Scenario:  A person is injured in an automobile accident.  The injured person is married but the spouse was not involved in the accident.  Negotiations take place with the insurance company and the case is settled on behalf of the injured spouse.  The Release Agreement is received from the insurance company and it requires the signature of the uninjured spouse.

Problems: 

1)      The uninjured spouse has his or her own claim despite not being involved in the accident.  The claim is called “loss of consortium.”  Loss of consortium compensates the uninjured spouse for any loss of spousal services, society, and the companionship that has been sustained and will sustain in the future as a result of the injuries to his or her spouse.

 

2)      There were no negotiations with the insurance company regarding the uninjured spouse.  That means the insurance company made a deal whereby it would pay X amount of dollars in exchange for a Release of Liability for the injured spouse.  That was the extent of negotiations.  Essentially, the insurance company is trying to get something for nothing.  If the insurance company wants a Release to include the spouse not involved in the accident, it should provide compensation to that spouse.

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In Workers' Compensation claims, an accepted work related injury can be held open for many years.  This means an injured worker can continue to treat in the future and simply bill Workers' Compensation.  Whereas in Oregon cases involving personal injury, you only have two years to settle or file your case.  That means you must include any future treatment into any settlement or claim.

Future pain and suffering as well as permanency of the injury may be the biggest part of a case.  Below are some Oregon cases that are useful on the subject.

Evidence of continued pain a year and a half after the injury “establishes a probability that for sometime in the future the plaintiff will suffer pain.”  Nelson v. Tworoger, 256 Or 189, 192 (1970).  Moreover, if there are observable manifestations of a permanent injury as well as subjective complaints, the question of permanency will likely be submitted to the jury without the necessity of medical testimony.  Senkirk v. Royce, 192 Or 583, 593 (1951); Heckler v. Union Cab Co., 134 Or 385 (1930).

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Today a motorist hit my friend’s parked car.  My friends and I went to inspect her car, take photographs, and exchange information with the other driver.  Unfortunately, the other driver was uninsured and unlicensed.  At this point I advised my friend to call the police.  The police arrived shortly thereafter.  A report was made, the other driver was cited and his vehicle was towed from the scene.  My friend felt bad for calling the police but I’m convinced it was the right thing to do.  Below are several reasons why it is important to call the police in similar circumstances.

1.       Your insurance company may not process an uninsured motorist claim without a report. Since the at-fault driver is uninsured, my friend will likely have to file an uninsured motorist claim with her own insurance.  The insurance company will want documentation that the at-fault driver was uninsured before processing her claim.  The insurance company may also want to go after the at-fault driver directly and will need good contact information.

2.       The at-fault drive may give you bad contact information.  Here, the at-fault driver gave my friend a P.O. Box as his address.  The police ran his information and were able to give my friend his physical address and his phone number.  Again, the insurance company may need this information to pursue a claim against the at-fault driver.

3.       “Don’t worry.  I’m going to pay for the damage.”  I don’t know how many times I’ve heard this promise made by at-fault drivers.  Even when they have good intentions, it rarely works out that they can or are actually willing to pay for damages later.

4.       “It was my fault.”  Unfortunately, stories change.  It’s best to have other witnesses or the police document this admission of liability.  If the at-fault driver changes his tune later, claiming it wasn’t his fault, it will likely take a lawsuit to determine who was at fault.  As you can imagine, litigation is time consuming and expensive.

5.       Get the bad driver off the road.  This is a benefit to the rest of us on the road.  After an investigation, the officers cited the at-fault driver for driving uninsured and with a suspended license.  His car was towed and fortunately for the rest of us drivers, it is now off the road.

Remember, if the damage to the vehicle exceeds $1,500 a report must be made with the DMV within 72 hours of the accident.

 

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Below, I have pasted a section from a brief I filed a couple of years ago concerning the duties a landowner owes to others on their land.  Here, the landowner had strung barbed wire up across a known ATV path that crossed her property, specifically to deter ATV use.  My client attempted to use the ATV trail, as he had done for years.  The barbed wire caught him by the arm, resulting in very nasty injuries.  Indeed, he is quite lucky to be alive.

From day one, the landowner argued that my client was a trespasser, and as such, she owed him no duty whatsoever.  She filed a motion to dismiss the case based on that position.  I filed a cross motion to keep her in the case, and won.  It ultimately settled shortly after I won the motion to keep the case intact.

In any event, I figured that I would post the legal analysis below.  Note: for those that don't know me, I have a very concise style of writing, and choose not to beat issues to death.  The courts tend to prefer this style of writing, so I stick with my natural tendencies.

