Wednesday, December 23, 2009

New cell phone law to take effect soon!

Just a quick reminder that beginning January 1, 2010 it will be illegal to use a cell phone or texting device while driving. As an exception, drivers 18 years of age or older may use the devices if they are utilizing a hands-free accessory. There is no exception for drivers under 18 years old. If a driver is cited for this offense it is a Class D violation. This carries a $142 fine and adds 2 points to your driving record.

-Tim Williams
Your Oregon pesonal injury attorney.

Thursday, December 10, 2009

A change for the better

ORS 20.080 will undergo some big changes beginning January 1, 2009. As a bit of background, this statute makes it economically feasible for persons with smaller claims to hire a lawyer in their case. After a demand for settlement is made, and a certain amount of time goes by, the claimant can file his or her claim in court. If the end result is no better than the last offer made by the tortfeasor, the claimant must pay his or her own attorney fees. However, if the end result is better than the last offer made by the tortfeasor, then the court may order the tortfeasor to pay some or all of the claimant's attorney fees. The claim threshold is set to increase from the current limit of $5,500 up to $7,500 beginning January 1, 2010. Thus, if your claim is worth $7,500 or less after January 1, 2010, you may well get your legal fees paid for should the wrongdoer fail to act reasonably in negotiations. While there are other tweaks to notice and time limitations, the increase in the claim threshold is the most significant change we will see to the law beginning next month.

- Tim Williams
Your Oregon personal injury attorney

Wednesday, September 9, 2009

What to do with a "small" claim?

Sometimes the value of a case is small enough that it really doesn’t make economic sense to hire a lawyer. For example, imagine a scenario wherein someone damages your car, and the repair cost is $3,000. Generally, you have two options: you can hire a lawyer by the hour or on a contingency basis.

By the hour

You can hire a lawyer at $200 an hour to recover your damages. However, if the lawyer puts five hours of work into to your case and recovers 100% of your damages, you still are out $1,000 after paying the lawyer. Under this scenario, you have not been made whole.

Contingency

You can hire a lawyer on a “contingent” basis. This means the lawyer gets a percentage of your recovery. One third of the overall recovery is a typical contingency arrangement. That means that if the lawyer recovers the full amount of damages, you will still only receive $2,000 after the lawyer is paid.

What is a person to do is such a scenario? It would be nice if the insurance company would just “pay the dough they know they owe.” Unfortunately, these insurance companies know they are in the power position, because you can’t afford an attorney. As a result, their regular practice is to low ball you during negotiations.

Oregon Law to the Rescue

The Oregon Legislature enacted ORS 20.080 to assist people in Oregon in just these types of situations. Basically, ORS 20.080 allows an attorney to make a demand of $5,500 or less to the at-fault party. If there is no offer, or a low offer, within 10 days of the 20.080, notice, the attorney and his client can file the case in court. If the jury awards even $1 more than was offered by the at-fault party, YOU win. Even more important, attorney fees can be assessed against the at-fault party. This means that you will be fully compensated and the other side will have to pay your attorney for his or her time.

ORS 20.080 provides an incentive for lawyers to take on these small cases and has the power to make people whole. Bottom line: ORS 20.080 levels the playing field in cases worth $5,500 or less.

The Future of ORS 20.080

Beginning January 1, 2010, the limits of ORS 20.080 will be raised to $7,500. This means that more people will be covered and will be able to secure representation to fight for their right to fair compensation.

-Arne Cherkoss
Dwyer Williams Potter Attorneys, LLP, your Oregon personal injury attorneys.

Tuesday, July 14, 2009

IME - Insurance Medical Examination

There are many situations during the pendency of a claim or lawsuit that the other side (the insurance company) is entitled to have a doctor of their choosing examine you. Insurance companies refer to these exams as “independent medical examinations.” Make no mistake, these “exams” are paid for by the insurance company and the outcome or “medical report” is usually predictable. In many cases, the insurance doctor will boldly conclude you had some sort of pre-existing underlying condition, and the accident related injury is merely superimposed upon your “pre-existing” condition.

