Dwyer Williams Potter Attorneys, LLP

Duties to others on your land can differ, even if you claim they are trespassing.

2010-03-15T16:21:00.000-07:00

Below, I have pasted a section from a brief I filed a couple of years ago concerning the duties a landowner owes to others on their land. Here, the landowner had strung barbed wire up across a known ATV path that crossed her property, specifically to deter ATV use. My client attempted to use the ATV trail, as he had done for years. The barbed wire caught him by the arm, resulting in very nasty injuries. Indeed, he is quite lucky to be alive.

From day one, the landowner argued that my client was a trespasser, and as such, she owed him no duty whatsoever. She filed a motion to dismiss the case based on that position. I filed a cross motion to keep her in the case, and won. It ultimately settled shortly after I won the motion to keep the case intact.

In any event, I figured that I would post the legal analysis below. Note: for those that don't know me, I have a very concise style of writing, and choose not to beat issues to death. The courts tend to prefer this style of writing, so I stick with my natural tendencies.

The legal portion of the motion follows (I included the summary of facts, as it helps put the legal issues into context):

MOTION

COMES NOW Plaintiff, and in response to Defendant’s Motion for Summary Judgment, hereby moves this Court for an Order granting partial summary judgment in his favor as to Defendant’s First and Third Affirmative Defenses on the ground that there is no genuine issue as to any material fact and that the Court should rule as a matter of law that Plaintiff was not a trespasser, and that ORS 105.682 does not apply to this case.

This motion is based on ORCP 47, the pleadings, the points and authorities below, the Declaration of Tim Williams, and exhibits filed therewith.

BACKGROUND FACTS

This action arises out of an all terrain vehicle (ATV) incident that took place on July 22, 2006 in the Three Rivers Community on Lake Billy Chinook. Plaintiff was riding an ATV on a trail (“the trail”) known by Defendant to have ATV traffic. The trail is on Defendant’s property. Without warning, and two years after she had purchased the property, Defendant decided to string barbed wire across the trail. Plaintiff struck the barbed wire while riding his ATV, causing severe injury.

Defendant purchased the property in 2004. (Deposition of Carol Devencenzi, 9:13). She visited her property roughly once per month thereafter. (Depo. Devencenzi, 13:1). Defendant’s property line apparently begins approximately 50-60 feet outside of her main gate. (Depo. Devencenzi, 21:1-3). This is in the foreground of the photos of the main gate, submitted by Defendant’s expert in his affidavit. (Depo. Devencenzi, 21:7; Affidavit of Robert R. Povey submitted by Defendant, Exhibit C). As one is looking at her main gate, the trail at issue was closer to the camera, and to the right of the gate (Aff. Povey with Exhibits A-C).

The Three Rivers Community is an ATV community. (Deposition of Brock Blacklaw, 30:2). Defendant was aware that there was much ATV riding in the community, particularly in the spring and summer. (Depo. Devencenzi, 11:21-12:7). Prior to Mr. Blacklaw’s injury, Defendant personally observed ATVs using the trail on her property. (Depo. Devencenzi, 32:5). Defendant was aware that ATVs frequently passed between the three posts from which the offending barbed wire was strung, and had observed additional and frequent ATV tracks in this area. (Depo. Devencenzi, 32:9-12; 33:9-12). She was also aware that ATVs had used a connecting trail from the area where the offending barbed wire was strung to get to her neighbor’s property. (Depo. Devencenzi, 36:10-15).

Defendant was particularly aware of the ATV use on her property in the handful of months preceding Plaintiff’s injury. (Depo. Devencenzi, 34:13-17). She had a berm built to divert water on her property, and was aware that ATV riders were breaking down the berm. (Depo. Devencenzi, 36:20-23). She had spoken to a couple of neighbor kids she observed riding over the berm in early May 2006. (Depo. Devencenzi, 36:25-37:6). She returned to the property at the end of May 2006, and was aware that people were still riding in the area, evident from further breakdown of the berm, as well as tracks. (Depo. Devencenzi, 37:10-15).

