Lee M. Rask (“Rask”) appeals from the district court’s (a) entry of directed verdict in favor of Twin City Fire Insurance Co. (“Twin City”) on Twin City’s breach of contract claim; (b) entry of directed verdict in favor of John L. Griffith (“Griffith”) and St. Paul Insurance Co. and St. Paul Risk Services, Inc. (“St. Paul”) on Rask’s claim for indemnity; (c) denial of Rask’s motion for directed verdict in his favor on Twin City’s contract, promissory estoppel, and negligence claims, and; (d) pretrial determination that Rask was precluded from raising, at trial, mistake and impossibility as defenses to Twin City’s contract claim.
Twin City appeals from the district court’s entry of summary judgment against it on its claim for attorney’s fees against Philadelphia Life Insurance Co. (“Philadelphia Life”).
We affirm in part and reverse in part.
I
FACTS AND PRIOR PROCEEDINGS
In January 1982 Douglas Powell was severely injured in Oregon by a power line owned by Pacific Power & Light Co. (“Pacific”). Officials at Pacific believed the company faced a substantial liability and entered into settlement negotiations with Powell's attorney. Pacific was self-insured up to $1 million. Twin City was Pacific’s excess liability carrier and was responsible for payment of any loss over $1 million on the Powell claim. Pacific contested the amount of damages but conceded liability for settlement purposes.
Sam Witters (“Witters”) was Pacific’s litigation coordinator. He had handled numerous claims for personal injuries, and had successfully settled many of them by negotiating “structured settlements” (settlements providing deferred payments over a number of years). Offering annuities in structured settlements allowed Pacific to avoid the present dollar cost of the full settlement and to take advantage of certain tax benefits. Accepting annuities permitted claimants to receive a steady income over a period of time and thereby achieve a measure of long-term security. Witters determined that Powell might be interested in accepting an annuity as part of a structured settlement of his claim.
In June 1982 Witters contacted appellant Rask to procure quotes on various types of annuities from insurance companies. Rask owned Rask & Associates, an insurance brokerage firm, and held brokerage licenses in four states including Oregon. Approximately thirty to thirty-five percent of Rask’s business came from commissions earned in procuring annuities in structured settlements. Because of the increased use of annuities in structured settlements and the complexity of the annuity market, Rask had developed a profitable specialty in this field. Typically, a client would provide Rask with medical information and general guidelines on the type of annuity desired, and Rask would submit this information by phone to one or more insurance companies for a price quotation. The insurance company would provide a quote and Rask would, in turn, relay the information to the client. Because a client requesting an annuity quote was usually involved in negotiating a settlement, Rask was often asked to produce quotes on short notice. Rask typically obtained the quotes via telephone.
Witters had used Rask’s services about a dozen times. In previous dealings, Witters would give Rask medical information and
On six occasions Rask had used the services of John Griffith, an agent for St. Paul. Griffith was also a general agent for Philadelphia Life and had acquired an expertise in the annuity business. When Rask used Griffith’s services, he would gather data from the client and pass that on to Griffith who would then obtain telephone quotes from an insurance company. Griffith would relay the information back to Rask who would provide the information by telephone to the client. When the annuity was issued, Griffith would receive a commission (typically four percent) from the annuity company issuing the annuity, and he and Rask would split the commission.
When Witters asked Rask to provide annuity quotes for the Powell case, Rask contacted Griffith. Witters never dealt directly with Griffith, but Rask wrote Witters that he was using Griffith’s services.
Between December 1982 and mid-February 1983 Witters requested several quotes from Rask in connection with the Powell case.' Rask relayed the requests to Griffith and received from Griffith several quotes which he conveyed to Witters. Relying on the quotes, Witters made several offers to Powell’s attorney. The largest offer discussed was a combination of cash and annuities which had an aggregate cost to Pacific and Twin City of $1.6 million. Powell’s attorney rejected this and other offers. His objections, however, were primarily to the design of the annuities offered. Both Witters and Powell’s attorney felt the parties were “close” to a settlement.
