Tuesday, December 2, 2008

No more free bites.

It used to be the law in Oregon that, to recover for a dog bite injury, you had to prove the dog owner knew or should have known that their dog was likely to bite. This was known as the "one free bite rule" wherein, it was said, an owner could only know that their dog might bite if it previously bit someone. Thus, if you were the unlucky first victim, the dog owner would escape liability, leaving you and your family holding the bag for your medical expenses, lost work, disfigurement, or even death. While it was still possible to prove that the owner knew or should have known of the dog's dangerous propensities, it was an uphill battle without knowledge of prior bites or other dangerous acts. Even if the owner did have such knowledge, it was very difficult to uncover proof of these dangerous acts without an outright admission of the dog owner at trial. Needless to say, an uphill battle awaited any unfortunate dog bite victim.

Luckily, beginning in 2008, the Oregon state legislature decided to better protect these victims. It passed a law making a dog owner liable for any economic damages stemming from their dog's unruly behavior. The law took away the "one free bite rule" regarding such damages, requiring every dog owner to assume that their dog is capable of causing harm. No longer can a dog owner appear at court and claim that "Fluffy" was always gentle and had never acted aggressively in the past, and therefore they should escape accountability. However, because of a compromise to get the law passed, the legislature left the old law intact regarding noneconomic damages (disfigurement, scarring, pain, suffering, emotional damages, etc.).

As an aside, I once had an arbitration where the owners claimed that their dog, "Fluffy" had never acted aggressively prior to the bite. However, after subpoenaing the dog's vet records, it was interesting to note that its prior name was actually "Demon" and had a history of acting aggressively at the vet and also towards visitors to the property. Moreover, the dog's name was changed after the lawsuit was filed, apparently in an attempt to hide its aggressive past. It was a stroke of luck uncovering these records, and, frankly, we would have had a difficult time without them. However, they were uncovered, and needless to say, it was a short arbitration.

To sum, dog owners must now operate under the assumption that their dog might bite others, and take appropriate precautions to protect other people. This creates more accountability of dog owners. However, the new law isn't perfect. It could easily cause someone to recover only economic damages while preventing the recovery of noneconomic damages (for instance, a child is mauled, and only their medical expenses are paid, even though they are left blind and horribly disfigured). However, it is a step in the right direction.

- Tim Williams

Tuesday, October 28, 2008

Open Range - Watch those Cows!

When traveling rural highways in Oregon, one is likely to see signs indicating the area is “open range.” Open range means livestock are lawfully permitted to run at large. It also means that an owner of livestock owes no duty to motorists to prevent the livestock from wandering onto a highway. In fact, a motorist who injures or kills livestock in an open range district may be liable for the damage to the livestock, even though the cow broke through a fence and was standing in the road in the middle of the night!

On the other hand, a "livestock district" is an area wherein it is unlawful for livestock to run at large. Here, the livestock owner must retain control over the livestock within the livestock district. Livestock districts are generally located in or near city limits.

In any case, never assume that local cows will stay in their pastures. Drive safe and be alert!

- Arne Cherkoss

PS. I grew up raising cattle in Grants Pass. While we were usually able to contain the cattle by use of electric fencing, every so often the cows would escape (one particularly stubborn Hereford comes to mind). At our ranch, escaping cattle was generally due to vegitation or windfallen branches shorting out our electric fence. Other times, it was due to the darn cow simply busting through the fence. Thus, no matter how cautious the rancher, there is always a chance that cattle may escape onto the roadway. Therefore, I echo Arne's advice - expect the unexpected!

- Tim Williams

Tuesday, October 14, 2008

Last day to register to vote is TODAY!

I wanted to write a short note to remind everyone that today is the last day to register to vote in Oregon. Whatever your political view, it is important that we all get out there to express our opinions and make the process work. Every vote counts!

-Tim Williams

Tuesday, September 2, 2008

Will the real defendant please stand up.

