Oregon Injury Attorney Blog

A Third Party case occurs when you are hurt on the job, but someone other than your employer or a co-worker causes an injury. For example, let’s say you are running an errand for your boss. You are driving back to the job, and some other driver runs into you, and injures you. Then, you have a workers’ compensation clam because you were on the job, and you were hurt. But you also have a claim against that person who ran into you. These are called Third Party Claims.

When you have a third party claim, both you and the workers’ compensation carrier have suffered a loss. You have lost your health, and the workers’ compensation insurer is out money. Because of this, there are special rules that give the workers’ compensation carrier some say in what happens on your claim against the other party.

First, you have to decide whether you are going to pursue the claim, or if you want to leave it up to the Workers’ compensation carrier to pursue the claim for you. This is referred to as Third Party Election. I cannot think of a reason why you would turn the claim over to the Workers’ Compensation carrier, unless you are going to have a hard time proving the other party was at fault, or that you were actually injured.

If you chose to pursue the claim on your own, then you have to keep the Workers’ Compensation carrier informed, and you have to make sure that they are in agreement with any settlement proposals. In some cases, the Workers’ Compensation carrier will agree to taking less than it paid in benefits.

There are lots of rules dealing with this area of the Third Party claim, and if you have a significant injury, and lots of medical bills, it is a good idea to confer with an attorney before resolving the case.

Everybody agrees that the information age we live in today has fundamentally shifted the way we do just about anything, and litigation of personal injury claims is no exception.

Many courts allow electronic filing, and Oregon is on the move to make its courts electronic. Instead of letters, we send e mails, and our settlement packages are now portable document files, with hyperlinks to videos and other media to illustrate our point, and educate the reader.

When I file a case in court for a client, one of the first things I get from an insurance defense attorney is a request for production of documents. This is a request for documents that are relevant or are reasonably calculated to lead to discovery of information relevant to the case. For example, if you are claiming that you injured your ankle in a car collision, then the insurance defense attorney is entitled to any medical records of treatment for the same ankle prior to the auto collision. That's fair. After all, the insurance defense attorney should be able to look at the difference in the health of your ankle before and after the collision.

In the past few years, however, insurance defense attorneys are asking for all of my client's social media data, regardless of whether it has anything to do with an injury or not. I have even had defense attorneys whip out pictures downloaded from my client's social media site during my client's deposition, asking them about trips, vacations, and activities they participated in after their injury.

I have a social media site, but rarely post to it. If I do, it's pretty boring stuff, or pretty harmless. I am constantly amazed at what people will share on their social media sites. If someone wanted to look at social media data, it would be pretty brief and not very interesting experience, unless they like dog and cat pictures.

I read a recent ABA article which notes a push back from the courts on requiring disclosure of social media posts. It's not safe to assume a court will open the doors to an insurance company to fish around in your social media pond. Still, there are many lessons to be learned.

Lesson One: As I tell my own daughter, when you post something to your social media site, you have to assume that the whole world is going to see it. Sometimes, reminders are in order. We have the privacy settings in place, but those are always changing, and with people having over 1,000 friends, there is a real good chance someone out there is going to see something on your site. Just pretend everything you post is going on a billboard on the main road into town.

Lesson Two: The old rule still applies. If you have a pending claim, don't overstate or exaggerate your limitations to your lawyer, or to anyone else. In addition to video surveillance, which happens more than I care to think, statements, pictures, and even videos are going to be found, and you will be found out.

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 Washington State Bar Association (WSBA) issued a press release in an effort to reach out to Washington residents affected by December's storms. Fifteen Washington Counties were declared federal disaster areas because of this winter's storms. The WSBA has activated a hotline for low-income residents needing legal help to recover from the disaster. This program is established in accordance with the Disaster Legal Services Program established by FEMA and the ABA Young Lawyers Division.

Storm victims who need help but who cannot afford an attorney can call the hotline at 866-519-7099 and leave a message.

Other Helpful Links:

Washington State Insurance Commissioner web page "Information for Winter Storm Victims"

Red Cross Winter Storm Tips

MSNBC reports that United Health Group recently agreed to pay a $50 million settlement in the State of New York after an investigation of overcharging patients for their health care. Apparently, United Health used a research firm called Ingenix to set reimbursement rates. United Health owns Ingenix. How convenient. Several other health insurers use this same company to set medical bill reimbursement rates, and New York's Attorney general promises to investigate those companies as well.

Does this impact Oregonians and Washingtonians? Maybe. Many of the companies cited in the report provide health coverage in the Northwest, and the article mentions that this using this "creative research" to set reimbursement rates may be a nationwide problem. A lot of health plans are not really "insurance" in the strict sense. They are federally regulated by a statute called ERISA, although States may have some say in how the companies conduct business. A State Attorney General decides which companies to investigate, and how to pursue any fraud complaints. Oregon's Attorney General provides a web page for consumer complaints. For insurance issues, Oregon's Department of Consumer and Business Services Insurance Division accepts complaints on line.

I always encourage folks with a legitimate claim to file a complaint. If anything, it creates a record, and the state agency should see a red flag with several complaints against the same company.

Other Helpful Links:

Consumer Protection Directory

National Association of Consumer Advocates

Long ago I read an article in a professional journal about insurance contracts, and how they are written. The basic point was that insurance companies will intentionally make the policy language ambiguous. When I say "ambiguous," I am not trying to sound like a fancy pants. In the legal world, something is "ambiguous" when it can be read two different ways, and both ways are reasonable. Why make something unclear?

It's pretty simple. Insurance is traditionally regulated by the states. Each state has its own insurance code, and an agency that enforces the insurance laws. If an insurance company is in one state arguing what a term in its own policy says, it can make a completely opposite argument in another state. Keeping things unclear makes that a lot easier.

Some states are better than others about regulating insurance. I would pick Washington over Oregon because in Washington, a policy holder can seek a remedy against the insurance company if it acts in bad faith. Oregon allows the consumer to report a violation to the state, but court remedies are more limited.

The Houston Chronicle recently reported on a case involving a fatal office building fire that killed three people. Great American, one of the insurance carriers, is arguing that the victims were killed by smoke, which is "pollution," and since liability for pollution is excluded in the policy, then there is no coverage.

As a recently elected official stated, this is a "teachable moment." First, if you are in the market for insurance, consider the fact that building owner, who had the insurance with Great American, disagrees with this position. Second, if you do buy insurance, take the time to wade through the exclusions. Third, it's a darned good thing to have the right to take an insurance company to court to enforce it's own policy if it is going to get this "creative."

The Oregon Supreme Court recently ruled in favor of an Oregon auto insurance policy holder who made a claim for "diminished value." In this case, the car owner claimed that even after the insurance company paid for the repairs to his pick up truck, the truck was still not worth as much as it was prior to the auto collision. In other words, the pick up truck owner claimed "diminished value."

The insurance company refused to pay for the reduced or diminished value of the truck. In 1999, the pick up truck owner filed a class action lawsuit. This is a lawsuit that allows you to file a case not only on your own behalf, but also on behalf of any other person who was denied the same type of claim. The trial court dismissed the case, but the Court of Appeals reinstated the suit. The Oregon Supreme Court agreed, paving the way for possible recovery for most insurance-covered repairs in Oregon since 1993. That's a lot of claims.

More recently, insurance companies have specifically excluded diminished value claims from their policies. However, that's only been the case since about 2003.

Even more interesting is that this case may not only affect claims against Farmers Insurance, the defendant in this class action suit, but claims with Allstate, State Farm, and Progressive.

Stay tuned.

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.