PORTLAND OREGON PERSONAL INJURY LAWYER - Blog
In this blog, Oregon Personal Injury Attorney James F. O’Rourke, Jr. will answer questions frequently posed to him by his clients and comment on changes in the statutory, regulatory and case law relating to personal injury cases. It is the purpose of this blog to be informative and helpful. As Oregon Personal Injury Lawyers we work hard to make sure that our clients receive all their rights under the law and insurance policies and to recover compensation for the people we represent for injuries and damages they suffer which were caused by the intentional, reckless or negligent acts of omissions of others.
Question: What is my personal injury case worth?
Answer: There are several factors to be considered when evaluating a personal injury case. It is important to remember that each case has its own unique set of circumstances that give it value.
One of the most common types of personal injury cases arises out of a motor vehicle accident. One important factor in evaluating a motor vehicle personal injury case is the nature and extent of the injuries. Motor vehicle accident injuries can range from the less severe strains of the soft tissues of the neck and back that typically resolve within a few months to the more severe and even catastrophic injuries that result in permanent disability or even death. Naturally, the value of the personal injury case increases with the severity of the injury.
Some motor vehicle accident injuries result in the injured party being unable to work for a period of time. The resulting wage loss adds value to the personal injury case. The value of the wage loss portion of the case is determined by the actual lost income incurred by the injured party over the period of disability caused by the accident. In more serious cases, the value of lost benefits such as 401k contributions and retirement benefits can be included in the calculation.
Some injuries may require treatment for a prolonged period of time, perhaps even for the rest of the injured party’s life. The cost of these “future medical expenses” can be estimated by an expert and included in the evaluation process.
Perhaps the most difficult factor of the personal injury case to quantify is the “general damages” portion of the case. “General Damages” include losses such as pain and suffering and the overall adverse effect on the injured party’s life resulting from the injury.
Having an experienced personal injury attorney working for you can be the most effective way to build value into your case. James F. O’Rourke Jr. & Associates have been representing good people who have had the misfortune of being injured in motor vehicle accidents for more than 35 years. We know how to negotiate with insurance companies and defense attorneys to maximize the value of a personal injury case.
It is very important to understand not just how to evaluate personal injury cases, but also how to develop your case and maximize your recovery. This is why we recommend that if you are injured in an accident, call James F. O’Rourke Jr & Associates right away. As a personal injury lawyer in Gresham and Portland, James F. O’Rourke Jr. has vast experience helping clients maximize the value of their personal injury cases. If you are injured in an automobile accident, call James F. O’Rourke Jr. & Associates at 503-221-1425.
Question: Should I sign a release form given to me by an insurance company?
Answer: Never sign a release without the advice of an experienced personal injury attorney.
Insurance companies train their claims adjusters to settle claims quickly and inexpensively. They believe that the longer a claim remains open, the more money it will cost them to close it. It is for this reason that a claims adjuster will be in direct contact with you within 24 hours of your involvement and reporting of a motor vehicle accident.
The first thing the insurance adjuster will do is attempt to obtain your recorded statement. He wants to get your statement as soon as possible so that he can nail you down on specific facts, such as injuries. He will ask you if you were injured and if you went to see your doctor. Insurance adjusters are aware that some injuries take a few days to manifest themselves symptomatically so they want to get your recorded statement and possibly even settle the claim before you realize the nature and extent of your injuries.
During this initial contact, the adjuster may promise to pay your medical bills and make a nominal settlement offer to you. He will ask you to sign a release as part of that agreement. What he won’t tell is how you are affecting your legal rights to recover damages by signing the release.
Once you sign a release, you give up the right to recover any additional damages incurred by you after the date on the release. Although the insurance adjuster has offered to pay your medical bills, if you sign the release, the insurance company does not have to pay any bills you incur after the date on the release. Furthermore, your own insurance company may deny you Personal Injury Protection (PIP) benefits because you have prejudiced their rights to recover the money they paid on your behalf from the third party by signing the release.
It is very important that you have a full understanding of the insurance claims process before signing any document that affects your legal rights to recover damages when you are in a motor vehicle accident. This is why we recommend that if you are injured in an accident, you call us right away. As personal injury lawyers in Lake Oswego and West Linn, James F. O’Rourke Jr. & Associates have vast experience helping our clients understand the insurance claims process and maximizing their recovery. If you are injured in an automobile accident, call James F. O’Rourke Jr. & Associates at 503-772-4032.
