In Oregon, an assault is an intentional attempt to do violence to the person of another, coupled with present ability to carry the intention into effect. Actual physical contact is not required for an assault to occur. An assault occurs simply with the threat of physical contact. For example, shooting a gun at a person, and missing, is an assault even though no actual physical contact occurred. Reckless behavior does not amount to assault since assault requires intent to cause unwelcomed physical harm. Words alone, no matter how inflammatory or violent, are not sufficient to constitute an assault. Damages may be recovered for assault even when there was no battery or bodily injury.
A battery is the voluntary unlawful physical touching of another which causes intentional harm or physical offense to that person. It is not necessary that the unlawful touching cause actual physical harm in order for a battery to have occurred. For example, unwanted and unwelcome sexual touching constitutes battery even though such touching may not result in actual physical injury. The unlawful touching does not have to be person to person to constitute a battery. Using an intervening object to cause the physical offense to the victim is sufficient to constitute a battery. The obvious example is the use of a baseball bat to physically harm somebody. The less obvious example of battery is the intentional spilling of ice on a floor so that a person will slip and fall, thus causing personal injury.
Mere words, no matter how inflammatory or insulting, cannot justify an assault and battery.
Recoverable Damages for Assault and Battery – Beaverton Personal Injury
Mental Distress: A plaintiff may recover damages for mental distress when such distress naturally and directly results from the assault and battery.
Medical Expenses: A plaintiff may recover all economic damages, including all reasonable and necessary medical expenses, including counseling and mental health expenses, which are incurred as a result of the assault and battery.
Lost Wages: As an additional recoverable economic damage, a plaintiff may recover any wages lost as a result of the assault and battery.
Noneconomic Damages: This represents subjective, noneconomic damages for pain, suffering, humiliation, etc. There is a five hundred thousand dollar cap on noneconomic damages in assault and battery cases.
Punitive Damages: These are damages meant to economically punish the perpetrator of the assault and battery for their behavior. It does not matter that the perpetrator of the assault and battery may have already been criminally punished. Unlike other noneconomic damages, there is no cap on punitive damages.
Assault and Battery – Parties Liable
Parents for Unemancipated Children: Pursuant to Oregon Revised Statute 30.765, the parents of an unemancipated minor child are liable for the actual damages to a person or property caused by any intentional or reckless act committed by the child, including personal injury damages caused by an assault or battery perpetrated by the child. However, the liability of the parents is limited to $7,500.00.
Employer: An employer is liable for an assault or battery perpetrated by an employee when the employee acts within the course and scope of their employment or when the employer directed, authorized, or ratified the acts constituting assault or battery. Further, the employer may be liable for an assault or battery perpetrated by an employee if the employer was negligent in selecting or training the employee involved.
Owner of a Business: The owner of a business may be responsible for an assault or battery that occurs between patrons of the business. For example, the owner of an establishment may be liable for an assault or battery if they failed to provide adequate qualified employees or security to prevent the assault or battery from occurring. Likewise, the owner of an establishment that serves alcohol may be liable for assault or battery for allowing into the business a patron known for violent propensities or for negligently over-serving an intoxicated person and allowing them to remain on the premises.
Mitigation of Damages
A plaintiff may be entitled to recover punitive damages in an assault and battery claim. However, the Oregon Supreme Court has held that a defendant may present evidence that conduct of the plaintiff precipitated or provoked the assault and battery, and such evidence can be used to mitigate the punitive damages. Also, the character of the conduct of the defendant and the motive for that conduct may mitigate the punitive damages in an assault and battery claim.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of the personal injury and wrongful death division of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of personal injury and wrongful death cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at keith@whiteandshepherd.com or call 503-922-2028. Please also visit our websites at www.beavertonpersonalinjurylawattorney.com and www.whiteandshepherd.com
personal injury; wrongful death; car accident; motor vehicle accident; Beaverton; Portland; Clackamas; Hillsboro; Tigard; Salem; Tualatin; Sherwood; attorney; lawyer
Client Testimonials
CLIENT TESTIMONIALS
White & Shepherd, LLP
www.beavertonpersonalinjurylawattorneys.com
Keith Shepherd, and the law firm of White & Shepherd, were very supportive, helpful, and stood by my side throughout my case. Keith was very determined to settle my case and satisfy all my needs. I would highly recommend him strongly to other clients in the future. – Tanya A.
I found the lawyers at White & Shepherd to be extremely competent, caring and informative in order to help me understand the requirements and interpretation of the documents prepared for me. If someone needs an intelligent, efficient, and competent attorney, I highly recommend White & Shepherd. – Pam G.
Keith Shepherd was very easy to work with. I was not sure that my issue could be resolved through the legal system. After reviewing all the information, Keith did find that I had a case and had an immediate game plan on how to approach it. My issue was resolved very timely and I knew what was going on with every step. If I ever need legal help again, Keith is the lawyer that I will turn to. – Sara W.
Great attorney. Keith Shepherd really took great care to address my questions and concerns. Keith is very client focused in making sure he does everything possible to help you. I have worked with some attorneys in the past that were not so great. This was not the case when working with Keith. I felt very well taken care of and would definitely recommend Keith to my friends and family. – Lori G.
Mr. Shepherd is one of the best attorneys I have met. His service mind is superior to others. He has high ethical and practice standards. He worked extra hard to deliver excellent service and with efficiency as well. He is true to his word and really cares about his clients. He follows through well in the case. His professionalism, knowledge, and intelligence are second to none. I totally trust his judgment and point of view. I would recommend Mr. Shepherd to my friends and family. – Natalie S.
Call 503.922.2028 for a Free Consultation.
