New Laws That Protect Elders
House Bill 2205 expanded the list of mandatory reporters of elder abuse. Under the new law, public or private official mandatory reporters include attorneys, dentists, optometrists, and chiropractors. As a result, if any of those officials come in contact with a person age 65 or over whom the official reasonably suspects to have suffered abuse, the official is required to report the suspected abuse or have someone else report the abuse. Similarly, if the official comes in contact with a person who has abused a person age 65 or older, the official must report that person, too. The new law provides an exception for attorneys. Attorneys are not required to disclose information communicated to the attorney in the course of representing a client if disclosure of the information would be detrimental to the client.
Under HB 4084, the Oregon Legislature took further steps to protect elders from financial and property crimes. The new law expands the statute of limitations for several felony crimes from 3 to 6 years when the crime is committed against a person who is over 65 years old. Many elders are in vulnerable situations where their life decisions have been largely delegated to third parties who do not always have their best interests in mind. Accordingly, crimes such as theft, forgery, extortion, and identity theft against persons over 65 years old can be hidden by the perpetrator, with the elder victim sometimes not in a position to realize that the crime has been committed. Before this change, if the crime was not discovered within three years the perpetrator could not be prosecuted, but now the perpetrators can be prosecuted for up to six years after the crime is committed.
HB 4084 also excludes certain crimes against elders from those that may be set aside by a judge’s order. The bill amended ORS 137.225, which provides that persons convicted of certain crimes who have fully complied with and performed the sentence of the court may move for their convictions to be set aside by the court three years or more after the judgment. Under the new law, Courts may no longer set aside convictions for criminal mistreatment of persons who are ages 65 and older.
Corson & Johnson Attorneys Honored by Peers
Don Corson Serves as National Crime Victims Bar Association Panelist
The National Crime Victims Bar Association recently held a program in Portland, “Civil Justice for Victims of Crime in Oregon.” Don was one of three Oregon attorneys serving on the program panel.
Lara Johnson Appointed to Oregon’s Joint Interim Task Force on Elder Abuse
The Oregon Legislature created the Joint Interim Task Force on Oregon Elder Abuse to gather together some of the best experts in elder care issues so they could propose legislation to protect against elder abuse. Lara Johnson was chosen to be a member of this extremely important task force. Lara brings to the table nearly two decades of experience in representing elders and their families for abuse in nursing facilities.
Derek Larwick Leads Commemoration for Ninth Circuit Judge Alfred Goodwin
As a former law clerk of Judge Goodwin, Derek led a dedication of a display at the University of Oregon School of Law commemorating the judge’s illustrious career. Joined by other former law clerks, judges, and many prominent members of the Oregon bar, Derek was honored to speak on behalf of the University of Oregon Alumni Association as it presented the John Jaqua Distinguished Alumnus Award to Judge Goodwin.
Derek Larwick Serves as Adjunct Faculty at University of Oregon School of Law
The University of Oregon School of Law often turns to practicing members of the bar to ensure that its law students are well prepared to take on the many challenges in the legal profession. The school recently hired Derek Larwick to be an adjunct professor to teach the course of “Writing in Law Practice.”
Travis Eiva Appointed to Oregon’s Council on Court Procedures
The Council on Court Procedures is the Oregon public body that is most directly involved in creating, reviewing, and amending the Oregon Rules of Civil Procedure, which govern procedure and practice in all Oregon circuit courts. Members of the Council are generally drawn from appellate and circuit court judges, and practicing attorneys who specialize in litigation. Congratulations to Travis and good luck with this important appointment.
2013 Year in Review
Foundation Created from Drunk Driving Case
After a drunk driver killed an exceptionally promising young University of Oregon student who was riding his bike home at night, we assisted the young man’s family by prosecuting a wrongful death case. The case was resolved last year for the drunk driver’s insurance policy limits, and the young man’s family used some of the settlement proceeds to help fund a foundation to support other young people.
Pro Bono Help for Unfair Trade Practices
A used car dealership illegally overcharged a Spanish-speaking customer. We took the case pro bono and successfully negotiated with the dealership to waive all of those overcharges, and the dealership sent the customer a refund.
Cell Phone Use Causes Wrongful Death
A driver who was texting and making phone calls hit and killed a man crossing the street in a motorized wheelchair. We worked with law enforcement agencies, interviewed witnesses, and hired an expert collision reconstructionist to establish the driver’s fault. With Probate Court approval, the wrongful death claim was eventually resolved for the amount of the at-fault driver’s insurance limits.
Motor Vehicle Injuries
An older Oregon couple was driving home to their house on the coast when a driver coming in the opposite direction lost control around a curve and that car hit them head on. The husband required a hip replacement and had a long, slow recovery. A local attorney referred the case to us and we were able to obtain a successful result that fairly took into account the husband’s future medical care needs.
A young woman riding on the back of a motorcycle was injured when a car pulled out of a driveway and the driver had to lay down the bike to avoid a collision. There were questions as to who was at fault for the collision. The motorcycle passenger was worried about her medical bills and asked us to help her. We were able to successfully obtain a settlement from the car driver’s insurance company.