Even instances where the claimant (you) had no prior problems, or was asymptomatic (didn't have any symptoms), the insurance doctor often concludes the accident related injury only lasted a matter of months and any other pain you are experiencing is due to old age (or anything else they can blame it on). Basically, they claim that your pain came from anything else other than the accident your were involved in. It goes without saying that insurance companies like these doctors, as they give the insurance company a reason to cut off your benefits. Thus, we see the same doctors used time and again (even though some of them had their medical licenses revoked in other states for committing malpractice!).

Do I have to attend the IME?

That is something to discuss with your personal injury attorney. There are various consequences to failing to attend a scheduled insurance medical exam. You can be forced to pay the cost of an IME if you fail to show up. You may even have your claim dismissed for failing to attend a scheduled IME. In some cases, the court will make you attend the IME.

What should I expect to happen during the IME?

A well prepared insurance doctor will have received many of your accident related medical records as well as prior medical records pertaining to the same or similar body parts injured in the accident. The insurance doctor oftentimes will also have the police report, property damage reports and photographs, and sometimes your deposition transcript. The insurance doctor will most likely have reviewed the records prior to your exam and should be somewhat familiar with your case.

Sometimes, the insurance doctor will go so far as to spy on you while you are waiting for your insurance medical exam or after you are leaving the office, and write his or her observations in the report.

During the exam, you can expect the insurance doctor to ask questions about your background, including education, military experience, marital status etc. The insurance doctor will ask about other injuries you had to the same or similar body parts both before and after the subject accident. The insurance doctor will ask you what happened during the accident. The insurance doctor will inquire as to your injuries, treatment, and prognosis. The insurance doctor may also ask about any recreational activities you enjoyed before the accident and whether the accident has affected your ability to participate in those activities.

How should I answer the insurance doctor’s questions?

Truthfully! Remember, the insurance doctor likely has all of your medical records, both before and after the accident. The insurance doctor likely knows a great deal about you from reading your records and other documents. Credibility is everything when it comes to making a claim or filing a lawsuit. If you are less than honest or overstate (exaggerate) your case, this will be used against you at a later time.

The insurance doctor may also use orthopedic or neurological tests to try to determine if you are faking your injuries. Again, be truthful. Do not say something hurts if it does not. Be very honest and you’ll have a better chance to prevail.

-Arne Cherkoss

Tuesday, May 19, 2009

Why can’t you just sue the insurance company in car accident cases?

Have you ever wondered why a wife would sue her husband for injuries sustained in a car accident? How about a mother suing her adult child for accident related injuries? Isn’t insurance supposed to cover such losses? Why not name Farmers, State Farm, Allstate, Progressive etc… as the defendant?

Generally speaking, insurance is not to be mentioned at trial, or even considered by a jury. That means the lawsuit must name the person who purchased the insurance or is covered under the policy (the insured) as the defendant and not the insurance company. This is true even though in the majority of cases the insurance company ultimately pays.

Most attorneys are only interested in going after the insurance policy and do not want to go after an insured directly. The reason is that individuals usually do not have adequate assets to cover the damages. However, when the insurance company doesn’t want to settle or makes low ball offers, it is necessary to litigate the case in the hopes of getting a fair award from the jury. If a case is filed, the person suing must name the actual person who caused the harm (i.e. Wife v. Husband).

Who pays the jury verdict?

In most cases, the insurance company pays the entire verdict. In a small number of cases there may be an "excess verdict." This means that the insured’s policy was insufficient to cover the damages. When that happens the insured is on the hook for any amount the insurance company does not pick up.

How can I avoid an excess judgment?

The first thing you can do is raise your insurance limits. Minimum insurance coverage is inadequate and can leave you responsible for an excess verdict.

