Oregon Personal Injury Lawyer Blog

Oregonians and others hurt by dogs sue dog owners & homeowners. Naturally, the insurance companies have taken notice. The Insurance Information Institute reports that the numbers of claims and the costs to pay the claims have both increased.

In Oregon, those injured by dogs may sue under negligence: that the owner failed to act reasonably to protect others from the dog bite. Some municipalities also have dog ordinances, and the violation of those ordinances can give rise to liability, also. Furthermore, most homeowner insurance policies have a no-fault provision to pay for medical bills for people hurt on the property, but that is capped.

Of the 4.5 million dog bites per year, about 885,000 require medical attention, over 30,000 require reconstructive surgery, and others die. These are serious numbers, so dog owners should sit up, take notice, and protect themselves.

First, consider the breed of dog. Although dog lovers say the problem is the owner, and not the dog, the most dangerous dog breeds will cost you. Some insurance companies will jack up the rates or not cover them at all. One study revealed that Pitt bull-types, Rottweilers and German shepherds killed the most. Another study revealed that the following five dogs accounted for ¾ of all hospitalizations for dog bites: Pitt bull terrier, Rottweiler, German shepherd, Husky, Alaskan malamute.

Second, make sure you do have plenty of insurance.

Third, work with your dog. Socialize it. Spay or neuter it.

Fourth, be aware of risky situations. The worst bite injuries are to children. So, keep kids out of dangerous situations. Don't let children surprise or disturb the dogs. Personally, I was stupid enough as a 5 year old to pick up our little dog while it was eating, and it tore off half of my lip.

Fifth, play nice. If you teach the dog to attack, play aggressive tug games, etc., it will be aggressive. If you provide obedience training, play fetch games and train it not to jump on people, the odds are, it will not jump on or attack people.

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

Credibility is everything when an Oregonian decides to sue, whether it is for car accident personal injuries, sexual harassment, or legal malpractice, or anything. I just withdrew from a case arising in Oregon City before I even filed the lawsuit because I did not trust my client. This post discusses the concept of credibility and why it is so important for an attorney to work with his or her client to make sure the client is 100% credible.

Why is credibility everything?

The most important factor in whether you win your case is whether the jury (or defense attorney or claims examiner) believes you and likes you. Oregon judges instruct jurors that, "If you find that any person has intentionally given false testimony in some part, you may distrust the rest of the person's testimony." But beyond that, jurors are people. People do not empathize with or want to help people who they do not believe or like or relate to. I'd rather represent Mother Theresa with an iffy case than Adolf Hitler with what seems like a slam dunk case. Jurors will find a way to help Mother Theresa and find a way to give Hitler what he deserves.

Credibility is truth PLUS accuracy.

Credibility is not merely avoiding a lie. Just because you do not intend to deceive does not make you credible. Here's why.

At some point, defendant will want your deposition. You will swear to tell the truth, and a court reporter will record every word. If you guess wrong, then, later, the other attorney will call you on it. Even if your misstatement was small and not intentional, people will wonder what else you got wrong.

What you and your attorney should do to improve your credibility.

From the first day forward, there are many steps you can take to make sure your testimony is true, accurate and complete. Here are a few of them:

• Your attorney should tell you what information is important to keep track of.


• Keep track of important information in a systematic way; your attorney should help you with this.


• Before your deposition, you or your attorney should talk with other witnesses who have relevant information, so that you are fully informed. Sometimes, loved ones notice things about the injured person that the injured person does not notice about herself.


• Prepare and study for your deposition like you are taking the most important exam in your life. Your attorney should tell you about the process, the traps, and how the other attorney might behave. You need to know all of the pertinent dates, issues and facts so that you can give accurate testimony.

I am shocked when I hear that some attorneys will "prepare" a client for his or her deposition immediately before the deposition begins. I think you should expect more from your own attorney.

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

You make an insurance claim in Oregon. The company reviews it, gathers information, and then denies it based upon some misstatement in your application. Can the insurance company do that? Maybe. Maybe not.

Oregon's insurance law is not well developed. The Oregon State Insurance Division recently issued a bulletin on this topic to insurers as to what it considers proper and improper.

First, Oregon's Insurance Division does not want insurance companies to intimidate people who apply for benefits. Insurance companies should not insert big warnings about fraud or misstatements in claim forms unless it included such warnings in the application for insurance.

Next, if the insurance company wants to cancel the contract, then the misstatement must be serious: either fraudulent or "material to the interests of the insurer." In other words, something minor and not meant to sucker the insurance company should not be the basis to cancel the insurance contract once you need the benefits for which you paid.

