Oregon Injury Attorney Blog

It is natural to assume that the larger a car, the safer you are. However, CNN recently reported on several popular compact SUVs that did poorly on crash tests conducted by the Insurance Institute for Highway Safety.

The test, known as the "small overlap" frontal crash test involves the vehicle hitting a barrier at 40 miles an hour with just a quarter of the front bumper. This is so the impact can occur outside of the crash safety structures that are built on most newer cars. Conducting these tests also makes since given that small overlap collisions account for a quarter of all road collision fatalities. Another factor adding to the mix the vehicle's motion after impact. Because the off-center crash spins the vehicle, where the car goes, the occupants follow. Someone in the car is moving side to side, and that means they are not going to catch an air bag.

I have represented folks in side impact and front impact collisions. When the body, especially the head, is exposed to this force, the head is not thrown back and forth like in a rear end collision, but in a rotational manner. Many doctors will tell you that this makes for a more significant injury.

Almost at the same time I came upon the CNN article, the Oregonian reported a crash in downtown Hillsboro involving a compact SUV. This intersection crash resulted in a rollover of the SUV, with both parties claiming they had a green light. It sounds like someone was moving pretty fast, especially for a downtown intersection. Like many intersection collisions, liability is often contested, and often shared.

The Insurance Institute for Highway Safety has a great website, offering tips on crash ratings for older cars, booster seat ratings, and interesting information on young driver licensing systems throughout the United States.

It has been a tough week for workers in Oregon. Last week, the Oregonian reported a fatal workplace injury involving a cleaning contractor who fell into an industrial meet processing blender. The State of Oregon OSHA is investigating the cause of the accident.

On Monday, a highway flagger was struck by a vehicle on Highway 101 between Warrenton and Seaside. Details regarding the worker's condition are still developing.

These two accidents involve issues of Workers' Compensation and "third-party claims." The family who lost their loved one in the meat processing plant accident may claim death benefits under the Workers' Compensation Act. The surviving family members may also have a claim for wrongful death against the meat processing plant because the worker was not an employee of the meat processing plant, but worked for an independent contractor hired to clean the facility. This makes the processing plant a "third party," hence the "third party claim."

This claim would be brought under the Oregon wrongful death statute. The statute provides that a personal representative for the estate may pursue an action against the responsible party. The personal representative would have to show that the meet processing plant was somehow negligent in causing the accident. The pending OSHA investigation will have a lot to do with determining who or what caused this accident. If the personal representative is successful in establishing liability, the personal representative can make a claim on behalf of the estate for "pecuniary loss." This type of loss involves the earnings and support that the deceased worker would have provided to his family. Typically, we use economists to calculate and estimate this type of loss. The second loss the personal representative can claim is compensation for the loss of society and companionship with family members. This is the value of the loss of a family member and their contribution to the family unit.

The injured highway flagger is also covered under the Worker's Compensation statute if he or she was in the course and scope of their employment when the injury occurred. The Worker's Compensation claim includes payment of medical expenses, a disability benefit, permanent partial disability benefits, and possible vocational rehabilitation.

The injured flagger may also have a third party claim against the motorist who caused the injury. Again, the injured flagger will have to show that the motorist was responsible for causing the collision. If the injured flagger proves responsibility, or "negligence," then he or she will have a claim for past and future medical expenses, past and future lost wages, and a claim for compensation for the loss of his or her health.

One parting thought. It is hard to imagine how somebody could leave some of the comments appearing in the Oregonian article. I guess its price we pay for the right to free speech.

The recently reported that The State of Oregon Department of Transportation (ODOT) has been named in a suit arising from the deadly tour bus accident on I 84 that killed nine, and injured 38. This suit also includes claims against the tour bus company.

The suit claims that ODOT failed to use strong enough barriers to keep the bus on the road, failed to adequately plow and sand the roadway, requiring an alternate route, and did property warn motorists about the unsafe conditions. There are special rules involved in making a claim against the government. Traditionally, the citizens of a government were prohibited from filing any claims in court against the government. This is known a sovereign immunity. Sometimes you hear the phrase, "you cannot sue the King." However, Oregon statute allows members of the public to bring claims against State and local governments under certain conditions.

In addition to monetary limits on recovery, and notice requirements, the State does enjoy some immunity from liability. In this case, the State will likely argue that it enjoys "discretionary immunity." This defense is available when the State's failure to act was based on a discretionary decision. The reason behind the rule is that the State government is dealing with a limited budget, and has to make choices as to where its funds will go. The plaintiffs will argue that the State past rules and standards regarding maintenance of its own roads, and in failing to follow those rules and standards, was negligent.

The article also mentions that the tour guide company is also a named defendant. If this case gets to a jury, the members of the jury will have to allocate responsibility amongst the several defendants.

I have a case right now involving a pedestrian versus car collision. The only problem is that the car left the collision scene. There is also the case where someone is not hit, but run off the road, and injured. So what can you do? You can file an uninsured motorist claim, but:

There are special rules.

