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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

Category: Personal Injury Law

Oregon Supreme Court Upholds Damage Award Against Farmers

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.

Dealing with Common Insurance Company Attempts to Reduce the Value of Your Personal Injury Claim

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 Consequences of an Uninsured Oregon Automobile Accident

Many people who have an auto collision while uninsured experience a rude awakening when they make a claim for damages against the other party’s insurance. Since 1999, Oregon law has provided that an uninsured person who is injured through the negligence of another in an auto collision can only recover their economic loss from the at fault party. That means that such a person is barred from recovering damages for pain and suffering, which constitutes a significant portion of a personal injury claim.

There are exceptions to this rule limiting damages. If the at fault party was also uninsured, the limit does not apply. Also, if the at fault party was engaged in the commission of a felony, driving under the influence of intoxicants or driving recklessly at the time of the collision, there is no bar to recovery of pain and suffering.

The most significant exception is for people who have recently had insurance but allowed their insurance policy to lapse. If a person has been insured in the 180 days preceding the collision, and not been cited for driving without insurance for the year preceding the collision, there is no limitation on recovery.

James F. O’Rourke Jr. Is an experienced Portland Personal Injury Lawyer and explores every possible means of avoiding the damage limitation for our uninsured clients who are injured through the negligence of another in an automobile collision.

Oregon Supreme Court Settles Question about Limits of Underinsured Motorist Coverage

It is fair to say that most people have little understanding about how their Underinsured Motorist (UIM) coverage works in practical application.  UIM coverage is required under Oregon law as a protection against damages cause by an underinsured motorist.  In a way, it is the part of your insurance policy that you buy to protect yourself from those with inadequate insurance coverage.
However, until July of 2009 even Oregon personal injury attorneys were in the dark about how much the UIM policy had to pay in certain cases.

Typically, a person will have a minimum of $25,000.00 in UIM coverage as a part of a basic insurance policy, although smart drivers purchase more.  If a person gets in an accident with a driver with a $25,000.00 minimum liability policy and sustains over $25,000.00 in damages, he can pursue a UIM claim under his own policy.  Most people seeing the $25,000.00 in coverage would assume that they are entitled to up to an additional $25,000.00 under their own policy.

The Oregon Supreme Court has definitively said that assumption is wrong.

In Vogelin v. American Family Insurance, the high court said that UIM coverage works in a much different and more miserly way.  Ms. Vogelin was seriously injured in a car accident, suffering over $300,000.00 in damages.  The at fault driver had a minimum liability policy of $25,000.00.  Ms. Vogelin had UIM coverage of $100,000.00.  The Supreme Court held, in interpreting the statute governing UIM benefits, that Ms. Vogelin was entitled to recover only $75,000.00 from her UIM carrier, because the law required her to deduct the amount she had recovered from the at fault party from her policy limits.

Oregon’s statutory scheme governing auto insurance coverage is a byzantine maze of rules and regulations, most written by the insurance industry and slipped into the laws over time.  The law as a whole is filled with special considerations for the insurance industry so the result in Vogelin is hardly surprising.

But what of the consumer who finds out his “$100,000.00″ UIM policy is really not worth its face value and may be worth nothing at all?

The lesson is this: know your coverage and think ahead.  We handle many tragic cases where we have seriously injured persons who are entitled to substantial compensation, but there is only fraction of the just compensation available under the available insurance policies.  UIM insurance is the coverage you buy to help YOU if the unthinkable happens.  Insure yourself against other people’s negligence at least as well as you insure other people against your negligence.

As experienced Oregon Personal Injury Lawyers, we recommend to our clients that they carry at least $300,000 of Uninsured and Under-insured Motorist coverage.