In February 1983 Witters asked Rask to obtain quotes on a deferred annuity which would cost around $200,000. Witters phoned Rask several times expressing a sense of urgency and stating that the quotes were needed immediately because he and Powell’s attorney were close to reaching a settlement. Rask, in turn, telephoned Griffith several times over a period of two-to-four days asking Griffith to provide quotes for the type of annuity requested. Griffith informed Rask that he had attempted to obtain quotes from Philadelphia Life (which both Griffith and Rask believed offered the lowest rates on deferred annuities), but that Griffith had been unable to contact anyone at Philadelphia Life.
Finally, in a telephone conversation, Griffith provided Rask with a quote from Philadelphia Life for the annuity. Its price was approximately $200,000. Rask’s and Griffith’s versions of this conversation differed. Rask testified that Griffith informed him the quote had not been confirmed by Philadelphia Life, and that Griffith had calculated the quote “at his own office.” Rask, however, recalled that Griffith stated he was “comfortable” with the number. Rask thought “comfortable” meant that Philadelphia Life would issue the annuity for the price quoted by Griffith. Griffith testified (by deposition excerpt) that Rask had made several “desperation calls” asking for a quote; that Rask had asked for a “ballpark figure,” and Griffith had calculated an estimate, but that he had told Rask not to relay the figure to Witters until Philadelphia Life provided confirmation.
Rask then called Witters. Rask and Witters also provided conflicting accounts of their conversation. Rask testified he told Witters the quote had not been confirmed. However, Rask conceded he told Witters that he was “comfortable” with the quote and that Witters could rely on it (i.e., use the quote in the Powell settlement). Witters testified Rask had said that he had “difficulty” in getting the quote, but Witters did not recall the nature of the difficulty. Witters did recall that he told Rask he was in the middle of negotiations and when he asked Rask if he could rely on the quote Rask said “yes.”
About one week later, Griffith told Rask that Philadelphia Life could not issue a deferred annuity in Oregon because it had not submitted a required form to Oregon’s Insurance Commissioner. Griffith later told Rask that Philadelphia Life did not write deferred annuities. Rask relayed this to Witters and told him he would try to find another annuity “close” in cost and benefits. Witters, in turn, informed Powell’s attorney that the annuity could not be obtained at the anticipated cost. Powell’s attorney replied that Pacific and his client had entered into a binding settlement agreement and that he expected “them to stand behind the offer regardless of the cost.” He also told Witters that Powell would consider other offers, “so long as [they] didn’t diminish in any way the value of the annuity that was offered to Mr. Powell.”
Thereafter, Rask and Witters attempted to find a comparable deferred annuity. Witters offered Powell several alternative annuity and cash packages, but Powell rejected them because they were not as favorable as that offered in the February Settlement. Finally, Witters offered and Powell accepted a cash and deferred annuity package which provided benefits comparable to the value of the cash and annuity agreed to in the February Settlement. The overall cost of the final settlement was approximately $260,000 more than the original settlement. As the excess carrier liable for all payments over $1 million, Twin City paid the additional $260,000 cost of the settlement.
In December 1983 Twin City filed the present action in federal district court against Philadelphia Life, Rask & Associates, Inc. and Rask, seeking to recover the additional $260,000 it paid toward the settlement. Twin City alleged causes of action for breach of contract, negligence and promissory estoppel based upon the failure of the defendants to provide the lower-costing deferred annuity. Rask filed a third party claim against Griffith and St. Paul, and a cross-claim against Philadelphia Life, seeking indemnification and contribution. Philadelphia Life asserted similar claims against Griffith and Rask. The parties stipulated prior to trial that Twin City was the real party in interest and could assert all claims which could have been asserted by Pacific.