Statutes of Limitation
This article is a brief summary of various statutes of limitation for claims in Oregon. A statute of limitation is a legal time bar within which a claim must be made. For example, Oregon has a two (2) year statute of limitation for personal injury claims. Therefore, you have two years from the date of injury to either settle your personal injury claim or file a lawsuit against the at-fault party whose negligence caused your injury. If you fail to either settle your personal injury claim or file a lawsuit within two years of the injury then you will be forever barred from bringing a claim or collecting for your injury. For obvious reasons, it is extremely important to know the statute of limitation that applies to your claim. Be advised that this article is a summary only and does not contain all statutes of limitation for all claims. Further, statutes of limitation can be shorter or longer depending upon the specific claim and the factual circumstance surrounding the claim. As always, you should consult with a competent attorney to ensure that you do not miss the correct statute of limitation for your claim.
PERSONAL INJURY. Generally, personal injury claims have a two (2) year statute of limitation.
WRONGFUL DEATH. Generally, an action for wrongful death must be commenced within three (3) years of the date the injury causing death is discovered or reasonably should have been discovered. In any event, an action for wrongful death must be commenced no later than 3 years after the death of the decedent.
UM (Uninsured Motorist) CLAIMS. A person who has suffered personal injury or wrongful death at the hands of an uninsured motorist must do one of the following within two (2) years from the date of the accident in order to recover under that person’s uninsured motorist insurance coverage: (1) settle the uninsured motorist claim with the insurance carrier; (2) institute an arbitration proceeding with the insurance carrier; (3) file a lawsuit against the insurance carrier; or (4) file a personal injury or wrongful death claim against the uninsured motorist and within two years from the date of settlement with the uninsured motorist or final judgment against the uninsured motorist, the injured party must formally institute arbitration proceedings or file a lawsuit against the uninsured motorist insurer.
ASSAULT AND BATTERY. An action for assault and battery must be commenced within two (2) years after the cause of action arises.
BREACH OF CONTRACT. A claim for breach of either an express or implied contract must generally be commenced within six (6) years after the cause of action accrued. An exception to the rule applies in causes where there has been a fraudulent concealment. In fraudulent concealment cases, the statute of limitations does not begin to accrue until the plaintiff discovers, or reasonably should have discovered, the breach of contract.
CONVERSION (Civil Theft). An action for conversion must be filed within six (6) years after injury. Injury occurs at the time of the conversion. Conversion occurs when a party intentionally exercises control over another’s property in a manner that seriously interferes with the owner’s right to control the property.
FRAUD. An action based on fraud or deceit must be commenced within two (2) years after discovery of the fraud or deceit.
LANDLORD – TENANT. Generally, an action arising under landlord – tenant law must be commenced within one (1) year.
LEGAL MALPRACTICE. Actions for legal malpractice must be commenced within two (2) years from the date the cause of action accrues. The cause of action accrues when the harm occurs and it is reasonably probably that the damage complained of was caused by the lawyer’s negligence.
MEDICAL MALPRACTICE. An action for medical malpractice must be commenced within two (2) years from the date of injury or from when the injury is first discovered or reasonably should have been discovered.
REOPENING AN ESTATE. An estate can be reopened to admit a will to probate within one (1) year after the estate has been administered in Oregon and closed. The court can reopen the estate at any time to administer newly discovered property.
CLAIMS AGAINST AN ESTATE. If the statute of limitations has not expired on a claim against an individual on the date that individual dies, the time for filing an action against the individual’s estate will be extended for one (1) year after the date of death.
WAGE CLAIMS. An action based upon an employment contract must be commenced within six (6) years from the date the wages became due. All other wage actions, including actions for minimum wage, overtime, premium pay, or penalties must be commenced within two (2) years.
OR TORT CLAIMS ACT. A person with a claim against a public body (i.e. Oregon government agency) must give written notice of the claim within 180 days from the date the injury, claim, action, or omission occurred. The 180 days does not begin to run until the injured party had reasonable opportunity to discover the injury and identify the responsible party. To be timely, the written notice must actually be received by the government body within 180 days. A notice of claim for wrongful death against a public body must be given within one (1) year after the injury that caused the death.
INENTIONAL INTERFERENCE WITH A CONTRACTUAL RELATIONSHIP. An action for interference with a contractual or economic relationship must be commenced within two (2) years from the date the damages actually accrue.
JUDGMENT. A judgment expires ten (10) years after the judgment is recorded, except for judgments for child support and those arising from criminal actions. The judgment may be extended for ten (10) additional years.
DEFAULT JUDGMENT. A party seeking a default judgment must serve the party against whom a default is sought with written notice at least ten days before seeking a default judgment. A party seeking to set aside a default judgment must file a motion within one (1) year from entry of the default judgment.
COMPUTATION OF TIME. The last day of the applicable statute of limitations shall fall on the next business day whenever it falls on a weekend of legal holiday.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at Keith@whiteandshepherd.com or call 503-922-2028. Please also visit our websites at http://www.whiteandshepherd.com/ or http://www.beavertonpersonalinjurylawattorney.com/
statute of limitation; personal injury; wrongful death; car accident; motor vehicle accident; Beaverton; Portland; Clackamas; Hillsboro; Tigard; Salem; Tualatin; Sherwood; attorney; lawyer
Medical Write-Offs
Medical Write-Offs in Oregon and How They Apply to Personal Injury Claims.
It is not uncommon for medical providers and insurance companies to take medical write-offs in connection with medical services provided to an injured individual with a personal injury or wrongful death claim. This article takes a summary look at how an injured party can benefit from a medical write-off when pursuing a personal injury or wrongful death claim against the tortfeasor that caused the injury or death.
What is a medical write-off?
