Automobile Accidents, Personal Injury
There can be situations where some or all of the blame is unjustly placed on an injured driver for causing an accident and the conditions of the roadway, where the accident happened, are not fully considered. A thorough accident investigation should identify all parties who might share the fault, including whether a public body, charged with building and maintaining the particular roadway, failed to perform some act that they had a duty to perform. Public bodies have a lot of discretion as to how they build and maintain roadways so it is not automatic that they will have liability for their lack of preemptive action. Public bodies can decide they don't have money to rework a poorly graded section of road, but they may still have a duty to install less expensive signs warning drivers of the sunken grade ahead.
To ascertain all possible causes of an automobile accident and properly assign liability, one may need to hire an accident reconstruction expert to review the situation and give their professional opinion as to all contributing causes of the accident. A complete investigation should also look into whether the roadway where the accident happened has had a lot of accidents in the past and look at whether the construction of the roadway or the signage or the posted speed are materiel factors in the high rate of accidents.
Such an investigation could take a while. To preserve one's right to sue a public entity who may later be proven to be culpable in the accident, it is extremely important to send a generic Tort Claims Notice Letter to all public bodies who could possible have responsibility within180 days (six months) of date of the accident. You don't have to know for certain that there is any liability on the part of a public body to send such a letter. All the letter has to say is that this is a Tort Claims Notice Letter and that there was an accident (and give the date, time, location, information as to the cars and drivers involved, etc) and state that the agency may be named in a subsequent lawsuit for damages.
The cost of sending the letter is very low. Conversely the consequences of not sending the letter can be costly. Sending such a letter gives the injured party time to explore all theories of liability which may help lead to a full recovery of damages. It should be a standard practice to send a Tort Claims Notice Letter in all accidents just to preserve one's right to add a public body as a defendant later on should it prove necessary or desirable to do so.
This is not something that a lay person should do on their own because it is critical to identify any and all public bodies which may have jurisdiction over a particular section of highway. Also one needs to be able to prove that the letter was sent on a certain date and was sent to the correct address and the appropriate responsible party. One needs the assistance of an Attorney to insure that this is done correctly.
Whether or not a full investigation including the cost of hiring an accident reconstruction expert is justified or needed is a decision best made on a case by case basis. It is advisable however to keep one's options open until the extent of the client's injuries and the question of liability has been fully explored.
Keep in mind that in Oregon one can only recover one's damages if one is either not at fault or has 50% or less of the total assigned partial fault. Adding a public body to the case who may share in the fault, may make the difference as to whether one can recover damages at all.
Very Very Important - All Oregonians will want to make sure their automobile policy is technically renewed or issued as close to January 1, 2016 as they can get it done. Why?
Well there was a new law passed this year that goes into effect as of January 1, 2016. Known as Oregon Senate Bill 411, or referred to by us attorneys as the "UIM stacking legislation", this new law will actually improve your auto insurance coverage if your policy is issued or renewed on or after January 1, 2016. The law specifically increases the protection you have if you are in an accident where the other driver is at fault and the other driver's insurance is less then your insurance coverage or the other driver doesn't have insurance.
By law all auto insurance policies issued in Oregon have always been required to include a minimum amount of coverage called UM/UIM which is what pays your personal injury damages when the other driver has no insurance of lower insurance coverage limits. (Think of UM/ UIM as "under-insured" or "uninsured motorist protection") Currently all Oregon Auto Insurance policies must contain coverage of at least $25,000 per person/ $50,000 per accident. (This means all policies will pay up to $25,000 to each individual that makes a claim but no more then a total of $50,000 for all payments made to all persons involved in the same accident.)
Prior to this new law, the mandatory UM/UIM insurance, included in your automobile policy, usually did not pay you the full amount that the policy said it would pay. This is because the law as, previously written, allowed your insurance company to first consider how much insurance the other driver had available to pay you, and count that insurance first, and then only pay you the difference.
For example, if your UM/UIM coverage, that you had paid premiums to have, was say, $100,000.00, and you were in an accident where the at fault driver had $50,000 of liability coverage, you might think that you can expect both the $50,000, plus the $100,000, a total of $150,000, to be the total amount of funds to pay your damages. (Assuming your injuries were such that you deserved that level of damages.) But under the current law, your insurance company would tell you that you only have a maximum of $100,000 available consisting of the $50,000 from the other driver's insurance plus $50,000 more from your policy. You don't get the full $100,000 you paid for on your policy because they treat the total amount as a guarantee of the amount you will get, including what you get from the other driver, so they don't have to pay you what you can get from the other driver.
This all changes as of January 1, 2016. You will now legally be entitled to get, under the above example situation, both the $50,000 from the at fault driver plus your full limit of $100,000 for a total of $150,000. (Again, you have to still prove that your injuries are worth the full $150,000, but assuming you can do that, you have a larger fund to draw from.) THE CATCH IS: The new law will not apply to you until your policy is actually renewed or newly issued in 2016! So don't wait for your actual renewal date sometime later in 2016. Call you insurance agent and find out what you can do to trigger an earlier renewal.
