Top 50 Oregon Super Lawyer - 2013, 2015, Super Lawyers
  •   Best Lawyers in America - 2011 - 2021  , Best Lawyers

Bar/Professional Activity

  • Member, Council on Litigation Management
  • Admitted, Washington State Bar, 1989
  • Admitted, Oregon State Bar, 1987
  • Admitted, United States District Court for the District of Oregon
  • Admitted, United States District Court for the District of Western Washington
  • Past Board Member, Oregon Association of Defense Counsel

Special Licenses/Certifications

  • NITA Master Advocate

Educational Background

  • George Washington University, Master Degree, Law Firm Management, 2010
  • Willamette University College of Law, J.D., Certificate in Dispute Resolution, 1987
  • University of Oregon, B.S., Finance and Political Science, 1984

Verdicts/Settlements

  • In Deckard v. Bunch – the most significant liquor liability case decided in the last 20 years – the Oregon Supreme Court cited extensively to Jeff’s amicus curiae brief, which detailed more than 35 years of legislative history of Oregon’s Dram Shop Act. The court ultimately adopted Jeff’s position that the legislature intended the Dram Shop Act to shield commercial alcohol providers from liability, thus rejecting the position of the entire plaintiffs’ bar (and the court of appeals) that the Dram Shop Act had created a new, plaintiff-friendly “statutory liability” claim, and bringing much-needed clarity to this area of law.Read More, 2016
  • In two subsequent, unrelated cases – Mason v. BCK Corporation and Balzer v. Moore – Jeff was able to secure summary judgment on all claims against his clients under the complicity doctrine of the Dram Shop Act. In each case, the plaintiff suffered catastrophic injuries after leaving a tavern as a passenger in another patron’s vehicle. In both cases, the court ruled in Jeff’s client’s favor, finding that as a matter of law the plaintiff could not recover when he had substantially contributed to that driver’s intoxication – not by buying alcohol, but instead by drinking with the driver at the tavern. The plaintiff in each case appealed to the Oregon Court of Appeals, and in both cases the court affirmed the trial court’s decision to grant summary judgment in Jeff’s client’s favor under the complicity doctrine of the Dram Shop Act.
  • Successfully defended an undercover security company against a claim for false imprisonment. Although significant damages were sought at trial, the jury returned a 12-0 defense verdict finding no liability.
  • Represented a tavern in a claim made by the Estate of a patron who was beaten to death in the tavern’s parking lot by another customer. The claimant’s estate filed a wrongful death lawsuit for $1.2 million, alleging failure to provide adequate security and negligence in over-serving the assailant. After a thorough work up by Jeff and his team, the case settled for less than 5% of the initial demand.
  • In Shields v. Enterprise Leasing Company, Jeff established new law in that a self-insured rental car company does have to provide liability insurance to a renter. In Shields, the renter had rejected all insurance products and was later involved in an accident. The renter subsequently brought claims against Enterprise to determine insurance coverage and also sought Bad Faith and Consumer Protection Act claims. The court ultimately held in Shields that the Financial Responsibility Act did not require a self-insured rental car company to provide minimum third-party liability coverage. Because there was a reasonable basis to deny insurance coverage to the renter, the trial court also properly dismissed the Bad Faith and CPA claims.

