Oregon Personal Injury Lawyer Blog

Yesterday, ANOTHER parent called me, "My child was walking his bike in the crosswalk and was hit by a car." Once again, the insurance company for the driver did not offer to pay the child's medical bills under the Personal Injury Protection (PIP) part of the automobile insurance policy. Most Oregonians do not realize that the coverage exists. This post covers what to do if a motor vehicle hits your child as he or she is walking.

First, here's a primer on PIP law. Every automobile insurance policy in Oregon must include Personal Injury Protection of at least $15,000. It is a no-fault provision. Drivers and passengers use PIP to pay doctor bills from injuries. Later, after the insurance companies determine who caused the accident, one insurance company will reimburse the other insurance company. The point of the law is to make sure people get the medical care they need, now.

But what if it is car versus pedestrian? Oregon Law (ORS 742.520) controls what must be in insurance policies. PIP policies must cover "pedestrians struck by the insured motor vehicle." This is separate coverage from the "liability" party of the policy, which pays for losses if the injured person proves that the driver caused the collision. So, for example, if a car runs over a child, the insurance available includes the liability part, (say, $100,000) PLUS the PIP (at least $15,000).

What else should you do if you are in a car accident? At least the following:

Get necessary medical care. Do your best to recover. The best news an attorney can give you is, "Your injuries are not worth suing about, because the cost of the lawsuit might be more than a jury award."

Preserve the physical evidence. Take photos of the scene, damage to cars, bicycles, and people. If clothing were damaged, save it. At some point, you might need to tell your story to 12 strangers. An illustrated story is easier to follow and remember.

Preserve the economic evidence. Keep receipts for everything. Keep all papers and E-mails.

Preserve the noneconomic evidence. Part of your claim will be what the injured person went through, emotionally. The injured person and family members should consider keeping a journal of the ups and downs of the recovery. Otherwise, when you testify a year later, you will forget details.

Don't get trapped. Insurance companies try to minimize payouts. They do this by trying to develop evidence to use against you. Sometimes it is by pretending to be your friend while asking you questions that they can use against you later. Sometimes it is by trying to get you to sign a release before you fully appreciate the extent of your loss. Sometimes, they send you to one of "their" "doctors," who usually just say, "It's time to cut off benefits because. . . ."

A Oregon attorney who represents people injured by car and truck accidents can (1) help guide you through the process, (2) make sure you understand your rights, and (3) maximize the monetary recovery for your losses. Please feel free to call me. I can help.

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.

How does a brain injury impact the time to sue under Oregon's Statutes of Limitations? Time limits in Oregon are too many to list. In fact, Oregon Attorneys all receive a 406-page red book that lists the different limits. This post highlights a few critical laws controlling when to sue the person who caused an acquired brain injury.

A disabling brain injury extends some (not all) statutes of limitations for up to five years. The extension is found in ORS 12.160, which covers minors and "insane" people. It "tolls" -- or puts on hold -- the running of some statutes of limitations for "so long as the person is insane" but not longer than an additional five years. So how bad must the brain injury be to toll the statute of limitations? The injured person must be unable to comprehend his or her legal rights, according to the 1991 case of Roberts v. Drew.

For example, if a person suffers traumatic brain injury in a car accident, the general statute of limitations is 2 years. If the person is unable to comprehend his legal rights for the rest of his life, then the time limitation to sue is 2 years + 5 years for a total of 7 years.

But that is not the whole story. Claims in Oregon have more than just a statute of limitations, which generally begins to run when someone "discovers" her right to sue. What happens if she discovers her right to sue years later? Can she file her claim 20 years later? That depends on another time limitation called the period of "repose." For many claims, that second time limit is 10 years. But for some, it is shorter. For medical malpractice, it is 5 years from the time the doctor made the mistake.

Generally, a person hurt by medical malpractice in Oregon must sue with 2 years, as with car accident cases. For example, I had a client who suffered anoxic brain injury because of the malpractice of the anesthesiologist. If the brain injury were bad enough to toll the statute of limitations for the rest of his life, his time limit to sue would NOT be 2 + 5 = 7, as with the car accident example. Instead, the 5-year medical malpractice statute of repose would require a lawsuit within five years of the date of the anesthesia (with some exceptions). At most, the acquired brain injury would add three years to the time limit, not five years.

