However, our client faced an interesting legal problem.  Some trial and appellate courts in Oregon have upheld arguments by trucking companies and their insurers that they should not be held liable for injuries caused to a passenger in the truck. Indeed, as one trucking company defense counsel in our case pointed out to the trial court, an Oregon Supreme Court case from the 1920s appeared to agree that a trucking company could avoid liability in these circumstances.  With that case law behind them,  one of the trucking companies long refused any talk of settlement, thinking that it would be immune from liability, no matter how negligent the company and its driver.

We recognized the challenge, but decided that we would not accept a rule that would give trucking companies immunity when its 80,000 pound truck lost control on the public highway and hurt others.  We spent hundreds of hours researching and writing on the issue, reading thousands of pages of court opinions and legal treatises, and took numerous depositions. In the end, we were successful in seeking summary judgment on this issue, arguing that this rule of trucking company immunity does not apply.  With nowhere left for the trucking companies to turn, the case was settled for $766,000.

ORS 20.080 is intended to help someone who has suffered more modest injury or property losses by encouraging wrongdoers and their insurers to fairly and quickly settle their claims, or suffer attorney fee consequences. The 2011 Legislature raised the amount subject to ORS 20.080 to $10,000. Under that statute:

• The injured person (or their attorney) writes a demand, with supporting documentation, for an amount of $10,000 or less to the responsible party, and if known, their insurer;

• The responsible party has 30 days to tender an amount;

• If the responsible party tenders less than the damages later awarded to the plaintiff, the defendant is liable for the plaintiff’s reasonable attorney fees.

ORS 20.080 has two benefits to the injured person. First, because the responsible party may have to pay the attorney fees in February 2012

Recent Case

Insurance Company’s Unfair Offer Rejected by Arbitrator

Our client was injured in a crash that resulted in neck surgery and permanent injuries affecting her past and future income as a doctor. The bad driver’s insurer settled for $100,000. The Farmers Insurance company had offered our client only $50,000 in additional money on her underinsured motorist policy. The facts were simple and the insurance company had very weak evidence to counter the overwhelming evidence that our client indeed suffered serious medical, physical, and financial losses. The arbitrator fairly evaluated the claim at $380,000.

 READ MORE ABOUT OREGON’S UNDERINSURED MOTORIST LAW

As we all know, bad driving happens.  A careless driver may crash into your car while you are driving down the road.  Maybe you or your loved one is severely injured, resulting in enormous medical bills and loss of the ability to earn a living for some time.  These type of injuries can cause losses into the six and even seven figures. To make things worse, the careless driver who is liable for causing these harms to you or your family has only the minimum coverage under the law, $25,000.  To say the least, the other driver’s insurance does not start to meet the losses he caused.  Because of that risk,  many of us carry additional underinsured motorist (“UIM”) coverage with our own insurance companies, ranging  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 from the careless driver regardless of the amount of insurance the bad driver carries, up to your own UIM limits .  This is one way we protect ourselves and our families.

Many people trust their own insurance companies (after all, we are barraged by commercials that tell us we are in good hands and have good neighbors) and believe that when the insurance company offers a payment on their losses that it is based on a fair investigation of the injuries and losses.   However, more and more we see insurance companies refusing to fairly assess the losses that their customers suffer from an underinsured bad driver.  Instead, even after the customer has faithfully paid the premiums for years, the insurance company sometimes offers their customer only a fraction of what is due in light of the severity of the injuries and losses.    Because of the trust in their own insurance company, some injured persons will take those offers, and as a result the insurance company avoids paying the full amount that it is obligated to pay.   Other injured persons 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.

Recently, we took such a case to arbitration.  The Farmers Insurance company had offered our client, who was a doctor, only $50,000 of additional money on her underinsured motorist policy.  This was after a driver hit her at a stop light, resulting in her having neck surgery and suffering permanent injury that caused her to lose part of her past and future income.  The bad driver’s insurer settled for $100,000.  The facts were simple and the insurance company had very weak evidence to counter the overwhelming evidence that the doctor indeed suffered serious medical, physical, and financial losses.   The arbitrator fairly evaluated the claim at $380,000.