Even for simple denials of claims, the insurer should prove that the misstatement or concealment was either intentional or that the insurance company would not have issued the policy if you had filled out the application fully and accurately.

For life insurance and health insurance policies, the companies only have two years in which to contest coverage based upon misstatements in the application. For health insurance, the two-year limitation does not apply to those who procured insurance through fraud.

In addition to the above position of Oregon's Insurance Division, Oregonians also have some common law rights. For example, every contract includes an implied covenant of good faith and fair dealing. If the insurance company is not acting in good faith, that is another basis on which to fight it.

Insurance Companies entice you with happy geckos and daffy clerks. Giddily, they collect your premiums. They become devious and difficult when you actually want them to pay for a serious claim. That's when you need the help of an attorney who knows the tricks they play and whether the insurer's actions are within the bounds of the law.

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.

Saturday evening, at Andina Restaurant in Portland, Oregon, I enjoyed dinner with Senator Ron Wyden. The experience reminded me how lucky we are to have smart, public-spirited people willing to devote their lives to the rest of us. Senator Wyden is running for re-election, and he needs our support in this time of anti-incumbent fever.

Senator Wyden has earned our support. From the beginning of his career, not for moneyed, behemoth corporations. People who view my website do so because they need help through litigation. Without the likes of Ron Wyden, your right to sue would be a lot less meaningful or useful. He has fought to preserve your legal rights against the constant assault by insurance companies. Insurance companies do not what you to obtain full compensation when you are hurt. Senator Wyden values and protects the rights of insurance-buying consumers.

Senator Wyden has achieved respect within the United States Congress because he is a serious man who works on solutions, unlike others who try to ride clever slogans into office. Only through years and years of hard work can a Senator build the reputation and develop the know-how to get things done for Oregonians. It would be just plain stupid to elect his opponent.

Please support him through his campaign website.

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

Two Oregonians who were in car accidents called me this week with the same story: within 48 hours, representatives from the other guy's insurance company were knocking on their door. The insurance company vultures wanted these hurting victims to sign authorizations to get medical records. Also, the insurance company was gathering information on the injured person, their home, their family, whether they moved easily or with a limp. Certainly, they hoped to get statements that could be used against the personal injury victim.

These practices are unfair and should not be tolerated. So long as they happen, here's what you need to know:

1. Don't talk to the insurance company for the driver who hit you. You have no duty to cooperate with them. "Anything you say can and will be used against you." If you think you can settle the claim for the property damage only - to your car or truck - then have someone else (spouse, parent, child) do the talking for you and instruct them not to discuss your medical condition.

2. Don't provide any medical releases to the insurance company for the driver who caused the car accident. Odds are, it will use the releases to get information on you that goes well beyond this collision. Will the insurance company look for other medical conditions? Will they look for other potential sources for emotional distress? How many years back will they request records? DON'T DO IT.

3. If they knock on your door, do not open the door. Send them away. Do this regardless of how well they have practiced sounding empathetic. They have done this dozens (or hundreds) of times. They are trying to hurt your claim!

4. Be careful with your own insurance company. Your own insurance company is paying under the Persona Injury Protection (PIP) provision of policy. You must cooperate with your own company. However, be alert to signs that it is looking to cut you off. DO NOT GO TO AN "INDEPENDENT MEDICAL EXAMINATION." If your own insurance company wants to send you to its own doctor, the purpose is to cut off your benefits. Better to get cut off for failure to cooperate than to have a phony doctor come up with a phony analysis that can be used against you later. You need a lawyer at that point to, perhaps, negotiate a solution: perhaps another month of treatment without an insurance medical exam.

Bottom line: Get a lawyer to counsel you and protect your interests. Hire one right away.

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.

Oregon's Supreme Court held, once again, that experts may not provide opinions on whether another witness is truthful. Although State of Oregon v. Lupoli involved allegations of child abuse, its ruling on the law of evidence will help personal injury and car accident victims fight against bogus defense arguments. This post summarizes the key points.

For decades, Oregon Law has prohibited one witness from testifying on whether he believes another witness is telling the truth. (E.g., State v. Middleton). Yet, insurance companies continue to hire experts to call injured people liars. The basic scenario is this. Defendant hires a neurologist to testify that she does not find any "objective evidence" of pain, suggesting the problem is psychological. Next, the defense psychologist testifies that the person is malingering or scored high on something called the "fake bad scale."

Funny, no one tries to offer polygraph test evidence, yet defendants continue to offer voodoo lie detector tests as evidence. Unfortunately, some plaintiff's lawyers and judges let them get away with it.

The problem with a diagnosis of malingering is that it is an opinion that the injured person is lying. According to the DSM IV, "The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as . . . obtaining financial compensation." Under Oregon law, no such opinion is admissible.