These are known as the “phantom vehicle” case, and the “hit and run” case. A phantom vehicle case is where another, unknown motorist cuts you off, pulls out in front of you, or somehow causes an accident, and leaves the scene. A "hit and run" is just that; someone hits you, and leaves, and you cannot determine the careless driver’s identity. In addition to showing that you were injured, here is what you need to do in order to preserve your UM claim in this situation:

1. Report the collision to the appropriate officer or department within 72 hours;

2. File, with your insurer, within thirty days of the collision, a statement under oath that you have a cause of action (lawsuit or claim) against the person who you are unable to identify, and what facts you are relying upon in claiming that you have a claim against the other unknown driver.
If you were hit by a hit and run driver, you also have to make your car available to your insurance company for inspection. In the case of a phantom vehicle, there has to be some evidence, other than your sworn statement, or a statement from another party with a UM claim, in order to preserve the phantom vehicle claim. This is known as “corroborating evidence.” The best example is a witness to the accident that is not involved in any claim.

This is a pretty tight time line for an injured party. I have often found myself scrambling to preserve a claim when the injured party contacts me at the last minute. It's a good idea to confirm the time limits to preserve these claims with the claims adjuster as soon as possible.

The Governors Highway Safety Association (GHSA) released the findings of a study today, which shows that the number of 16 and 17 year old drivers killed in collisions increased significantly in the first six months of 2012 when compared to 2011. Still, these numbers are apparently better than fatality rates of five or ten years ago.

The study's author attributes the increase to a leveling off of the benefits of Graduated Driver Licensing laws. These are laws that require a permit process for new drivers with minimum hours of driving with a licensed driver, before getting a full fledged license, but then there is more. The license is restricted. Parents of teen drivers are probably familiar with the "Cinderella" law, which is based on the undeniable truth that when it comes to teenagers, especially those behind the wheel, nothing good happens after midnight.

Another factor cited as a possible cause in the increased rate of fatalities is the economic recovery, which is putting more young drivers on the road.

The organization is calling for more education, but only those methods that have been proven effective, as well as more communication between teens and adults. Way back when I was in high school, driver's education was a required course. We had in class study, and behind the wheel training. The in class material included some graphic films about the consequences of drunk driving, much like the skits local high schools show their student body during prom and graduation season. Budget constraints currently prevent this level of driver's education in our local schools.

Here is the link for the actual report: www.ghsa.org

One bright spot: Washington saw an actual decrease in teen driver related fatalities, and Oregon with only a modest increase.

The Oregonian reports that Oregon State Troopers will target grant funds in the direction of one of the leading causes of traffic collision deaths, known a s "Roadway Departure Crash." Two thirds of all traffic fatalities in Oregon result from roadway departure crashes, which is defined as an accident involving leaving a roadway edge, or crossing center lines. The Federal Highway Safety Administration estimates a lower figure, 53%.

What are the causes? No surprises:

Speed

Distracted Driving

Since 2009, 13 people have been killed in traffic collision due in part to use of a cell phone. Highway 26 comes to mind immediately when thinking about this kind of car crash.

OSP is planning to direct its enforcement efforts in the most dangerous areas, based upon study of traffic crash data.

This recent story in the Daily Astorian is touching some nerves. At a recent City Council meeting, the Commissioners listened to a presentation from experts, public testimony, and even a local Astorian's idea for preventing future pedestrian versus car collisions in Astoria. In 2011, there were nine pedestrian vehicle collisions, with one fatality. Others suffered severe injuries.

Many options were on the table, including increased lighting, more enforcement, and "enhanced crosswalks." The city council decided to try a novel idea referred to as a "flag or paddle" system. The decision to move forward with this option right away is probably because it is the least expensive. However, a traffic engineer explained that the City of Seattle abandoned a similar program after determining that only 17% of its pedestrians used the flag/paddle system.

I took a look on the web, and there is not much about paddles or flags for pedestrians, but there is a lot on pedestrian safety. Montgomery County, Maryland issued a report which begins by stating that in a five year period, pedestrian related deaths outnumbered homicides in that county. A safety campaign followed.

About three years ago, I tried a case for a man who was struck by a vehicle while crossing the street in Astoria on what is probably the straightest stretch of road in town, while in a crosswalk, and in broad daylight. There are a few lasting impressions from that trial.

When I spoke to potential jurors, I was amazed at how many people who walk in Astoria have suffered "close calls" with cars. When talking with friends after the trial, I was also amazed at the perceptions of some motorists that every pedestrian is "darting" out into the street, or coming from "nowhere."

We went into trial with absolutely no offer of settlement. Our client was disabled permanently from his job. My client's doctor explained the process of rebuilding my injured client's knee joint, and that even with plates and screws, arthritis would surely set in. Although the jury found that my client was partially at fault for failing to keep a lookout, it placed the majority of responsibility on the driver, who, according to another witness, was actually accelerating through the intersection, while towing another vehicle! The jury also found the injury significant, agreeing with our assessment of the compensation due to our client.

Why no offer? I do not know, but I suspect that it had something to do with the attitudes reflected in some of the comments from readers of the Daily Astorian piece.

A British Columbia news outlet reports that a BC tour bus company is equipping its older buses with seat belts in light of the horrific bus crash in the Oregon Columbia River Gorge. Apparently, the Canadian authorities are not convinced that mandating seat belts on buses is necessary, but the U.S. National Transportation Safety Board (USTSB) thinks otherwise.

The U.S. Department of Transportation issued an action plan in 2009. In it, the USDOT found that the passenger ejection from rollover crashes is the highest cause of bus crash fatalities, and set a goal to enact rules requiring seat belts on tour buses by 2011

Why no action until now? It's likely due to the cost of compliance. The British Columbia tour bus company's new buses come equipped with seat belts, but the retrofitting of seat belts is estimated at $70,000.00 per seat belt. Some folks do not think this is worth the expense, but there is not doubt changes are coming.