Question: Why does my insurance company have to pay my medical bills when I am in an accident that is the other person’s fault?
Answer: Because it is required by law. Oregon law (O.R.S. 742.520) requires that every automobile policy carry a minimum of $15,000 of Personal Injury Protection (PIP) coverage.
PIP coverage is a “no-fault” coverage that is required by law in the State of Oregon. If you are injured in a car accident, the insurance company that covers the vehicle in which you were traveling will pay your medical bills regardless of whose fault the accident was. The minimum amount of PIP coverage required by law in Oregon is $15,000. Given the high cost of health care, many drivers opt for higher PIP limits to protect themselves from having to pay substantial medical expenses out of pocket.
The purpose of requiring PIP coverage is to ensure that the injured party’s medical bills get paid as they are incurred instead of waiting until settlement with the third party, which could take months or years. Without PIP coverage, the potential exists that the injured party will be financially unable to pay his or her accident related medical bills. This could result in bills being sent to collections and have an adverse effect on the injured party’s credit rating. PIP coverage provides the insured with the peace of mind that his or her medical bills will be paid.
The way PIP coverage works is to provide the insured with medical benefits for up to one year or the dollar limit of the policy, whichever occurs first. To qualify for payment under PIP coverage, the medical expense must be “reasonable, necessary, and related” to the accident. Your insurance company will recover the benefits paid from the at fault party after your case is settled.
PIP coverage also provides a wage loss benefit. If you are disabled from work as a result of the accident for a period of at least 14 days, your insurance carrier will pay you wage loss benefits totaling 70% of your gross monthly wages or $3,000, whichever is smaller, for up to one year.
If the insurance company suspects that your medical treatment is no longer “reasonable, necessary and related” to the accident, they have the right to request that you attend an Independent Medical Examination (IME). Depending upon the outcome of the IME, or if you refuse to attend, the insurance company can deny payment under your PIP coverage.
The laws and regulations governing auto insurance are complicated. This is why we recommend that if you are injured in an accident, you call us right away. As personal injury lawyers in Tigard and Tualatin, James F. O’Rourke Jr. & Associates have vast experience helping our clients ensure that their medical bills are paid under their PIP coverage. If you are injured in an automobile accident, call James F. O’Rourke Jr. & Associates.
Question: What is the difference between UM and UIM coverage on my automobile policy?
Answer: Everyone knows that the law requires that you purchase automobile liability insurance if you want to drive legally on public roadways. However, many people do not know exactly what they are buying when they write that check to the insurance company. The following is an explanation of UM and UIM coverages on your auto policy which are required by law:
UM (Uninsured Motorist) coverage protects you in the event that you are injured by a negligent uninsured motorist.
For example, if you are in a car accident with another driver who has no insurance and is at fault for the accident, your insurance company with pay you for damages due to bodily injury under the UM coverage of your policy. These damages include, but are not limited to, medical bills, wage loss, pain and suffering.
The amount that the insurance company will pay is limited by the amount of coverage purchased. The minimum amount of coverage required by law is $25,000 per person, per occurrence and $50,000 aggregate per occurrence. This means that the maximum UM benefit for any one person is $25,000 per occurrence. The $50,000 limit represents the maximum UM benefit for damages for all persons due to bodily injury for any one occurrence. Higher limits may be purchased to protect yourself from damages caused by an uninsured motorist.
UM coverage applies to liability for injuries only, not property damage. If you want to protect your vehicle from damages from an uninsured motorist, you must purchase a separate coverage.
UIM (Under Insured Motorist) coverage protects you in the event that you are injured by a negligent party who does not have sufficient liability insurance to fully indemnify you for damages due to bodily injury. These damages include, but are not limited to, medical bills, wage loss, pain and suffering.
For example, if you are injured in a car accident and have damages totaling $30,000 and the negligent party has a liability limit of $25,000, the negligent party does not have sufficient coverage to fully indemnify you. Therefore, the negligent party is under insured, and your under insured motorist coverage will pay the rest of your claim up to the limit of the UIM coverage.