The "Fake Bad Scale" was created by a defense expert. He (1) selected a relative small number of questions out of the well-regarded pencil-and-paper test (MMPI), (2) created his own scoring system, and (3) said that if you hit a certain score, you must be faking you injury. Somehow, insurance company defense attorneys claim that this is more reliable than a polygraph test and should be offered to a jury. Fortunately, some judges look at the questions selected by the expert, look at Oregon Law, and say, "Baloney, not in my court."

The take home message: civil trial lawyers must use criminal law precedents when protecting their personal injury clients from bogus defense tactics.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
http://www.jeffmerrick.com 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.

When defending Oregon lawsuits for whiplash following car accidents, insurance companies often hire "experts" to pooh-pooh the claims. Their reports all look the same: "no objective evidence" to support claims. That's like saying you can't see pain, which is true, but misses the point.

But do the insurance companies ever pay to look for objective evidence of the symptoms of chronic whiplash? Studies show that car accident whiplash patients suffer the following at a much higher rate than the general population: headache, migraines, tiredness, neck pain, upper back pain, sleep problems, thinking problems, low back pain, and many other issues. Insurance companies do not pay for tests to validate claims. Insurance companies pay for "doctors" to dismiss the claims and bad-mouth people who hurt, calling them liars, cheats, and / or crazy.

Scientists have found physical changes more prevalent among those suffering chronic whiplash-associated disorder than with the general population. I will discuss two of them.

The European Journal Of Pain reported a study of regional cerebral blood flow. Researchers C. Linnman and others used some super high-tech equipment to compare people, and, sure enough, they found changes in cerebral blood flow that matched up with their neck disabilities. So to those insurance company "doctors" I ask, "How do you fake cerebral blood flow?"

Other researchers have used Magnetic Resonance Imaging (MRI) to study obscure details in certain flexor muscles in the neck. The journal Spine reports the study by Elliott and other researchers of "fatty infiltrate" in muscles and the cross-sectional area (CSA) of key muscles. Sure enough, the study showed more fatty infiltrate and larger muscle CSA in car accident patients than in the general population.

Elliott's most recent study of flexor muscles is consistent with his earlier study of women suffering from whiplash, which showed higher fatty infiltration their neck extensor muscles.

These objective measures can only be used for comparison purposes. It would not make sense to use them in an individual case. What the studies show is that, despite all of the slurs that whiplash victims must endure from insurance company doctors, the bodies of car accident victims suffer physical changes that you cannot see with the naked eye.

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

Oregon families are suffering financially from unemployment and underemployment, making it difficult to pay that motor vehicle insurance policy premium. Today, I received a call from someone who was injured in a car accident, and the police ticketed her for driving uninsured. This post covers the legal consequences of driving while uninsured in Oregon.

First, Oregon law prohibits (1) driving without insurance and (2) not providing proof of insurance to Oregon's Department of Transportation. A violation of either is a Class B traffic violation. Currently, that will cost you up to $360. (Who knows when that might change.)

Second, if you are involved in a motor vehicle accident, then an Oregon court could suspend your driver's license.

Third, if you are injured in the car accident, then you can lose your right to recover money for noneconomic damages, which include compensation for pain, inability to engage in activities, emotional suffering, etc. In other words, if you get hurt so bad that you must limp for the rest of your life, you get no money damages for the limping. There are exceptions to this "Bar of Nonecomomic Damages," including if the insurance recently lapsed (within 180 days) or if the guy who caused the accident was reckless.

Fourth, an Oregonian convicted of driving without insurance must file a special document with the Oregon Department of Transportation to show proof of future insurance for three years.

Fifth, you need to carry your insurance card if you are insured and show it to the police if asked. Failure to carry proof of insurance is also a Class B traffic violation. Fortunately, if you get proof of insurance to the court clerk before the date listed on the citation, the court will dismiss the charge.

Exemptions from mandatory insurance include snowmobiles, farm tractors, antique cars with the proper registration, and motor-assisted scooters or other personal mobility devices. Also, no insurance is required if you are driving on private property not open to the public.

However, even if you don't need insurance for some of these vehicles, especially snowmobiles, you should get it for the reasons set forth in my other post. Do you really want to put at risk your home and life's savings if something unexpected happens while snowmobiling?

Get insurance, whether or not the law requires it or you think you can afford it.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
http://www.jeffmerrick.com 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.

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.

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.

In Oregon, if the employer pays for workers' compensation insurance, then the worker may not sue the employer when he or she is hurt on the job. This "exclusive remedy" provision does not apply if either (a) the employer does not have workers' compensation coverage or (b) someone else -- or something else -- was at fault.