In nearly every trial of mine, particularly where the plaintiff is seriously injured, I see the same look when I glance at the jury. I see it in their eyes, and read it on their faces: the look of concern. I see it not only when the look at my client, but also when they look at the defendant. The look, I have learned in speaking with jurors after trial, stems from their concern over the perceived financial difficulty a verdict may cause the defendant. This is only natural. Juries are comprised of good people - our families, friends, neighbors, and coworkers. Defendants are often good people as well, though they made a mistake that happened to injure someone else. I certainly don't blame jurors for caring about both parties in the case.

Unfortunately, during trial, the plaintiff's attorney is not allowed to talk about the fact that while the defendant is named individually in the lawsuit, the defendant carries insurance that will pay the verdict. This is true even though the insurance company is not named as a defendant. In the event that the verdict returned is larger than the insurance policy involved, the insurance company will often pay in excess of the policy. Otherwise, the defendant will likely have a claim against said insurance company for refusing to settle the case early on. Either way, the insurance company will likely end up paying the verdict.

Sadly, hiding the fact that the defendant is insured can serve to subconsciously undermine the fair evaluation of damages of the plaintiff. It is also unfortunate in the sense that the real entity driving the ship is not the defendant, but his or her insurance company. The insurance company hires the defense lawyer (most are either in house defense attorneys, or on contract with that particular carrier), determines the course of litigation, and determines the course of settlement negotiations. A defendant can wish with all her might that the case settle, and even want to offer an amount to settle the case. However, they are chained to the decisions of the insurance company, and must bow to the insurance company's whim. Doing otherwise will be considered a violation of the cooperation clause of their insurance contract, the insurance company will withdraw coverage, and the defendant will be left in the cold.

Most plaintiff attorneys truly wish they could tell the jury about the insurance available, as they know that concern for the defendant's financial well being is all but inevitable. However, the insurance industry has made that nearly impossible, as it has backed rules prohibiting such evidence.

In any case, no attorney worth their salt would file a case against a defendant that didn't have either 1) insurance , or 2) significant assets that would cover the verdict. Without either of those, a defendant could easily avoid paying the verdict by declaring bankruptcy. The plaintiff would be left with nothing, the attorney would not be paid, and many thousands of dollars would be lost in the costs of the case.

We only wish we could let the jury in on all of the facts, including the fact that the defendant is insured. However, we are not allowed. Thus, we soldier on, knowing that the playing field is slanted against us for this and many other reasons. However, the rules are set, and we intend to play fair. We will continue to fight the good fight and do right by our clients.

-Tim Williams

Wednesday, August 6, 2008

Third Party Workers' Compensation Claims

Generally speaking, if you are hurt on the job, your sole remedy is through Workers’ Compensation. But what happens when your injury is caused by a non-employee while you are on the job? Generally, you will still follow the procedures for an on the job injury. Namely, you must immediately inform your employer and make a Workers’ Compensation claim. However, because the at fault party is non-employee, you will have two options.

First, you can treat the accident as a regular on the job injury. Under this scenario, your accident related medical expenses will be paid by Workers’ Compensation, and you will be reimbursed for 2/3 of your lost wages. Workers’ Comp will then go after the at fault party to recover those expenses.

Your other option is to retain a private attorney to represent both Workers’ Compensation and your own interests. The private attorney will make sure the at fault party's insurance company reimburses Workers’ Comp for what it paid out. The private attorney will also go after the at fault party's insurance company to recover the additional 1/3 of the wages that Workers’ Comp does not pay. Finally, the private attorney will seek a fair amount of compensation for pain, suffering, interference with activities of daily living, and the like.

The attorneys at Dwyer Williams Potter regularly handle third party Workers’ Compensation claims. We are more than happy to discuss your case and your options with you.

-Arne Cherkoss

Monday, July 21, 2008

For the safety of our children.

Over the last few years, our firm has become increasingly involved in cases involving children hurt at school. This inevitably creates conflicted feelings among the public. On one hand, the potential for civil liability causes school districts and employees to pay closer attention to the physical well being of our children. The safety of the kids, after all, is job one. On the other hand, schools are, for the most part, underfunded. This naturally causes concern for the continuing education of our children.