The Government Accountability Office's (GAO) issued a report on the annual cost of motorcycle crashes in the United States Drawing from the National Highway Traffic Safety Administration (NHTSA) and other agencies, the report breaks down the costs. Surprisingly, medical expenses accounted for only 18% of the loss. The biggest contributor was "lost market productivity" at 44%. In other words, it's the wages and income lost from the injuries that shadows the cost of medical care.

These numbers from from 2010. There were 95,000 motorcycle accident that year, with 4423 fatalities.

Point: the study found that most of the costs of motorcycle crashes are "borne by society" in the form of medical and insurance payments.

Another point: This study shows you are much more likely (30 times) to die in a motorcycle accident than a car accident. This may sound like a federal study to conclude the obvious, but the numbers put the stark reality in focus.

Another common sense solution: wear a helmet. The best way to avoid a fatality is to enact universal helmet laws. It may not prevent the collision, but it can prevent death. This is certainly a hot button issue with many riders.

My observations:

This summer, my family and I took a road trip back to Yellowstone. It was about the same time as Sturgis and there were bikers everywhere. It was great to see all the different bikes. However, on the way out, we came upon one serious wreck involving a biker with no helmet. Just a few days later, we heard of another serious accident in Yellowstone National Park. I was talking to an avid rider about my trip later in the summer. He shared his experience while riding in Yellowstone. He rode without a helmet, until he turned a sharp curve to discover a large Bison in the road. The helmet went back on.

Yet Another point: I am helping a couple of riders on their cases, and see first hand the problems with medical treatment. Oregon motorcycle policies do not typically provide medical coverage, and in both my cases, my folks have no health plans to back them up. This can be a devastating experience on not only the rider, but his or her family.

The Register Guard recently reported on local law enforcement efforts to enhance patrols to stop drunken drivers on Super Bowl Sunday. The article provided some sound advice for party hosts to ensure that their guests are not leaving the party in no shape to drive.

The article also mentioned the potential liability for a party host letting a guest get behind the wheel. Oregon law provides that a party host who provides alcohol to a "visibly intoxicated" person may be liable for any injuries caused by the drunken driver. A "social host" can be a person hosting a party at their house, or someone buying too many drinks for a fellow patron at a tavern.

Our office has handled too many cases involving a drunk driver that was over-served, caused a wreck, injuring or even killing another motorist. With more than one responsible party involved, there are many issues to address, including the shared liability between the drunk driver and the provider of alcohol, and whether the drunk driver was "visibly intoxicated", which is different than merely being "intoxicated."

I occasionally get calls from families that were injured in a wreck while on vacation on the Oregon Coast. It's a hard way to start a vacation, but that may just be the beginning of the tragedy. Often times, there may not be enough insurance proceeds to fix everyone's harms suffered in the collision.

For the lawyer, the first concern is the potential for a conflict of interest. Although it may sound a bit strange (which happens in the law) it is possible that family members may be competing against each for limited insurance proceeds to fix the harms suffered in the wreck. A lawyer cannot represent more than one person where there is such a conflict, and the Oregon State Bar Rules of Professional Responsibility make sure that we notify potential clients of potential conflicts.

For our clients, we look at the options. Is there underinsured motorist coverage? Does the negligent driver have an umbrella policy, or another car that may offer coverage? Sometimes the negligent driver is on a business trip, and his or her employer may have insurance to cover the loss. This is something we do all the time, and you can consult without charge to know your options.

I have been working on a few issues involving my clients' PIP in the past few days. I find it especially frustrating because the PIP carrier is my client's insurance company, but you would never know it when dealing with the PIP adjuster.

In Oregon, unlike Washington, auto insurers must provide PIP, which is short for Personal Injury Protection Benefits. The two most commonly used coverages are medical benefits and disability. As with any insurance claim, an adjuster requires documentation. So, if you are disabled, the adjuster will want your wage earning records, and a note from the doctor taking you off work. Fair enough.

Recently, an adjuster for my client has been holding up disability benefits because he cannot get the employer on the line to confirm that my client is unable to work. The off work note and the x ray showing the broken bone is not enough. In the meantime, my client is waiting for her disability income to pay bills, and buy groceries. I bet the insurance company would not allow coverage to remain if an insured had a good reason to skip a month paying premiums.

When this happens, you have some options. One is to contact the State of Oregon Department of Consumer and Business Services Insurance Division, and file a complaint. This may get the attention of the adjuster. The other is to ask for arbitration, or even file a lawsuit in the local Court. Depending the situation, we are often able to get the insurance company to do what it needs to do.

Other Resources: Oregon's Unfair Claims Practices Rules

The Oregonian reports that a safety sweep of 245 commercial trucks entering Oregon resulted in removal of 37 trucks and 40 drivers for "critical safety violations" for the trucks, and other safety violations involving the drivers. If this were a valid sample of all the trucks in Oregon, you could say that about 15% of commercial trucks in Oregon have some "critical safety" problem. That is alarming. Even more frightening is the fact that three of truck drivers were arrested for driving under the influence of alcohol.

This week, the US Department of Transportation is hosting a conference to discuss the growing problem of distracted drivers. The trucking industry is fighting to keep in cab computer use out of any regulations. The trucking lobby's argument is that the screens are bigger, and the trucker pulls over to use the computer. My favorite quote in the article comes from a trucker, an honest trucker:

“We’re supposed to pull over, but nobody ever does.”

