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Law Offices of James F. O'Rourke Jr. and Associates

503-221-1425 - Portland Office

James F. O'Rourke Jr. and Associates duii defense attorneys

Supreme Court Upholds Tort Liability Immunity for Some Landowners

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.

Liens in Personal Injury Cases – Who Gets Paid and How Much from the Proceeds of the Personal Injury Claim

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.