Generally, we brush off those demands, confident a jury would never award that much for pain and suffering.

Good news. We’re right.

We tracked every reported personal injury verdict across Oregon for 2012.  Based on that tracking, we noted the following observation: Oregon juries rarely awarded ratios larger than 1:1 in noneconomic to economic damages. Quite often, juries awarded less.  This observation held constant no matter the injuries involved (major or minor) and regardless of forum or county.  Though we caution against rules of thumb in valuing cases, this observation is interesting.  Objective data supports anecdotal evidence.

The chart below reproduces a portion of our tracking research.

The chart focuses on personal injury/MVA cases, because they offered the largest sample size.  Other types of personal injury cases showed similar ratios.

The chart also omits defense verdicts.  However, approximately 25% of personal injury cases resulted in defense verdicts.  (Admittedly, however, that percentage was much higher for med-mal cases than any other kind of personal injury claim).

Feel free to contact us if you have questions or comments about our tracking efforts.  We are happy to share our raw data or talk through other trends and observations.

Thank you to Sam Smith for writing this Enews and gathering this information.

Bitner has a B.A. from Auburn University and a J.D. from Southern Methodist University School of Law.

About Dunn Carney

Dunn Carney is a leading client-focused law firm in the Pacific Northwest. Attorneys work with clients on a daily basis to develop and implement legal and business solutions designed to avoid the problems that could lead to formal proceedings. In the event of litigation, they have an experienced team of trial attorneys who provide expert counsel and representation in alternative dispute resolution and in the courtroom.  Clients have trusted their individual and business needs to Dunn Carney for more than 80 years.  Dunn Carney is Oregon’s only member of Meritas, a legal service organization that offers high-quality worldwide legal services through a closely integrated group of independent law firms.

Dunn Carney is pleased to announce that Adina Matasaru  has joined the firm as an associate.  Matasaru’s practice will focus on civil litigation, insurance defense, and malpractice defense.  Prior to joining Dunn Carney, Adina was a clerk for the Honorable Ortega of the Oregon Court of Appeals.

Matasaru has a B.A from University of Portland and a J. D. from Willamette University School of Law. 

One option for the low exposure defendant is to present a settlement plan to plaintiff where after the settlement is paid, plaintiff removes the allegations of the complaint related to the settled defendant.  To the extent the allegations related to the defendant can be carved out of the litigation, the plaintiff can control the other parties’ ability to point the finger at the settled party.  For example, a third-party plaintiff’s “pass through” claims against a third-party defendant cannot be maintained if the allegations specific to the third-party defendant are removed from the complaint.  Once the allegations are removed, plaintiff provides an issue release in the settlement with the settling defendant. 

This arrangement has worked in construction defect litigation for subcontractors whose work is somewhat isolated from the work of other defendants, making the allegations easy to carve out.  For example, gutter installers, roofers, landscapers and concrete flatwork installers are some examples of defendants who might be able to convince plaintiffs to agree to this kind of settlement.  

Allegation carving can be challenging where the same allegations relate to the actions of multiple defendants, or where the lines of causation are blurred between the defendants.  Further, plaintiff may be unwilling to settle with individual parties early.  Nevertheless, there are tools that can be used with opposing counsel and the mediators which may allow the low exposure defendant to avoid the costs of being involved for the entire litigation.

Thanks to Damon Henrie for writing this eNews.

In short, ORS 20.080 creates a right to attorney fees for the claimant when (1) a pre-litigation demand of $10,000 or less is made on the insured or insurer not less than 30 days before the filing of the complaint and (2) the claimant beats the insurer’s pre-trial offer. The statute was enacted to pressure insurers to settle small claims and, if not handled appropriately, can turn small, relatively benign claims into high risk, attorney fee cases.

When dealing with an ORS 20.080 demand, remember the following tips:

• Make your very best offer within 30 days of the demand. The claimant’s right to attorney fees can no longer be cut off by an offer of judgment. The only way to prevent attorney fees is to keep the jury award under the highest offer made within the 30 day period. Therefore, do not hold back authority until after the suit is filed. Calendar the 30 day period and make your best offer before it expires.
• The claimant must include in the demand all medical bills and property records for which damages are sought. The claimant cannot perfect a right to attorney fees without providing the insurer with the records to support the damages sought.
• Property damage and personal injury claims are aggregated for purposes of the $10,000 limit. A demand that seeks more than $10,000 in personal injury and property damages does not satisfy the statute’s requirements.
• Document everything in writing. Assuming the claimant beats the highest pre-trial offer and creates a right to attorney fees, the court will only award reasonable attorney fees. The court, as part of determining how much to award, will look at the diligence of the parties in trying to resolve the claim. Therefore, create a paper record that shows you handled the claim reasonably. Make all offers in writing. Request additional information in writing. Document in writing the claimant’s refusal to provide key information. These actions will all help keep the attorney fee award down.
• Make sure your outside counsel evaluates the case early and often. Once the 30 days expires and the lawsuit is filed, it is critical that your outside counsel aggressively obtain information to evaluate the case early. The claimant’s attorney fees will only increase as the litigation proceeds.