The legal portion of the motion follows (I included the summary of facts, as it helps put the legal issues into context):

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I recently attended a lecture by Bend attorney Bill Flynn on the subject of mediation.  Bill has been a lawyer for over 40 years.  His reputation is excellent and he has a keen legal mind.  Bill recently started mediating cases around the state and will no doubt be in high demand.

Bill brought out some interesting points as to when a case may be appropriate for mediation.  For instance there are some claims that rarely make it to trial.  For example, defamation claims.  Because there are so few defamation trials, it’s hard to value the case.  Furthermore, a defamation case is so particular to the people involved that one case may not have much of a bearing on another case.  Without any sort of baseline for case value, it may make sense to mediate.

Another good point that Bill brought up was that litigation is costly, time consuming, and slow.  Generally, once a case is filed, it may take 18 to 24 months before it makes it way to the courtroom.  Furthermore, after the trial, there may be appealable issues which can drag the case out for an additional year or worse, years.

Every case is unique and deserves its own analysis as to whether or not mediation is appropriate.  Fortunately for us Oregonians, we have skilled mediators such as Bill who give lawyers another tool to help resolve claims.

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I had an Oregon Trial Lawyers Association ("OTLA") board meeting yesterday, which was very interesting, as usual.  We actually got a ton of work done during the meeting.  It's amazing how hard we volunteer board members work to protect the rights of our cients!  It's also amazing how hard the insurance companies work to block those efforts! 

After the OTLA board meeting, our firm hosted an OTLA reception at our Bend office , which was well attended, and an absolute blast.  Some of these lawyers can get pretty wild once they've had a few drinks in them!  I wanted to go downtown with a group of them after the reception, but I chose to go home instead, as my daughter was under the weather.  It just didn't seem fair for me to party while my wife was stuck at home with a sick three year old.

Today, OTLA presented our annual Bend winter half-day CLE ("Continuing Legal Education") program on hot topics in motor vehicle litigation, workers compensation litigation, consumer law, appeals, nursing home litigation, and employment law.  The educational segments were presented by OTLA board members (I spoke at last year's on deposition preparation).  Guess who was the moderator/master of this year's ceremony?  Me!  It was a great program, and I kept things light between each segment.  I was always sort of a class clown growing up, so I actually found it easy to do.  Unlike many, I enjoy speaking to people and entertaining them.  I guess I found the right profession, as that's essentially what I do in front of the jury. 

The CLE went off without a hitch, and was very well attended.  I can't wait to begin planning for next year's Bend CLE!

Tags: OTLA

I previously discussed Workers’ Compensation and Third Party Workers’ Compensations claims.  This blog’s purpose is to explain the statutory breakdown of Third Party Workers’ Compensations claims.

FACTS: 

Assume a person; let’s call him Jimmy, works as a delivery driver.  While on the job, Jimmy is rear-ended by another driver, Marty.  Essentially, Jimmy has two claims.  The first is a Workers’ Compensation claim since Jimmy was on the job at the time he was injured.  The second is a claim against Marty directly.

Workers’ Compensation pays for Jimmy’s accident related medical expenses and 2/3 of his lost wages.  Within 60 days of the injury, Jimmy will have to make an election regarding how he wants to proceed.  Jimmy can elect to have Workers’ Compensation pursue Marty, seeking reimbursement of what it paid out.  Or, Jimmy can hire an attorney making sure Marty pays Workers’ Comp and pays the additional 1/3 of Jimmy’s lost wages plus pain and suffering (Workers’ Comp does not pay pain and suffering).

Assuming Jimmy hires an attorney to pursue Marty and a settlement is reached or the case is tried to judgment, here is how the breakdown works:

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This is actually a post from Arne Cherkoss, my associate attorney here at DWP, and also one of my best friends (for those that didn't know).  In any case, Arne's post follows:

A doctor recently called my office on behalf of my client and her patient.  The doctor was upset that the patient’s insurance company was closing his claim after one year.  She blamed my office for the fact that his PIP year was about to run.  My staff tried to explain to the doctor that this was the law in Oregon and my office was not “closing his claim.”  However, the doctor refused to let anyone else speak.  Had my office been given a chance to explain, this is what we would have said [The patient’s and doctor’s names have been removed for privacy reasons].