Thankfully, school districts carry insurance policies to cover these risks. If little Johnny loses a hand in shop class (Heaven forbid), and the injury was due to the negligence of the middle school or its employees, the school is not going to lose its sports program. The claim is simply turned over to the school's insurance company. Unfortunately for the child, however, the insurance company may not be liable for the full extent of the child's damages, due to Oregon's governmental immunity laws.

There is a certain level of uneasiness that is natural when contemplating a claim against a school district. I come from a family of teachers, and certainly understand the conflict. But, as my grandfather used to say, "There's little reason to follow the rules if you can't get into trouble." Thus, it is important to remember that the potential for civil liability helps to protect our children. There is no way to completely prevent injuries at school. The tort system simply minimizes the risks.

- Tim Williams

Wednesday, July 2, 2008

“People who are hurt go to the doctor.”

In my previous career as an insurance defense lawyer, that was one of my favorite lines. When someone gets in an accident and doesn’t go to the doctor immediately, or has a big gap in treatment, it’s a gift to the insurance companies. The insurance company will use the lack of treatment or gap in treatment to suggest that you are not really hurt. Injured people sometimes forgo treatment for a variety of legitimate reasons. For instance, they may not think that the injuries are bad enough to go the emergency room, or they may not want to make a big deal about it, or they might believe the injuries will get better on their own. However, unless you are a doctor, you should be checked out by qualified medical personnel and follow the doctor’s orders. Remember, juries are more likely to give you all of your medical expenses if you treat immediately, follow your doctor’s orders, and treat consistently.

If you are in an automobile accident and there is insurance, you are eligible for medical coverage. It’s called PIP (personal injury protection). One of the first things you’ll want to do after being checked out by medical personnel is to call the insurance company and open a PIP claim. The insurance adjuster will give you a claim number that can be used to pay for the accident related medical expenses. For more information on PIP and what it covers, click here.

-Arne Cherkoss

Monday, June 30, 2008

Dear bicyclists: please ride safely!

We have handled a number of cases involving bicycles v. motor vehicles over the years. Unfortunately, given the difference in mass and velocity, the bicyclist rarely fares well. While we have been quite successful in such cases, we would all prefer it if the accident was avoided in the first place.

With the beautiful weather upon us, and the ridiculously high gasoline prices, it make sense that many people are taking to bicycles as their primary, if not secondary, mode of transportation. It is becoming apparent, however, that a certain segment of these cyclists are either first-time riders, or have not ridden for a number of years. Moreover, many motorists simply do not take notice of bicyclists. Given that bicycles travel so much slower than vehicles, even if 5% of motor vehicles do not pay proper attention to bicycles, chances are good that a bicyclist will be passed by one of these motorists on the roadway. Thus, certain safety rules are important to keep in mind, newbies and veterans alike. Here are a few points to remember:
  • Obey all signs & traffic lights. Bicycles must be driven like other vehicles if they are to be taken seriously by motorists. Never ride against traffic.
  • Use hand signals. Hand signals tell motorists what you intend to do. For turn signals, point in the direction of your turn.
  • Ride consistently. Ride as close as practical to the right. Exceptions: when traveling at the normal speed of traffic, avoiding hazardous conditions, preparing to make a left turn, or using a one-way street.
  • Choose the best way to turn left. There are two ways to turn left: 1) Like a car: look back, signal, move into the left lane, and turn left. 2) Like a pedestrian: ride straight to the far-side crosswalk, then walk your bike across.
  • Use caution when passing. Motorists may not see you on their right. Where there’s no bike lane, pass cars on the left. Be careful when overtaking cars while in a bike lane. Watch for parked cars pulling out and doors opening. Make eye contact with drivers.
  • Avoid road hazards. Watch for sewer grates, slippery manhole covers, oily pavement, gravel, and ice. Cross railroad tracks at right angles. For better control as you move across bumps and other hazards, stand up on your pedals.
  • Ride a well-equipped bike. Outfit your bike with a good bike lock, tool kit, fenders, and bike bags. You are required by law to use a strong white headlight (visible from 500 feet) and rear red reflector or light (visible from 600 feet) at night and when visibility is poor.
  • Dress appropriately. Wear a Snell or ANSI approved hard-shell helmet whenever you ride (required by law for cyclists under 16 years of age). Wear light-colored clothes at night, preferably with reflective strips.
  • Get a green light. If you come to a red light and see a symbol of a bicycle rider with a line above and below it on the street, position your bike directly over it. Wait and soon the light will turn green. If a car is already there, it will activate the light for you.
  • Go slow on sidewalks. Pedestrians have the right of way on walkways. You must give an audible warning when you pass. Cross driveways and intersections at a walker’s pace and look carefully for traffic.
  • Know the city ordinances for your community. Many cities have ordinances regulating the use of bicycles. For instance, bicycles are not allowed on the sidewalks in downtown Portland. Know your city ordinances! They can often be found online, or at your local library.

