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Do I Need a Personal Injury Lawyer for my Car Accident?

If you have been injured in a car crash, you may decide to navigate the insurance claim process yourself and negotiate your own settlement.  However, there are a number of things to consider before doing so.  Most importantly, your focus should be on your medical treatment and recovery from your injuries, not dealing with the insurance companies.  Furthermore, chances are you will receive a greater settlement if you hire a personal injury lawyer.

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Why ORS 20.080 is Critical for Oregonians

(Note: this article originally appeared in The Multnomah Lawyer, February 2019 issue and was co-written with Ben Cox.)

In the December issue of the Multnomah Lawyer (“One Extra Dollar: The Impact of Attorney Fee Awards in Small Claims”), the author took issue with a fee-shifting statute that hundreds of Oregon lawyers regularly utilize in comparatively modest claims to achieve fair outcomes against insurance companies. As two such lawyers, we are writing to share our perspectives.

In claims seeking no more than $10,000 in damages to person or property, ORS 20.080 states that when a plaintiff makes a properly-supported pre-filing demand and provides at least 30 days to respond, if the case can’t be settled and the plaintiff eventually recovers more in litigation than the best pre-filing offer, the plaintiff will be entitled to her reasonable attorneys’ fees, as well as her damages.

The author correctly notes that, “ORS 20.080 was passed in 1947 to address the problem of small tort claims [...] Insurers in particular had discovered they could simply defend against every claim, and since the legal cost of prosecution was likely to exceed the claim’s economic value, there was no practical way for a claimant to ever collect.” This is as true today as it was in 1947. In fact, the insurance companies that defend these claims have become more aggressive with low-balling tactics than at any point in recent memory, and regular Oregonians with modest tort claims need the protection of this law more than ever before.

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Oregon's Employer Liability Law and Injured Workers

In pursuing a personal injury or wrongful death case, it is important to understand all of the available claims a victim may have.  When workers are injured or killed on the job in Oregon, more than one legal option may be available to them.  It is typical for the worker to have a workers compensation claim (which is processed through the employer’s worker’s comp insurance carrier).  If the worker’s employer or coworker is solely responsible for the worker’s injury or death, then a worker’s compensation insurance claim will likely be the only legal option available to the worker.  This is what’s known as “worker’s comp exclusivity.”  In this situation, the injured worker (or a deceased worker’s family) would be well served by calling a competent worker’s comp attorney to discuss their claim.  However, if someone other than the employee’s direct employer or coworker is responsible for the worker’s injury or death—or if the employer did not offer worker’s compensation insurance—the injured or killed employee may have a claim under Oregon’s Employer Liability Law.

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FAQ: Oregon Auto Collisions

Below are a few of the frequent questions we hear after our clients are injured in an auto collision.  Our team is always available to answer any questions you may have if you or someone you know is injured in an automobile collision.

1)   I just got in an auto collision—what do I do?

Exchange information with the other driver. Take a picture of their license and insurance card, their license plate, and take photos of both vehicles. Get the name and phone number of any witnesses. If you feel any pain or stiffness, or know you are injured, go see a doctor. If you can’t get into your primary care doctor, go to the Emergency Room or Urgent Care. Report the claim to your insurance company (this is called “opening up a PIP claim”). You will also need to fill out the Oregon DMV Traffic Accident & Insurance Report within seventy-two hours. Call and consult an attorney.

Do not give any statements to the other driver’s insurance company and do not attempt to call them directly.  You are not required to sign a medical release from the other driver’s insurance company.  This is a frequently used tactic and can hurt your claim.  Do not sign any documents the other driver’s insurer sends you.

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Oregon Underinsured Motorist and PIP Law Changes Benefit Injured Victims

The Oregon Legislature recently passed, and Governor Kate Brown signed into law, a bill that dramatically improves the landscape for Oregon victims injured in motor-vehicle collisions.  The bill has two components: a change to Oregon Underinsured Motorist (UIM) law and a change to Oregon’s Personal Injury Protection (PIP) law.  These changes go into effect for all policies renewed or created from January 1, 2016 forward.  In other words, if you are injured in a collision on January 1, 2016, but your policy was renewed on December 31, 2015, you will not be able to take advantage of the following beneficial changes to the law.  Because of this, all insured Oregon drivers should contact their insurer and ask that their policy renewal take place on January 1, 2016.  

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Punitive Damages Are Alive And Well In Oregon

Punitive damages are determined by juries in Oregon.  Despite recent efforts in some states to limit the scope of punitive damages available to litigants in court cases, the Oregon Courts have consistently allowed large punitive damage awards, if the jury has evidence to conclude that the conduct was sufficiently reprehensible.  In this regard, the Oregon Courts give great deference to the jury’s determination of what is appropriate.  They will not independently overrule the jury because they have come to a different conclusion about what is appropriate.  Although the evidence in support of punitive damages must be clear and convincing, the standard of proof “relates how a jury weighs the evidence, not to how a trial court assesses the capability of the evidence to establish facts.”  See Faber v. Asplundh Tree Expert, 106 Or App 601, 606, 810 P2d 384, rev den, 312 Or 80 (1991).  Also see Bolt v. Influence, Inc. 333 Or 572, 578 n 2, 43 P3d 425 (2002).

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ERISA Subrogation Is Not Always A Slam Dunk For The Health Plan

If an ERISA based plan is not self-funded, the plan is subject to state insurance regulation.  Statutory limitations on subrogation and lien rights of health plans and auto insurance policies can be considered insurance regulations that are not subject to preemption.  See FMC Corp v. Holliday, 498 U.S. 52 (1990).

Even in the self-funded setting, all is not hopeless.  In the case of Providence Health Plan of Oregon v. Carol Simnitt, The District Court in Oregon ruled in 2009 that even though Providence Health Plan was self-funded in this particular case, it was not entitled to either lien recovery or subrogation recovery for its medical expenses, incurred in a third-party motor vehicle accident, because the plan had not specifically excluded the “Make Whole Doctrine.”  Providence Health Plan had argued that the plan excluded the Make Whole Doctrine with the following language:

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