Scholarly Lectures/Writings

  • In certain circumstances, if a plaintiff is successful, they can recover attorney fees. However, ORCP 54 (the offer to allow judgment rule) limits a plaintiff’s recovery of fees to those incurred prior to the date of an offer of judgment, provided the offer was more than the plaintiff’s ultimate award. Does this limit conflict with a statute’s language that plaintiff is entitled to “a reasonable sum for attorney fees”? If so, what does that mean for the amount a plaintiff can recover?, Author, Oregon Supreme Court Limits the Impact of an Offer to Allow Judgment, 2021
  • The Oregon Evidence Code provides the rules that determine what evidence will be allowed to be brought into a trial. These rules can be confusing and convoluted at times, which can sometimes leave a jury feeling like they are not getting the full picture. What happens when an attorney implies that there is indeed more evidence that could prove their case, but those pesky rules of evidence won’t allow it in?  , Author, Don’t Have the Evidence? What Happens if You Pretend To?, 2021
  • Plaintiffs have an interest in being able to bring lawsuits to recover for damages they believe were caused by a defendant. Defendants have a countervailing interest in ensuring that they are not forever exposed to a potential claim. The legislature’s answer to protecting both of these interests? Statutory time limitations within which a plaintiff must bring their claim following an injury or damaging act. If the injured party does not file suit within that time period, the claim is lost. However, plaintiffs with claims for damages/injuries in Oregon will have extra time to file their lawsuits, provided that the relevant statutory period would have expired between June 30, 2020 and 90 days after the end of Oregon’s state of emergency declaration. I encourage you to read on to see how this significant development could affect your cases, whether you are an attorney, claims adjuster, or simply an interested individual. , Author, Oregon Extends Statutory Limitations Period on Most Civil Claims Due to COVID-19, 2020
  • Oregon issued civil penalties against two insurance companies for violating emergency orders related to COVID-19. What did these insurance companies do to deserve these fines?, Author, “Cancel Culture” – Not in Oregon! At Least When it Comes to Insurance Policies: Two Insurance Companies Fined, 2020
  • This webinar is designed for claims professionals and provides a basic overview of significant cases over the last year and their impact on Commercial Lines claims management. This webinar will prepare you to handle claims in Oregon touching on: timber trespass; liquor liability; noneconomic damages; and other topics.Key Points Presented Include:(HB 4212) Extends the statute of limitations indefinitely on most civil claims due to COVID-19.(Busch v. McInnis) Holds Oregon’s $500,000 noneconomic damages cap unconstitutional as applied to claims other than those for wrongful death.(La Costita III) Opens the door to claims against social hosts when the host is operating in dual roles, such as employer and social host.(Bighorn Logging Corp.) Examines ambiguities in intentional act exclusions in the context of intentional timber trespass.(Porter v. Veenhuisen) Provides that once a trial date has been set, the plaintiff’s unpreparedness for trial is no excuse to postpone., Presenter, Oregon Commercial Lines – Year in Review, 2020
  • Under the ORLTA, during an eviction action for nonpayment of rent, a tenant may counterclaim. If that happens, the ORLTA provides a withholding remedy where the tenant may pay their rent into a court fund. At the end of the proceedings, if this fund contains enough to cover the outstanding rent, the tenant may retain possession of the premises. However, to invoke this remedy, the tenant must act in good faith. But how far-reaching is this requirement?, Author, Misrepresentations During the Rental Application Process Do Not Preclude a Tenant from Rights and Remedies Under the ORLTA, 2020
  • Hear Ye Hear Ye! Read all about it. The Oregon Supreme Court has issued a landmark opinion addressing once and for all a topic of heated debate between Oregon’s plaintiff and defense bars. No matter the side, plaintiff or defendant, attorneys will agree that parties who can prove they were injured by a defendant’s negligence should be allowed to recover for their damages. The extent to which that recovery ought to be available, however, finds less bipartisan agreement. Of course, economic damages (e.g. medical bills, lost wages, etc.) are verifiable. But what of noneconomic damages (pain, suffering, emotional distress, etc.)? The legal community has long recognized the difficulty in measuring these types of subjective non-monetary losses. For years the debate has swirled: Can those noneconomic damages simply be statutorily limited to a specific amount? Amid the firestorm of confusion, only one thing was certain. That nothing was clear, and courts were understandably vexed by the statutory provision which limited an injured party’s noneconomic recovery to no more than $500,000. The constitutionality of that limitation faced numerous challenges, all culminating in the present matter which we bring to your attention today., Author, Oregon Supreme Court Issues Final Determination – Oregon’s $500,000 Noneconomic Damages Cap is Gone, at Least for Those Not Gone., 2020