As a result, in May 2006, Defendant strung barbed wire between a number of posts, including two posts on either side of the trail at issue, the photographs of which are attached as Exhibit 1 to the Declaration of Tim Williams filed with this motion. (Depo. Devencenzi, 38:7; 50:21; 40:20-42:2, Deposition exhibits 6-8). She did not warn her neighbors of the newly strung wire. (Depo. Devencenzi, 53:11). This was old, rusty wire she and a friend found wrapped around one of the posts. (Depo. Devencenzi, 40:4-6). She strung the wire approximately three feet off the ground. (Depo. Devencenzi, 42:6-7).

Defendant claims to have placed approximately six strips of wire hanging across the two expanses of the wire as markers. (Depo. Devencenzi, 42:11-22; 44:18-45:2). The morning after Mr. Blacklaw was injured, Defendant recalled seeing only three or four of these markers still on the wire. (Depo. Devencenzi, 44:17). A photo of one of the markers she claimed to have placed on the wire is included. (Depo. Devencenzi, 45:21, Exhibit 8). This is the same size as when she initially put the marker up, though perhaps a little faded. (Depo. Devencenzi, 46:7-8). There were no other warnings to indicate the wire had been newly strung across the trail, though Defendant did have the ability to make the wire more obvious. (Depo. Devencenzi, 48:20-49:9).

On July 22, 2006, Mr. Blacklaw was a guest at the community. He was at Defendant’s neighbor’s house (Brian Brophy), waiting for his friend to come up from the lake. (Depo. Blacklaw, 47:24-25). Concerned over how long it was taking his friend to appear, he hopped on an ATV to seek out his friend. (Depo. Blacklaw, 47:25-48:1). He rode on the road through Defendant’s property, out her gate, and further down the road to look for his friend, and once his friend’s vehicle was spotted, he turned the ATV around. (Depo. Blacklaw, 57:10-25). As he approached Defendant’s gate, he downshifted into first gear, and proceeded to the right of the gate on the trail. (Depo. Blacklaw, 58:9-18). The trail led back to the Brophy house, and served as an alternative route. (Depo. Blacklaw, 60:6-8; 59:20-24). As he proceeded between the two posts, he struck the barbed wire and was injured. (Depo. Blacklaw, 58:12).

Mr. Blacklaw was injured by the wire that is stretched between the two posts shown in the lower photograph of Exhibit B of the Affidavit of Robert R. Povey (the wire is difficult to see). (Depo. Blacklaw, 36:21). The barbed wire was rusty in color, and was not marked or otherwise flagged. (Depo. Blacklaw, 68:12-22; 69:3). Mr. Blacklaw never saw the wire prior to hitting it. (Depo. Blacklaw, 63:23-25).

POINTS AND AUTHORITIES

In her Motion for Summary Judgment, Defendant seeks summary judgment on two grounds: 1) that Mr. Blacklaw was a trespasser and she owed him no duty, and 2) that she is immune from liability under ORS 105.682. Each of those positions is without merit.

1. Mr. Blacklaw was not a trespasser on Defendant’s property.
The Court should rule as a matter of law that Mr. Blacklaw was not a trespasser, as: 1) he was on an easement; and 2) he had implied consent to use Defendant’s property.

     a. Mr. Blacklaw was lawfully riding on an easement on Defendant’s property.
Mr. Blacklaw was travelling on land included in a travel easement at the time of his injury. (Aff. Povey, Exhibit A). The easement specifically allows for motor vehicle travel. Defendant was aware of a travel easement on her property, including the area outside of her main gate, which she believed to have extended 50 feet beyond her gate, and including the spot where she strung the barbed wire. (Depo. Devencenzi, 22:4-11; 23:22; Aff. Povey with Exhibits A-C). Mr. Blacklaw was also aware of the easement. (Depo. Blacklaw, 42:23). Because Mr. Blacklaw, as a guest of the Three Rivers Community, was rightfully travelling within a marked easement, he cannot be considered a trespasser.

     b. Mr. Blacklaw had implied consent to use the trail.
Defendant never objected to Plaintiff’s use of her property for ATV riding. A failure to object to another person’s entry may be a sufficient indication of consent, if the possessor knows of the other’s intention to enter. Denton v. L. W. Vail Co., 23 Or App 28, 36 (1975) (quoting RESTATEMENT (SECOND) OF TORTS, 172 §220 comment c (1965)).