Other Links

Federal Highway Commission Truck Safety Research

Truck Safety Coalition

Public Citizen Auto Safety Campaign

The Daily Astorian recently reported on the multi-car collision in Clatskanie that sent one driver to the hospital in critical condition. The collision may have been caused by a motorist who was swerving to miss a deer. The Oregon State Police issued a press statement giving motorists tips on dealing with animals in the road:

• Stay Alert. Avoid driving with other distractions.

• Slow Down to increase your reaction time.

• Scan Ahead and watch for movement along roadsides.

• Look for more animals after you see one animal - they often travel in groups.

• Brake. Don'ts Swerve.

• Be ready for animals to change direction.

• Be watchful and obey traffic signs, including wildlife warning and speed limit signs.

At night:

• Watch for shining eyes.

• Use high beams to improve visibility when there's no oncoming traffic.

• Slow down on blind curves.

• Pass with care.

If you hit an animal:

• If you cannot stop in time, it is usually safer to hit the animal than to swerve. Swerving may land you in the path of another car or off the road in a ditch.

• Pull over and call the Oregon State Police or 9-1-1 to report the accident.

The Oregon State Police released some statistics on traffic fatalities over the Labor Day Weekend. For only the third time since 1970, only one person lost their life on Oregon highways this holiday weekend. This is a sharp decline from the 11 deaths that occurred one year ago. There were also less drunk driving arrests. Last year, police arrested 87 people on suspicion of DUII, and this year, 72.

It's hard to know if these numbers show any trends. It may be the silver lining to higher fuel prices or the recession. Certainly, drunk driving arrests are down, especially with increased enforcement. Still, many are calling for a second look at the DUII laws.

Other Relevant Links:

Governors Highway Association

Advocates for Highway and Auto Safety article

I have posted more than a few times about laws and studies relating to cell phone use while driving. A recent revelation that the NHTSA withheld data exposing the dangers of driving while texting or using the phone seems to have spurred attention. Recently, CNN reported that the Obama administration is going to summit on how to address car collisions and injuries caused by distracted motorists. Apparently, truckers are 23 times more likely to wreck while texting.

Check out a summary of the study here.

The New York Times reported that the National Highway Transportation Safety Administration (NHSTA) withheld evidence that cell phone use while driving does, in fact, raise the risk of injury. This is no large surprise, but what is really troubling is that the NHSTA withheld the study's release, citing fear of angering Congress.

Two organizations, Public Citizen and the Center for Auto Safety, filed a Freedom of Information Act request, often called a "FOIA" request, for the information. The Center for Auto Safety link provides further links to the actual studies.

I recall that detractors of the cell phone bill cited a lack of good studies supporting the notion that cell phone use while driving presents a hazard. Well . . . . . here you go.

A recent blog in the Oregonian cited a study showing that autumn, not summer time, is the most dangerous time for traffic collisions on Oregon roads. This proves my assumption incorrect, which is probably a function of living on the Coast. Still the article cites the National Highway Transportation Safety Administration (NHTSA) numbers, which show August as the most dangerous month.

Other Links:

The Michigan Study

National Highway Traffic Safety Administration

This recent OPB story shows how a tragedy can sometimes result in preventing future harm to other Oregon motorists. We've all driven through rural parts of the state where a tractor or other heavy piece of equipment needs to use the road to get from here to there. It slows traffic, and is a bit inconvenient, but farmers have a job to do, and we eat the food they provide, so we oblige. Some motorists do not, and there is a provision in the traffic code that stiffens penalties for careless drivers involved in collisions with "vulnerable road users." Like many terms in statutes, this one has its own definition. In this case, the definition applied only to those vehicles "without an enclosed shell."

Nathan Gourley was delivering hay in a hay stacker vehicle when a careless driver struck his vehicle, killing the young Gourley. Because the cab of the hay stacker was enclosed, the stiffer penalties did not apply. Now, because of his parent's advocacy in the Oregon Legislature, the law extends to all vulnerable vehicles.

An Oregon Live blogger recently discussed the pro-consumer gains made in the Oregon Legislature this year. Changes to existing laws include health care reform, expansion of the lemon law statute, and increased coverage for Oregonians who were injured and suffered property damage in auto accidents. Some legislators voted against the measures, arguing that in tough times, more regulation kills jobs. However, when you look at a few of the bills, it's really amendments to existing regulations, and one could even argue it helps the economy.

For example, minimum property damage coverage has increased. Instead of driving around in a dented up car, a motorist can now take their car to the shop for repairs because the insurance will cover the bill. The local body shop gets paid, it's employees get paid, and there is more money in the local economy. Do rates go up? Maybe, but probably not all that much.

Under Oregon's mandatory Personal Injury Protection coverage, the maximum amount of disability benefits is increased. Now an Oregon driver injured in an auto wreck has a better chance to pay the bills, and keep their head above water if they are disabled in a wreck. If anything, this helps the local economy.

I read this recent story about stalls with Medicare reimbursements. This, like the Social Security hearings backlog, is a significant problem for Oregon and Washington personal injury victims.

As the American population ages, the number of people on Medicare increases. If a retired person on Medicare is injured in an auto accident, or due to the fault of another, Medicare may end up paying some of the medical expenses. Medicare is health insurance, but it is provided by the federal government. But here is the problem.