In a pretrial ruling, the district court determined that Rask was not entitled to a discharge from Twin City’s breach of contract claim on the basis of mistake and impossibility, and was precluded from raising those defenses, at trial. The district court also held that Twin City would not be entitled to recover attorney’s fees from Philadelphia Life.
Trial of the case began before a jury. At the close of Twin City’s case, Rask moved for a directed verdict on Twin City’s breach of contract, negligence and promissory es-toppel claims. The court denied that motion. Following Rask’s presentation of evidence, Twin City moved for a directed verdict on its breach of contract and promissory estoppel claims against Rask. Griffith moved for a directed verdict on Rask’s claims for indemnification and contribution. The court granted Griffith’s motion, determining that Rask was not entitled to either indemnification or contribution from Griffith or St. Paul. The district court also granted Twin City’s motion for directed verdict against-Rask on Twin City’s breach of contract claim.
Judgment was subsequently entered in favor of Twin City and against Rask for
II
ISSUES
We review the following decisions of the district court:
A. Granting Twin City’s motion for directed verdict in its favor on its breach of contract claim against Rask.
B. Denying Rask’s motions for directed verdict against Twin City on Twin City’s contract, negligence and promissory estoppel claims.
C. Precluding Rask, by pretrial order, from raising at trial the defenses of mistake and impossibility.
D. Granting directed verdict in favor of Griffth and St. Paul against Rask on Rask's claim for indemnification.
E. Denying by entry of summary judgment Twin City’s claim for attorney’s fees against Philadelphia Life.
III
JURISDICTION AND STANDARD OF REVIEW
Jurisdiction was properly vested in the district court under 28 U.S.C. § 1332. Because this case involves multiple parties and claims and the district court did not certify that its pretrial decisions were final judgments, we may review the district court’s pretrial decisions appealed by the parties. See, e.g., Baker v. Limber,
The standard of review of the propriety of a directed verdict is the same on appeal as it is in the trial court. Othman v. Globe Indemnity Co.,
We review de novo the district court’s pretrial ruling that Rask could not raise, at trial, the defenses of mistake and impossibility. Grigsby v. CMI Corp.,
IV
ANALYSIS
A. Twin City’s Breach of Contract Claim Against Rask
Both Twin City and Rask argue that Twin City’s breach of contract claim may be resolved by the court as a matter of law. We disagree. Our standard for directed verdict precludes judgment as a matter of law where, as here, both parties have presented substantial evidence to support their contentions. See generally Fabrica,
1. Application of the Facts and Law to the Legal Standard
Rask presented substantial evidence from which a jury could conclude that, in the Powell transaction and on prior occasions, he only served as an intermediary or
Further, Rask presented substantial evidence that although he advised Witters to rely on the quoted annuity, he did not make an unconditional promise to procure the annuity. Witters never testified that Rask had expressly promised to produce the annuity quoted by Griffith. Rather, Witters stated “I just assumed that whoever— wherever he had gotten them had the authority to give them to me and I was comfortable in using them, that’s the extent of my concern about the — how good the figures were.” Witters testified he knew Rask had had difficulty in obtaining the quote. Finally, Rask testified he told Witters the quote had not been confirmed, and that Witters had “pressured him” to provide the Philadelphia Life quote.
We believe the foregoing constitutes “substantial evidence” from which a jury could conclude Rask only facilitated the conveyance of information from Griffith to Witters, but did not unconditionally promise to procure the Philadelphia Life annuity. Rask’s statement to Witters that he could “rely” on the quote may have been nothing more than advice from an intermediary to a sophisticated claims representative well-experienced in the uncertainties accompanying structured settlement negotiations.
