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Now that Memorial Day has come it is unofficially summer. Time to get out on the water. While fishermen and women have been out of the water for steelhead this spring the summer really brings people out onto the lakes and rivers. My office is near Willamette Falls and I see kayaks, paddle boards, and I am starting to see ski and wakeboard boats near the mouth of the Tualatin River. With so many different types of watercraft out there it can get busy. Unfortunately busy can lead to accidents. It is important to review safety guidelines and have your boat prepared for the season. Oregon State Marine Board Safety Information. In Oregon everyone age 12 and over who operates a boat with a motor of 10 horsepower or more must have a Boating Safety Certificate. ORS 830.086. You can get the certificate by taking a class, taking the online course, or taking the challenge test if you are an experienced boater. Boater Education Information. Of course when boating it is important to remember that law enforcement is always watching for boaters who have had too much to drink. Boating under the influence penalties are significant. ORS 830.325.

speedboat-1436074-mIn the unfortunate circumstance where you are involved in an accident as a boater it is vital that you handle the incident properly. A boater who fails to properly respond and report an accident can be prosecuted. ORS 830.475. If you are involved in an accident that causes property damage you must provide your name, address, and boat identification number to the owner of the property. If the accident causes injury or death you must also stop your boat as close to the site of the accident and provide your information to all occupants of the other boat, or all individuals injured by the accident. You must also render assistance to those involved in the accident. This may require you to tow the other boat to shore, take on as passengers those injured and take them to shore and make arrangements for them to receive medical treatment. ORS 830.475. If you are involved in an accident in which there is an injury or more than $2,000 of damage you must also complete an accident report form and submit it to the State Marine Board. ORS 830.480. Oregon State Marine Board Recreational Boating Accident Report form. You can also be prosecuted for unsafe or reckless boat operation. ORS 830.305, ORS 830.315. Oregon also makes it clear that the operator of a boat is responsible for negligent behavior to the safe extent as if they were operating a car. ORS 830.330. Continue reading

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Many of my clients who have been in a motorcycle accident don’t stop riding. In fact many can’t wait until they get back on their bike. For the experienced motorcyclist an accident is a calculated risk. As we all know the chances of a serious injury are vastly greater when riding a motorcycle than when driving a car. According to the Oregon Department of Transportation in 2013 there were 49,510 accidents.  Of those only 1,036 involved motorcycles. 2013 ODOT Quick Facts. There were 313 fatal accidents in Oregon and 31 of them were motorcyclists.

motorcicles-791105-mBut what surprises motorcyclists most is that insurance for their motorcycle may work differently than for their car. In Oregon the no fault personal injury protection (PIP) benefits for your medical expenses and wage loss is mandatory in an auto policy. This coverage is excluded for your motorcycle unless the motorcycle is clearly included on your policy. ORS 742.520. PIP is available for your motorcycle but can be expensive. If you do not have PIP then you can use your health insurance to pay your medical expenses following an accident. The same is true for disability insurance if you meet the qualifications to make a claim to replace your lost wages. Other aspects of insurance are mostly the same for motorcycles and cars. Continue reading

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You may know that taking a case to trial is expensive. A typical car accident case may cost between $5,000 and even $10,000 to properly present to a jury. This is because expert witnesses like doctors, accountants, and accident reconstructionists charge for their time to evaluate evidence and testify at trial or arbitration. In addition, there are court costs and other expenses such as copy charges for medical records which are present in any personal injury or car accident case. These expenses can really add up and make it difficult to properly litigate a case worth less than $10,000. In cases like these you can win, but not receive any money due to the high expenses. This situation is well known and used by insurance companies and defense attorneys to attempt to settle for very little. The Oregon legislature has know of this problem for a long time also, as a result ORS 20.080 became law. What this statue does is allow for attorney fees to be awarded to a plaintiff who wins a case filed for $10,000 or less if they attempted to settle for this amount and the defendant either did not offer to settle, or they made a settlement offer that was smaller than what the plaintiff received at trial or arbitration.

law-education-series-3-68918-mIn order for this law to help the settlement offer must be made properly. We mail the offer to the insurance company, and the at fault driver, as required by ORS 20.080. Sometimes the insurance company will agree that we do not need to send a copy to the other driver. But, when we do we make sure that none of our client’s personal information like their date of birth, SSN, address, etc. remains in the documents provided. This letter is mailed by first class mail and certified mail with a return receipt requested. This way we can prove that the letter was sent and received by the people required to receive it. When this settlement offer letter is mailed it must be accompanied by copies of medical records and bills concerning your injuries, invoices and repair estimates of your car if we are claiming damages for your car, and we also send all information supporting any wage loss or other damages that we are seeking. This allows the insurance company a reasonable ability to evaluate your claim. If this information is not sent any claim for fees will be denied. Then we wait for the insurer to review the information and make an offer. If they do not make an offer after 30 days we file a lawsuit and seek attorneys fees. Continue reading