Mr. Blacklaw previously lived next to Defendant’s property. (Depo. Blacklaw, 13:20-21; 14:11-14). During that time, he rode an ATV on and around her property. (Depo. Blacklaw, 25:21-23). He had been riding ATVs in Three Rivers for 10 years. (Depo. Blacklaw, 29:6-9; 47:6). It was understood that, unless a piece of private land was marked “No Motorized Vehicles,” other association members were free to ride upon it. (Depo. Blacklaw, 28:4-7). Mr. Blacklaw regularly rode ATVs on the trail. (Depo. Blacklaw, 42:14-16). Never in his 10 years of riding had a property owner told him that he cannot ride upon their property. (Depo. Blacklaw, 30:15).

As indicated above, Defendant was aware of the riding for roughly two years prior to the incident. Mr. Blacklaw recalls nothing posted to indicate that he was not allowed to ride in that particular area. (Depo. Blacklaw, 43:11). If Defendant had changed her mind as to consenting to the riding of ATVs on her property, she should have done more than string barbed wire across the trail with little to no warning of the new danger. Without more, Mr. Blacklaw had implied consent to continue to use the property. Thus, the Court should grant partial summary judgment in Plaintiff’s favor in regard to Defendant’s First Affirmative Defense.

2. Even if Mr. Blacklaw were considered a trespasser, Defendant breached her duty.

     a. If Mr. Blacklaw was a trespasser, he was a “known trespasser.”
An exception to the rule of restricted liability for trespassers exists when a possessor of land knows, “or from facts within [the possessor’s] knowledge should know, that persons constantly and persistently intrude upon some particular place within the land.” Dento, supra., 23 Or App at 36 (quoting RESTATEMENT (SECOND) OF TORTS, 183 §334 comment d (1965)). In such a case, a possessor is subject to liability for physical harm caused by carrying on an activity involving a risk of death or serious bodily harm without exercising reasonable care for the safety of others. Id.

Here, Defendant admits that she was well aware that her property was continuing to be used by ATV riders, evident from the deterioration of her dirt berm. The law is clear that she cannot lay a trap for such known trespassers to fall prey. Therefore, if the court were to determine that Mr. Blacklaw was a trespasser, he was a known trespasser, and there is a material issue of fact as to whether Defendant breached her duty of care.

     b. Even if Mr. Blacklaw was not a “known trespasser,” Defendant’s conduct was wanton.
Even if the jury were to determine that Mr. Blacklaw was not a known trespasser, Defendant neveretheless breached her duty of care. A possessor of land owes the duty to trespassers to refrain from willfully or wantonly injuring the trespasser. Baker v. Lane County, 28 Or App 53, 56 (1977); Denton v. L. W. Vail Co., 23 Or App 28, 35 (1975) (replacing a barbed wire fence across new road construction site not prepared for public use, and where roadbed was impassible and blocked by large boulders, with no evidence that trespassers were using the area not held to be wanton). A jury may rightfully find that Defendant’s actions of stringing up a single strand of barbed wire with little or no warnings or markings across a trail known to be used by ATV riders was wanton. Thus, if the jury determines Mr. Blacklaw to be a trespasser, there is an issue of material fact as to whether or not Defendant breached her duty to avoid wanton injury.