We have heard of other attorneys in Oregon who have also noticed  similar conduct by Farmers Insurance and other insurance companies, where the insurer refuses to fairly assess their insured’s underinsured motorist claims and 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.  That exposure to punitive damages is a deterrent against such conduct by insurance companies in those states.  But in Oregon, that is not the case.   Here, there is no punishment for an insurance company to act this way.

This segment of The Law and You features Eugene, Oregon personal injury trial lawyer Lara Johnson talks of the growing concern about student athletes’ head injuries.

The Corson & Johnson Law Firm, a Eugene, Oregon personal injury trial law firm, produced and distributes The Law and You as a continuing public service to help Oregon families and consumers answer questions about our legal system and how it works for them. Each week, The Law and You spots are aired on KKNU, KMGE, KEUG, and KODZ in Eugene, Oregon. If you have suggestions of legal questions or topics you would like addressed by The Law and You, please visit our website at CorsonJohnsonLaw.com.

Following is the actual radio broadcast audio (in playable mp3 format) and the script from this broadcast of The Law and You.

Topic: Brain Injury Prevention (The Law and You Final Script-2009 in Eugene, OR)

Joel: This is Joel Block for The Law and You with Eugene attorney Don Corson. Don, you’ve represented people who have suffered brain injuries. I understand that there’s growing concern over student athletes’ head injuries.

Don: Joel, about 300,000 sports-related traumatic brain injuries occur in our country each year. Too many are called concussions, but they actually can mean serious short-term and long-term brain damage to young athletes. Some schools prohibit an athlete who suffers a concussion from returning to the same game or even the sport without a proper evaluation. A proposed Oregon law requires interscholastic coaches to receive annual training to recognize symptoms and treat concussions. I encourage all coaches and parents to download a free copy of the Heads Up: Concussion in High School Sports tool kit through a link on CorsonJohnsonLaw.com.

Joel: Thanks, Don. Please download Heads Up: Concussion in High School Sports at CorsonJohnsonLaw.com. The Law and You is a public service and does not replace the advice of an attorney.

Until recently, Oregon has required that personal injury plaintiffs give 60% of any punitive damages recovery to the state’s Crime Victims Compensation Fund.

This past session, the Oregon Legislature passed House Bill 3525, which amended the punitive damages statute so that personal injury plaintiffs must now give 70% of any punitive damage recovery to the state.  The first 60% is earmarked for the Crime Victims Compensation Fund, and the additional 10% is for the Oregon Judicial Department as a strategy to obtain additional revenue in the face of recent budget shortfalls.

Also of note, unlike the compensatory damages recovered in a personal injury action, a plaintiff’s punitive damages are taxable income under the federal tax code.  And, under federal law, a plaintiff may not take an above-the-line deduction for the attorney fees incurred to obtain the punitive damages. Rather, the plaintiff can only claim those attorney fees as a below-the-line deduction that is subject to the 2% floor and the overall deduction limit.   In some circumstances, those tax implications could cause a plaintiff to owe more money to the federal government than he or she actually received from the punitive damages recovery.

As a consequence, a plaintiff attorney in Oregon must thoroughly consider tax implications before advising a client to pursue a punitive damages claim in any case, even in cases such as child sex abuse, where the defendant’s conduct is exceptionally egregious.

The Law & You 2011 Lineup

We all have had questions about laws and how the law works. The Law and You community service radio program covers how the law affects you. The topics include:

Insurance disputes- required faster resolutions of insurance claims
Riding lawnmowers safety-part of our Safer Oregon for Children initiative
18 wheeler and large trucks- proposed new rules for more driving hours
Water safety and proper equipment- new regulations and free life jacket loaners
Adult drugs and childhood poisoning- protecting children from accidental poisoning
Generic drugs- side effects of original drug not always updated for generics
Crash notification- new law requires a written report
Brain injury prevention- part of our Safer Oregon for Children  initiative
Propane gas tanks- when inspections and licensing requirements are not met
Pesticide use in playgrounds- considering alternatives to pesticides

Tune in to hear advice and tips on these topics. This is a community service and does not replace the advice of an attorney.