Twin City also presented substantial evidence from which a jury could conclude the converse. Twin City correctly notes that under Oregon law a contractual promise may be inferred from conduct and need not be expressly stated. See, e.g., Southworth v. Oliver,
2. Legal Arguments
Rask and Twin City advance several legal arguments as to why Twin City’s breach of contract claim should be decided as a matter of law. Both sides seek to mitigate unfavorable evidence by arguing that Oregon law establishes per se rules which transcend the facts of this case and dictate an outcome one way or the other. Because the parties have raised these arguments on appeal and would reassert them on remand if not addressed, we turn to these arguments. We also address the district court’s ruling precluding Rask from presenting the defenses of mistake and impossibility.
a. The “Insurance Procurement” Cases
Oregon law defines an annuity as insurance. Or.Rev.Stat. §§ 731.102(2), 731,154 (1985). Twin City argues that, under Oregon law, an agent or broker who undertakes to procure insurance and fails to do so is liable for all resulting damages, even if he or she used reasonable care and exercised best efforts. Twin City argues that it need not establish that Rask expressly promised to deliver the Philadelphia Life annuity, because Oregon law imposes this duty in insurance procurement contexts; it need only establish that Rask and Pacific agreed upon the terms of the annuity. Rask responds that Oregon law only imposes a duty to use reasonable care.
We note initially that the “insurance procurement” cases provide only an analogy to this case. In the typical insurance procurement setting, the agent has failed to procure the insurance, the plaintiff suffers a loss (i.e., fire, theft) for which he or she should have been insured, and the plaintiff sues the agent for the loss. See, e.g.,
However, we do not agree with Twin City that an agent who undertakes to procure insurance always unconditionally promises to procure a policy. In Joseph Forest Products, Inc. v. Pratt,
‘An insurance broker is the agent of the insured in negotiating for a policy, and owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting insurance. Thus he may be held liable where he has breached a contract to procure insurance for his principal. And while such broker is not obligated to assume the duty of procuring a policy, without consideration for his promise, he must exercise ordinary care in the performance of such duty whenassumed, the promise to take the policy being a sufficient consideration. He is charged with the exercise of reasonable care and skill in making inquiries and obtaining information concerning the responsibility of the insurer with whom they place the risk, and is liable for any loss occasioned by such want of care.’
Id. at 480-81,
b. The Nature of the Promise
Rask argues that to prevail on its breach of contract action, Twin City must prove that Rask not only promised to deliver the Philadelphia Life annuity, but that he also agreed to bear Pacific’s entire added expense if it had to acquire a comparable annuity package elsewhere. In other words, Rask argues that Twin City must prove he agreed to accept liability for the more expensive annuity. We do not agree.
The imposition of contract-market price damages does not depend upon an agreement (express or implied) between the parties that such damages will be imposed upon breach. See Restatement Contracts, supra 351, Comment a (“[T]he party in breach need not have made a ‘tacit agreement’ to be liable for the loss. Nor must he have had the loss in mind when making the contract____”). See generally Grover v. Sturgeon,
Rask’s liability (if any), therefore, depends upon what he promised to do, and not the liability he agreed to accept. Rask may have only agreed to search the marketplace, report back, advise, facilitate, and use reasonable efforts. Alternatively, he may have unconditionally promised to deliver the Philadelphia Life annuity at the quoted price. Finally, it is conceivable that Rask did not make any promise, but that Witters acted precipitously and without reason in relying on the unconfirmed quote.
We hold that these questions should have been resolved by the jury.
c. The Adequacy of the Consideration
Rask argues that Twin City failed to present substantial evidence that Rask’s undertaking to procure the Philadelphia Life annuity was supported by consideration. He contends the commission (four percent divided between Griffith and himself) does not “support” a liability of $260,-000.