3. ORS 105.682 simply does not apply.
The court should rule as a matter of law that ORS 105.682 does not apply to this case for the following reasons: 1) Defendant’s land was not open to the general public; 2) Defendant’s position is that she did not hold her land open for recreational use; and 3) Mr. Blacklaw was not recreating at the time of his injury.

     a. Defendant’s land was not open to the general public, as the Three Rivers Community is a private, gated community.
In enacting ORS 105.682, the Oregon legislature intended for recreational immunity to apply only when the landowner grants permission to a member of the general public to use private land for recreational purposes. Conant v. Stroup, 183 Or App 270, 280 (2002). The court analyzed the statue in great length, and concluded that the land must be held open to the public at large, and not simply a segment or particular class of the public, in order to fully preserve Oregon’s premises liability law. Id. at 281. The court summarized the rule as follows: “If private landowners will make their lands available to the general public for recreational purposes, the state will “trade” that public access for immunity from liability that might result from the use of the property.” Id. at 275-276 (emphasis in original). Here, Defendant’s land was not open to the general public.

Defendant admits Three Rivers Community is a private community. (Depo. Devencenzi, 10:23; 11:16). The Community is not open to the public unless specifically invited by a community member. (Depo. Devencenzi, 11:4-13). The land is gated, and one needs a pass code or key to get in. (Depo. Devencenzi, 11:2). Because the community land is not open to the general public, and is only open to community property owners, or to those with specific invitation (i.e., it is only open to a specific class of people), the statue does not apply. Conant v. Stroup, supra at 281. Plaintiff is entitled to partial summary judgment on the issue.

     b. Defendant claims that her land was not open to recreational use, thus disqualifying her from protection under ORS 105.682.
Because Defendant has taken the position that her land was not open to recreational use, she disqualified herself from any protection that statue might give, should it be found to apply to Three Rivers land, and thus cannot prevail on summary judgment on the issue.

Moreover, Defendant claims to have had one small “No Trespassing” sign posted on a post on her property (though it was posted further onto her property than where the incident occurred, and not at her property line, and had been posted prior to her buying the property, which she knew did not stop the ATV riders in the past). (Depo. Devencenzi, 53:25-54:13; Aff. Povey, Exhibit C). If the Court determines that the statue would apply to Defendant’s land, such a sign creates an issue of material fact whether or not her land was open for recreational use. Id. at 281.

     c. Even if ORS 105.682 applied to Defendant, it does not apply in this case, as Mr. Blacklaw was not recreating, but was merely crossing the property.
ORS 105.682 grants immunity to only the owner of the land that is itself used for “recreational purposes;” however, “recreational purposes” does not include crossing one person's land to gain access to another person's land to recreate there. Liberty v. State Dept. of Transp., 342 Or 11, 18-19 (2006). Here, Mr. Blacklaw was simply crossing Defendant’s land (on the easement) to get back to the Brophy property. His intention was simply to go down the road to meet his friend and come back, and not to go offroading for sport. (Depo. Blacklaw, 65:2-10). Indeed, he wasn’t even wearing his usual ATV riding garb. (Depo. Blacklaw, 64:4-24). The trail led back to the Brophy house, and served as an alternative route. (Depo. Blacklaw, 60:6-8; 59:20-24). Simply put, he was not recreating at the time of his injury, and thus, the statue does not apply.

CONCLUSION

The Court should grant partial summary judgment in favor of Plaintiff on Defendant’s First and Third Affirmative Defenses. The record is clear that Mr. Blacklaw was not a trespasser at the time of his injury. The record is also clear that ORS 105.682 does not apply given the facts of this case.

OTLA Annual Bend Winter CLE

2010-02-20T22:31:00.000-08:00

I had an Oregon Trial Lawyers Association ("OTLA") board meeting yesterday, which was very interesting, as usual. We actually got a ton of work done during the meeting. It's amazing how hard we volunteer board members work to protect the rights of our cients! It's also amazing how hard the insurance companies work to block those efforts!

After the OTLA board meeting, our firm hosted an OTLA reception at our Bend office , which was well attended, and an absolute blast. Some of these lawyers can get pretty wild once they've had a few drinks in them! I wanted to go downtown with a group of them after the reception, but I chose to go home instead, as my daughter was under the weather. It just didn't seem fair for me to party while my wife was stuck at home with a sick three year old.