Personally, I ride a Specialized mountain bike. I try to avoid riding on the roadway as much as possible. However, I do enjoy taking my 16 month old around in her Burley bike trailer. Such trailers cannot be taken off road, so I am forced to ride the streets. I do my best to adhere to the above guidelines and so far, knock on wood, there have been no close calls.

So, the next time you are on a ride, have fun and be safe!

-Tim Williams

Wednesday, June 25, 2008

A card to share.

I recently received a card from a client that I wanted to share. I will not disclose the client's name for privacy reasons, though will share some of the background facts. This particular client was involved in a car wreck that required a neck fusion surgery to address her symptoms. Because she had a similar surgery ten years prior, the insurance company tried to blame all of her symptoms on the prior surgery, and not accept the fact that the car accident caused the new symptoms and need for surgery. Apparently, it did not matter that the prior surgery was a success, as she had been symptom free for ten years.

In any case, we filed the claim with court, proceeded through several depositions, two mediations, and finally, just two weeks before trial, received a settlement offer. We negotiated back and forth, and finally settled the case for a reasonable sum. Shortly after things were wrapped up, I received a bottle of wine and a card written as follows:

"Dear Tim,
Just a small token of my appreciation for all the care and hard work you put into my case. Your honesty and integrity was greatly appreciated. You made me feel as important as any "big money" client. As my son & granddaughter say..."You rock." :o) I will always remember you and your family when I talk to the Lord. God Bless."

Needless to say, I was tickled pink. I've had many happy clients over the years, and have received several cards to boot. Indeed, one very sweet elderly client sent me no less than six Harry & David gift boxes! However, this card is one of my favorites.

-Tim Williams

Friday, June 20, 2008

Pay the dough you know you owe!

Before I joined Dwyer Williams Potter, I was an insurance defense attorney. On that side of the case, I did essentially the same thing as I do here; namely, review the medical records, put a value on the case, and try to settle it.

My first week as a Plaintiff’s attorney here at DWP, I was given a file to review. The case involved a guy who was severely injured by a driver who only had $25,000 insurance coverage (the minimum in Oregon). Fortunately, our client had a $100,000 insurance policy. So, we took the $25,000 from the at-fault driver and made an underinsured motorist (UIM) claim against our client’s own insurance carrier. I started work for DWP just as the UIM claim was getting started.

It took one look through the medical records and investigative file to determine the case had a value of several hundred thousand dollars. Knowing there was only a $100,000.00 insurance policy, I called the insurance adjuster and explained my position and asked for the entire policy. Rather than talk about the merits of the case or the value, the adjuster said he needed "one more document" to complete his investigation and a settlement offer would be coming soon. After several more telephone calls and additional requests for meaningless documents, I realized the adjuster was never going to pay and he would always ask for “one more document” to review. I filed the case, went to arbitration, and received an award well in excess of the policy. Of course, I could only collect up to the policy limits. This begs the question, why won’t insurance companies pay the dough they know they owe? The answer is two-fold.

First, there is always the chance that someone will take less than they are owed. People take less than they are owed for a number of reasons. One reason is that people can’t wait out the insurance companies like they can wait you out. You have car payments, a mortgage, and living expenses. The insurance company does not.