Another example where permanent disability from brain injury might not provide an additional 5 years is claims against government hospitals, school districts, or other public bodies. First, Oregon's Tort Claims Act requires formal written notice of intent to sue, regardless of disability, within months. Second, Oregon's law is unsettled whether disability extends the two-year statute of limitations against governmental bodies.

In conclusion, a person who acquires a brain injury because of the fault of another usually has a right to sue. A disabling brain injury often -- but not always -- extends the time limits for asserting claims. If your family member obtained a brain injury, I know you have a lot to deal with. However, if you want to preserve his or her right to sue, you need to find time to talk with me, or another Oregon attorney, to determine the potential claims and time limitations.

Jeff Merrick, Oregon Trial Attorney
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.

Yesterday, the Oregon Court of Appeals upheld an award of attorney fees against Allstate Insurance Company. The case, Sara Marie Zimmerman v. Allstate, highlights important information for every Oregon driver who gets hurt in a car accident caused by another driver who does not have enough insurance.

Sara suffered personal injury in a motor vehicle collision, and the person who hit her did not have enough insurance. Sara, like all of us in Oregon, has Underinsured Motorist Coverage (UIM). You may not know it, but if you have motor vehicle insurance in Oregon, then you have UIM coverage. She submitted information on the accident and her injuries to her own insurance company. Allstate did not pay the claim or accept coverage and consent to binding arbitration within six months. The six months is a critical deadline. When insurance companies miss it, then, the insurer must pay attorney fees to the injured person if it loses the arbitration or trial. (The statute is ORS 742.061.)

Sara beat Allstate at trial, but Allstate did not want to pay the attorney fees awarded by the trial court. Allstate appealed, arguing that Sara should have provided it more information before the six month clock starts, including information that we usually cannot get (before filing a lawsuit): The amount of insurance the other driver has. Oregon's Court of Appeals did not get sucked into that way around the statute, and it said: "Pay your customer."

Knowing these quirks of law, like how to set up the insurance company to pay your attorney fees with a timely proof of loss, is another reason to hire an attorney and not try to settle on your own. As this case shows, even your own insurance company will fight you if it thinks it can save money. So, feel free to call me if you were hurt in a car or truck accident and want representation.

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.

Last week, I wrote about a great book on negotiations. This week, I write about a terrible one. 112 Ways to Succeed in Any Negotiation or Mediation: Secrets from a Professional Mediator is not worth 112 minutes of your time. It is not even worth 12 minutes of your time.

Here's one of those secrets that only a professional mediator could possibly know: "The secret to making the best opening offer, which allows the continuation of the negotiation process, is that there is no secret, just good judgment under the circumstances." (p. 67).

The book is a collection of seemingly random thoughts, 112 of them. (I guess; I did not actually count them.) The number gets so high because several of the thoughts are redundant or contradictory. One example of redundancy: on page seven, the author discusses the benefits of buying coffee or lunch for your opponent. On page 73, he urges readers to establish a friendly rapport with your opponent early by "giving a gift or doing a favor for someone[.]" And how's this for providing guidance to negotiators? Let's see if you can square the following bits of advice. (a) "Your competence in your field is an important source of power in your negotiation. Maximize that power." (p.70) (b) "In negotiations, it never pays to reveal your true intelligence or your true position. It's better to let the other side underestimate your skills." (p. 83).

Several of the tips are intended to be practical reminders. For example, the author reminds us to bring food and drink to a mediation session. Here's a few more secrets that, perhaps, the author could add to the next edition. Tip number 113: Don't forget to zip up your pants. Number 114: Show up on time. Number 115. . .

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

I found the classic book, Getting to Yes: Negotiating Agreement Without Giving In, on my bookshelf last week, and I read it again. Considering less than 1% of civil lawsuits in Multnomah County, Oregon result in a trial by jury, every trial attorney needs to negotiate effectively. I have the second edition, written by Fisher, Ury and Patton of the Harvard Negotiation Project. This post highlights the key concepts in their approach.

