Oregon Personal Injury Lawyer Blog

The Oregon Supreme Court reversed a defense verdict in a truck-car accident case because the trial court did not allow the plaintiff's attorney an opportunity to respond to the closing defense argument. For closing arguments the practice is that the attorney for the injured party (the plaintiff) talks to the jury first. Then, the defendant makes its argument. Finally, the attorney for the injured party responds to what the defendant said.

In the case of Stella Charles v. Palomo, after the defense lawyer uttered his closing argument, the trial judge began to instruct the jury. The lawyer for Stella Charles, interrupted, "Rebuttal, Your Honor?" The trial judge refused his request for rebuttal argument.

Oregon's Supreme Court interpreted ORCP 58 B(6), which sets forth the normal practice that the injured person shall "commence and conclude" the closing arguments. The trial court tripped up on the second sentence of the rule, which covers the very unusual situation of a plaintiff skipping the opportunity to make the first closing argument.

To win an appeal, a party must prove that the trial court's mistake could have affected the outcome.

At trial, the defense lawyer highlighted defendant's testimony claiming that the real problem was that Ms. Charles's vehicle stalled. Defendant said he got that information from the police officer. Defendant testified that Ms. Charles admitted to the cop that her car stalled. This "fact" of the car stalling was in the last argument the jury heard before it decided against Stella Charles.

The Oregon Supreme Court held that it might have made a difference if the Ms. Charles's attorney had the last word to point out: (1) The police officer did not mention stalling in the police report; (2) Defendant did not call the police officer to testify; (3) There was no evidence of stalling other than defendant's claim; (4) Defendant's stalling claim was new: in his sworn testimony months before trial, defendant never mentioned this "fact," and (5) Defendant had a strong incentive to make it all up.

Thanks to Court's decision, Ms. Charles gets another opportunity to seek justice in the trial court.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In the U. S. District Court for Oregon, the Honorable Judge Anna J. Brown issued an opinion on whether the Federal Arbitration Act (FAA) prevents Oregon's Legislative Assembly from regulating certain arbitration agreements. Judge Brown opined, in essence, that ORS 36.620(5) was stillborn. This note points out the following:

• ORS 36.620(5) was not at issue, making the opinion dicta.
• Judge Brown, herself, deemed the motion moot.
• The circumstances prevented Judge Brown from being fully informed before rendering her opinion.

Facts of the Case.

Alterra Healthcare Corporation hired Deanna Bettencourt on November 9, 2006 as a resident assistant grossing $8.50 per hour. In February 2007, the employer asked Deanna to sign the purported arbitration agreement. Her signature did not coincide with any raise or promotion.

Ms. Bettencourt complained about changes her boss made in her time records that had the effect of taking money from her. Afterwards, the company, now known as Brookdale Senior Living Communities, Inc., fired Deanna. Ms Bettencourt alleges that the termination was in retaliation for asserting her rights under Oregon's wage laws.

Circumstances deprived Judge Brown of full Briefing.

We filed the lawsuit in the Oregon Circuit Court for Multnomah County. Defendants removed, and moved to abate the case pending arbitration. Defendant's supporting memorandum was rather perfunctory, consisting of roughly 2 pages of facts and 4 pages of argument. In her 20-page response, plaintiff raised many issues that were not raised in the motion, and we requested oral argument. Judge Brown ruled without the benefit of oral argument - or any argument from Plaintiff - on the issue of whether the FAA preempts ORS 36.620(5).

ORS 36.620(5) was not at issue

ORS 36.620(5) became effective in 2008. Because Ms. Bettencourt signed the purported agreement in 2007, ORS 36.620(5) was not at issue. Consequently, Judge Brown's opinion on the matter was pure dicta - for information to the bar on how she views the matter based upon the incomplete record before her.

Plaintiff never argued that ORS 30.620(5) prevented the enforcement of the purported agreement. Instead, we argued that, under Oregon's Common Law, the purported arbitration agreement was void as against public policy. To bolster our common law argument, we stated:

"Since the time Plaintiff signed Exhibit 1, Oregon's statutory law has confirmed the common law analysis: Arbitration agreements shoved in front of existing employees are not enforceable. ORS 36.620(5)(2007)."

Because ORS 36.620(5) was not before the court, any interpretation of it -- or purported invalidation of it -- is dicta.

Judge Brown Never Ruled on The Defense Motion to Compel Arbitration.

After brushing aside Plaintiff's legal arguments, Judge Brown held that there was a triable question of fact as to whether an agreement existed. Judge Brown directed the parties submit a plan to resolve the issue. As it turned out, the parties mooted the issue.

In a minute order dated February 9, 2010, Judge Brown deemed the Motion to Compel Arbitration moot.

Conclusion

If defense counsel start waiving around Judge Brown's opinion, plaintiff's counsel must explain that the ruling was (1) not based on full information, (2) pure dicta, and (3) deemed moot.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

You've been involved in a car or truck accident in Oregon. The insurance company decides to call it a total loss, and then comes up with a low-ball appraised value. For example, the insurance company offers to pay you $12,000, but you think the car is worth at least $15,000. What can you do?