  • Oregon Rule of Civil Procedure (“ORCP”) 54(E) provides that a defendant may serve an offer on the plaintiff for a judgment that can be entered against the defendant and the plaintiff has the right to decline the offer. However, if the ultimate judgment obtained by the plaintiff is not more favorable than the offer, the plaintiff is limited in recovering costs and attorney fees to only those that were incurred prior to the date of the offer. How the offer and judgment amounts are calculated for this comparison clearly has a significant impact on the ultimate determination of the amount awarded in attorney fees. The Oregon Court of Appeals recently clarified how to properly calculate and compare these amounts. Read on to find out how., Author, New Life Given to Offers to Allow Judgment, 2020
  • A few months ago, the Oregon Court of Appeals held that ORS 471.565(1), which prevents a patron who voluntarily consumed alcohol from bringing suit against the alcohol provider, to be unconstitutional in the context of a social host. [See our prior Case Update on Schutz here]. In this case, the Oregon Court of Appeals ruled that ORS 471.565(1) does not prohibit an intoxicated patron from filing a third-party complaint against the alcohol provider in a lawsuit brought by the injured plaintiff against the patron. In this case arising out of injuries suffered by a plaintiff when an intoxicated patron crashed in the plaintiff’s home, the Oregon Court of Appeals was tasked with deciding whether ORS 471.565(1) prevents the intoxicated patron from bringing the alcohol provider into the lawsuit by a third-party complaint. The court looked to the plain text of the statute and the legislative history underlying the statute, and determined that the legislature would not have intended for ORS 471.565(1) to prevent a patron from impleading the provider. Because the court was able to resolve the case on a “subconstitutional level,” it did not consider whether ORS 471.565(1) was constitutional in the context of a third-party claim., Author, Oregon Case Law Update: Patron Not Prohibited from Filing Third Party Complaint Against Alcohol Provider, 2018
  • Health plan contracts may provide broad rights that an injured plaintiff must repay any liability and/or UIM payments received.  If Oregon PIP/health insurance statutes are applied, the likelihood of repayment is much less.  However, as the Oregon Court of Appeals recently found, the activities of the third-party administrator play a role in determining whether they are or are not an actual insurer for purposes of the statutes. Read on to see how one party who claimed to be a third-party administrator was instead found to be an insurer that was subject to ORS reimbursement requirements. , Author, Oregon Court of Appeals Determines That PIP/Health Insurance Reimbursement Statutes Apply to a Company That Contracted to Serve as a Third-Party Administrator for the Oregon Public Employees Benefits Board (PEBB), 2020
  • Under Oregon law, insurance policies are generally construed in favor of the insured where terms are ambiguous or coverage unclear. However, well-drafted clauses can save on paying out costly claims. In this case update, we take a look at how a claimant whose bookkeeper was embezzling funds over the course of eight years was properly denied coverage for the majority of that time despite language that, Claimant argued, suggested continuing coverage for the entirety of the time at issue., Author, Oregon Court of Appeals Examines “Employee Dishonesty” and “Prior Insurance” Clauses in a Claim Arising from an 8-Year, $800,000+ Embezzlement by Claimant’s Bookkeeper., 2020
  • In 2017, the Oregon Court of Appeals sent shockwaves through the hospitality industry when it held that a section of Oregon’s liquor liability statute was unconstitutional because it denied a severely injured, intoxicated driver a remedy for her injuries allegedly caused by a social host.  As expected, the Oregon Supreme Court accepted review.  My star senior counsel Jeremy Reeves and I submitted extensive amicus curiae briefing addressing the flaws in the court of appeals’ constitutional analysis and why the entire statute passes constitutional muster.  We expected that the Supreme Court would use the case to settle the issue of whether the court of appeals erred in holding the statute unconstitutional.  Did it? Read on to find out., Author, Oregon Case Law Update: Disturbing Court of Appeals Decision Reversed – Oregon Supreme Court Reaffirms That Restaurants and Taverns Do Have Immunity For “First Party” Claims of Over-Service of Alcohol, 2019