The authors urge negotiators to reject bargaining over "positions." A "position" refers to a statement such as "I will take no less than $100." If that is true and if the buyer cannot pay $100, then there is no point in negotiating. On the other hand, if the person - secretly - would take $60, then staking out the position of no less than $100 could prevent a favorable settlement, especially if the other person is prepared to pay up to $95.

But if price seems to be the only thing over which to bargain, then what can negotiators do other than toss out numbers and try to bluff the other side as to the price they'd actually pay or accept? The authors set forth a four-part process.

First, separate the people from the problem. We need to deal with both. The above "problem" to be solved could be stated as follows: "I'd like to sell this item, and you desire to buy it. How can we come up with an acceptable price." However, If a negotiator stakes out a position such as "no less than $100," then we need to deal with the issue of him defending his position and his integrity. In my law practice, we often need to address the real emotions of my clients for which there is no dollar value. The failure to address "people" and "problem" as real and separate issues can confuse the process and lead to failure or less-satisfactory results.

Second, one needs to identify interests. At first glance, there seems to be nothing to discuss other than price: I want to pay less and you want to receive more. But further discussions might reveal other interests. For example, the buyer might not have more than $50 now, but will receive some money after he sells something. The seller might want to delay receipt of income until January 1. The buyer might need to spend money on shipping. The Seller might have regular delivery routes.

By identifying interests, negotiators then move into the third phase of the method: invent options for mutual gain. In this example, the options become apparent: consider payments over time and discounted or free delivery. Nevertheless, there is still the issue of price.

Here is where the authors insist on developing and using objective criteria instead of just talking tough. If the seller says, "It was my grandfathers, I cannot sell it for less than $100," The buyer must refocus to, "I understand, but let's determine what is a fair price for non-related people." [I've used my own examples in this post, not the authors'.] Bargain over the process: how one can we determine a fair market value that we each might be able to accept. Try to get commitments on process. This avoids taking a position and then defending it. Agreeing on an objective process does not, necessarily, bind the parties to the result of the process, although that is a possible solution, too. The authors point out that the more negotiators can separate ego and feelings from an objective process, the better the chance of agreement.

The authors acknowledge that not everyone wants to "play" their game of negotiating over principles instead of positions. They discuss the concept of hard and soft negotiation and offer suggestions on how to deal with different situations.

I'm glad I re-read the book. It is a good reminder of how to move negotiations forward when things bog down. Attorneys who represent people need to be especially well versed in negotiation tactics because most people have only negotiated car purchases. By contrast, insurance company claims adjusters negotiate all the time. Insurance companies know the tricks. Consequently, to achieve fair value for a claim, people need to make sure their own attorney is skilled at preparing for settlement discussions and negotiating.

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.

Last week, Oregon's Court of Appeals confirmed that Geico must pay personal injury protection (PIP) insurance benefits to the son who borrowed his mom's car and was injured in a car accident. Geico tried to weasel out of payment by arguing that the son did not reside with mom at the time. In Brandon Sheptow v. Geico General Insurance Co., the court said, in effect, "phooey." Oregon Revised Statute (ORS) 806.080(1)(b) specifically requires that any motor vehicle policy sold in this state covers "all persons who, with the consent of the named insured, use the motor vehicle[.]"

Personal injury protection benefits provide no-fault benefits to people injured in car accidents. (In this case, Brandon was not at fault; the other driver caused the car collision.) PIP covers medical bills, lost wages, and certain other losses up to the amount the limitations of the insurance policy. Regardless of what the insurance contract says, the coverage applies. Under Oregon law, the statutes provide a coverage "floor." An insurance policy may provide more benefits, but it cannot provide fewer benefits.

In this case, the Geico denied coverage based on an old case that predated the key provision in ORS 806.080. However, every law school teaches every law student law that a later law enacted by the legislature trumps an earlier law, and, especially, an earlier interpretation of the law by a court. The trial court did not fall for Geico's, and neither did the court of appeals.

So, yes, when an Oregon mom lends her car to her son, mom's insurance covers him as if she were driving, whether the son lives with her or is just visiting.

The moral of the story: Beware of the jocular gecko lizard who is happy to accept your money but transmutes into a weasel when it comes time to pay money to you or your loved ones. Instead, hire an Oregon attorney when you are involved in a car or truck accident.

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.