In order to qualify for Under Insured Motorist benefits under your own policy, your UIM limits must be higher than the liability limits of the negligent party. In the same example as above, if you carried 25/50 UIM coverage and the negligent party carried 25/50 liability coverage, you would not qualify for Under Insured Motorist benefits. However, if you carried 50/100 UIM limits, you would qualify for UIM benefits.
The amount of UIM benefits available is derived from the difference between your UIM limits and the negligent party’s liability limits. In the above example in which you carried UIM limits of 50/100 and the negligent party carried liability limits of 25/50, you would qualify for up to $25,000 of additional benefit under the UIM coverage of your policy.
Given the high costs of medical care these days, it is a good idea to carry high UM and UIM limits to protect yourself in the event you are in an accident with an uninsured or under insured motorist.
As Gresham and Oregon City personal injury lawyers, we have vast experience helping our clients pursue UM and UIM claims. If you are injured in an automobile accident, call James F. O’Rourke Jr. & Associates.
Question: After an automobile accident, should I provide a statement to the other driver’s insurance company?
If you are injured in an automobile accident, the adjuster for the other driver’s insurance company will call you and ask you to give a recorded statement.
The adjuster will try to get you to commit to a certain version of how the accident happened and the extent of your injuries. Adjusters know that many injuries do not become symptomatic for up to 14 days. They also know that many people who are injured in automobile accidents do not know exactly how the accident happened.
The adjuster will not try to help you make an accurate statement. They will not help you correct any mistakes you make.
Later, when you try to settle or go to trial on your claim, the adjuster and the insurance company lawyers will try to use your recorded statement to manipulate the facts to place you at fault for the collision or to limit your recovery to the injuries you mentioned in the statement. Consider this example:
You are rear ended by another driver and do not feel any immediate pain. The next morning you feel some stiffness in your back and decide that you will wait and see if the stiffness goes away before you see a doctor. Later that same day, the insurance adjuster from the other driver’s company calls and asks you for a recorded statement. As part of that statement she asks you if you were injured. You respond that you have had a little bit of back stiffness but have not yet seen a doctor. She asks if you have any other injuries and you say no because the only symptom you have had so far is back stiffness.
The next day you wake up with the same back stiffness, but you also feel some stiffness in your neck and some tingling in your arm or hand. After waiting for a few days to see if the stiffness and pain will resolve itself, you realize that you should probably see a doctor.
After six weeks of physical therapy, you still have neck pain and tingling. The doctor decides to do an MRI and discovers that you have a herniated disc in your neck that was caused by the motor vehicle accident. You have surgery to repair the disc and undergo painful rehabilitation.
Then, when the time comes to resolve your case in settlement negotiations or at trial, the insurance company will argue that your neck injury was not caused by the automobile accident because in your recorded statement taken the day after the accident you only mentioned back pain and said nothing about your neck. They will use your own statement against you to try and discredit you.
Insurance companies take recorded statements for their benefit, not yours. Do not give a recorded statement after an automobile accident without the assistance of an experienced personal injury attorney.
Portland Personal Injury Lawyer James F. O’Rourke has over 35 years experience representing clients who have been injured in automobile accidents. He knows how to talk to insurance adjusters and gets excellent results. If you are injured in an automobile accident, call James F. O’Rourke & Associates before providing a recorded statement to an insurance company.
On May 19, 2011 the Oregon Supreme Court, in Strawn v. Farmers, ___ Or ___ (Slip Op. May 19, 2011) put an end to a decade long class action case against Farmers Insurance. The lawsuit alleged that between 1997 and 1998 Farmers reduced benefits to their own insured customers in violation of their duty of good faith and fair dealing on insurance contracts. The plaintiffs’ in that case alleged that Farmers reduced PIP payments for arbitrary and unfair reasons.
Personal Injury Protection benefits provide coverage for medical expenses and wage loss, regardless of fault, to the insured parties. These benefits are required by Oregon Law and provide a safety net for persons injured in an auto accident, since PIP provides immediate access to medical care and wage loss before the ultimate determination of liability. Once liability is determined, the at fault party’s carrier pays for all of the PIP loss.