A medical write-off is simply an agreement by a medical provider to accept less than the full amount billed in full satisfaction of the provider’s bill. Medical write-offs can be voluntary, forced, or statutory. For example, a hospital may bill an injured party $100,000.00 for treatment resulting from a motor vehicle accident. The injured party may have Medicare. Under the terms of Medicare, medical providers are often required to accept an amount as payment in full that is less than the $100,000.00 billed. Thus, Medicare may pay the hospital $60,000.00 as full and complete payment of the $100,000.00 medical bill. The hospital will write-off the balance of $40,000.00, and the injured patient will have no further responsibility for the bill.
The Collateral Source Rule.
An individual with a personal injury or wrongful death claim is entitled to recover from the at-fault party the amount of all economic damages incurred, including medical expenses. For example, a person who incurs $50,000.00 for medical treatment for injuries sustained in a car accident can seek to recover that $50,000.00 from the at-fault driver who caused the accident and the injuries. At trial, the jury will hear about the $50,000.00 in medical expenses and can award the full $50,000.00 to the injured party. However, for years, defense attorneys were successfully persuading judges to reduce the $50,000.00 jury award by the amount of any medical write-offs taken. For example, if the injured party incurred $50,000.00 in medical bills ($30,000.00 of which was paid by insurance and the other $20,0000.00 was written-off), and the jury awarded the injured party the full $50,000.00, defense attorneys were successfully convincing judges to reduce the award to $30,000.00 post-trial.
The argument advanced by defense attorneys typically revolved around the collateral source rule and the notion that plaintiffs would receive a double recovery if a reduction for medical write-offs were not enforced. The collateral source rule is codified as Oregon Revised Statute (“ORS”) 31.580, which states:
(1) In a civil action, when a party is awarded damages for bodily injury or death of a person which are to be paid by another party to the action, and the party awarded damages or person injured or deceased received benefits for the injury or death other than from the party who is to pay the damages, the court may deduct from the amount of damages awarded, before the entry of a judgment, the total amount of those collateral benefits other than:
(a) Benefits which the party awarded damages, the person injured or that person’s estate is obligated to repay;
(b) Life insurance or other death benefits;
(c) Insurance benefits for which the person injured or deceased or members of that person’s family paid premiums; and
(d) Retirement, disability and pension plan benefits, and federal Social Security benefits.
(2) Evidence of the benefit described in subsection (1) of this section and the cost of obtaining it is not admissible at trial, but shall be received by the court by affidavit submitted after the verdict by any party to the action.
The collateral source rule has three built-in exceptions under which a reduction of the damages awarded cannot be had. However, these exceptions do not directly address medical write-offs.
How can an individual with a personal injury or wrongful death claim benefit from a medical write-off?
The Oregon Supreme Court and the Oregon Court of Appeals have recently issued decisions which expand the exceptions to the collateral source rule. These new exceptions apply to medical write-offs taken as a result of payment by Medicare, Medicaid, and the Oregon Health Plan. In White v. Jubitz Corp, 347 Or. 21 (2009), the Oregon Supreme Court ruled that, contrary to the defense contention, the collateral source rule does not prohibit a plaintiff from obtaining a double recovery. Further, the Oregon Supreme Court decided that Medicare benefits are included in federal Social Security benefits, and thus are excluded from the collateral source rule under ORS 31.580(1)(d). Likewise, in Cohens v. McGee, Or.App. 78 (2008), the Oregon Court of Appeals decided that the Oregon Health Plan, which is part of Medicaid, is also considered a Social Security benefit and is therefore exempted under the collateral source rule.
What do these court rulings mean for a person with a personal injury or wrongful death claim? It means that the injured individual will be entitled to recover the full amount of all medical bills incurred regardless of any write-offs taken by the medical provider due to Medicare, Medicaid or the Oregon Health Plan. For example, if an individual incurs $100,000.00 in medical bills after being struck by an inattentive driver, and Medicare pays $60,000.00 of the bills and the $40,000.00 balance is written-off, the injured party still gets to recover the full $100,000.00. Of course, the injured party will likely be required to reimburse Medicare the $60,000.00 that Medicare paid, but the injured party also gets to keep the $40,000.00 that was written-off by the medical provider. When taken together with all of the other damages a person with a personal injury or wrongful death claim may have, such as damages for pain and suffering, this additional $40,000.00 might be a substantial boost to the overall recovery for the injured party.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of the personal injury and wrongful death division of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of personal injury and wrongful death cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at keith@whiteandshepherd.com or call 503-922-2028. Please also visit our websites at http://www.whiteandshepherd.com/ or http://www.beavertonpersonalinjurylawattorney.com/
personal injury; wrongful death; car accident; motor vehicle accident; Beaverton; Portland; Clackamas; Hillsboro; Tigard; Salem; Tualatin; Sherwood; attorney; lawyer
Uninsured and Underinsured Motorist Coverage
Underinsured and Uninsured Motorist Insurance in Oregon
This article is intended to summarize the rights you may have if you have been involved in a car accident or motor vehicle accident with an underinsured or uninsured motorist inOregon. An underinsured motorist is a person who causes a motor vehicle accident and does not have adequate insurance policy limits available to fully cover all of damages that result from their negligence. An uninsured motorist is an individual that has no motor vehicle accident liability insurance coverage.
Oregon Revised Statute (“ORS”) 742.502 requires every motor vehicle liability policy issued or delivered in Oregon to also contain underinsured and uninsured motorist insurance coverage. This coverage is meant to protect you in the event you are involved in a car accident with an uninsured or underinsured motorist, and is meant to increase the probability that you will be compensated for your personal injury, wrongful death, or damages claim. Underinsured and uninsured motorist policy limits must be at least $25,000.00, and the policy limits are generally equal to or greater than the bodily injury liability insurance limits on the policy. For example, if you have insurance that will cover $50,000.00 in damages in the event you cause a motor vehicle accident (liability coverage), you generally will also have at least $50,000.00 in uninsured and underinsured motorist policy limits to cover your personal injury, wrongful death, or damages claim in the event you are injured or damaged by an uninsured or underinsured motorist.