Today, OTLA presented our annual Bend winter half-day CLE ("Continuing Legal Education") program on hot topics in motor vehicle litigation, workers compensation litigation, consumer law, appeals, nursing home litigation, and employment law. The educational segments were presented by OTLA board members (I spoke at last year's on deposition preparation). Guess who was the moderator/master of this year's ceremony? Me! It was a great program, and I kept things light between each segment. I was always sort of a class clown growing up, so I actually found it easy to do. Unlike many, I enjoy speaking to people and entertaining them. I guess I found the right profession, as that's essentially what I do in front of the jury.

The CLE went off without a hitch, and was very well attended. I can't wait to begin planning for next year's Bend CLE!

- Tim Williams
Your Oregon Injury Attorney

Statutory Breakdown of Third Party Workers Compensation Claims

2010-02-16T08:46:00.000-08:00

I previously discussed Workers’ Compensation and Third Party Workers’ Compensations claims. This blog’s purpose is to explain the statutory breakdown of Third Party Workers’ Compensations claims.

FACTS:

Assume a person, "Jimmy," works as a delivery driver. While on the job, Jimmy is rear-ended by another driver, "Marty." Essentially, Jimmy has two claims. The first is a Workers’ Compensation claim since Jimmy was on the job at the time he was injured. The second is a claim against Marty directly.

Workers’ Compensation pays for Jimmy’s accident related medical expenses and 2/3 of his lost wages. Within 60 days of the injury, Jimmy will have to make an election regarding how he wants to proceed. Jimmy can elect to have Workers’ Compensation pursue Marty, seeking reimbursement of what it paid out. Or, Jimmy can hire an attorney making sure Marty pays Workers’ Comp and pays the additional 1/3 of Jimmy’s lost wages plus pain and suffering (Workers’ Comp does not pay pain and suffering).

Assuming Jimmy hires an attorney to pursue Marty and a settlement is reached or the case is tried to judgment, below is how the breakdown works.

Pursuant to Oregon law, the attorney takes the first 1/3 of the settlement or judgment. The attorney’s costs are then reimbursed. Of the balance remaining, the injured worker gets the first 1/3. Next, the Workers’ Compensation carrier is reimbursed up to the amount of its lien (what it paid out). Finally, if there is a balance, it goes to the injured worker.

Let’s assume Worker’s Compensation paid $10,000 in accident related medical expenses, plus $5,000 (out of $7,500) for lost wages. This means the Workers’ Compensation carrier has a lien on the case for $15,000. Now, assume a settlement is reached in the amount of $50,000. Thus, below is the statutory breakdown:

Settlement amount:      $50,000

- Attorney fees (1/3):   $16,666.67

- Costs:                       $300

= Balance:                    $33,033.33

- Injured worker (1/3): $11,011.11

= Balance:                   $22,022.22

- Comp lien:                $15,000

= Balance:                   $7,022.22 (to injured worker after Comp lien is paid back).

Total to Jimmy:           $18,033.33

Here, the remaining balance of $7,022.22 goes to Jimmy, making his total $18,033.33. Of note, Jimmy received $5,000 in lost wages from Workers’ Comp that he does NOT need to pay back, so he actually recovers $23,033.33 and all of his medical expenses are paid.

-Arne Cherkoss
Dwyer Williams Potter Attorneys, LLP
Your Oregon Personal Injury Attorneys

If the doctor only knew...

2010-01-12T12:47:00.000-08:00

A doctor recently called my office on behalf of my client and her patient. The doctor was upset that the patient’s insurance company was closing his claim after one year. She blamed my office for the fact that his PIP year was about to run. My staff tried to explain to the doctor that this was the law in Oregon and my office was not “closing his claim.” However, the doctor refused to let anyone else speak. Had my office been given a chance to explain, this is what we would have said [The patient’s and doctor’s names have been removed for privacy reasons]:

Dear Dr. ___

You called my office on December 9, 2009 regarding Mr.___. First and
foremost, it is a joy to see a doctor be such an advocate for her patient. That
seems to be increasingly rare nowadays. To that end, please be assured that you
and I are on the same team and we both want what is best for Mr. ___. Based on
what I learned, I’m not certain you understand Oregon’s insurance law. The
purpose of this letter is educate you on Oregon law as it pertains to motor
vehicle accidents.