Dear Dr. ___

You called my office on December 9, 2009 regarding Mr.___.  First and foremost, it is a joy to see a doctor be such an advocate for her patient.  That seems to be increasingly rare nowadays.  To that end, please be assured that you and I are on the same team and we both want what is best for Mr. ___.  Based on what I learned, I’m not certain you understand Oregon’s insurance law.  The purpose of this letter is educate you on Oregon law as it pertains to motor vehicle accidents.

Tags: mandatory minimum | insurance | PIP

Come check out our new website, http://www.dwyerwilliamspotter.com/! A labor of love, so to speak. You can find all sorts of good information about our firm, Dwyer Williams Potter, Attorneys, LLP, including who we are, what we do (personal injury), and some tasty bits about a handful of notable cases. Our older website, http://www.roydwyer.com/, is still up as well, and will continue to undergo its evolution. Indeed, we are planning substantial changes on that site in the near future. As for a sneak peek, we plan to add substantial medical literature, including information on sprained necks, herniated disks, brain injuries, shoulder injuries, and the like. We also plan to add a tally sheet wherein we disclose the settlement offers on the table when clients first sign up with us, and the ultimate result we achieve on their behalf. We want to make the process more transparent, and let our results show the world that we are one of the very best personal injury law firms in Oregon. Now, if only the process of making such substantial changes to the website were as simple as it sounds...

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The Oregon State Legislature recently passed a bill that increases the Personal Injury Protection wage loss minimum coverage from $1,250 per month to $3,000 per month. This is the first increase in over 20 years. Thus, the Oregon minimum PIP coverage will be 70% of your lost wages, up to a maximum amount of $3,000 per month. Governor Kulongoski signed the bill into law just a few short days ago. The new law will take effect January 1, 2010.

This is a great step forward. As many of you already know, we are car accident attorneys, and deal daily with multiple insurance carriers on behalf of injured parties. It is painful to see a client so injured that he or she cannot work, yet their PIP policy does not provide adequate coverage to allow them to continue paying their bills and keep food on the table. Unfortunately, many have lost their homes as a result. This new law is definitely a step in the right direction.

Tags: PIP | insurance | mandatory minimums

Have you ever wondered why a wife would sue her husband for injuries sustained in a car accident? How about a mother suing her adult child for accident related injuries? Isn’t insurance supposed to cover such losses? Why not name Farmers, State Farm, Allstate, Progressive etc… as the defendant?

Generally speaking, insurance is not to be mentioned at trial, or even considered by a jury. That means the lawsuit must name the person who purchased the insurance or is covered under the policy (the insured) as the defendant and not the insurance company. This is true even though in the majority of cases the insurance company ultimately pays.

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There are many situations during the pendency of a claim or lawsuit that the other side (the insurance company) is entitled to have a doctor of their choosing examine you. Insurance companies refer to these exams as “independent medical examinations.” Make no mistake, these “exams” are paid for by the insurance company and the outcome or “medical report” is usually predictable. In many cases, the insurance doctor will boldly conclude you had some sort of pre-existing underlying condition, and the accident related injury is merely superimposed upon your “pre-existing” condition.

Even instances where the claimant (you) had no prior problems, or was asymptomatic (didn't have any symptoms), the insurance doctor often concludes the accident related injury only lasted a matter of months and any other pain you are experiencing is due to old age (or anything else they can blame it on). Basically, they claim that your pain came from anything else other than the accident your were involved in. It goes without saying that insurance companies like these doctors, as they give the insurance company a reason to cut off your benefits. Thus, we see the same doctors used time and again (even though some of them had their medical licenses revoked in other states for committing malpractice!).

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Sometimes the value of a case is small enough that it really doesn’t make economic sense to hire a lawyer. For example, imagine a scenario wherein someone damages your car, and the repair cost is $3,000. Generally, you have two options: you can hire a lawyer by the hour or on a contingency basis.

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The following question often comes up in many of my injury cases: "I did something that aggravated my underlying injury and now need more treatment. Will this be covered as related to my original injury?"

The answer is "yes," so long as the activity that caused the subsequent exacerbation 1) was reasonably foreseeable, and 2) was a result of a weakened condition created by the original injury. Examples of foreseeable activities include lifting, bending, walking, etc. Examples of non-foreseeable (and threfore non-related) activities include a subsequent car collision, battery, etc.

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A change for the better

ORS 20.080 will undergo some big changes beginning January 1, 2009. As a bit of background, this statute makes it economically feasible for persons with smaller claims to hire a lawyer in their case. After a demand for settlement is made, and a certain amount of time goes by, the claimant can file his or her claim in court. If the end result is no better than the last offer made by the tortfeasor, the claimant must pay his or her own attorney fees.

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