Personal Injury Protection Coverage
Before discussing how uninsured and underinsured motorist insurance coverage works, it is important to understand personal injury protection coverage. By law, all insurance policies sold inOregonare required to have personal injury protection (“PIP”) coverage. This coverage requirement was enacted by theOregonlegislature to ensure that anybody injured while driving or riding in an insured vehicle will have insurance to pay for medical treatment for their injuries. Regardless of fault for an accident, your PIP coverage under your insurance policy is primarily responsible for paying for your medical treatment for your accident related injuries. PIP coverage will pay all reasonable and necessary expenses of medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one year after the date of the car accident or personal injury. By law, the minimum PIP coverage policy limit is $15,000, and this amount can generally be increased significantly for only a few dollars extra in premiums per year. If somebody else is determined to be at fault for the car accident, your insurance company will collect back from the at-fault driver or his/her insurance company all the money paid out to you under your PIP coverage, and you should not see any increase in your insurance premiums.
How Does Uninsured Motorist Coverage Work?
Uninsured motorist coverage basically works the same as bodily injury liability insurance coverage. In a typical car accident, (where all parties involved have insurance), the injured party’s medical bills are paid by their PIP insurance regardless of fault and regardless if the person who caused the car accident is insured, underinsured, or uninsured. Typically, the injured party has the right to assert a claim for personal injury against the negligent, at-fault driver. The negligent driver’s bodily injury liability insurance coverage pays for the injured party’s damages and personal injury claim. However, when the at-fault driver is uninsured, the injured party still has the same rights to recovery, but their recovery comes from their own insurance policy, pursuant to their uninsured motorist coverage, instead of from the at-fault driver’s liability insurance policy.
Regardless of insurance coverage, you always have the right to file a lawsuit and seek to collect damages from an uninsured motorist who negligently causes you damage or personal injury. However, as a practical matter, individuals that drive without insurance coverage typically do not have the financial means to pay a personal injury or wrongful death judgment. Therefore, spending time and money to go through the court process will likely be unproductive. In addition, your uninsured motorist coverage may not be available to you if you proceed against the negligent uninsured motorist. You typically have to give up your right to assert a claim against the uninsured individual in order to pursue your personal injury or wrongful death claim through your uninsured motorist coverage under your insurance policy.
How Does Underinsured Motorist Coverage Work?
Generally, underinsured motorist insurance is only available if the at-fault driver’s liability insurance policy limits are less than your underinsured motorist policy limits. For example, there will be no underinsured motorist insurance available if an at-fault driver with $25,000.00 liability insurance policy limits crashes into and causes personal injury to a driver with $25,000.00 underinsured motorist policy limits. However, an injured party with $75,000.00 in underinsured motorist coverage would have $50,000.00 in underinsured motorist benefits available if they were struck by an at-fault driver with a $25,000.00 liability policy. In other words, the availability of underinsured motorist coverage is equal to the difference between the underinsured motorist policy limits and the liability policy limits of the at-fault driver.
However, in a case where the at-fault driver’s liability insurance policy limits match or exceed the injured party’s underinsured motorist insurance policy limits, but there are multiple claims by multiple injured parties that reduce the amount actually payable to less than the underinsured motorist limits, there may be an underinsured motorist claim. For example, the at-fault driver has a $25,000.00 liability policy. The at-fault driver runs a red light and strikes two cars (Car A and Car B) and injures Person A and Person B. Both Person A and Person B have $25,000.00 underinsured motorist coverage. Person A receives $12,500.00 (half) of the at-fault driver’s $25,000.00 policy limits, and Person B receives the other half. Although the underinsured policy limits for Person A and Person B match the liability insurance policy limits for the at-fault driver, they are each still entitled to an underinsured motorist claim under their own insurance policies because their recovery was reduced by payments to multiple injured parties.
In order to make an underinsured motorist claim, you must first exhaust the insurance policy limits of the at-fault driver’s insurance policy. In other words, if the at-fault driver has a $25,000.00 liability policy then the entire $25,000.00 needs to be paid out before you can assert an underinsured motorist claim. You must also get your insurance company’s permission to settle the claim against the at-fault driver. Failure to get permission may result in a forfeiture of your right to make an underinsured motorist claim on your policy.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of the personal injury and wrongful death division of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of personal injury and wrongful death cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at keith@whiteandshepherd.com or call 503-922-2028. Please also visit our websites at http://www.whiteandshepherd.com/ or http://www.beavertonpersonalinjurylawattorney.com/
personal injury; wrongful death; car accident; motor vehicle accident; Beaverton; Portland; Clackamas; Hillsboro; Tigard; Salem; Tualatin; Sherwood; attorney; lawyer
Money Damages from a Car Accident
This article is a brief summary of the money damages you may be entitled to recover if you have been involved in a car accident in the state of Oregon.
Personal Injury Protection. By law, all insurance policies sold in Oregon are required to have personal injury protection (“PIP”) coverage. This coverage requirement was enacted by the Oregon legislature to ensure that anybody injured while driving or riding in an insured vehicle will have insurance to pay for treatment for their injuries. Regardless of fault for an accident, your PIP coverage will pay for your medical treatment for your accident related injuries. PIP coverage will pay all reasonable and necessary expenses of medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one year after the date of the injury. By law, the minimum PIP coverage is $15,000, and this amount can generally be increased significantly for only a few dollars extra in premiums per year. If somebody else is determined to be at fault for the accident, your insurance company will collect back from the at-fault driver or his/her insurance company all the money paid out to you under your PIP coverage, and you should not see any increase in your insurance premiums. With the availability of PIP coverage, there is no excuse not to seek immediate medical care if you are injured in an accident.