Rask misconceives the requirement of consideration. Under Oregon law and elsewhere valid consideration may consist of a bargained-for benefit to the promissor or a bargained-for detriment to the promisee. See, e.g., Cummings v. Central Oregon Bank,
The size of the commission is relevant to whether Rask in fact promised to deliver the Philadelphia Life annuity. A jury might conclude that given the size of the commission Rask only agreed to use his best efforts to find a suitable annuity, but did npt promise to deliver the annuity. On the other hand, perhaps Rask was so anxious to earn the commission and so sure the annuity would be issued that he unconditionally promised to deliver the annuity at the quoted price. Again, these matters should be resolved by the jury.
d. The Defenses of “Mistake” and “Impossibility” ■
In a pretrial motion, Rask asked for summary judgment on Twin City’s breach of contract claim arguing that his contractual
1. Mistake
Under Oregon law, where the parties to a contract make a mutual mistake as to a basic assumption underlying the agreement, the “contract is voidable by the adversely affected party unless he bears the risk of mistake____” Restatement Contracts, supra § 152. See Crown Northwest Equipment, Inc. v. Drake Co.,
Finally, Rask presented a material issue as to whether Rask and Witters acted with limited knowledge. Rask testified that he told Witters the numbers were not confirmed, and that Witters had pressured him to produce a quote. Witters conceded Rask had said he had had “difficulty” in getting the quote. Nevertheless, Witters relied upon the quote in entering into the February Settlement with Powell.
2. Impossibility
Rask also presented substantial evidence in support of the defense of impossibility. The Restatement Second provides:
(1) Where, at the time a contract is made, a party’s performance under it is impracticable without his fault because of a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty to render that performance arises, unless the language or circumstances indicate the contrary.
Restatement Contracts, supra § 266. See generally Portland Section of Council of Jewish Women v. Sisters of Charity,
3. Applying the Defenses
The district court by its pretrial ruling precluded Rask: (a) from presenting the defenses of mistake and impossibility to the court after presentation of the evidence at trial; and (b) from presenting these defenses to the jury in the form of an argument or instruction. Whether the defenses of mistake or impossibility may be presented to a jury presents a novel question. Our research has revealed little authority on this issue.
We hold only that Rask presented genuine issues of material fact as to the defenses of mistake and impossibility and he should have been able to raise them at trial. On remand, the district court should determine whether these defenses should be resolved as a matter of law by the court, or whether they should be left to the jury for determination. We express no opinion on this issue, as the parties did not present the issue to the district court, nor did they raise, brief or argue it on appeal.
B. Denial of Rask’s Motions for Directed Verdict On Twin City’s Contract, Negligence and Promissory Estoppel Claims
We have already determined that both Rask and Twin City presented substantial evidence in support of their respective contentions as to Twin City’s contract claim. The district court therefore properly denied Rask’s motion for a directed verdict on that claim.
The district court also properly denied Rask’s motion for a directed verdict on Twin City’s promissory estoppel and negligence claims. Both parties presented substantial evidence on these issues.
1. Promissory Estoppel
Under Oregon law, recovery under promissory estoppel requires:
(1) a promise,
(2) which the promissor, as a reasonable person, could foresee would induce conduct of the kind that occurred,
(3) actual reliance on the promise,
(4) resulting in a substantial change in position.
Bixler v. First National Bank,
We do not agree with Rask that a “quote” may not amount to a promise for purposes of promissory estoppel. Rather, whether a “quote” is a promise depends upon the particular facts. See Schafer,
We also believe Twin City presented substantial evidence to meet the requirement of a “substantial change in position.” Bix-ler,
2. Negligence
Under Oregon law, to state a cause of action for negligence, the plaintiff must show:
(1) a legal duty of care,
(2) a breach thereof,
(3) damage to plaintiff which was proximately caused by the breach.