Let's say you are injured in a car wreck in Oregon. If you have auto insurance, your insurance will pay medical bills up to a certain amount, and over a certain period of time. Right now, it's $15,000.00 or one year. But let's say you are injured seriously enough to have to stay in the hospital, or even worse, have a surgery. Then, chances are, your medical bills are going to exceed what your Personal Injury Protection provides. If this happens, your health insurance will take over, and pay your bills.

Any health plan that pays bills to an accident victim that is seeking compensation is going to want to be paid back. So if your health care plan paid bills, and you make a claim, if you recover on that claim, you are going to have to reimburse the health plan for the benefits it provided. Put another way, you and your health plan are in the same boat; you both have suffered a loss. Most plans require reimbursement, because it does not want to pay for medical care caused by another insurance company's negligent insured. This is what we in the law call "subrogation."

Medicare is like any other health care plan. It pays your medical bills, and if another insurance company's insured caused the injuries, it is going to want its money back. The problem with Medicare is that it takes so long to tell you how much it wants for reimbursement. Private health plans will provide this information in a number of days, but with Medicare, it takes months.

When we have a client insured by Medicare, it can take several months to get a reimbursement figure, and this can cause a delay in getting a settlement paid to our clients. We try to anticipate the amount Medicare paid by reviewing the explanation of benefit forms, and itemized Medical bills. Still, if there is a discrepancy, Medicare can go after everyone involved.

The GM bankruptcy is affecting accident victims. On June 1, 2009, GM filed for Chapter 11 Bankruptcy protection, which will allow the company to re-organize, and sell it's assets to a new company. The Judge overseeing the bankruptcy approved the plan, but it may leave motor vehicle accident victims in the cold.

When any person or company files for bankruptcy, it sometimes results in a complete "discharge" of any claims, which includes claims from banks, vendors, and in this case, accident victims. This means that company or person filing bankruptcy is no longer required to pay a creditor, which could be an injured party. In some cases, where the company or person seeking bankruptcy protection reorganizes, the claims still exist, but may be severely discounted, resulting in payments for pennies on the dollar.

This is a unique case in many ways. Well, for one, it's GM. Second, the federal government is a big stake holder. Under this plan, GM is selling many of its assets to a new company. Any person with a claim that they were injured due to a defective GM product will not have a claim against the new company, but from the company that is left behind, or the "old" GM. The problem is that the old GM may not have sufficient assets to pay these claims, leaving these accident victims at risk of little or no compensation whatsoever.

This right to compensation is not automatic. These motor vehicle accident victims must prove that GM defectively designed or manufactured the particular product, and that defect caused the victim injury. This is no small task. However, if a victim were to prevail in court, it may be for naught. An appeal is in the works to object this part of the plan.

Anyone injured in a motor vehicle wreck because of another's negligence usually does not face this issue. If the negligent driver is insured, and files bankruptcy, the case will proceed, because the assets or judgment that pays the motor vehicle accident victim usually comes from the negligent person's insurance policy, not assets.

The Oregonian recently reported on a pedestrian versus truck accident in Portland. The report indicates that the pedestrian "ran" out into traffic, and was seriously injured.

In my town, there are too many pedestrian accidents. Astoria, like a lot of small towns in Oregon, has its downtown core, where people often get from here to there on foot. If it's not a pedestrian injury, it is some one getting hit from behind when they stop to let someone cross the street. Do pedestrian's really have the right of way?

Well, there are two statutes at play. One, ORS 811.028 requires a driver to stop and remained stopped for a pedestrian while the pedestrian is in a crosswalk, even if it is in the lane next to the driver. Another statute, ORS 814.040 states that a pedestrian fails to yield to a car when he or she suddenly leaves a curb or other place of safety and moves into the path of a vehicle that is so close as to constitute an immediate hazard.

How do you reconcile these statutes? Well, I guess that depends on what "immediate hazard" really means. If a car has enough time to see a pedestrian, react, and stop safely, then there is no immediate hazard. On the other hand, if someone darts in front of a car, and the driver has no way of safely stopping, or seeing the pedestrian ahead of time, then there is a failure to yield.

Any of us who have driven, or who have walked through the downtown have seen both sides of this situation. However, I can say that after seeing what a car can do to a person, I am much more alert when driving through the downtown area where I live.

Collisions involving large trucks (gross vehicle rating greater than 10,000 pounds) are an increasing problem. Trucks are getting bigger, and cars are getting smaller, but both have to share the road.

The National Highway Traffic Safety Administration (NHTSA) posted data on fatal large truck collisions from 2007. It shows the following:

* One of out nine traffic fatalities in 2007 resulted from a collision involving a large truck

* 12% of all traffic fatalities in 2007 involved a collision with a large truck. This is an increase from 2006, where 8% of all fatal collisions involved a large truck.

* Large trucks are much more likely to be involved in a multiple vehicle collision - as opposed to a fatal single vehicle crash - than were passenger cars. (82% of all large trucks involved in fatal crashes, compared with 59% of all passenger vehicles)

* About 62% of fatal collisions involving large trucks occurred in rural areas, and most collisions occurred during the daytime, and on weekdays.

* About one quarter of all truck drivers involved in a fatal crash in 2007 had at least one prior speeding conviction, which is a bit more than passenger drivers also involved in fatal collisions.