Yet another Oregon motorist called me who was rear-ended while stopped. The suspected reason: the other woman was using her cell phone, probably reading it or texting. She is responsible for the car damage and the personal injury to my new client, but an interesting legal question came to mind. Does the law against cell phone use apply if someone is just reading or watching video on it?

First, the driver must pay for monetary damages because of negligence whether or not she should be ticketed under the driving statutes. The negligence standard is a reasonable person standard. A reasonable person does not read or watch video while operating a car or truck. If that causes a collision, then the person is must pay for the losses she caused.

But is just reading or viewing something a traffic offense covered by the statute prohibiting cell phone use?

ORS 811.507 prohibits driving "while using a mobile communication device," unless the person is 18 or older and uses a hands-free accessory. The law defines a "mobile communication device" as a device designed to "receive or transmit voice or text communication." But many devices now provide text, voice, PLUS Internet. What if someone is surfing for sports scores or the latest news? Does ORS 811.507 prohibit that?

The answer is we do not know until a test case makes it to the courts. On one side of the argument, the law prohibits "using" the "device" with your fingers or hands. If the driver uses the device for something other than voice or text, he is still "using the device," and that seems to be prohibited. On the other hand, the statute, as a whole, refers to communication between the driver and others. One could argue that the simple receipt of information is not, strictly, prohibited.

As a practical matter, just pay attention to driving when you drive. Whether or not you violate ORS 811.507, if you hurt someone because you are texting or Internet surfing while driving, the victim has a valid claim against you.

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.

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.

I tell my litigation clients, "I HOPE the attorney for the other side is a really good attorney." That's because a good attorney will know the law, understand the how the facts fit in, and properly counsel their client on the risks and benefits of proceeding with each phase of the litigation. Dumb and / or inexperienced lawyers only increase the cost of litigation, which only benefits the attorneys.

I'm involved in a case now that should never have gone to court. The opposing party should have paid my client. We asked for the correct amount, which was far less then the costs of litigation. We had to sue. A good attorney would have told the defendant to pay the amount due on time. Maybe he did, and the client ignored him. I don't know.

The amount was small. In Oregon, a case under $50,000 must first go through an arbitration process. We won at arbitration. Now, the other side owes us attorney fees far in excess of the amount the defendant owes my client. A good attorney would have told his client to pay the award, and maybe he did. But the defendant appealed, which will only cost the defendant more money for attorney fees.

The Oregon State Bar regulates lawyers. If an attorney takes Ten Cents from a client trust account, he or she is in big trouble. If an attorney costs someone several thousands of dollars because of bad advice. . . ., then it's usually up to the client sue for legal malpractice.

I think the Oregon State Bar should have a program for identifying substandard lawyers. Once identified, the attorneys should get additional training. If their substandard practice continues, we should yank their licenses to practice law.

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

Members of the Oregon State Bar must have legal malpractice insurance through the Professional Liability Fund. The minimum coverage is $300,000. (Patent attorneys can practice with permission from the US Patent office, and need not be members of the Oregon State Bar, and they may or may not have insurance.) Although the attorney is responsible for the care of the client, sometimes it is someone in the office who screwed up. This post discusses when mistakes are covered by the Oregon attorney's malpractice insurance.

A too-common error is serving a complaint late - missing the statute of limitations (or missing some other time deadline). Sometimes, it is a secretary or assistant who makes the mistake. Since the assistant messed up, is the attorney responsible? And is it covered by insurance? Yes. Yes.

The error is covered if committed by a person for whom the attorney is responsible and, at the time, the attorney was covered by insurance and the attorney's main law office was in Oregon. So, errors by secretaries and assistants are covered. But there is an exception.

What if the assistant is an attorney? Here's one situation. There are a lot of unemployed young law graduates who passed the Oregon State Bar. Some are serving as paralegals because they need the job and some attorneys need help that costs less than hiring someone as an associate attorney.

Another situation is when an attorney licensed in another state has a client with a matter in Oregon. Sometimes, the non-Oregon lawyer will associate with an Oregon lawyer for purposes of the one case only. What happens if the non-Oregon lawyer screws up the case?

Errors committed by the following are NOT covered by insurance provided by the Professional Liability Fund:

- Attorneys from another state, and
- Attorneys who claim that they are exempt from coverage by the PLF, such as an inactive member of the bar.