For too long, Oregonians have suffered from abusive insurance company practices, including declaring a motor vehicle a total loss and then offering less than the full value. If Oregonians disputed the appraised value but needed the money and cashed the check, then we lost our right to challenge the appraisal. Fortunately, an Oregon law addresses the problem of a totaled car or truck.

For motor vehicle insurance policies issued or renewed after January 1, 2010, Oregon law requires the insurer to pay money now and allows the owner to dispute the amount. Here's how it works.

• When the insurance company totals the car or truck and offers to pay, it must give you (1) the appraisal reports it used and (2) information on their duties and what you can do.

• The insurance company must pay what they think the car is worth. It can no longer hold your check hostage until you sign a legal release. Of course, you must sign over the motor vehicle title if you accept the check.

• The insurance company must tell you where they take the car, and keep it available for you for 14 days, so you may inspect it, photograph it, or hire an appraiser to work for you.

• If you challenge the appraised value and win, then the insurance company must pay you the difference, PLUS pay your appraisal fees.

So, finally, Oregonians no longer have to choose between (1) getting SOME money they need for their next car and taking a loss or (2) challenging the appraisal. Now, we can do both.

You can read more details in the Oregon Administrative Rule
836-080-0240.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In a fascinating ruling that discusses Oregon law back to 1857, the Oregon Court of Appeals held that former TV personality Ken Ackerman may keep his $1.4 million dollar medical malpractice judgment. However, the court changed the trial court's ruling on who must pay it.

Mr. Ackerman had back surgery by a doctor employed by Oregon Health & Science University (OHSU) and OHSU Medical Group. The doctor punctured Mr. Ackerman's spinal cord, leaving him in constant pain, and with a loss of fine motor skills in his right hand. Also, he lost most sensitivity to hot and cold on his left side.

Because OHSU is considered a governmental entity, special laws apply that purport to limit its liability $200,000. Whether those laws work to limit liability depends on whether Mr. Ackerman could have brought the lawsuit before our 1857 constitution guaranteed to all of us a "remedy by due course of law." If a law made after 1857 tries to take away our rights, then it is unconstitutional.

Oregon's Court of Appeals said that because Mr. Ackerman could not have sued the State before 1857, and because OHSU is considered like the state, then the limit as against OHSU is okay.

The Court then looked at whether the OHSU Medical Group is like OHSU, and gets the benefit of the limitation. On the record before it, the court found that OHSU Medical Group was, again, an "instrumentality of the state," which could be limited. (One wonders if a different record based upon the activity at issue could lead to a different result.)

The back surgeon, however, was not considered protected under the State's umbrella. The laws that purported to protect him from additional liability were held to be unconstitutional.

Consequently, the Court of Appeals said Mr. Ackerman could collect $200,000 from OHSU, $200,000 from OHSU Medical Group, and $1 million from the back surgeon.

There are many more issues involved in this important case, and defendants will seek review by the Oregon Supreme Court. So, as they say in television, "stay tuned."

Jeff Merrick, Oregon Trial Attorney
503-665-4234

I keep getting questions about an Oregon employee's right to see personnel records, so I decided to post the answer for all.

Oregon law provides employees the right to see and get copies of their personnel records. Some employers do not know this, and need to be told what the law is. The statute is ORS 652.750. For anyone considering a lawsuit in Oregon for wrongful termination, discrimination, or harassment, obtaining your personnel records is the first step. This article discusses your rights.

What are Personnel Records?

"Personnel Records" are the records used to decide on the employee's qualification for raises, promotion and even initial employment, (except that confidential reports from prior employers might be excluded). Personnel records include records used to decide upon suspension, demotion, other discipline or termination.

What are an Oregon Employee's Rights to See or Copy Personnel Records?

All an employee needs to do is ask, and the employer must provide the employee a reasonable chance to see the personnel records, at the workplace where he or she is working, not at corporate headquarters in Seattle or Tennessee. The employer has 45 days to provide the records.

The employee may request certified copies of personnel records, and the employer must provide the copies within 45 days.

The employer may charge the employee a reasonable amount to provide the personnel records.

DON'T WAIT TO ASK FOR YOUR RECORDS!

Oregon law does not require employers to have personnel files. However, if the employer does have personnel records, then Oregon law requires employers to keep personnel records only for 60 days after termination. So if you are fired, request your records right away. You have nothing to lose, because you are already fired.

What if the Employer Still Does Not Provide the Records?

You may file a complaint with the Oregon's Bureau of Labor and Industries. BOLI has the power to investigate and fine the employer $1,000.

Special Rights of Public Safety Officers

Unlike the rest of us, Public Safety Officers must see any negative comments before they go into his or her personnel file. The Public Safety Officer then has 30 days to submit a written response, which must be attached to the negative comment.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Summary

Oregon law requires drivers and others to report car or truck accidents that occur on public roads and other places open to the public (like shopping mall parking lots). The obligation to report depends on what happened and who is able to report. Here's how it works.

What car accidents require a report to Oregon Department of Transportation?