A woman called us after being hurt in a serious collision caused by a long-time friend, who later died from his own injuries sustained in the collision. The woman was troubled by the thought of bringing a claim against her friend but learned that the claim was essentially against the insurance company. We were able to settle the claim successfully without litigation and the woman continues to be in friendly contact with her deceased friend’s spouse.
ATV Passenger Injuries
A young man was a passenger on an ATV alongside a road with a friend as the driver. His friend lost control, the ATV crashed, and the young man sustained fractures and a head injury. The family of the young man came to us because they learned that the friend’s family had not purchased insurance for the ATV. We were able to bring a claim under the provisions of the young man’s parent’s policy and make a successful recovery for his injuries.
Rear-end Car Crash
A woman rear-ended a young man whose vehicle was stopped at a traffic light. The young man was injured, but the full extent of his injuries was not understood until many months after the collision. We were successful in negotiating a settlement and a substantial reduction of the claims for reimbursement of third parties.
Serious Car-Bicycle Collision Injuries
An oncoming car driver turned left directly in front of a bicyclist training for triathalon competition. The crash caused the bicyclist serious injuries, including a broken neck and damaged jaw. After a protracted dispute about the degree each party may have been at fault, we were able to negotiate a fair settlement that compensated the bicyclist for his injuries.
Two people were killed by a young man who took his parent’s vehicle out for a joy ride. The family of one of the victims asked us to pursue a claim on their behalf. The wrongful driver’s insurance policy limits were used up on the claims due to the seriousness of the losses, and we were successful in negotiating a substantial reduction of the hospital’s lien to ensure a better recovery for the family.
Pro Bono help for Fraud Victim
We gave pro bono assistance to a Central Oregon woman who was the victim of fraud by a fiduciary. She made a partial recovery against the wrongdoer, but unfortunately there were insufficient resources to compensate her fully for her losses.
Trial of Trust Dispute
We were asked to take over and try a dispute involving a $3 million family trust. Our trial work for the family trustees was successful, helping them to make sure that each family member received the right property and the proper amount of funds.
Help for Pedestrian Run Down in Crosswalk
We were asked to step in after the insurance company for the driver denied the claim of the young woman pedestrian, saying it was her fault that she was run down in the crosswalk. After tracking down witnesses and working with an accident reconstruction expert, we were able to get the insurance company to reverse its position.
Oregon may be the only state in the country where you cannot hold your own auto insurance company accountable for unfairly evaluating the value of your claim. What does that mean? We all know bad driving happens. A careless driver may crash into your vehicle and cause serious injury to you or your loved one. Serious car accidents can result in enormous medical bills and loss of the ability to earn a living for a period of time. The financial burden can reach into the hundreds of thousands or even millions of dollars.
Underinsured Motorist (UIM) Coverage
When the careless driver that caused the injuries has only the minimum coverage under the law ($25,000), the other driver’s insurance does not even begin to meet the losses he caused. Because of this risk, many of us carry additional underinsured motorist (“UIM”) coverage with our own insurance companies. This typically ranges from $50,000 to $1,000,000. Under these policies, your insurance company is supposed to pay you for the total amount of the harm you suffered regardless of the amount of insurance the bad driver carries, up to your own UIM limits.
Many people trust their own insurance companies and believe that payment is based on a fair investigation of their injuries and losses. However, we are increasingly seeing insurance companies refuse to fairly assess the losses that their customers suffer from underinsured drivers. Instead, customers who have faithfully paid their premiums for years are offered only a fraction of what is due to them in light of the severity of their injuries and losses. Because they trust their insurance company, some injured persons will take those low-ball offers. As a result, the insurance company avoids paying the full amount that it is obligated to pay. In other situations, the injured parties recognize the evaluation as unfair and contact an attorney to bring a case against the insurance company so that a neutral third party, such as an arbitrator, will be used to make a fair evaluation.
Standing Up Against Big Insurance Companies
Recently, we took such a case to arbitration. A careless driver had hit our client, a doctor, at a stop light, causing our client to need neck surgery. She suffered permanent injury as a result of the accident that caused her to lose part of her past and future income. The Farmers insurance company offered only $50,000 of additional money on her underinsured motorist policy. The bad driver’s insurer settled for $100,000. The facts were simple and the insurance company had very weak evidence to support their argument. We obtained overwhelming evidence that the doctor indeed suffered serious medical, physical, and financial losses. The arbitrator fairly evaluated the claim at $380,000.
We are familiar with other cases in Oregon in which Farmers insurance and other insurance companies refused to fairly assess their insured’s underinsured motorist claims. In these cases, the only way for the injured person to fairly recover is to bring the case to trial or arbitration.
In other states, insurance companies would be subject to a bad faith claim if they ever chose to unfairly evaluate their customer’s claims. Those bad faith claims could result in punitive damages. Exposure to punitive damages is a deterrent against such conduct by insurance companies in those states. But in Oregon, there is no punishment for an insurance company that acts this way.