I was in Portland last year, and had to wait in my car in a parking lot during the rush hour. I watched in amazement as several bike commuters braved a spring snow storm to ride into work. I was also amazed at how many of the bike commuters disregarded a stop light and darted by cars pulling out into to traffic; not everyone, but quite a few.

I don't really ride a bike on a regular basis, but after returning to Astoria, I followed the bike v. car war that seems to be going on in the Portland area. A recent blog entry in the Oregonian discussed the ongoing issue, and efforts to pass a law allowing bicyclists

The Oregnonian reports that the Oregon Senate approved an amendment to the Oregon Tort Claims Act which will significantly raise the damages caps for state and local government liability. This amendment is the legislature's reaction to a recent Oregon Supreme Court case that ruled the statute was constitutionally inadequate.

Without getting too technical, a "cap" is a monetary limit placed on how much money a person can recover for damages caused by another. In this case, we are dealing with the State of Oregon and its local governments. Under the current Oregon Tort Claims Act, a person who is harmed as a result of the government's negligence may make a claim for damages. However, regardless of that claimant's real damages, there are limits, or "caps" on the amount of money a person can recover. Under the current system, an injured person is limited to $100,000.00 for their economic losses, and another $100,000.00 for their "non-economic" losses.

Why the "economic" and "non-economic" distinction? "Economic" losses, in the State of Oregon, include things like medical expenses, lost wages, and other out of pocket expenses. "Non-economic" losses are described as subjective, non-monetary losses. Some people refer to this as "pain and suffering." This is one aspect of non-economic damages, but not a complete description. I remember an older lawyer once telling a client that the law gives you the right to be a whole person, but if someone takes that away from you, then you are entitled to be compensated for that loss. I tell clients that non-economic damages is compensation for the loss of their health.

The Senate addressed this issue because of a court case addressing the constitutionality of these liability caps. In 2007, the Supreme Court of Oregon decided a case called Clarke v. OHSU. In this case, Jordan Clarke's parents alleged that OHSU was negligent in treating their son, and as a result, Jordan suffered permanent and severe brain damage. The expenses for total life and health care were calculated out to $11,073,506, and the loss of Jordan's future earning capacity was figured at $1,200,000. The Clarke's also made a claim for non-economic damages $5,000,000. OHSU did something unusual, and asked for a judgment against itself, but not for these damages. Instead, OHSU, which is a part of Oregon's government, asked the trial court to apply the Oregon Tort Claim Act caps, limiting the judgment to $200,000.00. Quite a difference.

The Oregon Supreme Court found that the statute, with these limits, was unconstitutional because Oregon's Constitution guarantees a remedy to citizens harmed by another. The Clarkes were not getting a remedy with a figure representing a small fraction of their actual losses.

This new statute does a few things. First, the new limits are not separated into the "non-economic" and "economic" limits. It's just one figure. Also, the actual limit will increase each year. Then, after 15 years, the caps are indexed for inflation.

Some legislators who voted for the bill claim a need for caps on all cases, not just against the public agencies in Oregon. The usual argument is that the cost of malpractice litigation drives up health care costs. This is a matter of debate, to say the least, and so far, I have not seen any hard evidence supporting this statement. I suspect that it may be one of those arguments that, if made enough, will be accepted. There are smarter people than me who agree.

The Oregonian reported this afternoon that police in Oregon, Washington, and British Columbia will be ramping up patrols to enforce seat belt and child passenger restraint laws.

Police will conduct a traffic-safety enforcement blitz through Feb. 22, focusing on the use of seat belts and child passenger restraints. The article points out that seat belt use has doubled since Oregon required motorists to use the belts back in 1990. In that same time, Oregon motor vehicle fatality and injury rates have dropped.

I have handled many injury claims throughout the years, and although I am sure it has happened, I cannot recall a client telling me that they were not wearing a seat belt. I do, however, recall at least one case where I represented a person's estate because the driver was thrown from their car and killed at the accident scene.

Other Helpful Links:

Seat Belt Safety Facts

Child Seat Guide for 2009

National Safety Council Safety Campaign for Seat Belts and Air Bags

I recently read an article in a professional journal reporting on a data base service that provides information about auto defects. Data bases have become a big part of the every day life of lawyers. Of course, this service costs some money, and it is geared toward lawyers and engineers investigating safety problems in various cars and trucks.

There is an option for car owners and consumers. The National Highway Traffic Safety Agency (NHTSA) maintains a similar site, called Safecar.gov, offering a searchable data base, and best of all, it's free. You can search for recalls, investigations, or even check out complaints made about any model of car.

The introductory page also lays out some sobering facts:

42,000 people die in traffic accidents each year.

Traffic crashes are the primary cause of debilitating injuries in the United States.

Traffic crashes are the number one killer of Americans under the age of 34.

Here are some other helpful links:

Crash Survivors Network offers safety crash ratings for cars.

MSN offers a similar data base to check out your car's safety rating.

About.com includes a question and answer page about child car seats.

The Oregonian reported that three young people driving on Highway 35 south of Hood River died
Friday night. A young woman was headed up hill and rounding a curve when her car lost control on black ice, and spun into another car in the oncoming lane. According to the Oregon State Police, black ice remained on the road, even in 38 degree weather. This is simply tragic.
Black ice is common at elevation, and out on the Coast with the damp air. Many newer cars include gauges that provide the outside temperature. Sometimes these devices, like snow chains or four wheel drive, provide a false sense of security.
Oregon DMV publishes a Winter Driving News Packet that provides great information on winter driving. Chains and studs are great, but there is no substitute for common sense driving.

