Tuesday, December 2, 2008
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
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
Tuesday, September 2, 2008
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.
Wednesday, August 6, 2008
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.
Monday, July 21, 2008
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
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.
Monday, June 30, 2008
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!
Wednesday, June 25, 2008
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:
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.
Friday, June 20, 2008
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.
Tuesday, June 17, 2008
- Tim Williams