Property Damage. In most cases, you are entitled to recover money for the damage to your vehicle. If so, you have the right to have your vehicle fixed at any shop of your choosing. You are not required to take your vehicle to the shop suggested by the insurance company. You have the right to have your vehicle repaired to pre-accident condition, and you may have a claim for depreciation in value. If your vehicle is a total loss then you have the right to be paid the fair market value for your vehicle. The fair market value is the amount it would cost you to go into your local used market and purchase your exact vehicle. Insurance companies often use vehicle valuation services to determine the fair market value of your vehicle. You do not have to accept the insurance companies= valuation, and it will often be too low. You should look into valuation services. Some free services include Kelley Blue Book and NADA.com. Ultimately, the best evidence to determine the fair market value of your vehicle is to look within your local used market and determine how much your same vehicle would cost to purchase. Obviously, no vehicle is exactly the same as yours, so you should try to find vehicles that are very similar (similar year, make, model, mileage, condition, etc.). Since vehicles lose value rapidly, sometimes the fair market value for a vehicle is less than the amount the owner owes for the vehicle. Unfortunately, in these circumstances, the vehicle owner can be left owing money on a vehicle they no longer have unless the vehicle owner has GAP insurance to pay the difference.
Generally, when people think about property damage they think about the damage sustained by their vehicle. However, property damage can also include damage to any personal property contained within your vehicle at the time of the accident. For example, this could include damage to the golf clubs or bicycle in your trunk. In addition, various safety organizations recommend replacing any baby seat involved in a motor vehicle accident, even if the seat does not have any visual signs of damage. Replacement costs for damaged property is recoverable.
Medical Expenses. If you are injured in an accident that is caused by the fault of another, you have the right to recover all expenses for reasonable medical treatment. In most cases, you are also entitled to recover lost wages, essential services, child care, and pain and suffering.
Lost Wages. If you are regularly employed, and your accident related injuries prevent you from working for at least 14 days, PIP will provide for 70% of your lost income. However, the maximum payment is $3,000 per month for an aggregate of 52 weeks. To the extent PIP does not fully cover your lost wages, you have the right to recover from the at-fault party 100% of your lost wages.
Essential Services. As an alternative to Lost Wages, at your election or if you are not regularly employed, PIP will provide coverage for expenses for essential services. For example, if you are a homemaker who can no longer maintain your home due to your accident related injuries then PIP will cover the cost of a housekeeper during the period of your disability. Like Lost Wages, you must be disabled for at least 14 days to qualify for this benefit. To the extent PIP does not fully cover the essential services required, you have the right to recover from the at-fault party 100% of expenses reasonably incurred for essential services.
Child Care. If you are a parent and you must be hospitalized for a minimum of 24 hours due to your motor vehicle accident injuries, PIP will pay for child care for as long as you are hospitalized and for as long as you are unable to return to work (if employed), or for as long as you are unable to provide essential services to your children (if unemployed).
Pain and Suffering. This is often referred to as non-economic damages. This broad category represents the amount you are entitled to recover for the pain, inconvenience, suffering, and loss of ability to enjoy your normal activities due to your accident related injuries. This category of damages also represents the amount to compensate you in the event your injuries are permanent. There is no specific formula for determining the amount of pain and suffering you may be entitled to recover. A variety of factors must be considered, and an experienced attorney can help you assess the value of your claim.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of the personal injury and wrongful death division of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of personal injury and wrongful death cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at Keith@whiteandshepherd.com or call 503-922-2028. Please also visit our websites at http://www.whiteandshepherd.com/ or http://www.beavertonpersonalinjurylawattorney.com/
personal injury; wrongful death; car accident; motor vehicle accident; Beaverton; Portland; Clackamas; Hillsboro; Tigard; Salem; Tualatin; Sherwood; attorney; lawyer
The Litigation Process in Oregon
Filing a lawsuit, defending a lawsuit, and pursuing the litigation process can be scary and intimidating. This article is intended as a descriptive summary of the steps and processes often encountered in litigation. In summary, a plaintiff files and serves a lawsuit on the defendant. The defendant then files an answer, defenses, and counter-claims. The parties then engage in the discovery process to gain an understanding of the case and evidence. The parties may then engage in alternative dispute resolution, such as arbitration and mediation. Finally, if the case has not been settled or otherwise resolved, a trial will be held before a judge and possibly a jury.
Filing a Lawsuit
Generally, the litigation process begins with the filing of a lawsuit in the county court where the parties reside or where the transaction, incident, or occurrence giving rise to the lawsuit occurred. The plaintiff files with the Court a document called a Complaint. The Complaint must set forth a plain and concise statement of the ultimate facts giving rise to the lawsuit. In addition, the Complaint must establish the legal basis for the claim(s) alleged in the lawsuit as well as a demand for the relief or remedy sought by the plaintiff. It is acceptable for the Complaint to include multiple claims for relief, and the claims for relief can be different, inconsistent, and pled as alternatives.
Serving a Lawsuit
After filing, the plaintiff must serve the defendant(s) with a summons and with a copy of the Complaint. A summons is a legal document advising the defendants of their obligation to “appear” in the lawsuit by filing with the court documents responsive to the Complaint (discussed in more detail below). Generally, the plaintiff must hire a sheriff or process server to serve the documents on the defendant(s). There are multiple ways to serve a defendant, but personal service is generally the best and most preferred method. Personal service simply means that the process server physically hands the documents to the defendant. Sometimes, personal service is not possible. Depending upon the circumstances, service can also be effectuated through substitute service (leaving true copies of the documents with a person over the age of 14 at the defendant’s dwelling house or usual place of abode), office service (leaving true copies of the documents with a person in charge at the office of the defendant), service by mail (mailing true copies of the documents to the defendant), or service by publication (posting notices in local newspapers or other publications). It should be noted that these methods of service are not always valid in all circumstances. The plaintiff must file a certificate with the court certifying the date, time, and type of service effectuated.