In most accidents, like when you are rear ended, it is not going to be an argument about who is at fault. The argument is going to be about the amount of damages. Insurance companies have a deliberate and carefully orchestrated plan to minimize how much they will pay out and it starts with the adjuster from the insurance company for the other driver car calling you and saying she or he is so sorry to hear about your injuries and they will take care of you - all you need to do is give them a recorded statement and sign some documents so they can view your medical records. This is a trap designed to carefully document your post accident progress in a way that most favors the adverse insurance company (for the other driver). Their goal is to pay you as little as possible. They play on your emotions so you think they are being helpful and you will cooperate with whatever they ask for. They will act so nice and even start talking about paying you money - all so you won't hire your own attorney.
Every case they can lowball means more profits for their company. They can then throw up statistics at attorneys like myself to tell us our future cases aren't worth anything. In the early 1980's I used to get offers of $10,000 pretty regularly to settle soft tissue injury cases like yours. Now 30 years later I am lucky if I can offers of more than $1,500 to $3,000 and the insurance companies will battle like crazy to avoid paying a dime more. They will spend far more to avoid paying out a claim then the amount they are arguing about not paying. It is no longer about the cost of settling the case or the fairness of the damages paid. It is about lulling accident victims into taking law ball offers when they don't know any better and making cases that are handled by attorneys as difficult and unprofitable as possible so that future claims can be settled as cheaply as possible.
We PI lawyers fight vigorously to stop the trend of low ball offers, unfair tactics, and cost prohibitive legal maneuvers. We are willing to take cases up on appeal when necessary to protect the legal rights of consumers like yourself. We fight for new laws that protect your rights by hiring lobbyists and going head to head with the well paid insurance lobbies every legislative session.
So by hiring a PI lawyer, preferably on that is a member of the Oregon Trial Lawyers Association (just ask), you will not only get a better settlement then you would on your own, even after paying a percentage as attorney fees, you will also stand up for your rights and the rights of other accident victims to get a fair and full settlement.
Understand that you have PIP coverage under your own Oregon insurance policy. This is a mandatory no-fault additional coverage in all Oregon Auto Insurance policies. What the other driver's insurance company does with yor claim doesn’t effect your right to this coverage nor will using it effect your insurance rates. This will pay for your medical treatment up to $15,000 and will pay for up to a year of treatment. If you need to take time off of work, you may qualify for the lost wages that PIP will pay in addition to your medical bills. (You need to be off work a certain amount of time to qualify.) Your PI lawyer will see to it that you are able to take full advantage of your PIP coverage, so you can get the treatment you need and your lost wages while you recover. You should not even consider settling your case until your injuries resolve. You have up to two years before your case would need to be filed in the court so this is usually enough time to allow yourself to recover with time to spare that attempts can be made to settle the case. Your chances of getting a fair settlement are much better if you first heal from your injuries and a demand package with complete information as to your treatment and medical bills is sent to the other driver's insurance company. Your PI attorney will handle all of this for you.
As for car damages, if you have full coverage you can address the car repair or replacement by using your full coverage. If you have a deductible you may need to pay it but it will be reimbursed later on. If you don't have full coverage, a fairly new law (lobbied for by OTLA), now requires that the other driver's insurance company make you a fair offer immediately for the amount of your repairs or the replacement value of your car. Your PI attorney can help you facilitate this. Just don't be deceived that the other insurance companies willingness to settle your car damages is due to anything other then the fact that they are now obligated to do this under Oregon Law. It is not a sign that your case will be settled easily without legal representation. In fact, if they try to total your car they will still play all sorts of games trying to argue that your car isn't worth much. Your PI lawyer should be able to help you establish the fair market value of your car if it is totaled.
There are simply many advantages in hiring an experienced Personal Injury Lawyer as soon as you are able to contact one. Most lawyer will talk to you about your case at no charge and will take your case on a contingency so there is no up front cost to you. The professional experience they will bring to bare in handling your case against well funded insurance companies who will be doing everything they can to minimize your claim is invaluable.
Oregon driver's insurance policies must offer a minimum of:
Bodily injury and property damage liability
$25,000 per person; $50,000 per crash for bodily injury to others; and
$20,000 per crash for damage to others property
State law also requires every motor vehicle liability policy to provide:
Personal injury protection (for reasonable and necessary medical, dental and other expenses
incurred up to 1 year after the crash) $15,000 per person. (Coverage for lost wages up to $3,000 a month for up to one year is also part of PIP and is in addition to the medical coverage.)
