This Oregonian article describes a car crash involving a man who was speeding to take his injured dog to the vet, and hit a car which had pulled out in front of him. He had also been drinking beforehand and failed sobriety tests after the crash.
The obvious things about his liability are speeding and intoxication. His insurance company may also try to say that the driver who pulled out in front of him was partly responsible for the collision because of a failure of lookout–in other words, that the injured driver did not see the speeding driver. Which brings up a common response to lookout claims: the speeding driver was going so fast that it was difficult to spot the speeding driver and tell how fast he was going.
Drunk driving also exposes a driver to punitive damages in many states. The story reported happened in Washington, which has not allowed punitive damages since the 1980’s, although if it had happened in Oregon, the drunk driver would certainly face a potential punitive damages claim. Depending on what the insurance policy says, the punitive damages might or might not be covered.
The story also suggests a defense which was fairly common until recently, called the emergency doctrine. It was raised as an excuse to deny responsibility for an accident when something else was going on which put the bad driver in an “emergency” situation. The Oregon Supreme Court recently put the brakes on the use of jury instructions about the emergency doctrine in mid-2008, and it should no longer be given as an instruction in ordinary car accident injury cases. The qualification to that is that the facts of the case, and in particular the “emergency” and reason for the conduct will probably be admitted into evidence for consideration under the general accident rules of negligence.
The New York Times published an article on the so-called Independent Medical Exam yesterday. Among other things, the article says:
But a New York Times review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries.
“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”
The examiners’ opinions can empower an insurer to slash benefits, withhold medical treatment or stall a case. Workers say that psychologically, there is something particularly damaging about being dishonestly evaluated by a medical professional.
In 2001, the state introduced rules. Among them: doctors had to register with the board, work in a medical office and let workers record or videotape their exams. Claimants are permitted to bring along anyone they choose to witness or film the sessions.
The medical exam, which I often refer to as the defense medical exam, can be an unbiased way for an insurer to seek the truth. Unfortunately, it is rare for an examiner to agree with the treating doctors, and quite frequent for an examinter to disagree with the treating doctor about some significant issues.
Oregon car accident cases which go to trial often have a medical examiner involved, and the Oregon court rules and Portland court motions panel rulings grant an exam as a matter of course, often with the ability to audiotape them, and rarely (I am only aware of one such order) allow videotape. Audiotape is useful in sorting out discrepancies about who said what, although it does nothing to protect against subtle differences in the way examiners may to orthopedic exams, or in how hard they press into tender areas, or other similar things which may provide explanations about why the examiner and the treating doctors have different results. Any area where the examiner differs from the injured car driver or the treating doctors is an area where they can be used to attack the driver’s or doctors’ credibility, and is often why the insurance company and their attorneys suggest that the medical examiners are “independent” of the treating doctor, i.e. an implied suggestion that they are somehow unbiased and that the injured car driver and the treating doctors are biased. However, as the article above shows, the opposite is more likely the case–that the medical examiners are biased in favor of the insurer because the examiners who document injuries are weeded out of the system.
When you get injured in a Portland car accident, ordinarily personal injury protection (PIP) coverage will pay for the medical expenses as you go. But Oregon minimum PIP is limited in time (usually 1 year) and amount (usually $15,000.00). So, what happens then?
Look to your health insurance to cover the rest. The catch is the health insurer will want that money back if and when your case settles or when you get a judgment. The Oregon health insurance policies I’ve read usually bury it toward the back under a section called Subrogation or Third Party Liability.
I also lump the Kaiser Permanente system into this category. They might not be health insurance in the same way other systems work, but for the purposes of Oregon injury cases, they are functionally the same. If they treat an injury, they will generate a bill and want to be repaid.
In terms of an injury case, when the health insurer wants money back, the injured driver needs to bring the health insurer to the negotiating table. The usual “money in” issues are in the case–the bad driver’s insurance will want to pay as little as possible–but with health insurance reimbursement, there is now a “money out” issue–the health insurer will want to take out as much of the settlement or judgment as they can.
Most health insurance issues are easy to resolve, but the injured Oregon driver has to tell their attorney that bills were submitted to or paid by the health insurer. The Oregon injury attorney also needs to ask the injured driver whether they have health insurance and whether the health insurer paid any medical bills for the injury.
Chris
www.cthlaw.com
www.portlandinjurylaw.com
Here’s an interesting article by Steve Novick about the Oregon state budget and where the bulk of the money goes. (You’ll probably remember his name because he ran in the US Senate primaries and lost to Jeff Merkley) Why would Portland personal injury attorneys be interested in the Oregon state budget?