  • Managing Partner Jeff Eberhard breaks down the evolving and complex world of liability waiver enforcement in Oregon and Washington courts. He will discuss: Liability Waiver Law in Oregon Liability Waiver Law in Washington Why Are Liability Waivers Worth Your Time? Gross Negligence Unconscionability Public Policy Standard Established By Law For Protection Of Others, Presenter, Liability Waivers – Should We Wave Goodbye?, 2019
  • Recently, in Mason v. BCK Corporation, 292 Or App 580 (2018), the court held that an injured plaintiff could not recover against a bar because the plaintiff was unable to demonstrate that he did not “substantially contribute” to the driver’s intoxication. In this case, the court considers whether the personal representative of a deceased passenger can hold the bar liable for serving the intoxicated driver if the passenger and intoxicated driver spent several hours drinking and socializing together. Our firm represented the defendant bar in both the Mason case and the case that is the subject of this update, Balzer v. The Roundup Pub. In this case, the passenger, driven by his intoxicated friend, was killed in a car accident. Prior to the accident, the two friends spent several hours socializing and drinking together. The Oregon Court of Appeals relied on Mason, which for the first time, defined conduct that “substantially contributed” to the driver’s intoxication (Oregon’s liquor liability statute requires the plaintiff to show that he or she did not “substantially contribute” to the driver’s intoxication in order to prevail on a claim against the bar). The court held that because the two friends spent several hours driving and socializing together and because Plaintiff could offer no evidence to show that the deceased passenger did not substantially contribute to the driver’s intoxication, the plaintiff could not prevail on a claim against the bar., Court of Appeals Confirms Stance on Complicity Doctrine in Case Involving a Passenger Injured by Intoxicated Driver, 2018
  • Claims against bars, taverns and even social hosts come in several varieties, one of which occurs when an intoxicated driver is involved in an accident causing injuries to the passenger. But if the passenger played a role in the driver’s intoxication, will the passenger have a claim against the bar, tavern or social host for serving the intoxicated driver? Read on to find out. A common factual scenario encountered by bar and tavern owners is where friends go together or meet at a bar, drink together and at the end of the night, leave together, with one of the intoxicated friends driving and the other riding as a passenger. In cases where the passenger is injured while traveling with the intoxicated driver and the injured passenger brings a claim against the bar or tavern, Oregon’s Liquor Liability Statute, ORS 471.565, requires the passenger to prove that they did not substantially contribute to the driver’s intoxication. Our firm represented the bar that served the alcohol. The trial court granted our summary judgment motion. The Oregon Court of Appeals found that the plaintiff failed to submit evidence to show that he did not substantially contribute to the driver’s intoxication, and confirmed that the trial court properly granted summary judgment in favor of our client., Author, Court of Appeals Enforces the Complicity Doctrine in Liquor Liability Suits: Holds Passenger May Not Sue Bar Claiming Over Service to Driver, 2018
  • On November 1, 2017, the Oregon Court of Appeals issued two separate decisions, both of which have a significant impact on the insurance industry and defense of claims.  Recently, the Oregon Supreme Court issued orders accepting review of the Oregon Court of Appeals’ decisions in both cases.  Read on to learn more about each of these two cases., Author, Oregon Appellate Update: Oregon Supreme Court Grants Review in Two Important Cases – Tort Cap and Dram Shop, 2018
  • "Vendor or Partner?", Presented at Council on Litigation Management, 2010
  • Liquor Liability Webinar, "Why Everything Plaintiff's Attorneys Tell You About Liquor Liability Is Wrong", 2010
  • Washington Insurance Fair Conduct Act (IFCA) Webinar, 2009
  • "Excess Verdicts, What Do We Do Now", Presented at PLRB/LIRB Conference, 2010
  • 2010-2016 Oregon and Washington Personal Lines Law Summary
  • 2010-2016 Washington Commercial Lines Law Summary
  • 2010-2016 Oregon Commercial Lines Law Summary
  • Oregon and Washington Legislative Updates Webinar, 2010
  • Oregon & Washington Premises Liability Webinar, 2011
  • Litigators Need to Argue a Central Theme at Jury Trials - Portland Business Journal, 2010
  • Jeff Eberhard Featured in the January Edition of Law Practice Magazine, 2011
  • "The Law and Science of Defending Liquor Liability Claims", Presented at PLRB Annual Claims Conference: , 2014
  • “Claims Management – Same-Sex Marriage, Open Carry and Weed”, Presented at Annual CLM Conference, 2016
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Office Location for Jeff Eberhard

111 SW Columbia St
Suite 800
Portland, OR 97201

Last Updated: 5/15/2022

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