Underinsured Motorist Trial Result for Injured Passenger
Jimmy, then 15 years old, was injured as a passenger in a single vehicle incident that was the result of the negligence of an underinsured motorist. The driver lost control of a pickup truck while going too fast down a narrow, steep, one-lane gravel road, and Jimmy was thrown from the back of the truck when it crashed.
The boy suffered pelvic and lumbar vertebrae fractures, and his medical bills ended up being about $50,000. We reached a policy limits settlement with the negligent driver, then sought additional help for Jimmy through his family’s underinsured motorist coverage. The family’s insurer refused to pay, and a lawsuit eventually had to be brought on Jimmy’s behalf to enforce his rights under the insurance policy.
Insurance policies are contracts. In this contract, the insurance company had agreed to pay “compensatory damages for bodily injury [that an insured is] legally entitled to collect from the  driver of the un[der]insured motor vehicle.” Oregon cases before the time of this trial had established that direct legal actions against auto insurance companies for enforcement of underinsured motorist benefit rights were based on contract. Some cases were being tried as breach of contract cases. Other cases were brought as declaratory judgment proceedings, as this one was.
One of the things that a person must prove in this kind of a case is that the underinsured driver was negligent. Here, the driver drove his pickup truck off a steep, one-lane gravel road into an embankment. The driver’s story was that a deer ran out in front of him. The insurance company admitted that the underinsured driver lost control but denied that he was negligent. At trial, a qualified police accident reconstructionist testified on behalf of Jimmy about the cause of the wreck, and explained to the jury that the underinsured motorist was traveling at too high a speed for the roadway conditions; he lost control; and he was unable to regain control of the vehicle. There was no evidence of any deer other than the driver’s story.
In an underinsured motorist case, the insurance company is generally entitled to raise any of the defenses that the driver could have raised if the lawsuit were directly against the driver. These cases are fully adversary proceedings. The fact that it is the insured person’s “own” insurance company does not change that fact. In this case, the insurance company argued that Jimmy was negligent for riding in the bed of the pickup truck. While Oregon law generally prohibits a driver from allowing a minor to ride in the back of a pickup, it was our view that this should not be a valid defense because Jimmy was only a 15 year old child at the time. The only person with a legal responsibility for Jimmy’s seating was the underinsured driver, and Jimmy’s conduct should be judged on the basis of what a reasonable person of his age and experience would do.
The case went to trial, to be decided by a jury. Don Corson was Jimmy’s trial attorney. Many of the jurors had themselves ridden in the back of pickup trucks, and the trial seemed to be going well. In the middle of the trial, the judge developed health problems, and had to stop the proceedings. By that point, we had put on our case for Jimmy, but the insurance company still was putting on its defense case. The parties could either accept a “mistrial,” and start all over again, or agree to release the jurors and let the judge decide the case once he was healthy again.
In decades of trying cases, we have never had a liability insurance company agree to have a judge instead of a jury decide a case. Despite many years of insurance industry propaganda about juries being somehow “out of control,” in real life, insurance companies insist on juries. This was a unique case, as the cost of starting over again was significant for both sides, and so the parties agreed to have the judge conclude hearing the evidence and deciding the case at a later date.
The trial was completed in front of the same judge a few days later. While both sides were able to ask potential jurors about their views on riding in the back of pickup trucks, neither side knew what the judge thought about that. That judge concluded that the underinsured motorist was negligent, and found Jimmy’s damages were just under $163,000. However, the judge was persuaded by the insurance company’s argument about Jimmy riding in the back of the pickup, and found Jimmy to be 30% at fault. Under Oregon law, an injured person wins the case so long as they are less at fault, but their damages are reduced by their percentage of fault. Here, the judge reduced Jimmy’s recovery by 30%.
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