Recent Cases

Oregon Supreme  Court Victory

Our successful seven year fight on behalf of Tammy Matson finally came to an end.  After a plaintiff’s verdict at trial and a unanimous Oregon Court of Appeals affirmation, the Oregon Supreme Court denied the defendant’s petition for review.   The verdict became worth over $2.7 million with post-judgment interest.  Our congratulations go to Tammy, our co-counsel Phil Gilbert, and the entire trial and appeal team. READ ABOUT THE CASE

Nursing Facilities Elder Abuse

The skilled nursing facility ignored medical instructions, which led to our client falling and sustaining significant spinal injuries. The case settled on the second morning of the trial.
READ ABOUT THE CASE

18-Wheeler Wrongful Death

An improperly loaded tractor-trailer rig was hauling two trailers that were 20,000 lbs. over the legal weight.  In addition, the load of hay bales where not properly secured and the rig had more than 23 safety violations.  READ ABOUT THE CASE

Insurance Company Required to Pay Under-insured Motorist Claim

Our client sustained permanent injuries when a pick-up truck hit her car head-on.  Her insurance company refused to pay fairly under her underinsured motorist coverage, including extensive medical bills.   READ ABOUT THE CASE

This segment of The Law and You features Eugene, Oregon personal injury trial lawyer Lara Johnson making listeners aware that some generic drugs do not have up-to-date warnings about side-effects.

The Corson & Johnson Law Firm, a Eugene, Oregon personal injury trial law firm, produced and distributes The Law and You as a continuing public service to help Oregon families and consumers answer questions about our legal system and how it works for them.  Each week, The Law and You spots are aired on KKNU, KMGE, KEUG, and KODZ in Eugene, Oregon.  If you have suggestions of legal questions or topics you would like addressed by The Law and You, please visit our website at CorsonJohnsonLaw.com.

Transcript

 
Topic: Generic Drugs (The Law and You Final Script-2008 in Eugene, OR)

Reporter:  This is Joel Block for The Law and You with Eugene attorney Lara Johnson.  Lara, with the costs of medication rising, generic drugs seem like a great option.

Lara:  Joel, generics can literally be lifesavers to one’s health and one’s pocketbook.  However, generic drug manufacturers may not give the most up-to-date information about adverse reactions and side effects.  Patents on drugs last only a limited time before generics can copy their formulas.  During those initial years, the drug may have many reported side effects that were not included in the original instructions and warnings. How a drug affects people is not fully known at first, and any drug will likely need to have its warnings updated.  When you get a generic drug, be sure to ask your pharmacist if the instructions and warnings are up-to-date.  If not, ask where to obtain a current copy.

Joel:  Thanks, Lara.  If you have a legal question or would like to request a speaker for your group on The Law and You, visit CorsonJohnsonLaw.com. This is a community service and does not replace the advice of an attorney.

Our investigation and case preparation revealed:

1. Defendants’ tractor-trailer was unsafe and had received 23 vehicle safety violations three days before. None had been addressed, much less fixed;
2. The defendant driver did not have the experience or the required commercial license to drive the tractor-trailer more than 150 miles, and far exceeded that limit for this trip;
3. The load of hay bales were not properly strapped down and were 20,000 lbs the over weight limits; and
4. The load had not been properly inspected.

We co-counseled this wrongful death case with Nevada attorney Jack Kennedy. The case was settled at a judicial settlement conference.

Severe Injuries Caused by Under-Insured Motorist

After being rushed to the hospital, Ms. M. was diagnosed with a skull fracture, a sub-arachnoid hemorrhage (bleeding in the brain); spinal fractures; a complex patellar (kneecap) fracture; and multiple rib fractures with bleeding into the chest cavity. She had thoracic irritation which caused atrial fibrillation and bradycardia, requiring placement into the cardiac ICU.

After release from the hospital, a wrist fracture was discovered. Damage to the sixth cranial nerve, caused by the collision, resulted in a lack of motor control over one of her eyes and serious vision problems. Surgical treatment at the Casey Eye Institute significantly improved that condition.

Despite the surgical placement of wires and screws, the leg injury did not heal properly. As a result, Ms. M. walked with a walker, limped when she did not, was susceptible to falling, and had great difficulty with stairs and uneven ground. She later underwent a second procedure at Slocum Orthopedics and had significant improvement.

During the recovery process, she was diagnosed with cancer. She underwent treatment and now has a good prognosis.

Settlement Reached with At-Fault Driver and Insurance Company

It was an honor to represent Ms. M. She dealt with significant pain and limitations with grace and remarkable cheerfulness. However, her career as a nurse was over. She had been volunteering for Volunteers in Medicine before the crash and she no longer had the mobility, endurance, or strength to continue to work. Her life will never be the same.