While ORS 20.080 demands can be problematic, the above tips will help minimize the risk. Keep them in mind as you prepare to deal with more and more of these demands in 2012.

On November 30, 2011, the first civil lawsuit (of many) was filed against Penn State for its role in the Sandusky sex abuse scandal.  See John Doe A v. The Second Mile, Gerald Sandusky, and The Pennsylvania State University, Court of Common Pleas, Philadelphia County, Pennsylvania, Case No. 111102968.

See copy of complaint here: http://www.scribd.com/doc/74283327/Sandusky-Civil-Complaint.

Regardless of how that lawsuit turns out, it raises an interesting question of liability: Can a business be held liable because one of its patrons or employees sexually abuses a minor child on its premises?

The answer in Oregon appears to be “depends”—as in, it depends on whether the defendant was on reasonable notice that sex abuse would occur.  This is the implication of a recent court of appeals case, Stewart v. Kids Inc., 245 Or App 267, 261 P3d 1272 (2011), decided just months before the Sandusky scandal broke.

In Stewart, a nonprofit called Kids Inc. sponsored a car wash fundraiser at a local Dairy Queen restaurant.  The car wash was open to the public and was staffed by teenagers.  Sadly, a patron abducted one of the teenage girls working the car wash and sexually assaulted her in the men’s restroom.  Thereafter, the teenager’s guardian ad litem brought negligence and premises liability claims against Kids Inc. and Dairy Queen, alleging that those entities knew or should have known that sexual predators would use the car wash as an opportunity to commit sex crimes during the event.

On these facts, the Oregon Court of Appeals held that plaintiff failed to state a viable action against either defendant.  Generally speaking, a business can be held liable for the criminal acts of third parties, provided those criminal acts were reasonably foreseeable.  In Stewart, however, the plaintiff failed to allege any credible theory as to why Kids Inc. or Dairy Queen should have known that sexual assault would occur.  Plaintiff argued that, in this day and age, the risk of sexual assault is ever present and always foreseeable.  The court disagreed.  Liability attaches only if defendants were on reasonable notice of possible sexual assault.  And, in Stewart, the plaintiff could not point to any specific facts that would have put Kids Inc. or Dairy Queen on such notice.  Accordingly, plaintiff’s claims were dismissed.

If a Sandusky-type incident occurred here in Oregon, Stewart would be an important case.  Focus would be on what the defendant knew about the perpetrator and whether his criminal acts were reasonably foreseeable.  However, if the defendant had no reason to suspect that such abuse would occur, then Stewart provides complete defense.  Tort liability cannot attach merely because a criminal uses defendant’s premises as a place to commit sex crimes.

Of course, in the Sandusky civil suit, the John Doe plaintiff alleged that Penn State was on notice of Sandusky’s proclivities and did nothing to prevent the harm.  If that happened in Oregon, the recent Stewart decision would be no help to Penn State.  As usual, common sense prevails.  If you know something, report it.  Stewart can be read to stand for that proposition as well.

Thanks to Sam Smith for writing this article.

The Oregon Court of Appeals recently decided two cases addressing the legal doctrine res ipsa loquitur, to infer negligence against a storeowner for injuries suffered by a customer. Res ipsa loquitur is a rule of circumstantial evidence that allows a jury to infer negligence based on the nature of the accident. To prevail, a plaintiff must prove: 1) an injury, 2) the injury is of a kind that ordinarily does not occur in the absence of negligence, and 3) the negligence is “more probably than not” attributable to the defendant.

In Hammer v. Fred Meyer Stores, a customer was injured when the contents of a shelf containing large cartons of lemonade fell on her as she attempted to remove one carton. The storeowner argued that the customer’s use of res ipsa loquitur was inappropriate because she could not prove that Fred Meyer had exclusive control over the shelf due to its public location. In rejecting this argument, the Court noted that Fred Meyer was in charge of installing, handling, and moving the shelf, and there was no evidence that a third person had altered or tampered with the shelf.