Other Helpful Links:

Road Rangers: How to Drive on Black Ice

Now Public: Dangers of Black Ice

The State of Oregon has great web resources, and here is another. The DMV gives you step by step instructions on your legal responsibilities after an auto accident. Boiling it down, you must stop at once, give help, exchange information, and report the wreck to the DMV.

A lot of insurance companies will give their policy holders a card with some of these instructions. One instruction says not to admit fault. This always bothered me somewhat, because sometimes it's obvious. However, there are times when a motorist may think she or he caused an accident, when in fact something else was going on around them that contributed to the wreck. It's probably good advice not to admit fault at an accident scene.

Getting information is key. If a police officer is at the scene, she will give the drivers a form to fill out, and this contains all the information that you will need. I have had cases where no information is exchanged, or if it is, it's not enough, and we will end up hiring an investigator to track down the responsible party.

After the accident, you should always file an Oregon Accident report. The State of Oregon requires reporting to enforce its mandatory insurance law, and to keep track of accidents that happen within Oregon. It's also a good idea to contact your insurance company right away, whether you are at fault or not.

Oregon motorists all over the state are struggling with the cold weather and the icy roads. Tillamook County made a horrible discovery where a young woman lost control of her car, left the road, and plunged into the Nestucca River. She did not survive.

There a few things we can all do to reduce the risks of winter driving. Common sense is a good place to start. If you do not have to make the trip, then stay home. If you do, travel during the day, when you can see where you are going. Tell someone you are headed out, especially on a longer trip. Bring your phone, and make sure it is charged. Take the safer route, not necessarily the shorter route. Make sure you have your chains, and throw a blanket and some food in the car in case you are going to be sitting for awhile, and of course, fill your tank.

Whenever we plan a trip over to the Williamette Valley, we use Oregon ODOT's Trip Check. This website is great. It gives you up to the minute road conditions, weather warnings, and in some spots, you can even look at video showing actual road conditions. Be safe this holiday season, and be sure to use Trip Check.

I have never kept count, but a lot of people who come to see me after they are injured in an auto wreck chose not go to the emergency room. Sometimes the adrenaline is running, and they do not think they are hurt. Other times, they are concerned about the cost of medical care. Either way, it's a good idea to get checked out if you have been in any kind of significant wreck.

Recently, a Cave Junction man died three days after he was in a one car wreck. After losing control, the driver flipped his truck. The driver refused medical treatment at the scene, but three days later, died in the hospital.

Would immediate care have saved his life. I don't know. However, I have had clients of my own refuse care, only later to end up at the hospital in serious condition. It makes sense to be safe, and get checked out.

A professional nursing association recently gave high marks to the state governments of Oregon and Washington for preventing auto accident injuries. On their web site, the Emergency Nurses Association(ENA) looked at roadway safety laws in all fifty states, using a thirteen point criteria to rank the effectiveness of each states' ability to prevent traffic injuries. Factors include seat belt use, child passenger safety, graduated driver licensing for teens, and how much authority state authorities have to maintain and evaluate a state trauma system. Oregon and Washington were the only states to receive a best possible score of thirteen.

Past reports from this organization have had positive results. In 2006, Arizona was at the bottom
of the list, but emergency room nurses worked with state legislatures to enact laws aimed at making Arizona a safer place to drive. With over 40,000 traffic fatalities a year, this is important work.

Attorneys and clients can enter into many different types of fee agreements. For personal injury cases in Oregon, a contingent fee agreement is the norm. Contingent fee agreements allow injured Oregonians access to a lawyer without having to pay up front for legal help.

We use contingent fee agreements with our Oregon and Washington personal injury clients. In this type of agreement, the attorney fee is based on a percentage of any recovery made for the client on their injury claim. So, if the attorney is not able to recover any money for the client on the injury claim, there is no fee. However, if there is a recovery, then the attorney charges a percentage of the amount recovered. There are other aspects to the fee agreement worth mentioning.

First, our agreement specifies that any offers of settlement are reported to our client, and that our client has the last say on whether to resolve a personal injury claim. This is required, and it's a good thing. Of course, our clients seek our advise, and we ensure that a client has all of the information she needs to make the right decision.

Most all contingent fee agreements include a provision that talks about costs. Costs are things that we spend money on to prepare the personal injury case for a settlement demand, a legal suit, or a trial. Our office will usually pay these costs up front. Then, that the case's conclusion our clients reimburse us for any costs that we advance.

This past weekend, The Oregonian reported that a young Oregon man died when he lost control of his motorcycle in Clackamas County, and slid into an oncoming truck pulling a fifth wheel. The motorcycle rider was wearing his helmet, but unfortunately, he had not obtained his Oregon motorcycle endorsement. Many motorcycle riders posted comments to the story, expressing sadness, and the fact that the accident may have been preventable.

An Oregon motorcycle endorsement is part of an Oregon driver's license that allows a person to operate a motorcycle. There are two ways to obtain an endorsement. If you are over 21 years old, you can schedule a test with the DMV, and take the test in their parking lot. If you are younger, or if you want to learn more about safe riding, you can take a class through Team Oregon.

This is an excellent program, developed in 1984 as a cooperative project between the Oregon Department of Transportation and Oregon State University. Experienced Volunteers teach motorcycle safety in in the classroom, and on a training course. They even provide a motorcycle for the road course. There are classes for beginners, intermediate, and advanced riders.