In 1997 Farmers began its “Bring Back A Billion” campaign, in which they focused on reducing the amount of claims paid, as opposed to raising premiums, to boost the company’s profit. They targeted PIP payments as a means of reducing outlays. Farmers hired a company that reviewed the PIP medical bills and reduced the claims submitted, ostensibly because the bill was in excess of what was customarily charged in a particular region. The plaintiffs’ claimed that the medical bill reviews were actually just arbitrary reductions that had no rational basis. The reductions were often relatively small amounts, but affected a large number of people.
The case was a “class action” a type of lawsuit that allows a large number of people with relatively small losses to band together and make a larger claim against a company. Class actions are designed to help address situations where one company engages in conduct that affects a large number of people, but creates only small losses per individual that a person on their own wouldn’t pursue.
In this case, the jury found for the class plaintiffs and awarded them about $800,000.00 in damages. The jury, obviously unhappy with the company’s behavior, also awarded $8,000,000 in punitive damages, a punishment that is designed to deter the company from such unconscionable behavior in the future.
The case proceeded to the Oregon Court of Appeals, which upheld the damage award but remanded the case for reduction of the punitive damages. The Oregon Supreme Court took review and decided that the entire jury award, including punitive damages, should be upheld. The decision is a victory for insurance consumers.
At Personal Injury Lawyers James F. O’Rourke, Jr. and Associates, we strive to protect our personal injury clients from any unfair treatment by insurance carriers, including their own.
For many years, Oregon has provided for immunity from tort liability for landowners who allow their property to be used by the public for recreational purposes without charging a fee. The law, ORS 105.682(1), provides that a landowner who makes their land available to the general public for “recreational purposes, gardening, woodcutting or the harvest of special forest products” cannot be sued for injuries that occur during those activities, even if they arise from the negligence of the landowner.
On November 18, 2010, the Oregon Supreme Court again affirmed this statutory immunity for property being used for general recreation in the case of Kelly v. Hochberg. At issue in Kelly was the application of recreational immunity for a person who was injured while using a road owned by the Bureau of Land Management (BLM). Mr. Kelly was injured when he was struck by a car while riding his motorcycle on a BLM roadway. The BLM had expressly made the road available to the public for purposes of recreation. Mr. Kelly, who was participating in a privately arranged motorcycle rally event, claimed that BLM had failed to cut vegetation on the roadway and dangerously obscured visibility which contributed to his collision.
The Supreme Court rejected Mr. Kelly’s argument that he was merely traveling to a recreational event and that the immunity statute did not apply. The Court broadly construed the term “recreational purpose” to include all activities involved in the particular recreation. Accordingly, the Court held BLM was immune from liability.
As Oregon Personal Injury Attorneys we at James F.O’Rourke, Jr. and Associates aggressively pursue our client’s claims in premises liability cases and cases arising from the negligent maintenance of property creating hazardous conditions.
A personal injury attorney does more than organize your medical records and make demand for compensation on the insurance carrier. One of the more complicated tasks comes at the end of the case, during settlement negotiations. That task is the resolution of claims for payment from doctors, hospitals and insurance carriers who have paid for medical treatment.
Liens are complicated for several reasons. Health insurance providers are entitled to reimbursement for monies they have provided for medical treatment. However, different kinds of health insurance plans are entitled to different levels of reimbursement. Some carriers are required to reduce their claim for reimbursement to reflect a proportionate share of costs and attorney fees, while other carriers are not required to do so. The matter is more complicated when there is not enough available auto insurance to fully compensate the client. In these cases the attorney must negotiate a reduction in the lien claims so that the client can be fairly compensated.
In some cases, a personal injury lawyer must fight unreasonable claims for reimbursement by an insurer. A case recently decided by the Oregon Court of Appeals provides a good example. In Longstreet v. Liberty Northwest (decided November 3, 2010) the Court of Appeals dealt with a claim for reimbursement by a workers compensation carrier who had paid for medical treatment and provided benefits to an injured party. In that case Mr. Longstreet had been forced to make a claim on the underinsured motorist benefits (UIM) of his own insurance policy because the person who caused the injury had insufficient coverage. The workers compensation carrier demanded reimbursement despite the fact that Oregon Law specifically forbids a workers compensation carrier from making such a claim against underinsured motorists benefits.