And the policy must include Uninsured motorist (UM/UIM) coverage of
$25,000 per person; $50,000 per crash
What this means is that if you hit someone, your insurance will pay at most $25,000 maximum to each person injured and no more than $50,000 maximum for the total paid for all injuries. So if you have more than one person with more than $25,000 of injuries, your insurance company won't pay more than the maximum and you may be liable for any judgment in excess of the maximum coverage. This could mean that you may lose your house if you have equity above the current exemption amounts of $40,000 per person and $50,000 per married couple. Scary isn't it?
If you own property that has value, like a nice house with equity or a car worth more than $3,000, it would be wise to talk to an attorney and see how much exposure you have and find out how much more insurance you need to buy to protect yourself.
Now let's look at the protection you have for yourself under your policy. Your UM/UIM will pay you if you are injured by another driver up to $25,000 per person in your car, and up to $50,000 total per accident. Not very much if you are seriously injured by a driver with little or no insurance. One night in the hospital could chew up $25,000.00.
What often surprises people is that if a driver hits you, and has insurance, let's say the minimum required, $25k per person and $50k per accident, you might think that your own policy will then kick in and boost this to more, adding on your own $25k/$50k UM/UIM coverage. But it doesn't. The game is rigged by the insurance rules and underwriters. Currently the two policy amounts won't be combined. You only get your UM/UIM if it exceeds the amount of the other driver's coverage and only get the excess.
One of the best ways to protect yourself is to buy higher um/uim coverage if your insurance company offers it and you can afford it. This may mean buying an umbrella policy.
In Oregon you will also have a minimum of $15,000 in PIP to cover medical expenses. If you have other medical insurance this is probably sufficient. Just be careful if you ever need to use your PIP that you
don't use it all up immeidately for something like chiropractic care, and then find out you need other treatments that your HMO won't cover, like massages. Talk to your personal injury attorney as to ways to monitor and allocate the PIP usaage so you get the maximum benifit.
talk about Auto insurance and three of the most important things to know:
1. Don't drive without insurance, even if you are a good driver: If you get into an accident and don't have
insurance, and the accident wasn't your fault, an attorney would have a
very hard time representing you to help you recover for your damages
because Oregon law prevents uninsured driver's from recovering pain and
suffering damages. (There is an exception if you were insured and the
insurance has just recently lapsed.) Without the extra funds that come
from the pain and suffering portion of your damages, there is little an
attorney can do to help you collect the money needed to fully
compensate you for your medical bills, lost wages and car damages
because there is no extra money from which the attorney can get paid to
do this work. Also, you won't get any money for the suffering you went
through. So bottom line, don't drive without insurance because even if
you avoid causing any accidents, you could still be in big trouble if
someone hits you and you are the one that needs help getting your
Whether or not you the accident was your fault, under Oregon
Law you will be subject to having your driver's license suspended for
one year. You may be able to qualify for a special work driving permit
before your one year suspension is over, but you will have to show proof
of insurance to get that permit.
2. Every Oregon Insurance policy includes PIP (Personal Injury Protection) which means you get up to $15,000 of your related medical bills paid
the first year, no matter who is at fault, and you get 70% of your lost
wages reimbursed up to $3,000.00 per month. So you don't need to panic
and settle your case because you are worried about the fact that you
can't work or that you didn't have medical insurance. PIP will help you
with this giving you time to talk to an attorney and get your case
3. Make sure you raise your Uninsured/Underinsured Motorist coverage. Under Oregon Law all policies have basic coverage of $25,000 per person,
$50,000 per accident. This means if you are in an accident that is not
your fault and the other driver has no insurance then you can get up to
$25,000.00 for your injuries from the UM (Uninsured Motorists) portion
of your policy. But $25,000.00 can't even begin to help you if you are
seriously injured. It will be exhausted with just a few days of
hospitalization. This is the one area of insurance that actually
protects you and your loved ones but it is so often ignored, and it is usually very inexpensive to increase the coverage.
UM also becomes UIM (Under-Insured Motorists) if you are hit by a driver
with less insurance coverage then what you have. Keep in mind that
many other driver's only have the minimum insurance, $25,000 to pay you
if they injure your. It would be wise to get as much UIM coverage as
you can afford. UIM only works to the extent that you buy coverage
greater than what the other driver has. The amount of your policy is
not added to the amount of the other driver's, rather the amount of the
other driver's is subtracted from your UIM and you get the difference.
So if you have $50,000.00 of UIM coverage and the other driver has only
$25,000.00, you could get an additional $25,000.00 from your policy for a
total of $50,000.00 (but you would not get $75,000.00). This is
another reason to aim for the highest coverage you can afford, ideally a
million dollars worth of additional coverage. It may sound like a lot
but it is relatively cheap, especially if you have a good driving
Keep in mind that UM/UIM insurance does not cover your car. You must
also carry full coverage insurance if you want your property damage
covered as well!