Oregon Personal Injury Lawyer Blog

Death does not extend the time to file a personal injury lawsuit against a public body, held Oregon's Court of Appeals. In yesterday's opinion, the court addressed the interplay between the statute of limitations for lawsuits against public bodies with the statute that keeps alive personal injury claims despite the injured person's death. These are called "continuation actions," because the claim for injury continues after the death of a person.

The source is ORS 30.075(1), which allows the personal representative of the estate to continue or start a lawsuit against the wrongdoer "if the decedent might have maintained an action, had the decedent lived[.]" The confusion came from the last sentence, which requires that the lawsuit be filed within the general two year statute of limitations (ORS 12.110), "or within three years by the personal representatives if not commenced prior to death."

Public bodies have their own statute of limitations - not the general SOL -- even though it also establishes a two-year deadline. ORS 30.275(9) says that its two-year time deadline applies, regardless of any other "statute" of "limitation." In yesterday's case, the lawyer filed the lawsuit 14 days after the two-year anniversary of the injury. He argued that the law allowing up to three years to file continuation actions is not a statute of "limitation." Instead, he urged, it established an extra year, kind of like when minors get extra time to file a lawsuit.

Oregon's Court of Appeals disagreed. The three-year deadline for continuation actions is, in fact, another statute of limitations, which is trumped by the special law for public bodies.

So, when you have a personal injury claim against the government, you can't let death get in the way of filing within two 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.

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.

We love buying toys for children. Unfortunately, nearly 150,000 children per year go to the hospital because of toy-related incidents. As an Oregon attorney who practices Pediatric Law, I've come up with my top 6 things to consider when buying toys for that favorite child.

1. Age of the child - follow the label.

Don't buy your two-year-old niece a toy labeled, "Not recommended for children under three." Even though she may be the smartest two year old on the planet, that's not the point. Instead, the government-required labels exist because people have studied why all these kids get injured and occasionally die. For example, researchers know that children under age 3 put things in their mouths. Anything with a diameter of 1.75 inches or less can block their little airways when tots explore their new world with their mouths. Avoid toys with parts this small to minimize the risk of choking.

2. Age of other Children in the house.

What are the odds that a six-year-old boy old will leave his toys accessible to his two-year-old sister? Think about that when buying toys.

3. Avoid sharp toys and brittle toys that might become sharp.

Sharp toys are a problem, especially with children ages 3 through 5. Avoid buying them. When little Johnny opens his toys, inspect them for any unintentionally sharp edges from cheap manufacturing.

4. Loud Noises.

Some toys are loud enough to cause hearing loss. Watch out for items such as cap guns. Look for warning labels such as "Do not use indoors" or "Do not fire closer than one foot from the ear," and teach your children.

5. Propelled Objects & Flying Toys.

Flying toys, guns or other toys that shoot projectiles can become weapons by accident or intentionally. The eye you save might be your own, not just your child's. For toys intended to shoot, make sure the rubber or cork tips are securely fastened, and check them now and then. Avoid guns from which a child can substitute pencils or other items for the rubber-tipped darts, for instance.

6. Cords & Strings.

Long cords and strings are strangulation hazards for children. Not just toys, but also jackets and sweatshirts with strings. Cut off any draw strings longer than 3 inches. Never hang toys with long strings, ribbons or loops in cribs or playpens where children can get at them.

Follow these guidelines to preserve the joy of giving and avoid the tragedy of injury.

Jeff Merrick

Jeff Merrick is an Oregon Attorney who helps children injured by dangerous products and other causes. You may contact him at 503-665-4234.

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.

Today, a pleasant woman from Oregon called because she thought she has a legal malpractice case. A law firm had agreed to represent her son against a school district, alleging that the school district is responsible for the bullying and suffering of her child. Her former lawyer quit abruptly, and she could not find another lawyer to take the case so soon before trial. She thought she had a legal malpractice case against the attorneys because the court dismissed her son's lawsuit last week.

I did not get into the details of her son's case against the school district because I first wanted answer the "So what?" question.

In every civil action, there are basically three questions: (1) Is someone legally at fault? (2) Did that person cause a loss? and (3) What is the dollar value of the loss? The first "so what" question was whether her son still had the right to pursue his claim against the school district. When she told me that the case was dismissed "without prejudice," I told her that I would not be representing them in any legal malpractice case. Here's why.

When a case is dismissed, "without prejudice," it means that the court did not decide that either side won or lost. It means that the injured person may file another lawsuit about the same problem - IF - any applicable time limitations have not expired. So, if there is still time for her son to file the lawsuit, they can start again. If he has a million-dollar case, he probably still has it. If the case was worth $0, then it is still worth $0. Nothing much was lost by the dismissal -- maybe some costs that might need to be spent again for filing fees, for example.

Going back to the three questions, my snap decisions were: (1) I don't know if the lawyer committed malpractice; we did not get into the details. (2) If the lawyer caused a loss, it was probably only some court costs in the case (unless the time limit has already expired to present the claim the beginning). (3) The value of those costs would not justify my involvement in a legal malpractice lawsuit.