Personal Injury Protection – Oregon Insurance
Polices

When a person is injured either occupying or otherwise using a motor
vehicle, the insurance for that vehicle covers the accident related medical
expenses for up to one year and a minimum of $15,000. Here, Mr. ____’s PIP claim
runs (by law) on December 13, 2009.

Neither I nor this firm “close” claims. That is what an insurance
company does. Regardless of how much treatment Mr. ___ needs, his PIP claim will
end on December 13, 2009.

Treatment after the PIP Year

Oftentimes, an injured person will need more than one year of
treatment. Oregon law states that after PIP is exhausted or the PIP year is
over, the injured party’s own health insurance is next in line. If a person does
not have health insurance, that person is responsible for the medical bills
until they reach a settlement or receive a judgment.

To help clients who fall into the latter category, namely no insurance
or high deductibles, I am willing to write letters of protection to the
providers (such as yourself). A letter of protection is an agreement wherein the
provider agrees to continue treating the injured person but to hold their
account open. In exchange for providing treatment, the attorney agrees to pay
the provider from the proceeds of the settlement or judgment before the injured
party receives any money. Fewer providers are accepting these types of letters
nowadays.

Mr. ___’s claim
As I understand it, you are recommending additional treatment for Mr.
__. As you now know, his PIP claim is nearly expired so his health insurance is
next in line. However, Mr. ___informs me that he has a high deductible that he
cannot afford.

At this point, I am offering to write a letter or protection for your
continued treatment of Mr. ___. What he needs is for you to bill him (but hold
his account open) up to his deductible for treatment you provide. After that,
his health insurance will pay for his accident related medical expenses.

If you have any questions or concerns, feel free to contact me
directly. Please read more blogs and articles on our website www.dwyerwilliamspotter.com.

Sincerely,

Arne Cherkoss

New cell phone law to take effect soon!

2009-12-23T09:17:00.000-08:00

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.

A change for the better

2009-12-10T21:30:00.000-08:00

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

What to do with a "small" claim?

2009-09-09T23:20:00.000-07:00

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.

IME - Insurance Medical Examination

2009-07-14T22:37:00.000-07:00

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

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

2009-05-19T21:54:00.000-07:00

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

Oregon Legislature Gets It Right.

2009-04-23T22:02:00.000-07:00

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

Our new website is up!

2009-03-22T23:52:00.000-07:00

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

Aggravation of related injuries are (usually) compensable.

2009-02-19T22:58:00.000-08:00

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

Another successful trial!

2009-01-26T22:22:00.000-08:00

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

No more free bites.

2008-12-02T20:40:00.000-08:00

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

Open Range - Watch those Cows!

2008-10-28T22:25:00.000-07:00

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

Last day to register to vote is TODAY!

2008-10-14T09:48:00.001-07:00

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

Will the real defendant please stand up.

2008-09-02T23:22:00.000-07:00

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

Third Party Workers' Compensation Claims

2008-08-06T10:48:00.000-07:00

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

For the safety of our children.

2008-07-21T22:06:00.000-07:00

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

“People who are hurt go to the doctor.”

2008-07-02T22:17:00.000-07:00

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

Dear bicyclists: please ride safely!

2008-06-30T21:44:00.000-07:00

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

A card to share.

2008-06-25T23:10:00.000-07:00

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

Pay the dough you know you owe!

2008-06-20T21:36:00.000-07:00

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

We have a new location in Bend!

2008-06-17T21:51:00.000-07:00

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

Do you need more insurance?

2008-06-11T22:13:00.000-07:00

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.

-Tim Williams