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It is probably not a surprise that a child is not able to file a lawsuit, or bring a claim, on their own for injuries they suffer. In Oregon this is normally done by their parents. If a lawsuit is filed either a conservatorship or a guardian ad litem must be appointed. ORCP 27. This is normally one of the parents. Either parent can be appointed to these roles. If a case settles for an amount in which the net amount for the child is $25,000 or less there is no need to file anything with the court. ORS 126.725. If the net amount is more than $25,000 then a conservatorship is necessary to properly resolve the claim.

day-at-the-beach-1-1175074-mThese formalities have become necessary to protect the settlement, or judgment, proceeds from parents or other family members who have used the money for their own purposes. The insurers who pay these settlements and judgments also require this formality to ensure that when a claim is completed the person who acted on behalf of the child had the authority to do so. A parent, or other adult, who accepts the role of conservator has a fiduciary relationship to the child in which they must act in the best interests of the child with respect to the claim. Continue reading

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Where and how your child is seated safely in a vehicle is a concern that effects every parent. Now that my son is old enough and large enough to sit in the front seat it is his desire to be there. But my worry, or is it paranoia, tells me keep him in the back seat until he is big enough for the front airbags to be a help not a potential danger. In Oregon there are laws governing when,where, and how your child should be secured inside a passenger vehicle through the age of 8 or they are 4’9″ tall. ORS 811.210.

seatbelt-602535-mIf your child is under the age of 1, or under 20 pounds, they must be secured in a rear-facing safety seat secured in the rear seat of your vehicle. If your child is 40 pounds or less they must be in a forward facing child safety seat. A booster seat must be used until a child is over the age of 8 or taller than 4’9″ so long as the lap and shoulder belts can be adjusted to fit properly. A proper fit of the shoulder belt is when it can lay across the child’s collarbone and away from the neck. If the seatbelt can’t be positioned in this way a child who is over 40 pounds should stay in the child safety seat until they are tall enough for the seatbelt to fit. Likewise a child who is 8 or over 4’9″ may benefit from staying in a booster seat if your seatbelt can’t be adjusted to fit properly. If your car does not have rear seat shoulder belts Oregon law allows you to have a child sit in the front passenger seat in order to have a properly adjusted shoulder belt. Continue reading

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So you have been injured.  You have had your medical bills paid by your auto or health insurance. Maybe your lost wages were covered by a disability policy or you took some sick-time or vacation to help cover them. But what about the inconvenience, frustration, pain, worry, and even embarrassment at times of going through your recovery? In Oregon we have three types of damages that you can seek in a civil case, personal injury cases are brought in civil court. There are economic damages for your expenses like medical bills, wage loss, and property damage. Non-economic damages for things like your pain, inconvenience, and worry. And there are Punitive damages in some cases where the person at fault caused your injury in a reckless or intentional manner.

justice-703517-mEconomic damages compensate you for things that have a clear monetary value. This includes obvious things like your medical bills, prescriptions, and medical devices. It can also include future medical expenses if your doctor can provide proof that the future care is going to be needed. This like all matters in a civil personal injury case is determined by the preponderance of the evidence. Think better than 50/50. Your lost wages are also part of these damages. They can be easy to prove if your doctor took you off of work because of your injuries and your lost earnings are easily able to be documented. If you earn commissions, are self employed, or work in an industry where your wages fluctuate this can be more challenging. Often we will hire an accountant, or an economist, to provide testimony that will support what your lost wages most likely would have been. This is also there case where your ability to work is permanently reduced. This is called an earning impairment claim and is also part of your economic damages. Any property damages that you have are also part of your economic damages claim. This includes your vehicle damages, or the value of your car if it was totaled. It can also include a diminished value claim if your car was repaired but is now worth less after the crash. Continue reading

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Normally claims for injuries and lawsuits are filed by the person injured against the person who caused the injury. But what happens if one of them died after the accident, or incident, that caused the injury or even death. When a person dies as a result of the actions of another, whether intentional or not, a civil wrongful death action may be filed. A lawsuit for an injury can continue if the injured person died in the form of a “survival action”. If the defendant to a lawsuit dies, the case does not end, but a personal representative is appointed to represent that person’s estate and the case continues. A claim for wrongful death, or a survival action, is brought in the name of the Personal Representative of the Estate of the decedent. ORS 30.020, and ORS 114.305(20). In order to do this a probate case would be filed first in order to appoint the personal representative. If the person had a will that would be used to determine who to appoint and who the beneficiaries of the estate are. If the decedent did not have a will then there are laws that help determine who will get what portion of the person’s estate. ORS 112.025-.045.