We were able to collect money both from the at-fault driver and insurance benefits under Ms. M’s insurance policy, which provided that the insurer would pay all expenses arising from the collision not covered by the at-fault driver’s insurance policy.

New Motor Vehicle Accident Reporting Laws

With summer weather approaching, Oregonians will be driving more.  Any client may be involved in a motor vehicle collision, and they need to be aware of their reporting obligations.  Some duties are new this year, and many people have misunderstandings about even the old reporting duties.

New Requirements to Notify Law Enforcement

In addition to long-standing obligations to report certain accidents to the Department of Motor Vehicles, a new law effective January 1, 2010 also requires drivers to immediately notify a police officer or a law enforcement agency of those accidents by the quickest means available.  See ORS 811.754, 811.748.

Many drivers do not appear to be aware of the new law enforcement notification  duties.  If the driver calls 9-1-1 by the quickest means available after an accident causes serious injury or death, then no additional law enforcement notification is required.  However, if 9-1-1 is not called, the driver should use a non-emergency number to immediately notify law enforcement of any accident that should be reported to the DMV–basically, an accident on a highway or on premises upon to the public resulting in any injury or death, or resulting in more than $1500 of property damage.

Misunderstandings About DMV Reporting Requirements

We are surprised by the number of people we meet who do not understand their DMV reporting duties, and have therefore inadvertently not followed the reporting laws.

1. File a DMV report even if there is a police report.. A common misconception is that the driver need not fill out a DMV report if there is a police traffic crash investigation report. Under Oregon law, the driver must complete a DMV Oregon Traffic Accident and Insurance Report if there is an accident on a highway or on premises upon to the public resulting in any injury or death, or resulting in sufficient property damage. The driver must complete and submit the report to the DMV within 72 hours of the collision, whether or not  there is a police report.
2. Sometimes non-drivers must submit reports. Another common misconception is that only drivers must fill out DMV reports.  Although it does not come up often, an owner  may be obligated to submit an accident report to the DMV if the driver does not; a passenger may be obligated to report to the DMV if the driver is physically incapable of making the report (similarly, a passenger is obligated to immediately notify a police officer or a law enforcement agency if the driver is physically incapable of doing so).
3. Who can use the report if a lawsuit is filed? A third common misconception is that the information on the report may be used against the reporter if there is litigation arising from the accident. Generally, a private party can obtain only the following information from a DMV accident report: the identity of the owner, driver, and occupants; the vehicle registration number; the insurance company for the owner or driver; and the names of witnesses to the accident.  ORS 802.220(5). However, because the entire DMV accident report is available to law enforcement, if there is litigation a local government, for example, the local government may able to see the entire report to prepare its case.

Truck and Vehicle Crash Cases

• Personal Injury Recovery Against the State of Oregon
• Host Responsible for Teenage Driver’s DUI Car Crash
• Careless driving leads to head-on collision and roll over
• Landslide From Negligent Logging: Wrongful Deaths and Catastrophic Injuries

Our client had undergone extensive back surgery at Oregon Health Science University to relieve ongoing pain. The surgery was so extensive that it was staged in two procedures. After some recovery from the second procedure, she was transported from OHSU to a skilled nursing facility for additional recovery and rehabilitation.

The woman arrived at the skilled nursing facility on a stretcher and had a back brace on to stabilize her spine. She was on narcotic pain medications. She told staff at the facility on the day of her arrival that she needed her back brace on when up and that she also needed assistance from staff when up out of bed. Documentation from OHSU to the nursing facility confirmed the woman’s care needs. During her first night at the facility, an aide got her out of bed without her back brace on, brought her to the bathroom, then left her alone. She fell.

The nursing facility did not tell the back surgeon what had happened. X-rays taken that night at the hospital of part of her spine did not initially show a fracture. She was returned to the nursing facility, where the nursing records documented ongoing pain. The facility still did not report the fall to the surgeon. It was not until the woman was accepted at a second facility, which told the surgeon and primary care physicians about the ongoing pain, that she was transported back up to OHSU. There, her doctors diagnosed a spinal fracture with dislocation and spinal cord compression. The woman  had to undergo an expensive and difficult “redo” of her previous surgeries.

Our case settled for a confidential amount during the second morning of trial.