In conclusion, generally, if an Oregon lawyer handled your case and either the attorney caused you harm because of negligence, or if some assistant caused the mistake, then the mistake is probably insured and you should be able to recover.

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.

Recently, the Oregon Court of Appeals held that an insurance policy issued to a Vancouver, Washington driver provided different rights than if the driver had lived in Portland, Oregon. The case involved a car accident and the uninsured motorist provision of an auto insurance policy, but the ruling could apply to any insurance contract. In Carla Morgan v. Amex Assurance Company, the result was that the injured driver had to pay attorney fees out of her settlement instead of keeping her entire settlement and having her insurance company pay her lawyer.

For decades, Oregon law said if (1) a person submits a "proof of loss" to his or her own insurance company, (2) the insurance company does not settle the claim or accept coverage within six months, and (3) the insured sues the company and wins in court, then the insurance company must pay the attorney fees of the person. (ORS 742.061). It is a very useful tool, and every Oregon lawyer should submit a proof of loss before suing. This opportunity to win attorney fees is another reason to see a lawyer right away - so you have time to use the law.

Another law, enacted after the attorney fee law, is kind of an introduction to the entire chapter involving insurance law. ORS 742.001 says the chapter applies to "insurance policies delivered or issued for delivery in this state." The insurance company said that this law deprived Carla Morgan of a chance for attorney fees because Ms. Morgan had applied for insurance when she lived in Vancouver and the policy issued to her in Washington. Oregon's Court of Appeals agreed with the insurance company.

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.

Yesterday, the Oregon Supreme Court suspended attorney Anthony Robert Lopez, Jr. for eight instances of misconduct, including mishandling personal injury settlements. Attorney Lopez's bad conduct provides reminders of what clients should expect from their attorneys. It also illustrates an important difference between legal malpractice and attorney misconduct that does not amount to malpractice.

Most of the issues involved personal injury settlements. An attorney must (1) promptly inform clients of settlement offers, (2) obtain court approval when settling a child's injury claim (usually), (3) explain how settlement funds will be used, and (4) disburse the funds within a reasonable time. Often, doctors or others who have provided services or funds to the injured person because of the car accident have a claim against the settlement. The lawyer needs to deal with those claims and liens.

Mr. Lopez settled some minors' claims without court approval, which was conduct prejudicial to the administration of justice. When he paid himself out of the unapproved settlement, that constituted collecting an illegal fee.

Mr. Lopez failed to deal properly with payments to medical providers, which constituted a failure to provide competent representation.

If the clients suffered monetary losses from this type of conduct, then they would have a legal malpractice claim against the attorney. However, if the clients got all the money to which they were entitled and it was just a matter of delaying the final payments to others, then there is no attorney malpractice. That's because, for any claim of negligence, one must suffer "damage" before you can go to court and sue.

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.

Today, Oregon's Court of Appeals held that Oregon's constitutional protection of free speech prohibits Tri-Met from excluding advertisements based upon issue or political content. In Karuk Tribe and Friends of the River Foundation v Tri-County Metropolitan Transportation Dist., the tribe and the Friends, wanted to post an ad with a graphic showing salmon confronting an impenetrable dam of wall sockets with the tagline, "Salmon shouldn't run up your electrical bill. They should run up the Klamath River."

Tri-Met turned down the business. Tri-Met cited its policy against advertisements containing political campaign speech. Under the policy, one can buy ads to sell stuff, but not to sell ideas.

In court, Tri-Met said it was acting like a business, not in a governmental capacity, so Oregon's Constitution should not apply to it. (Tri-Met also argued that the Tribe should not be able to sue for personal speech rights.) The trial court said, "no." It held that the policy violated Oregon's Constitution and the First Amendment to the U.S. Constitution.

Oregon's Court of Appeals avoided the First Amendment. Oregon's Article I, section 8 prohibits the government from deciding what content is okay, even when acting in a proprietary capacity, it held. There are historic exceptions to that rule. For example, fraudulent speech or assistance in criminal activity. But the exceptions do not include issue ads linking dams, power, rates and salmon.

Perhaps the biggest consequence of this decision is that political candidates can now buy Tri-Met ads on bus lines in their districts.

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.