Oregon Personal Injury Lawyer Blog

Last week, Oregon's Court of Appeals told Allstate that it must pay attorney fees to its insured, who suffered personal injury in a car accident caused by an underinsured motorist. The law requires an insurance company to pay attorney fees to its insured if he or she provides "proof of loss" and if the insurance company fails to accept the claim and offer to arbitrate within six months. Allstate quibbled over what constitutes a "proof of loss," arguing that its insured needed to jump through another hoop or two. The Oregon court disagreed in the case of Joann Hall v. Taysia Speer and Allstate Insurance Co.

In September, 2006, a car accident injured Joann Hall. She told Allstate and applied for benefits under the Personal Injury Protection (PIP) provision. So, at that time, Allstate knew of the collision and injury. In February, 2007, Allstate sent Ms. Hall to one of its doctors, who confirmed that Ms. Hall suffered honest-to-God, significant injuries because of the collision. By May 2007, Ms. Hall decided she needed an attorney, who then informed Allstate that he was working for her.

Allstate did not accept coverage until 20 months later. But Allstate had two arguments that won the day. Allstate said that its Underinsured Motorist (UIM) adjuster did not know the extent of the injuries, plus, Allstate did not know that the at-fault driver did not have enough insurance until two months before Allstate accepted coverage.

The Court of Appeals flipped the responsibility and reversed the trial judge.

First, Allstate's right hand (UIM adjuster) is responsible to know what its left hand (PIP adjuster) knows. Allstate is Allstate. It is not the insured's responsibility to run the paperwork from one Allstate cubicle to another.

Second, Oregon precedents place the burden on insurance companies to clarify uncertainties and perform reasonable investigations. In this case, if Allstate did not know whether the at-fault driver had enough insurance, it should have asked someone, anyone. But, in fact, it did not ask Joann Hall, her lawyer, or the insurance company for the at-fault driver. Because it did not perform any investigation, the Court of Appeals held that it failed to meet it's "duty of inquiry, * * * even if the submission is insufficient to allow the insurer to estimate its obligations." More directly, the court reminded insurers that if they think that the "proof of loss [were] so uncertain. . .then defendant should have requested plaintiff to make her claim more definite and certain." (quoting, Parks v. Farmers Ins. Co.)

Insurance companies have an incentive to deny claims and to underpay. Shaving off what it owes on thousands of claims means millions of dollars to the insurers. Companies figure that the worst thing that will happen if they deny claims is that they will keep their money longer and pay the claim, later, if someone gets a lawyer. Only when insurance companies fear that they might have to pay MORE, later, will the money calculus change and incentivize the company to pay a fair amount first. That's why this ruling is important for people; it places the responsibility on sophisticated, experienced claims examiners to do their job and not require people dealing with their own injuries to become experts in insurance law just to get the benefits for which they have paid premiums for years.

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.

Okay, I'll tell you how my week was.

I probably talked with between 12 to 20 people who thought they had cases, and I responded to probably another dozen people who filled out contact forms. Some of their problems were in my "wheelhouse:"

• Car Accident: a distracted driver crossed the center line and ran an oncoming driver off the road. The distracted driver's insurance company said, "No collision - no claim." I say, "Valid case."

• Bike-Car Accident: Car hit man on bike

• Sexual Harassment & Retaliation: Woman pressured by boss to have sex. When she stopped, the boss-owner continued sexual harassment and retaliated against her by treating her so badly that she had to quit

• Medical Malpractice: Man went to the hospital over 100 times before they diagnosed him correctly.

• Employment Law: Several people claimed wrongful termination or discrimination. Some may be right; some are definitely wrong.

• Legal Malpractice: at least two people thought their attorney malpracticed.

For clients with cases in court, I prepared motions and gathered evidence. I counseled clients on the next steps of the litigation and what mediation is all about. I read and wrote countless E-mails and letters to move litigation forward toward conclusion.

Some cases are in the stage between the forming our attorney-client relationship and filing a lawsuit or other claim. This is a critical stage. What is the appropriate approach? Are we ready to file? Can we improve the case before filing? Should we start with a letter seeking settlement? Should we file a complaint with the Bureau of Labor and Industries? Should the first salvo be a lawsuit?

Every person is different. Every situation differs. The key is apply a quarter-century of experience to work through what is best for each person. That's the fun part of the job. The not-so-fun part of the job is dealing with the occasional jerk, whether it's an insurance company lawyer or someone who gets angry at me because I offered a free opinion that what they think is a case is not something they can or should sue about.

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

Anyone who has rehabbed just about any injury knows that rehab can become repetitive and boring. It's hard to stay motivated. So, perhaps it's not surprising that researchers are studying computer games as a tool to help patients. Recently, the Journal of Neuroengineering and Rehabilitation published a study indicating that people with Acquired Brain Injury who used the Wii Balance Board® had fun and improved their balance.

Of course, not every person with balance issues is capable of using the balance board. The researchers screened out those with cognitive impairment and those who could not walk at least 10 meters indoors. They excluded people with visual or other impairments who could not interact with the machine.

The advantages of the Wii Balance Board® included that it is widely available and cheap compared to products marketed as medical devices. With careful game selection, patients reported having fun and not being frustrated. In this study, researchers used three games, Simon, Balloon Breaker and Air Hockey. People in the studies had suffered strokes, traumatic brain injury, and benign cerebral neoplasm.

The relatively small sample of 9 using the Wii® compared to 8 using conventional therapy makes it hard to draw any vast conclusions. Nevertheless, the results were positive, with the Wii® group showing more improvement.

The larger message is that people with Acquired Brain Injury need to get all available rehabilitation to improve their abilities and to cope with their condition. It is important to know what therapies are effective. I use life care planners to assess my brain-injured clients to determine the optimal therapies. Then we price out the rehabilitation therapies and devices as part of a life care plan to present to insurance companies. Sometimes, insurance companies will pay for all the necessary therapies; sometimes they will make you hire an attorney to sue them.

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.