See, e.g., Brennen v. City of Eugene,
Twin City clearly presented substantial evidence on the elements of duty and breach of duty. See, e.g., Joseph Forest Products,
The “event” for which Twin City seeks redress is its expenditure of the additional $260,000 in settling Powell’s claim. Twin City argues that Rask negligently relayed the Philadelphia Life quote, and that Twin City was therefore “injured” in the amount of $260,000 (by Rask’s failure to fulfill his promise to deliver the Philadelphia Life annuity). However, the Oregon courts have recognized that “recovery for tortious injury is intended to restore the injured party to the position it enjoyed before the injury or to compensate the injured party for its loss.” See, e.g., McKee Electric Co. v. Carson Oil Co.,
Twin City must demonstrate, therefore, that Rask’s relay of the Philadelphia Life quote placed it in a worse position than it occupied before Pacific entered into the February Settlement, and that it suffered a pecuniary injury as a proximate result of Rask’s conduct.
Before Rask conveyed the quote, it appears Pacific had conceded liability to Powell and thus already owed him an unliqui-dated amount. As a practical matter, the debt already existed. Only the sum was uncertain. If Rask had never quoted the Philadelphia Life annuity, Pacific (and Twin City) may have settled the case for more than $2 million. By the same token, Rask’s conveyance of the Philadelphia Life quote did not necessarily increase Pacific’s or Twin City’s costs of settlement. Powell had consistently insisted upon a combination of cash and annuities such as that ultimately agreed upon by the parties. The parties acknowledge that the Philadelphia Life annuity could not be written in Oregon or used in the Powell settlement. As noted, Pacific had already decided to settle Powell’s claim before Rask conveyed the faulty quote. These factors, in the aggregate, could lead one to concede that the Philadelphia Life quote and the February Settlement had no effect on Pacific’s and Twin City’s costs of settlement.
The opposite may also be true. Prior to the February Settlement, the cost of Pacific’s and Twin City’s most generous offer was $1.6 million. The parties agree they were “close” to a settlement on the basis of that offer. If Twin City and Pacific had not entered into the arguably binding February Settlement, which might not have occurred “but for” the Philadelphia Life quote, they might have been able to settle the Powell case on the basis of the offer costing $1.6 million or something close to that. There is evidence that the offer of the Philadelphia Life annuity, prompted by the quote relayed by Rask, increased Powell’s settlement expectations and made settlement at a lower figure thereafter unlikely if not impossible. The following testimony by Powell’s attorney at trial illustrates this:
Q. Alright. If they had never made the settlement offer which involved these deferred annuities, do you think a settlement could have been reached?
A. [Mr. Goff, Powell’s attorney] I have no way of knowing.
Q. So it’s purely speculative whether if they hadn’t given you those deferred annuity quotes a settlement might or might not have been reached?
A. That’s correct.
Q. And but once, of course, they made that offer of those deferred annuities, then you weren’t going to take anything less?
A. That’s correct.
Q. And going into the February 7th meeting, or the week before, at that time you and Mr. Powell set any bottom line on the minimum that you were going to accept to settle this claim?
A. No.
Finally, there is also evidence in the record that alternative and comparable annuities might have been available at the time Rask relayed the quote for the Philadelphia Life annuity, which could have been located for Pacific at the time the February Settlement was being negotiated, but which were not available later on. ’ Rask’s failure, if any, to search out and report to Pacific the availability of other comparable annuities could serve as a basis for imposing damages for negligence.
We believe these matters present questions which should be resolved by the trier of fact and decline to resolve them as a matter of law.
C. Rask’s Claim for Indemnity from Griffith
Rask seeks relief by way of indemnity from Griffith and St. Paul if he is held accountable to Twin City for damages. The district court held that Rask had failed to raise a jury issue on his indemnity claims. We disagree.
Under Oregon law, recovery by indemnity requires proof of three elements:
1. Discharge of a legal obligation owed by the payor to a third person.
2. The person against whom indemnity is claimed must also be liable to the third person.
3. As between the claimant payor and the person against whom indemnity is claimed, the obligation ought to be discharged by the latter.