For example, we sued a printing press manufacturer for making a dangerous machine when a worker suffered a severe arm injury. The manufacturer was not the employer, so it was not immune from suit under Oregon law. A more typical example is someone hurt in a car or truck accident while on the job. The worker can sue the other driver that caused the wreck.

But there are special issues to be aware of involving who may sue and who gets the money.

If the workers' compensation insurer pays benefits, then it has a right to get paid back out of any lawsuit proceeds. In fact, the insurance company can force you to decide whether to file a lawsuit. If you do not sue, then the insurance company can sue in your name.

There's a big difference to Oregon workers depending on whether the worker sues or the insurance company files the lawsuit.

If the insurance company sues in your name, then it controls the litigation. It decides when to settle. If the insurance company sues and settles the case, then it gets paid before the worker. The formula is that the insurer gets paid in full before the worker gets even one penny.

If the injured worker sues, then the formula for distributing the money is very different. First, the costs of the lawsuit are paid, including the attorney fees. Next, the worker receives 1/3 of the balance. Only then does the insurance company get paid back. So, if the worker sues, he or she jumps ahead of the insurance company. If there is still money left after paying back the insurer, the balance goes to the worker. The key Oregon law is ORS 656.576 to 656.596.

Another consideration is this. If the insurance company sues, will it really care whether the worker receives any money? Will it settle too cheaply, making sure it gets repaid and not worry about winning monetary compensation for your disability?

So the lesson? If you are seriously injured at work because of someone other than a coworker or something like a dangerous machine, then it is in your interest to sue and not let the insurance company file a lawsuit in your name.

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.

Last week, I provided a check to a Portland, Oregon woman after we settled her legal malpractice claim. The amount and the name of the attorney are confidential.

The circumstances are not uncommon. The lawyer lost the case because he did not file and serve the summons and complaint on time. He blew the Oregon Statute of Limitations. So, fault, or liability, was clear. The real question was how much money should be paid.

We call it the "case within the case." Here, the case he screwed up on was a car accident case. My client was rear ended and suffered a whiplash injury. So, it was my job to evaluate that case within the case to see what a fair settlement value would be.

As an attorney who also represents victims of car accidents, I was able to review the case by myself. I did not need to hire an expert lawyer, as I must do when the legal malpractice occurs on a criminal law case. I came up with my value and asked my client if she would agree to settle in that range. She agreed.

Then, I contacted the other lawyer and the Professional Liability Fund, which is the legal malpractice insurer for all Oregon State Bar members. Fortunately, they evaluated the case the same way I did, and we were able to reach agreement promptly, without even spending money on a filing fee or court reporter fees.

So the message is this. Proving that the attorney committed malpractice is just the first step. Understanding the value of the "case within the case" is the most important determinate of the monetary value of a legal malpractice case.

Jeff Merrick, Oregon Trial Lawyer
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 can be a winter playground. Mt. Hood & Mt. Bachelor trails are great for cross country skiing and snowmobiling. But for one Oregon woman, her family outing turned into a life-changing event.

The other guy was test running his family's snowmobiles. On his third run, he sped about 60 miles per hour on a snow covered forest road outside of a popular snow park. When he zipped around a blind corner, he narrowly missed the husband, but came face-to-face with a teenage girl, who had mom on the back of her snowmobile.

It ended up being a dangerous game of "chicken." Both drivers turned the same way, they collided, and my client "flew like superman" off the snowmobile. Despite wearing a helmet, my client acquired a mild brain injury. Twenty years earlier, she suffered a traumatic brain injury, from which she recovered. But the prior TBI made her much more vulnerable to brain injury from her snowmobile collision.

She and her husband tried to settle by themselves. The other driver's insurance company pooh-poohed her injury and said that it was the daughter's fault, at least 50% worth. So they had to hire me.

Most important for any client is to get proper medical care, and I referred my client to an excellent place for diagnosing and coping with head injuries. We sued the other driver and fought hard. After depositions, we asked the court for permission to seek punitive damages, because we believed the other driver was reckless in flying around a blind corner at 60 mph (or more?). The court granted the motion.

Initially, the lawyer for the insurance company thought the case should settle for $30,000. By the time we worked up the case for trial, they paid the full policy limit of $300,000.

The moral of the story? 1. Be careful of dangerous snowmobile drivers even enjoying the weekend. 2. Be careful of insurance companies who do not want to pay what they should.

If you or your child has suffered a head injury, you ought to consider the signs and symptoms of brain injury. Here's a short list of brain injury symptoms from the CDC and a much more comprehensive resource on traumatic brain injury from the State of Washington.

Jeff Merrick, Oregon Trial Attorney
503-665-4234