Conclusion: you have to have losses before you file a lawsuit for money to compensate for losses. Sounds simple, but, often, people get upset and want to sue first without thinking about what, really, is at stake.

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

Pregnancy counselors offer Chorionic Villus Sampling as a way to determine whether a fetus is likely to have Downs Syndrome. CVS is an alternative to amniocentesis. Some prefer CVS to Amnio because CVS can be performed earlier in the pregnancy, typically at 10 to 12 weeks compared to 15 to 18 weeks. Whether to undergo chorionic villus sampling is a sensitive decision that should be made only after full consideration of the risks and benefits. I became familiar with the procedure as an attorney representing children born with missing fingers and missing toes and hemangiomas, which, we believed were caused by CVS procedures that occurred in Portland, Oregon.

Sometimes, patients and doctors consider procedures too lightly. In the case of CVS and Amnio, some counselors just tell the women, "at your age, you should probably have chorionic villus sampling or amniocentesis." But that should be just the start of the conversation, not a box to check on a consent form. Here are some of the things that the counselors should walk you through.

What is the benefit?

You must determine what are YOUR risks that YOUR baby will have Downs Syndrome or some other genetic anomaly that the test will identify. More importantly, what would you if the test showed an anomaly? The only purpose for any medical test to obtain information that you will act upon. If there are no actions you can or would take based upon the results, then don't take the test. Counselors should review this with you, I believe. CVS became popular because it offered results in the first trimester, which meant an abortion could then occur in the first trimester, if so desired.

What are the risks?

Medical knowledge changes rapidly. Early studies indicated a correlation between CVS and "transverse limb anomalies," which often meant missing fingers, missing toes, or other shortening of the limbs. Some later studies downplay the risk and some argue that the early bad results were due, in part, from performing CVS before the 10th week. Personally, I've noted a correlation between the gestational development and the injury. So, it is not surprising to me that later studies tend to find the limb defects more limited. Now that more tests occur at the 11 or 12 weeks, compared to 9 or 10 weeks, it makes sense that the fetus was more developed and less susceptible to injury.

Hemangiomas, which look like port wine stains on the skin, is another condition researchers and others have noticed among children born following chorionic villus sampling.

Of course, your pregnancy counselor should discuss with you the above risks, and all other risks, before you decide whether to go forward with the procedure.

If (1) your Oregon pregnancy counselor did not thoroughly cover the risks and benefits, (2) you would have decided against CVS if she had discussed these issues, and (3) your child suffered because of the poor counseling, then you should contact me, an Oregon attorney who has helped children injured because of bad counseling regarding chorionic villus sampling.

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.

Head and brain injuries among children occur too frequently. The numbers are increasing. On October 28, 2011, the Brain Injury Association of Oregon holds a conference on best practices for diagnosing and treating brain injuries.

I've written about the problems before. At earliest ages, falls cause many pediatric brain injuries, and head injuries, overall cause most of traumatic deaths among children. Statistics indicate that at age 15, head trauma increases significantly, likely due to football and other sports and driving. Although we're getting better at identifying brain injuries after the fact, the number of brain injuries is increasing.

Children's brains differ from adult brains. Their brains are softer because of more water content. This increases the risks of injury.

Speakers at the conference will discuss three general topics: the latest medicine; how educators can better work with students after injury; and tips to the families to get the assistance they need. For more information, please see the Association's website.

If your child was hurt because of the fault of others, please know that there are strict time limits for making legal claims. For example, if a school or public agency is at fault, the time to act may be as short as 270 days. So, although families have much to deal with when confronted with a brain-injured child, sometimes, contacting a brain injury attorney should not wait. If you want to discuss your legal options, please call me.

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.

Carwash fundraisers. We see them all the time. Thirteen-year-old "Jane Doe" was sexually assaulted in the Dairy Queen bathroom when she attended the fundraiser. Her guardian ad litem sued the Organizer, Kids Incorporated of Dallas, Oregon and the Dairy Queen. Oregon's Court of Appeals ruled that the formal complaint did not present a valid legal claim, because it did not allege enough facts to indicate that either Kids Inc. or Dairy Queen should have anticipated the sexual assault. The opinion discussed the dividing line between when someone can sue a business for a crime committed by someone else.

Oregon's negligence law differs a bit from other states' law. The complaint must allege facts that (1) defendant's conduct caused a foreseeable risk of harm, (2) the law protects people from those risks, (3) defendant's conduct was unreasonable in light of the risks, and (4) the conduct actually caused the harm to a person at risk. The court found the complaint lacking on the first part: as a matter of law, it is not foreseeable that merely inviting strangers to a carwash with teenage girls would lead to a sexual assault in the men's bathroom.

When may crime victims sue a landowner for injuries caused by third persons? The Oregon court discussed when a victim may and may not sue. Situations that are "foreseeable" include the following.

If there has been past problems. For example, a high school girl who was raped on school premises was allowed to sue because another girl had been attacked on the school grounds just 15 days before. Another example is a person could sue a bank when robbed at an ATM in a hidden location because a similar crime occurred at another branch.