Law booksWrongful death claims have many special laws that apply. First is that the statue of limitations, or the time in which a lawsuit must be filed or the claim settled if no lawsuit is filed is three years from the date of death. However, there are some tricky rules in that if the death was as a result of a defective product that two year statue of limitations applies. Kambury v. DaimlerChrysler Corp., 334 Or 367, 374, 50 P3d 1163 (2002). Likewise if the death was caused by a governmental entity and tort claim must be filed then the procedures in ORS 30.275 must be followed. After the lawsuit is filed it is handled in the courts the same way that a normal civil case would be handled. Wrongful death claims also are different in that the proceeds from a case do not automatically go to the decedents’ heirs or devisees under their will or intestate succession rules. The proceeds are to be split and distributed to the beneficiaries “in accordance with their loss”. ORS 30.040, and ORS 30.050. If the beneficiaries cannot agree on how to proportion the proceeds a judge will hear testimony and apportion the money. This is a unique situation in which stepchildren of the decedent are included in the list of individuals who can make a claim for proceeds due to their loss. ORS 30.020. Continue reading

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Being out of work after an injury is one of the scariest and most troubling parts of an accident’s aftermath. My client’s over the years have shared with me their frustration, worry, and apprehension about being out of work and needing to keep their job. The circumstances in which you were injured, and for what size of employer you work, can effect your rights and how easy it will be to get back to your job. There can be different laws that can help you if you were injured on the job, or are a member of a union, but what if you were hurt in a car accident, a fall, or by medical negligence? Then there are several factors to consider to determine if you have rights to be reinstated to your job at the time of injury. Thankfully there are two laws that may be of great benefit. The Oregon Family Leave Act (OFLA) and the Family Medical Leave Act (FMLA) are similar laws that allow for an employee to take an unpaid leave from work without being terminated.

IMG_1151The Oregon Family Leave Act is in force if you work for an employer with 25 or more employees and you have been employed for more than 180 days working 25 hours average per week. ORS 659A.153, and ORS 659A.156.  Leave may be taken due to your own serious heath condition, a family members’, or your child’s non-serious health condition, among others. ORS 659A.159. You are able to take 12 weeks of leave qualifying conditions. ORS 659A.162. If you wish to take OFLA leave you must provide your employer with notice. If you are able you must give 30 days written notice. If you are unable to give advance notice due to an unexpected serious medical condition leave can still be taken so long as you provide actual notice to your employer within 24 hours of the start of your absence. ORS 659A.165. You must still provide written notice within 3 days of your return to work. If you don’t follow the law your leave can be shortened by 3 weeks and you may be disciplined under your workplace policies. If you follow the law correctly you will be returned to your job at the time of your injury even if your employer filled the position in your absence. ORS 659A.171. Continue reading

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Before there was workers’ compensation coverage if you were injured as a result of your employer you had to bring a claim, or file a lawsuit, against your employer. In 1911 Oregon adopted the Employer Liability Law by initiative. This imposed greater duties on employers to provide a safer working environment and made for a clearer right to bring a claim against an employer. Today any injury that you suffer on the job is handled through workers’ compensation. This is referred to as the “exclusive remedy”. ORS 656.018. However, there are exceptions. If your employer did not provide workers’ compensation insurance they are called a “non-complying employer”, as  a result you may bring a claim against them directly, and present a workers’ compensation claim. ORS 656.020. But what if you were injured by someone who is not your co-worker? You would make a third party claim against that person. ORS 656.154. If you have been injured on the job by an employee of another employer, and you engage in work that involves risk or danger, you may be able to make a claim against that other employer. ORS 656.006. This is where the Employer Liability Law is still a very useful law today.

file000492774039The typical situation is one where you are working for a subcontractor on a construction project and you are injured. If your injury was caused by an employer of another subcontractor, or the general contractor, you may be able to make a claim. In order to properly make an Employer Liability Law claim you need to show that: 1. your employer and the employer who caused your injury were engaged in a common enterprise in which their activities were integral or component parts of the project; 2. the work involved danger to the employees or the public; 3. you were an adopted or intermingled employee of the other employer; and, 4. the other employer had control of, or responsibility for, the instrumentality that caused the injury. Sacher v. Bohemia, Inc., 302 Or 477, 487, 731 P2d 434 (1987); Schroeder v. Northrup Services, Inc., 86 Or App 112, 118, 739 P2d 33 (1987). Continue reading

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There are important differences in cases where the party at fault is the state, county, city, or any other governmental organization. Many clients do not realize these differences and can have their claims barred by time limitations. It is important to make your claim right away or to contact a lawyer to help you.

In Oregon you must present formal notice of your claim to the public entity that is at fault within 180 days of your injury, or a year if the claim is for wrongful death. ORS 30.275(2). A formal notice is a written statement which contains a statement for damages, or that one will be presented, a description of the time, place and circumstances giving rise to the claim, and the name and mailing address of the claimant where correspondence may be sent. ORS 30.275(4). The 180 day period in which the notice must be received is just that. It must be received before the notice period expires. Tyree v. Tyree, 116 Or App 317, 320, 840 P2d 1378 (1992). Even if the 180th day is on a weekend there is no extension of that time limitation. There is also 90 day period during which the 180 day notice period can be tolled, or put on hold, as a result of minority, incompetency, or incapacity. ORS 30.275(2).oregon-state-capitol-1013557-m

The required notice must be mailed or personally served as described in the statute. ORS 30.275(5). If your claim is against the State it will be directed to the Director of the Oregon Department of Administrative Services. If your claim is against a local governmental entity it will be directed to the principal administrative office of that local government, or to a member of the public body, or an attorney designated to receive such notices such as a city attorney, or county counsel. Continue reading