The minimum insurance requirement in Oregon is $25,000 per person per accident and $50,000 per accident maximum. A couple of days in the hospital or a minor surgery can be extremely costly and minimum policy limits will not be enough to cover such expenses.

I recommend to my friends and family that they carry a minimum of $100,000/$300,000 in liability insurance. Adequate insurance helps to protect you if you are being sued. Moreover, you can make a claim against your own insurance company, up to the amount of liability insurance you purchased, if the at-fault driver has no insurance or has less insurance coverage than you. These claims are called uninsured motorists claims and underinsured motorist claims. I’ll write more on these topics later.

-Arne Cherkoss

Thursday, April 23, 2009

Oregon Legislature Gets It Right.

The Oregon State Legislature recently passed a bill that increases the Personal Injury Protection wage loss minimum coverage from $1,250 per month to $3,000 per month. This is the first increase in over 20 years. Thus, the Oregon minimum PIP coverage will be 70% of your lost wages, up to a maximum amount of $3,000 per month. Governor Kulongoski signed the bill into law just a few short days ago. The new law will take effect January 1, 2010.

This is a great step forward. As many of you already know, we are car accident attorneys, and deal daily with multiple insurance carriers on behalf of injured parties. It is painful to see a client so injured that he or she cannot work, yet their PIP policy does not provide adequate coverage to allow them to continue paying their bills and keep food on the table. Unfortunately, many have lost their homes as a result. This new law is definitely a step in the right direction.

We want to thank the hard working members of the Legislature, as well as folks in the Oregon Trial Lawyers Association and the hardworking citizens of Oregon who made their voices heard.

-Tim Williams

Sunday, March 22, 2009

Our new website is up!

Come check out our new website, http://www.dwyerwilliamspotter.com/! A labor of love, so to speak. You can find all sorts of good information about our firm, Dwyer Williams Potter, Attorneys, LLP, including who we are, what we do (personal injury), and some tasty bits about a handful of notable cases. Our older website, http://www.roydwyer.com/, is still up as well, and will continue to undergo its evolution. Indeed, we are planning substantial changes on that site in the near future. As for a sneak peek, we plan to add substantial medical literature, including information on sprained necks, herniated disks, brain injuries, shoulder injuries, and the like. We also plan to add a tally sheet wherein we disclose the settlement offers on the table when clients first sign up with us, and the ultimate result we achieve on their behalf. We want to make the process more transparent, and let our results show the world that we are one of the very best personal injury law firms in Oregon. Now, if only the process of making such substantial changes to the website were as simple as it sounds...

- Tim Williams

Thursday, February 19, 2009

Aggravation of related injuries are (usually) compensable.

The following question often comes up in many of my injury cases: "I did something that aggravated my underlying injury and now need more treatment. Will this be covered as related to my original injury?"

The answer is "yes," so long as the activity that caused the subsequent exacerbation 1) was reasonably foreseeable, and 2) was a result of a weakened condition created by the original injury. Examples of foreseeable activities include lifting, bending, walking, etc. Examples of non-foreseeable (and threfore non-related) activities include a subsequent car collision, battery, etc.

The following is taken from my recent brief on the issue:

The case of Ferrante v. August, 248 Or 16 (1967), which was cited with approval in Wallace v. Allstate Ins. Co., 344 Or 314, 320-21 (2008), is directly on point. In Ferrante, the plaintiff had injured her back in an automobile accident as a result of the defendant's negligence. Ferrante v. August, 248 Or 16, 17 (1967). Several months later, as her back was improving, she “felt a very sharp pain in her back as she was getting out of her chair.” Id. at 18. The plaintiff's doctor testified that the injury had weakened the plaintiff's back and that the later injury she experienced on getting out of the chair was a foreseeable consequence of her weakened back and thus the earlier accident. Id.