Second, even when the insurance company evaluates a claim and knows they should pay; they can make money on the money they should be paying you. Because they have your money invested, the longer they hold the money the more they can make. The insurance company has little or no incentive to pay what is due.

Unfortunately, it often takes an attorney to push forward and make the insurance company go to trial or arbitration to pay what they know they owe. Litigation can be costly and distressing, but it is often necessary, as insurance companies rarely do the right thing for the injured person. Remember, insurance companies are in the business of making money. They make money by taking premiums and paying out little or nothing. Your interest and the insurance company’s interest are opposite each other.

If you wait for insurance companies to treat your fairly or do the right thing, you may be waiting in vain. Even more troubling is that you have specific time limits, known as the statute of limitation, by which you must either file a lawsuit or settle. Of course the insurance company knows about these times and dates and has them calendared. The insurance company would love nothing more for you to wait around while the time to bring your case slips by. If that happens, you’ll have lost your rights to pursue your case forever.

-Arne Cherkoss

Tuesday, June 17, 2008

We have a new location in Bend!

We are now up and fully operational in our new Bend office, on the third floor of The Bond building. Because it is a brand new building, we were able to design the space to fit us. It took a bit to get our phone and computer systems moved over and fully operational, but it is finally done. Feel free to stop by and check out our digs sometime. We are across the street from the courthouse, which makes it convenient come trial. We're also across the street from the Deschutes Brewery, and on the same block as the Villiage Grill - two of our favorite places to eat in Bend. Our other offices remain in their same locations.

- Tim Williams

Wednesday, June 11, 2008

Do you need more insurance?

Sad but true. Over the last year, we have handled four significant uninsured motorist cases where our client's insurance policy was simply too small. The first of these cases prompted me to greatly increase my own insurance policy, not only for my sake, but for the sake of my wife and infant daughter as well.

A year ago, I litigated a case where a client was hit from behind by an uninsured motorist while riding a bike. I obtained an award of over $500,000. Unfortunately, our client only had a $300,000 insurance policy. Because this was an uninsured motorist case (where the most money you can get is the limit of your own insurance policy), our client was unable to recover $200,000 of his award.

Ten months ago, I litigated another case where our client was hit from behind by an uninsured motorist while on a bicycle. He was awarded over $250,000 in damages, but because he only had a $100,000 policy, he was unable to recover the difference.

A couple of months ago, Arne Cherkoss obtained an arbitration award of $300,000 in an uninsured motorist case. Our client only had a $100,000 policy, and could not recover the difference. Then, just last week, Arne achieved another $300,000 award in another uninsured motorist case where our client had only a $100,000 policy. Again, our client could not recover the difference.

In these four examples alone, four of our clients were unable to recover roughly $750,000 of the arbitration awards. Each individual was severely hurt, and has suffered permanent, life changing injuries.

Unfortunately, you cannot control how much insurance coverage other drivers on the road have. You wouldn't believe how many cases we have where the driver who caused the accident didn't have any insurance at all, even though Oregon law requires it! However, what you can control is the amount of uninsured/underinsured motorist coverage you have, so there is at least some guarantee as to how much insurance might be available.

There is one thing to keep in mind, however. In Oregon, unlike in Washington, uninsured / underinsured motorist coverage does not "stack" on the bad driver's policy. For example, in Washington, if the bad driver has $25,000 in coverage, and you have $100,000, you can add the two policies together, giving you a total of $125,000 in coverage. If the other driver had $100,000 in coverage, you would add that to your policy, giving a total of $200,000 of available coverage.

In Oregon, on the other hand, your insurance policy would only cover the difference between the two limits. Thus, in Oregon, if the bad driver had $25,000 in coverage, you could only collect an additional $75,000 from your own, as your insurance would get credit for the $25,000 you had already collected. If the bad driver had $100,000 in coverage, you couldn't collect a dime from your own insurance policy. Thus, in Oregon, when you buy a $100,000 underinsured motorist policy, you are only buying a guarantee that there will be $100,000 available from which to collect; however, you are not buying an additional $100,000 in coverage!

Just food for thought.