If the "place or character of the business" raises the possibility that a person might be endangered. I suppose if someone ran an underground dog-fighting establishment visited by a rough and armed crowd, then the "business" owner could reasonably foresee some trouble. By contrast, the "place or character" of a Dairy Queen is not one where an owner would reasonably anticipate a crime absent any prior issues.

In one of my cases, the Court of Appeals held that my client could sue the bar that over-served her alcohol and ejected her while she was in line for a pay phone to call for a ride home. Instead, she tried to hitchhike and was raped.

On the other hand, just the general notion that the world is dangerous and that people are bad is not enough. In fact, Oregon's Supreme Court held that a crime victim could not even sue the state for a crime committed by a state prisoner who escaped from a work crew using a van in which the supervisor was dumb enough to leave the key.

In Stewart for Jane Doe v. Kids Inc. & Dairy Queen, the facts alleged in the complaint added up to no more than (a) the car wash was advertised, (b) which solicited strangers to attend, and (c) there are a lot of strange men who would like to assault teenage girls. The court said, that's not enough to "foresee" a potential crime under Oregon's negligence law such that defendants should have taken special precautions.

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.

The Consumer Product Safety Commission (CPSC) announced a recall of the "meetoo" Clip-on Chair. The problem is that children in the chairs have fallen. Not only did some get injured from the falls, others suffered severe finger injuries, including amputation, when the fingers were pinched between the bar and the clamping mechanism. Details on which chairs were recalled and which chairs were not can be found here.

The chairs fell because the clamp pads were missing or worn. CPSC also said that the instructions were inadequate.

When a defectively designed or labeled product causes an injury, Oregon product liability law provides a right to recover your losses from the manufacturer and the seller of the product. The sellers included Target, Toys R Us and Buy Buy Baby. Sometimes, the defense will argue that the products were misused, but even the CPSC said that the inadequate instructions could cause misuse, which could negate that defense.

If you are an Oregon citizen or purchased a defective product in Oregon and have suffered injury because of a product, please feel free to contact me.

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 allowed a family to subpoena records through the probate court to help pursue a wrongful death case. Why is that significant? Because the nursing home thought it could get away from the courts entirely with the arbitration agreement that it buried in the admission papers. I've tried this tactic in the past, but this is the first I've seen the technique written about by an Oregon court.

In Assisted Living Concepts, Inc. v. Fellows, the family alleged wrongful death against Assisted Living Concepts (ALC). They claimed that ALC killed Dorothy Drury because of lack of adequate monitoring and fall-prevention measures. The heirs opened a probate case and then filed a regular lawsuit. Assisted Living Concepts, (ALC) moved to compel arbitration. I've written about arbitration before. I think it's dangerous when "repeat players" go against "one-time players," because arbitrators know if they want to continue to get work from ALC and its lawyers, then they better not award too much money.

As it turned out, the trial court decided to keep the case. But ALC appealed that order, which effectively would freeze fact-finding for another couple of years. Only then did the Estate of Drury use a probate court subpoena to attempt to get records. It is critical to get the records and identify witnesses as soon as possible. Especially in places like nursing homes, where many of the low-paid workers come and go. ALC then challenged the technique of using the probate court to subpoena information. The Court of Appeals threw out the appeal on procedural grounds.

So, the probate court route to obtain and preserve evidence remains viable. I've used it in the past, BEFORE ever filing a lawsuit. The job of the probate court is to identify, gather and disburse or manage assets. I think it is very appropriate for lawyers to use the probate court for exactly that purpose: identify whether there is a lawsuit worth pursuing. This technique is appropriate not only for wrongful death cases, but also for living people whose affairs are in probate, such as a minor, or someone with traumatic brain injury, or someone with dementia.

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.

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.

Last week, the Oregon Court of Appeals said that the Lake Oswego School District could not be held responsible for the alleged child abuse by a fifth grade teacher that occurred more than 2 years ago. In Does 1-7 v. Lake Oswego School District and Judd Johnson, the Appellate Court upheld the trial court, which threw out the case based upon time limitations under Oregon's Tort Claims Act.

Seven men claimed that a fifth grade teacher molested them between the years 1967-1984. In other cases, against churches, for example, child molestation and sexual battery from decades ago has been the subject of sexual abuse lawsuits in Oregon. There's an exception to the general statute of limitations for child abuse cases if the victim did not comprehend the harm until recently. However, that exception did not win the day against the school, which is a public body protected by the Oregon Tort Claims Act (ORS 30.260 and following).

The OTCA sets forth strict time limitations. First, the victim must notify the public body or government agency within 180 days of an injury. If the person is disabled or a child, then the time limit can be extended for an additional 90 days, to 270 days. The victim must file a lawsuit within two years. Both deadlines start at the time of discovery, which begiins when the person, or any reasonable person, would have been aware of (1) the injury, (2) who is the perpetrator, and (3) the cause of the injury.

The court held that when suing a school or public body, "injury" for sexual touching occurs at the time of the touching. All of the men knew they were touched inappropriately back in the fifth grade, even if they did not comprehend the full consequences of the touching. For that reason, the court held that they all missed the time deadlines under Oregon's Tort Claims Act.

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.