Answering a Lawsuit
Within 30 days of the date the Summons and Complaint were served, a defendant must file with the court a legal document called either a “motion” or “answer”, plus a filing fee. If a defendant fails to “appear” in the lawsuit by filing a motion or answer within 30 days, the plaintiff can seek a default judgment against the defendant. A default judgment is a court order giving to the plaintiff the relief plaintiff sought against the defendant in the Complaint.
Answer. An Answer is a legal document whereby the defendant admits, denies, or states a lack of sufficient knowledge as to each of the allegations contained in the plaintiff’s Complaint. An Answer also contains any defenses that the defendant may have to the plaintiff’s claims. In addition, the Answer will contain any relevant claims that the defendant may have. This includes counter-claims (claims defendant has against the plaintiff), cross-claims (claims defendant has against other defendants), and third party claims (claims a defendant has against a person or entity not yet made a party to the lawsuit, but which relate to the issues present in the lawsuit).
Motion. If the defendant believes that there exists a legal basis by which the defendant should be excluded from the case, or if the defendant believes plaintiff has failed to follow the rules in filing and serving the lawsuit, the defendant may file a motion with the court instead of an Answer. To give a few examples: a defendant may file a motion asking the court to dismiss the case if the defendant believes the court lacks jurisdiction over the subject matter of the case or over the defendant; a defendant may file a motion to dismiss if the defendant believes that the plaintiff failed to properly serve defendant with the lawsuit; and, a defendant may file a motion to dismiss if plaintiff failed to file and serve the lawsuit within the applicable statute of limitations. This is not an exhaustive list as there are many other reasons why a defendant may file a motion instead of an Answer.
Arbitration & Mediation
Generally, people think about judges, juries, and trials when they think about litigation and filing a lawsuit. However, parties are engaging more and more in various forms of alternative dispute resolution, such as arbitration and mediation, instead of going through trial. Sometimes the choice to mediate or arbitrate is voluntary and sometimes it is compulsory. However, with the expense of taking a case through trial skyrocketing, mediation and arbitration are great alternatives for resolving a case on a budget.
Arbitration. Arbitration is similar in form to a trial in the sense that evidence is presented to an independent party who will make an ultimate decision regarding the outcome of the case. However, instead of a judge or jury hearing the case at the court house, arbitrations are generally held in a private office in front of an arbitrator. Generally, retired judges or experience attorneys act as arbitrators. The arbitrator performs all of the functions that a judge and jury perform during a trial. The arbitrator hears all of the evidence, rules on legal issues, and ultimately decides the outcome of the case.
Types of Arbitrations. There are types of arbitrations that may be encountered. First, there are binding arbitrations. In a binding arbitration, the decision of the arbitrator is final, and the parties have no opportunity to appeal the decision. Binding arbitrations generally occur as the result of a dispute over a contract that contains a binding arbitration provision. Conversely, in a non-binding arbitration the parties do not have to accept the decision of the arbitrator and may appeal the decision. Some arbitrations are voluntary. For example, the parties to a law suit might agree to save expense by having an arbitrator decide the case instead of having a trial. Likewise, some arbitrations are mandatory. For lawsuits with claims less than $50,000, ORS 36.400 requires the parties to submit to non-binding arbitration, called Court Annexed Arbitration. Since it is non-binding, the parties have the right to appeal the arbitrator’s decision and have a trial. However, a party appealing the decision of an arbitrator under Court Annexed Arbitration should be aware that, pursuant to ORS 36.405, if that party does not improve his or her position at trial then he or she will be taxed the attorney fees and costs incurred by the other party to the action.
Mediation. Mediation is a form of settlement negotiation which is facilitated with the help of an independent third party who acts as the mediator. The mediator does not have the power or authority to make rulings or a determination on the case. Rather, the mediator’s objective is to improve the dialogue between the parties and assist the parties in coming to an agreement or resolution. Parties often appreciate mediation because it allows the parties to reach a settlement on their own terms, rather than have a resolution of the case imposed by a third party (like a judge or arbitrator). Generally, mediation is a voluntary process that parties agree to engage in to resolve a dispute or litigation. However, mediation can sometimes be compulsory if the dispute between the parties is based upon a contract, and the contract requires the parties to first mediate the dispute before moving forward with a lawsuit.
Discovery.
Once a plaintiff files and serves the Complaint, and once the defendant files an Answer to the Complaint, the parties typically engage in the discovery process. This process generally precedes arbitration, mediation, and trial. This is a process by which the parties attempt to learn about the opposing party’s case. This process can include sending Requests for Production of Documents, sending Requests for Admissions, and taking depositions. A Request for the Production of Documents is simply a formal request that the opposing party produce or make available documents that are relevant to the issues in dispute in the case. A Request for Admissions is a formal request sent to the opposing party asking that they either admit or deny the truth of statements prepared by you or your attorney. A deposition provides a party with the opportunity to sit down, in the presence of a court reporter, with an opposing party or important witness and ask questions regarding the issues and facts in the case.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of the personal injury and wrongful death division of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of personal injury and wrongful death cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at keith@whiteandshepherd.com or call 503-922-2028. Please also visit our websites at http://www.whiteandshepherd.com/ or http://www.beavertonpersonalinjurylawattorney.com/
Gather Information. Information is critical to protecting your legal interests and for preserving any claims you may have arising out of the accident. Make certain you write down vehicle license plates, names of the parties involved, driver’s license numbers, and insurance policy information. It is very important that you obtain the names and contact information of any witnesses to the accident. A witness statement can often turn a good claim into a great claim. It is also helpful to take pictures of the scene, the damage to the cars, and of any visible injuries. Immediately write down your recollection of the accident. This is helpful since memories fade. Write down your recollection of how the accident occurred and who said what. This will help refresh your recollection later. Obtain a copy of the police report, if applicable.