If you are a new rider, or need a refresher, take this course.

I recently read an article discussing a National Highway Traffic Safety Administration (NHTSA) study finding that car accidents are the leading cause of death for teens. In the past two years, 83 teens have died in Oregon auto collisions. This struck me, because the longer I have practiced personal injury law, the defendants I meet get younger and younger. I recall one wrongful death case where the young driver did not survive the collision.

Oregon law now requires 100 hours of supervised driving for a teen without taking driver’s education, and only 50 hours for those who have completed a course. The article cites recent studies showing those teens taking the driver’s ed. course are 20% less likely to be involved in a car accident.

I am convinced that a driver’s ed course for your teen is cheap insurance, and may pay for itself many times over. Check out the Oregon DMV website at for an accredited driver’s education instructor in your area. You can also check with your insurance carrier for premium discounts for young driver’s taking a course.

In an effort to reduce auto collisions and injuries, many states have banned the use of cell phones while driving. Washington passed its law this summer, and California has a law in place. I searched the Oregon statutes, and the only law I can find is one that prohibits local governments from passing their own cell phone laws.

Anyone with a teenager knows how big text messaging has become. I recently read an article on line that reported on a United Kingdom study on reaction times and text messaging. The study found that text messaging while driving may be even more dangerous than driving drunk. Subjects that were text messaging while driving suffered a 35% drop in reaction time compared to those tested while driving at the legal alcohol limit, who lost only 12% reaction time. Even test subjects under the influence of marijuana retained a better reaction time than the text messaging drivers.

There are plenty of news stories reporting car wrecks and injuries due to an inattentive driver on a cell phone. I can recall at least two cases in recent years where a driver on the phone was distracted and caused an injury. Perhaps the Oregon Legislature needs to step to the plate on this issue.

Everyone in Oregon must have auto insurance on their car, but a lot of drivers do not. Being an accident victim is hard enough, but when an uninsured driver is at fault, you face are even more challenges. Oregon insurance law provides an often overlooked option.

First, a lesson on automobile insurance law in Oregon. Oregon law requires a minimum amount coverage for auto liability insurance. All Oregon drivers must maintain a minimum of $25,000.00 liability coverage. This is the insurance coverage that pays for medical bills, lost wages and compensation for the harm a negligent driver causes to another. The required coverage amounts, also called policy limits, have not changed in a long, long time. As a result there are a lot of people driving around with minimal liability coverage, or with no coverage at all. This is where uninsured/under-insured motorist coverage (also called "UM") can help.

What is it? Basically, it's insurance against the uninsured, or the under-insured. Let's start with an uninsured driver. If you are injured because of the negligence of an uninsured driver, your insurance company should provide you with coverage for any claims that you may have against the negligent uninsured driver. This includes medical expense, lost wages, and compensation for the harm to your health. The amount of coverage must equal your liability insurance coverage. For example, if your insurance policy covers you for up to $50,000.00 for any liability you may have from an accident, it should also provide uninsured/under-insured motorist coverage for the same amount. Why is this important?

Its' important because we all know medical care costs a lot of money. An ambulance bill can exceed $500.00. Physical therapy for a month or so can easily top $1,000.00. And if you need to get an MRI to investigate a potentially serious neck or back injury, you may pay $2,000.00. After it up and you can see what I mean.

Uninsured motorist coverage can protect you from under-insured negligent motorists as well. Let me give you an example. Let's say you are injured by a negligent motorist who has insurance, but only the minimum, which is $25.000.00. If you suffer a pretty serious injury, and you are out of work after a hospital stay, there is a good chance that this $25,000.00 is not going to cover medical expenses and lost wages. That is when under-insured motorist coverage comes in.

Uninsured motorist coverage allows you to make a claim against your own insurance carrier for any losses exceeding the negligent driver's coverage. The only catch is that you coverage amounts or policy limits must be greater than the negligent driver's policy limits. So, in our example above, you would have to have a higher policy limit in order to make such a claim. For example, if you had a $50,000.00 policy limit for uninsured motorist coverage, you could make a claim for the difference between your coverage and the negligent driver's coverage, which works out to $25,000.00. In this example, you are covered up to $50,000.00 for your losses, instead of $25,000.00.

All too often I am helping seriously injured clients beat back collection agencies and medical creditors, and in the end, not recovering what they truly deserve. For a few dollars, you can increase your uninsured motorist coverage, and protect yourself and your family from the uninsured driver.

When we first take on a new auto personal injury case for for a client, we work hard to make sure that you are getting the insurance benefits you deserve. This is usually from your own auto insurance company under the personal injury protection coverage (also known as "PIP").

PIP coverage is a disability and medical insurance policy for anyone injured in an Oregon insured car. Fault is not the issue. Many times, the PIP disability benefit is the only thing keeping a disabled accident victim afloat while recovering from an injury.

Even though this benefit is an issue of paying the rent and the bills, insurance adjusters just do not get it. They are trained to deny payment without documentation, and there is no way around it. That is why it is important to have your doctor document your disability, and with specific information. You need to have the doctor spell out when the disability began, that is was caused by the wreck, and that you will be seen within a period of time (usually about thirty days) to re check your disability status.

The irony is that in Oregon, the insurance company paying these benefits will usually be reimbursed for what it provided to you. We find that the first task in helping many of our clients is fighting for benefits from our clients’ own insurance company.