Dwain Clifford is co-chair of Ball Janik LLP’s Insurance Recovery practice. He joined the firm in 2002 after representing clients in commercial litigation with a large firm in Dallas, Texas, and became a partner with Ball Janik in 2008. His principal areas of practice are insurance recovery, broker malpractice, general commercial litigation, and construction law. He has represented a wide variety of plaintiffs and defendants in complex business litigation and has experience litigating cases in state and federal courts in Oregon, Washington, and Idaho. Mr. Clifford has been selected to the Oregon Super Lawyers “Rising Stars” list.
Mr. Clifford has established a reputation for his skill in representing insureds involved in insurance-coverage disputes with insurers. He also has been involved in many other kinds of insurance-coverage disputes on behalf of insureds whose claims have been denied by the insurer. He has represented clients in cases involving: a multi-million dollar insurance payment arising out of a fire that destroyed a multi-use building spanning one of the last “superblocks” in Portland; obtaining payments that the insurer had refused to pay for business-interruption losses suffered by a restaurant after a fire; coverage for an insured’s gazebo that collapsed into the Willamette River after its support posts had rotted away; forcing the insurer to provide a defense to a safety-supply shop in a series of asbestos cases; securing a multi-million dollar recovery for damage to the decks on a condominium building that had rotted because of hidden decay; restarting payments under a disability policy; and getting an insurer’s complete reversal of its initial denial of coverage for the collapse of a residential house after contractors working on the basement caused an entire wall to fall away.
As a complement to his insurance-coverage practice, Mr. Clifford also regularly defends cases alleging that an insurance broker’s malpractice caused the insured to have less — or even none — of the coverage that the insured alleges should have been purchased. For example, in a recent case in Washington, the insured alleged that its broker should be responsible for any portion of the damages that the insurer would not reimburse for the costs to repair a moldy condominium unit. This case was resolved entirely with the insurer’s money after months of negotiations.
Other broker-malpractice cases defended by Mr. Clifford have involved: a multi-million dollar loss of frozen food in a Hawaii warehouse allegedly caused by the insured’s defective freezer unit; the alleged failure to procure “tail” coverage protecting a Washington lawyer from legal-malpractice claims; an employee’s theft of money from her employer who had not purchased employee theft insurance; and an ongoing, decade-old dispute arising out of the infamous implosion of Capital Consultants in 2000, which is based on an allegation that the broker failed to procure an ERISA bond providing coverage for third-party investment managers. Litigating these and other broker-malpractice cases has given Mr. Clifford unique experience and insight in understanding and litigating insurance cases on both sides of the docket.
Insurance issues frequently arise outside of litigation between the insured and the insurer, and Mr. Clifford has advised clients in a variety of these settings too. He regularly advises his colleagues involved in construction-defect cases on insurance-coverage issues, including advising insureds whose insurers are providing a defense under liability policies to ensure that the insurer carefully minds its duty to put the insured’s interests above its own and advocating for a resolution of claims paid for with the insurer’s money. Additionally, Mr. Clifford has advised clients in drafting settlement agreements that preserve the parties’ rights to chase insurance proceeds from an insurer that has refused to come to the table. These negotiations take place in a complicated legal minefield after the Oregon Supreme Court’s recent decision restricting an insured’s ability to assign claims against insurers. Like death and taxes, insurance issues find their way into every person’s life at some point, and Mr. Clifford has the breadth and depth of experience necessary to answer these questions and to forcefully oppose the insurer’s lawyers who are long accustomed to saying “no” in every coverage dispute.
Outside of insurance cases, Mr. Clifford has represented clients involved in general commercial litigation in diverse settings. These cases have involved: guarantors sued by banks after failed or troubled real-estate ventures; a brokerage firm sued by the Oregon Public Employees Retirement fund for a multi-million dollar securities-fraud claim (this case was won for the broker on summary judgment and is now on appeal); a case brought by the Oregon Bureau of Labor and Industries for a contractor’s alleged failure to pay the “prevailing wage” to workers building a multi-million-dollar hotel and conference center in Salem, Oregon; and a “middleman” lumber seller sued for personal injuries sustained by a contractor who fell and injured his back while building a pole barn near Dallas, Oregon.
Mr. Clifford earned his law degree from the University of Texas School of Law in 2000. During law school, he served as an Associate Editor for the Texas Law Review and worked as a research assistant for a professor writing an article on class actions. Before joining Ball Janik, Mr. Clifford practiced in the commercial-litigation group of Thompson & Knight LLP, a regional law firm in Dallas, Texas. He handled a wide variety of cases, including general commercial litigation, medical malpractice, personal-injury defense, and product-liability defense. Before attending law school, Mr. Clifford was a high-school teacher and yearbook adviser in Albuquerque, New Mexico, and he taught reading and writing to sixth-grade students in New Braunfels, Texas.
Mr. Clifford is currently a member of the Local Rules Committee for the U.S. District Court for the District of Oregon.
Oregon Super Lawyers "Rising Stars" list, 2010