The driver must report if involved in the following categories of car or truck accidents:

• Accidents in which someone was injured,
• Accidents in which someone was killed,
• Accidents in which your own car had over $1,500 in damage,
• Accidents in which the other guy's car had to be towed and had over $1,500 in damage, or
• Accidents in which there was non-vehicle property damage of more than $1,500 (like running into a house or knocking down a telephone pole).

The $1,500 might be increased over time, but. as of February 2010, it is still $1,500.

The reporting law does not apply to snowmobile accidents or law enforcement officials that crash while trying to nab a criminal.

Time to report.

The driver must report within 72 hours on Oregon DMV form no. 32.

Duties of owners and non-driver occupants to report.

If the driver is physically unable to make a required report, then the occupant must.

If the driver is not the owner of the car and does not report the car accident, then Oregon law requires the owner to report.

What if both drivers agree to settle it quietly. Any need to report?

We know that insurance companies jack up rates when there is an accident. Consequently, people will offer to pay for the damage and agree not to report to insurance companies or the state. If you do that, you are violating the law. Failure to report is a Class B traffic violation.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

For years, Oregon children have been killed and have suffered Traumatic Brain Injury because they fell from windows. Second story windows are high enough, as I sadly learned while suing a landlord and Portland property management company. In the Portland area, alone, more than a dozen children go to hospitals for window fall injuries each year. Oregon Trauma Registry data indicate a total of close to 50 child window fall injuries per year.

The legal cases I had involving children falling from windows caused me to lead a legislative effort to pass a law requiring landlords to offer window guards to tenants with small children. That law did not pass, but a new Oregon building code is a step in the right direction.

The new regulation became effective February 1, 2010. It is Oregon Residential Specialty Code § R613.2. It applies to windows more than 72 inches above the ground below and offers two protections:

• First, windowsills must at least 24 inches above the floor.
• Second, the windows may not open more 4 inches unless the windows a provided with window guards that meet a certain national standard, called ASTM F 2090-08.

This is an important first step for a couple of reasons. First it acknowledges the serious and continuing problem of children falling from windows. Every year, when the weather gets hot, kids start dropping out of windows. You can count on it.

Second, the window guard requirement might cause stores to stock window guards. Right now, guards are very hard to find. You can see how window guards work at the Legacy Children's Hospital Safety Store, which is borrowing my own window guard displays. The knowledgeable and kind women who staff the store can help you order window guards and other safety devices.

I trust the word will get out to residential homebuilders: Make places safer to prevent tragedy!

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

On January 1, 2010, Oregon's new motorcycle laws became effective. Injuries from motorcycle accidents get the legislature's attention. In Oregon motorcycle crashes that we know about grew from 443 in 2002 to 873 in 2008. I know there are many people who did not like Oregon's existing law that requires riders to wear helmets. But the data show that helmet laws really do reduce the number of deaths and the severity of injuries. Here's a summary of the new laws.

ODOT Training Required.

New Oregon motorcycle riders must pass a rider education course approved by the Oregon Department of Transportation (ODOT). Who must get the training and when depends upon the age of the new rider. Even before this year, new riders under age 21 needed the course before they could get a motorcycle endorsement on their driver's license. As of January 1, 2011, new riders under age 31 must take the class, too. As of January 1, 2012, it covers 41 and younger. The law phases in the rest of the age groups over the following three years.

Reduced Insurance for Trained Riders.

Insurance companies must provide discounts on motorcycle insurance to new riders who complete a rider education course approved by the Oregon Department of Transportation. How much? Believe it or not, the law does not specify the amount of the discount.

Double the Fine for Riding Without a Motorcycle Endorsement.

Feeling like an outlaw because you do not have a motorcycle endorsement on your Oregon driver's license? Now, it will cost you $720 if you get caught. The good news is that if you complete the rider training and get the endorsement within 120 days of sentencing, then you don't have to pay the fine.

The goal, obviously, is to encourage safety and reduce injuries from motorcycle accidents, not punish riders.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Oregon law provides a remedy for damages caused by the sticky Toyota accelerator problem. By the way, this was not the first problem with Toyota accelerators. Last November, NHTSA announced a problem with the mats allegedly trapping the accelerators.

Oregon Revised Statutes 30.900 confirms a right to sue Toyota and the local dealership for property damage, personal injury or wrongful death caused by defects. The law is broad. It covers the following:

• Problems with manufacturing, inspection, testing, design or other defect; and
• Toyota's failure to warn of the problem of the sticky accelerator.

If you purchased your Toyota in Oregon, this law applies to you.

News reports indicate that Toyota was slow to act, despite horrific crashes allegedly due to sticky accelerators. Yesterday's New York Times article, notes the how Toyota initially discounted the problem and then blamed loose mats. Some think that even the sticky accelerator might not be the only problem. Instead, some blame the electronic system.

So, it seems that Toyota and local dealers sold defective products. The next question is whether it is worth the time and money to sue Toyota in Oregon. If uncontrollable acceleration (from whatever cause) did not cause a crash, then, it is doubtful that you should spend your time and effort with a lawsuit. On the other hand, if the uncontrollable acceleration caused you to suffer significant property damage, or if it caused personal injury to you or someone else, then you should consult with a lawyer, whether it is me or someone else.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.