Call the Police. If anyone is injured or if there is a dispute regarding fault then call the police immediately. Call the police if there is room for ambiguity regarding fault, even if there does not appear to be an immediate dispute over liability. It is not uncommon for an at-fault driver to admit liability at the scene only to deny it later.
Report to the DMV. Within 72 hours, you are required to report the accident to the Department of Motor Vehicles anyone is injured in the accident or if the combined property damage from the accident exceeds $1,200.00.
Do Not Sign Anything or Give a Taped Statement to anybody except YOUR OWN insurance company. You are required to cooperate with your own insurance company, so it is acceptable to sign documents when appropriate and to give statements when required. However, you have no obligation to cooperate with the insurance company for the other driver. They will often ask you to sign documents and provide taped statements. Do not sign anything or give any taped statements. No matter how nice they appear, they only want this information so they can use it against you.
You are Covered for your Injuries. By law, every automobile insurance policy issued in Oregon is required to contain Personal Injury Protection (“PIP”) coverage. This means that you are entitled to immediate benefits, including payment of medical bills and lost wages, regardless of the circumstance or fault for the accident.
Get Help. If you are injured, visit a medical or health professional as soon as possible following the accident. Be sure to report all injuries, no matter how small. Since PIP provides immediate medical coverage for your injury, there is no excuse for not seeking help for your accident related injuries.
Statute of Limitations. Oregon has a two year statute of limitations for personal injury claims. This means that you have two years from the date of the accident to settle your claim or file a lawsuit.
Do Not Settle Your Injury Claim Too Early. Do not settle your injury claim until you are fully recovered, medically stationary, or 100% certain you have no injury. With a two year statute of limitations, there is generally no hurry to settle your claim. Once your claim is settled, the at-fault party and their insurance carrier are released from all further responsibility for the accident and your damages/injuries relating to the accident. If you settle your claim before your injuries are resolved then you will be stuck paying for medical treatment that should not be your responsibility.
Vehicle Repair. You have the right to have your vehicle repaired at any shop of your choosing. Do not allow the insurance company to dictate where you take your car for repairs. It is your right to have your vehicle repaired to pre-accident condition. If your vehicle cannot be returned to pre-accident condition then you may have the right recover the difference between the pre-accident value of your vehicle and the post-repair value. If your vehicle is totaled, you are entitled to recover the fair market value of your vehicle. This means that you are entitled to the amount it would cost you to buy your exact vehicle in the marketplace. Although vehicle valuation services are helpful, such as Kelley Blue Book and NADA, the best measures of your vehicles worth are dealer prices, classified ads, and auto advertisements for vehicles similar to yours. You may be entitled to a rental car while your car is being repaired or evaluated for total loss. If the at-fault party does not have this benefit under their policy then check with your own insurance company.
Uninsured Motorist. You can still recover for your injuries even if you are hit by an uninsured or under-insured motorist.
Consulting with an attorney following an automobile accident is generally a good idea. An attorney can elaborate on the above points as well as assist with protecting your rights and maximizing your recovery. Most attorneys handle accident cases on a contingent fee basis. This means that the attorney gets paid a percentage of the money he obtains on your behalf, and the attorney does not get paid if no money is paid for your injuries. The attorney will take over handling the claim and dealing with the insurance companies so you can avoid the time and stress associated with handling your claim. On average, most people find that they recover more, even after paying the attorney, than they would have received on their own.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of the personal injury and wrongful death division of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of personal injury and wrongful death cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at Keith@whiteandshepherd.com or call 503-922-2028. Please also visit our websites at http://www.whiteandshepherd.com/ or http://www.beavertonpersonalinjurylawattorney.com/
personal injury; wrongful death; car accident; motor vehicle accident; Beaverton; Portland; Clackamas; Hillsboro; Tigard; Salem; Tualatin; Sherwood; attorney; lawyer
Wrongful Death Claims In Oregon
This article is a brief summary of wrongful death claims in Oregon. In short, a wrongful death claim is a claim against an individual whose negligent conduct or acts lead to an injury to a person that ultimately caused the injured person to die.
Who May Assert A Wrongful Death Claim? The personal representative (sometimes referred to as the executor) for the estate of the decedent may assert a wrongful death claim against the individual(s) responsible for causing the injury that led to the death.
What Damages Can Be Asserted for A Wrongful Death Claim? Oregon Revised Statute (“ORS”) 30.020 sets forth the types of damages and the classes of people who may recover damages under a wrongful death claim. In summary, the statute allows the following types of damages:
1. Medical Services. The estate of the deceased person has the right to recover all costs for medical services rendered to the deceased individual as a result of the injuries sustained.
2. Memorial and Burial Expenses. The estate of the deceased person has the right to recover all costs incurred for memorial and burial expenses incurred for the benefit of the deceased person.
3. Injury to the Deceased. The deceased person’s estate has the right to recover the damages suffered by the deceased person prior to their death. This includes compensation for the pain, suffering, disability, loss of income, pecuniary loss, and loss of enjoyment of life suffered by the deceased person between the time of injury and death. Any amounts recovered on behalf of the deceased person’s estate will pass according to the deceased person’s estate planning documentation (i.e. Will) or according to Oregon intestate succession laws in the event of no estate planning documents.