See, e.g., Ore-Ida Foods, Inc. v. Indian Head Cattle Co.,
Rask presented substantial evidence to obtain indemnity from Griffith and St. Paul. The evidence indicates that Rask used Griffith’s services because of his expertise in obtaining information about annuities, and that Griffith had been actively engaged in the structured settlement business on a full-time basis since 1979. Griffith was an agent for St. Paul and a general agent for Philadelphia Life. He knew that Rask was requesting quotes on annuities for use in the Powell case. Griffith provided Rask with various quotes from Philadelphia Life over a period of nearly a year, but never informed Rask or Witters (through Rask) that Philadelphia Life did not write deferred annuities in Oregon. Rask also testified that Griffith told him he was “comfortable” with the Philadelphia Life quote. Griffith informed Rask that the Philadelphia Life annuity was not available only after Rask had relayed the quote to Witters. This constitutes substantial evidence both that Griffith may have been negligent and that, as between Rask and Griffith, liability should fall on the latter.
D. Attorney’s Fees Against Philadelphia Life
Finally, we consider Twin City’s contention that the district court erred in entering summary judgment against it on its claim for attorney’s fees against Philadelphia Life. Twin City argues that Rask was an agent for Philadelphia Life and that Or.Rev.Stat. § 743.114 (1985) entitles Twin City to attorney’s fees. We hold that the district court properly entered summary judgment against Twin City on its claim for attorney’s fees.
Section 743.114 provides that:
If settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiff’s recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon____
Or.Rev.Stat. § 743.114 (1985).
The Oregon courts apparently have not addressed whether a plaintiff may obtain recovery from an insurer where an agent fails to procure a policy of insurance and a plaintiff, after suffering a loss, makes a claim on the requested policy. See Mon-santofils v. Gacek Insurance Agency,
V
CONCLUSION
We affirm the district court’s denial of Rask’s motions for directed verdict on Twin City’s breach of contract, promissory estop-pel and negligence claims. We also affirm the district court’s entry of summary judgment in favor of Philadelphia Life on Twin City’s claim for attorney’s fees. We reverse the district court’s entry of directed verdict in favor of Twin City on its breach of contract claim against Rask, and in favor of Griffith and St. Paul on Rask’s claims for indemnity. We also hold that Rask presented a genuine issue of material fact on the defenses of mistake and impossibility and that he should have been permitted to raise these defenses in the trial court.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
Notes
. We discuss "benefit of the bargain” damages in greater detail infra. Our conclusion that the "insurance procurement” cases protect a plaintiff’s "reliance" interest and not the “expectation" interest finds support in the Restatement Second of Contracts. See Restatement (Second) of Contracts § 90, Comment e (1979) (liability should only be imposed where there is actual reliance) [hereinafter Restatement Contracts]. The distinction between "reliance” and "expectation” damages is discussed in Fuller and Perdue, The Reliance Interest in Contract Damages (Pt. 1), 46 Yale LJ. 52-(1936) (passim).
. In Oney, the court stated that:
The liability of an insurance agent or broker to his principal depends upon the nature of the contract between them. Derby v. Blankenship,
Id.
. As Holmes stated, "when people make contracts, they usually contemplate the performance rather than the breach____” O. Holmes, The Common Law 302 (1881). The Oregon courts have stated that one of the purposes of a "contract is to shift reasonably foreseeable business risks to the party promising the performance so that the promisee can devote his energies and capital to other matters." Savage v. Peter Kiewit Sons' Co.,
. Compare Alcoa S.S. Co. v. Ryan,
. The parties have not addressed whether a plaintiff is entitled to present the claim of promissory estoppel to a jury. We therefore do not address this issue.
. We discuss this issue hereafter in the context of "causation” and "damage” for the purposes of Twin City’s negligence claim.
. Because we hold that Rask presented substantial evidence under the theory of negligence, we need not address any other theories for indemnification which he may advance.
. We therefore need not address whether Rask was an agent of Griffith or Philadelphia Life. Further, because we reverse the district court’s entry of judgment in favor of Twin City, we need not address whether Twin City is entitled to pre-judgment interest on its breach of contract claim.