Because justice for people injured in car accidents depends on the court system. The more efficient the Oregon courts are, the better it is to get reasonable injury compensation in a reasonable amount of time. In the Multnomah County Circuit Court in Portland, most injury cases headed for a jury trial will get tried within 9-15 months of the month the suit is filed. In Washington County Circuit Court and in Clackamas County Circuit Court, that timeline is a bit closer to 9-12 months. (Multnomah is going to cover Portland and Gresham accidents; Washington is going to cover Hillsboro, Beaverton, and Tualatin accidents; Clackamas is going to cover Milwaukie, Oregon City, Lake Oswego, and West Linn accidents)
The Oregon courts fall under the 16% or so which Novick categorizes as public safety, and is lumped in with police, prisons, and the like. Considering that Oregon trial court level judges are ranked 49th out of 50 by the data reported by the National Center for State Courts, lowering that number is not likely to help out our Portland, Hillsboro, or Oregon City judges. While I realize it’s easy to want to cut the courtroom budget because it does not seem like an urgent concern, I will tell you that every client who is on the eve of trial believes the Oregon courts are an urgent concern, and that getting to a jury trial in Portland is important to many of the people I represent.
Chris
www.cthlaw.com
www.portlandinjurylaw.com
The Corvallis Gazette Times reports that a pedestrian was hit by a pickup truck. With the identity or insurance of a negligent driver in doubt, pedestrians should look toward their own uninsured-underinsured motorist coverage for the accident. Hit and run coverage is part of the required Oregon car insurance. Hit and run accidents have a couple additional requirements to trigger the uninsured motorist coverage, namely a witness and reporting to the government within 72 hours.
The reported story also appeared to have an issue of intentional conduct by the driver in hitting the pedestrian. That would clearly mean no insurance coverage for the driver (same reason why you cannot take out an insurance policy for a fistfight, then go start a fight and have insurance cover you), and may also remove underinsured motorist coverage as well. Looking strictly at Oregon’s uninsured motorist statute, it refers to legal entitlement to recover damages from the hit and run driver, and does not specify whether that means negligence only or negligence and intentional conduct.
Chris
www.cthlaw.com
www.portlandinjurylaw.com
Using a cell phone while driving is a bad idea. It increases the risk of a collision. The Insurance Institute for Highway Safety says that a study in the British Medical Journal showed a fourfold increase in car crash risk while using a cell phone. The increased risk was across age groups, for hand held or hands free cell phones, and was the same regardless of the weather. 89% of the collisions in the study involved other vehicles. If you put all that together, it has the makings of a negligence case against the bad driver talking on a cell phone who gets into an accident and injures a passenger, the people in the another car, a pedestrian, or a bicyclist.
One source reports that the increase in risk from cell phone use while driving is comparable to the increase in risk from drunk driving. With that link made, drivers who use cell phones may be exposed to punitive damages in the same way that drunk drivers are exposed to punitive damages because of the known increased risks with drunk driving.
Oregon has a law forbidding teenagers from using cell phones while driving, although KGW reports the law is proving difficult to enforce. In fact, in Portland Oregon, police did not find any citations under the new law. The law may serve as the basis for a negligence per se allegation, although with the factual information cited above, Oregon law will allow common law negligence allegations for drivers who cause collisions while on a cell phone.
Chris
www.cthlaw.com
www.portlandinjurylaw.com
The Honolulu Advertiser reports a settlement stemming from a drunk driving accident which killed 5 people. The payments were made both on behalf of the drunk driver from his estate and his automobile insurer, and also on behalf of a bar which served him too much alcohol, through the bar’s insurer.
Oregon law allows recovery against drunk drivers for negligence, includeing the potential for punitive damages. Oregon’s Dram Shop Act allows recovery against bars and other people who serve alcohol in fairly limited circumstances, including an early notice requirement and an increased burden of persuasion for the jury.
Chris
www.cthlaw.com
www.portlandinjurylaw.com
OPB reports today that the Oregon Insurance Division fined PacifiCare Life Assurance improperly denied claims by failing to conduct a reasonable investigation. The Division’s spokesperson said,
“They sent a denial letter and then they would ask people to send more information, instead of just sending a letter that asked for the information. So I’m sure it was confusing for a lot of insured members.”
The Oregon Insurance Division’s order did not spell the bad insurance practice out as clearly, but also detailed some other issues involving the Unfair Claims Settlement Practices Act in Oregon Revised Statute 746.230.
With the bad weather we’ve seen in the Portland area, it reminded me of the basic common law duties of drivers: lookout, speed, and control. On a road covered by snow and ice, speed and control become more important than they usually are. It takes longer to stop in the snow than on dry pavement. It’s easier to make an uncontrolled wide turn in the snow. And if a driver is not used to driving in the snow, a loss of control due to jamming on the brakes or stepping on the gas is more likely. Oregon drivers east of the Cascades are probably used to snow and ice, but the Portland metro area drivers deal with bad weather less often.
Please remember to give yourself more room to stop, drive slower than you think you need to, and above all, stay safe out there!
Chris
www.cthlaw.com
www.portlandinjurylaw.com