Mr. Longstreet filed a lawsuit to have a judge determine whether the insurer’s claim was legally valid. The trial judge determined that the claim of lien was illegal and invalid and the insurer appealed. The Court of Appeals, in a terse three sentence holding, flatly rejected the insurers claim:
“As for the merits, we readily conclude that the trial court ruled correctly. ORS 742.504(4)(c) plainly states that UIM coverage does not “inure directly or indirectly to the benefit of any workers compensation carrier * * *.” Liberty Northwest, a workers’ compensation carrier, offers no persuasive explanation as to how it can be reimbursed from plaintiff’s UIM recovery without benefitting “directly or indirectly” from plaintiff’s UIM coverage.”
As Oregon Personal Injury Lawyers we carefully research lien claims and make certain that out clients pay liens only as required by law. In cases where there is insufficient coverage to compensate our clients, we work with lienholders to reduce their claims and maximize the recovery for our clients.
At James F. O’Rourke, Jr. and Associates we have a simple philosophy about documenting client’s injuries in personal injury cases: we instruct our clients carefully identify and describe their injuries to medical treatment providers; we have them engage in a reasonable course of medical treatment for those injuries. After our clients become medically stationary we pursue payment of the fair value of the client’s claim.
Here are two common situations that insurance companies use to reduce the value of their claims.
Identifying Your Injuries
The first few visits to the doctor after your accident are important. Ideally, if you are injured in an accident you will be careful to tell your doctor about all of your injuries in the first examination, starting with the tip of your head and going down to your toes. Then, the doctor can decide if you are injured and recommend a reasonable medical treatment.
But, people don’t want to be hurt, so often they will not fully describe the extent of their injuries in that first visit. Other times, an injury may seem minor and get worse over time.
If you don’t tell you doctor about your sore shoulder from being restrained by your seatbelt, the doctor isn’t going to assess the possibility of a rotator cuff injury. If you don’t tell the doctor about the headache from striking your airbag, the doctor won’t look for signs of post-concussion syndrome. If you wait to tell your doctor about these symptoms, the insurance company may argue that your injuries are not related to the accident.
Just because an injury isn’t documented perfectly in the first medical examination doesn’t mean that it isn’t related to the accident. At James F. O’Rourke Jr. and Associates we can deal with these kind of issues and obtain a full and fair value for our client’s injuries.
Following Medical Advice
In a perfect world, when you are injured and the doctor recommends physical therapy, you will go to every physical therapy session exactly as scheduled. But, if you miss appointments the insurance company may take it as evidence that you are not hurt.
Ideally, you will make every appointment with your doctor without fail. But people have busy lives. It is not always possible to make every appointment. Insurance companies try to use gaps in treatment to claim that you are not hurt or, at least, not hurt as badly as you may be.
As an Oregon Personal Injury Attorney James F. O’Rourke Jr. can take your case through the claims process and deal with the insurance company attempts to reduce the value of your claim. At the end of your case, we want two things: a healthy client; and payment of a fair value for the claim.
The 2009 Legislature, acting on the recommendations of a review task force set up in 2008, adjusted liability limits for the state and local public bodies for lawsuits against them for personal injury and property damage.
Since 1967, the Oregon Tort Claims Act has governed lawsuits against the state and other public bodies. In addition to special notice requirements, the Act set limits for the amounts a person could recover for injuries caused by the negligence of a person employed by a public body. Prior to 2009, a person was limited to a claim of $100,000 and up to $200,000 under certain circumstances.
The 2009 Legislature recognized that these limits had not been adjusted for inflation and they needed to be increased in order to provide fair compensation for persons injured by the negligence of a public body.
The new limits are different for the state and local public bodies. Now, for lawsuits against the state for injuries caused between December of 2007 and July 1, 2010 the limit is $1,500,000 for a single claimant and up to $3,000,000 for injuries to multiple people in a single event. For local public bodies, like cities and counties, the limit is now $500,000 for a single claimant and up to $1,000,000 for injuries to multiple people in a single event. The property damage limit was raised from $50,000 to $100,000.
The good news is that the Legislature set incremental increases in the limits for both the state and local public bodies over the next five years. After that, the limits will increase annually according to inflation, as determined by the Consumer Price Index (CPI).
This is a significant step to ensure fairness for persons injured through the negligence of a public entity. As an Oregon Personal Injury Attorney, James F. O’Rourke, Jr. aggressively pursues claims on behalf of those injured by the negligence of the state or other public bodies.