On that evidence, the Oregon Supreme Court held that the plaintiff could recover both for the injury that she originally suffered as a result of the accident and also for the later back sprain. Id. at 22-23. The court reasoned that, given the doctor's testimony, the jury reasonably could find that “but for the original injury the [later] back sprain * * * would not have occurred and that the latter injury was the natural and probable consequence of the former.” Id. at 22. The court also referenced with approval the Restatement (Second) of Torts § 460 (1965), which provides:

If the negligent actor is liable for an injury which impairs the physical condition of another's body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other's condition not been impaired, and which is a normal consequence of such impairment.

Id., at FN 7.

Similarly, Uniform Civil Jury Instruction 20.07, provides:

If you find the defendant was negligent and that such negligence caused injury to the plaintiff, the defendant would also be liable for any additional injury caused by the subsequent conduct of another person or entity, even if such conduct was negligent or wrongful, as long as the subsequent conduct and risk of additional injury were reasonably foreseeable.

We at Dwyer Williams Potter, Attorneys feel that this is a good rule. Boiled down to the nut, it provides protection for a worsening of the underlying injuries while performing normal acts that would not have caused pain had the original injury never occurred. At the same time, it offers protection to the person who caused the original injury, in that only exacerbating activities that are reasonably foreseeable are included in the rule, thus striking a balance for both sides.

- Tim Williams

Monday, January 26, 2009

Another successful trial!

I am pleased to report a positive trial result Arne Cherkoss and I achieved in Jefferson County two weeks ago. The case involved a car collison where liability was denied. The facts are these:

Our client was driving her small pickup on Highway 26. She drove slowly from Dover Lane, which is the road from which she turned onto Highway 26. She was hit from behind at 60 miles per hour as she attempted to make a left turn into a driveway. When the police arrived, they found her turn signal still activated (the defense attorney argued that it was either turned on as Defendant attempted his pass, during the crash, or after the crash, though there was no evidence of this). Indeed, the evidence proved that our client had functional brake lights and left turn signal. It further proved that she activated her turn signal at the appropriate distance, stopped to allow traffic to pass, then attempted her left turn.

The defendant further claimed that there was no oncoming traffic, and that our client never stopped, but rather, was driving 20 miles per hour the entire time. He testifeid that, as he sped up to 60 and attempted to pass, our client suddenly turned left in front of him. While we didn't believe that the defendant (a truly nice gentleman) was lying, we do believe that he was remembering things differently than had actually occurred. Indeed, he was 89 years old at the time of trial, and in such bad health that his testimony had to be videotaped. We feel that his age may have played a part in his memory, as he remembered many other things differently than the police officer had noted (such as the weather, time of day, persons at the scene, who said what, etc.).

The defense attorney hired a doctor to testify against our client. However, upon my careful cross examination, the doctor admitted that our client had suffered all of the injuries she claimed in the lawsuit! As it turns out, the defense attorney didn't provide him with all of our client's medical records. Further, the defense attorney hired a private investigator to literally hide in the bushes for 4 days and videotape our client. However, when the played the video in trial, all they could show was 15 mintues of our client doing exactly as her doctor had told her!

Thankfully, we were blessed with a very smart and attentive jury. We also had a wonderful judge, and the defense attorney was a true gentleman to boot. The case was tried from beginning to end in two days, with very little disagreement between the attorneys. In the end, the jury came to a reasonable verdict. We are told that it is one of the largest civil jury verdicts in Jefferson County in years. We were also told from the judges that they were pleased with the outcome, and felt that the jury did right by our client.

Hat’s off to Arne Cherkoss, who did very well in his fourth jury trial with our firm. He took notes for me in jury selection, and made important decisions in that process. He also handled the direct tesimtony of all of our witnesses, other than the police officer and our doctor, which I handled myself. He gave an excellent closing argument, while I handled the rebuttal. It is because our firm's team approach towards handling and trying cases that we can achieve such results. In the end, we were relatively pleased with the process and outcome all the way around.

- Tim Williams