4. Injury to the Deceased Person’s Family. The deceased person’s family has the right to recover damages for pecuniary loss (i.e. loss of financial support from the deceased person). They also have the right to recover for the loss of society, companionship and services of the deceased person. Family is defined to include spouses, children, stepchildren, stepparents, and parents. The proceeds recovered may be apportioned among the family members by agreement. If the family members cannot agree on how the money should be divided, the Oregon statutes provide a process whereby a court hearing will be conducted so that a judge can make a determination regarding apportionment.
5. Punitive Damages. In certain cases, depending upon the egregiousness of the actions that caused the injury to the deceased person, punitive damages may be recovered. Punitive damages can be described as damages to punish the at-fault individual(s) for their conduct in causing the injury to the deceased person.
When Must The Claim Be Asserted? Generally, the claim must be asserted within three years of the injury causing the death.
What Other Claims Are Available? As an alternative to a wrongful death claim, the estate of the deceased person may decide to file a negligence claim under ORS 30.075. The benefit of asserting a claim under ORS 30.075 is that it allows the recovery of attorney fees incurred in prosecuting the claim. In certain circumstances, the recovery under ORS 30.075 may be more than the recovery under a wrongful death claim. Generally, both claims can be asserted, but damages can only be recovered under one or the other, not both. A negligence claim will allow the estate of the deceased person to recover the damages suffered by the deceased person prior to their death. This includes compensation for the pain, suffering, disability, loss of income, pecuniary loss, and loss of enjoyment of life suffered by the deceased person between the time of injury and death. Any amounts recovered on behalf of the deceased person’s estate will pass according to the deceased person’s estate planning documentation (i.e. Will) or according to Oregon intestate succession laws in the event of no estate planning documents. Generally, the negligence claim must be asserted within two years of the injury if asserted before the injured person’s death, or within three years of the injury if not asserted before the injured person’s death.
Oregon Statutes Governing Wrongful Death Claims
Below are the pertinent Oregon statutes controlling wrongful death claims.
30.020 Action for wrongful death; when commenced; damages. (1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer. In no case may an action be commenced later than the earliest of:
(a) Three years after the death of the decedent; or
(b) The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury, including but not limited to the statutes of ultimate repose provided for in ORS 12.110 (4), 12.115, 12.135, 12.137 and 30.905.
(2) In an action under this section damages may be awarded in an amount which:
(a) Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;
(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;
(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent’s estate;
(d) Justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and
(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.
(3) For the purposes of this section:
(a) Two persons shall be considered to have a stepchild-stepparent relationship if one of the biological parents of the stepchild, while the stepchild is a minor and in the custody of this first biological parent, marries the stepparent who is not the second biological parent or the adoptive parent of the stepchild;
(b) The stepchild-stepparent relationship shall remain in effect even though the stepchild is older than the age of majority or has been emancipated;
(c) The stepchild-stepparent relationship shall remain in effect even though one or both of the biological parents of the stepchild die; and
(d) The stepchild-stepparent relationship shall end upon the divorce of the biological parent and the stepparent. [Amended by 1953 c.600 §3; 1961 c.437 §1; 1967 c.544 §1; 1973 c.718 §2; 1991 c.471 §1; 1991 c.608 §1; 1995 c.618 §19]
30.030 Distribution of damages. (1) Upon settlement of a claim, or recovery of judgment in an action, for damages for wrongful death, by the personal representative of a decedent under ORS 30.020, the amount of damages so accepted or recovered shall be distributed in the manner prescribed in this section.
(2) The personal representative shall make payment or reimbursement for costs, expenses and fees incurred in prosecution or enforcement of the claim, action or judgment.
(3) The personal representative shall make payment or reimbursement for reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services or other medical services, burial services and memorial services rendered for the decedent.
(4) If under ORS 30.040 or 30.050 or by agreement of the beneficiaries a portion of the damages so accepted or recovered is apportioned to a beneficiary as recovery for loss described in ORS 30.020 (2)(d), the personal representative shall distribute that portion to the beneficiary.
(5) The remainder of damages accepted or recovered shall be distributed to the beneficiaries in the proportions prescribed under the laws of intestate succession of the state of decedent’s domicile, or as agreed by the beneficiaries, but no such damages shall be subject to payment of taxes or claims against the decedent’s estate. [Amended by 1973 c.718 §3; 2009 c.51 §1]
30.040 Apportionment among dependents upon settlement. Except when all beneficiaries otherwise agree, if settlement, with or without action, is effected and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS 30.020 (2)(d) shall be apportioned by the probate court to each beneficiary in accordance with the beneficiary’s loss. [Amended by 1973 c.718 §4]
30.050 Apportionment among dependents after judgment. Except when all beneficiaries otherwise agree, if the action described in ORS 30.020 is brought, and a judgment for the plaintiff is given, and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS 30.020 (2)(d) shall be apportioned by the trial court to each beneficiary in accordance with the beneficiary’s loss. [Amended by 1973 c.718 §5]
30.075 Procedure upon death of injured person. (1) Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured person, and the personal representatives of the decedent may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by the personal representatives under this section, or within three years by the personal representatives if not commenced prior to death.
(2) In any such action the court may award to the prevailing party, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees.
(3) Subsection (2) of this section does not apply to an action for damages arising out of injuries that result in death. If an action for wrongful death under ORS 30.020 is brought, recovery of damages for disability, pain, suffering and loss of income during the period between injury to the decedent and the resulting death of the decedent may only be recovered in the wrongful death action, and the provisions of subsection (2) of this section are not applicable to the recovery.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of the personal injury and wrongful death division of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of personal injury and wrongful death cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at Keith@whiteandshepherd.com or call 503-922-2028. Please also visit our websites at http://www.whiteandshepherd.com/ or http://www.beavertonpersonalinjurylawattorney.com/
personal injury; wrongful death; car accident; motor vehicle accident; Beaverton; Portland; Clackamas; Hillsboro; Tigard; Salem; Tualatin; Sherwood; attorney; lawyer