However, in Hagler v. Coastal Farm Holdings, Inc., the Court rejected the use of res ipsa loquitur. The customer was injured when a post pounder fell onto her foot. The Court found that the use of res ipsa loquitur was inappropriate because other customers had the ability to access the post pounders, rendering the store’s control non-exclusive. Instead, the Court applied ordinary premises liability principles, finding that the evidence did not support that the display of post pounders “created an unreasonable risk to customers.”

Under these cases, the key in a premises liability action is the degree of control the storekeeper has over the object. If it is one that customers can manipulate, move, or pick up, res ipsa loquitur will likely not apply. However, if the store retains exclusive control over the object, res ipsa loquitur likely applies.

Thanks to Mary Anne Nash for writing this article.

Dunn Carney Allen Higgins & Tongue is proud to announce that 6 of its lawyers were recently selected by their peers for inclusion in The Best Lawyers in America® 2012 (Copyright 2011 by Woodward/White, Inc., of Aiken, S.C.).

Tom Tongue was named in Bet the Company Litigation, Commercial Litigation, Securities Litigation and Trusts and Estates Litigation, Jack Hoffman in Land Use and Zoning Law and Litigation, Jay Chock in Personal Injury Litigation, Ken Antell and Gil Parker in Real Estate Law and Elizabeth Howard in Water Law.

Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 41,000 leading attorneys cast almost 3.9 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

About Dunn Carney

Dunn Carney is a leading client-focused law firm in the Pacific Northwest. Attorneys work with clients on a daily basis to develop and implement legal and business solutions designed to avoid the problems that could lead to formal proceedings. In the event of litigation, they have an experienced team of trial attorneys who provide expert counsel and representation in alternative dispute resolution and in the courtroom. Clients have trusted their individual and business needs to Dunn Carney for more than 80 years. Dunn Carney is Oregon’s only member of Meritas, a legal service organization that offers high-quality worldwide legal services through a closely integrated group of independent law firms.

Portland, Ore. – Dunn Carney is pleased to announce that Elissa Meyrowitz Boyd, Blair E. McCrory and Mary Anne Nash have joined the firm. 

Boyd will focus on insurance coverage and commercial litigation and contribute to the Dunn Carney Insurance Coverage Blog.  She received her law degree from the University of Michigan School of Law and her undergraduate degree from University of Michigan.

McCrory has three years experience defending contractors and developers in complex construction defect matters.  McCrory will focus on insurance defense and construction defect litigation.   She is a graduate of Lewis and Clark Law School and received her undergraduate degree from Bradley University in Peoria, Illinois.

Nash will practice agriculture, natural resource and environmental law as well as general litigation.  She will also be contributor to Dunn Carney Natural Resources Updates.  She is a graduate of the University of Oregon School of Law and received her undergraduate degree from Oregon State University.

About Dunn Carney

Dunn Carney is a leading client-focused law firm in the Pacific Northwest. Attorneys work with clients on a daily basis to develop and implement legal and business solutions designed to avoid the problems that could lead to formal proceedings. In the event of litigation, they have an experienced team of trial attorneys who provide expert counsel and representation in alternative dispute resolution and in the courtroom. Clients have trusted their individual and business needs to Dunn Carney for more than 80 years. Dunn Carney is Oregon’s only member of Meritas, a legal service organization that offers high-quality worldwide legal services through a closely integrated group of independent law firms.

Recently, the Oregon Court of Appeals, in Hall v. Speer, ruled than a claimant injured in an automobile accident provided her insurance company “proof of loss” for an underinsured motorist (“UIM”) claim even though the insurance company did not yet know the at-fault driver’s liability limits. As a result, the Court of Appeals awarded the claimant attorney fees under ORS 742.061 because the insurance company did not accept coverage and consent to binding arbitration within six months of the proof of loss. This holding is likely to result in an increased number of claims against insurers for attorney fees in UIM cases.

ORS 742.061 provides that if an insured provides its insurer with a proof of loss and settlement is not reached within six months—and the insured’s recovery exceeds the tender—the insurer is liable for the insured’s attorney fees. However, there is a “safe harbor” provision, where an insurer can avoid exposure for fees by accepting coverage and agreeing to binding arbitration to resolve the claim within six months of receiving the proof of loss.

In Hall, the insurer waited more than a year and a half after learning of the claimant’s injuries before sending a “safe harbor letter” accepting coverage. The claimant had submitted an application for Personal Injury Protection (“PIP”) benefits, but not UIM benefits, and was examined by an orthopedist to evaluate her injuries at the insurer’s request. The insurer argued that these circumstances did not constitute a proof of loss—and that its delay in accepting coverage was therefore reasonable—because it did not know the liability limits of the at-fault driver. Without that information, the insurer argued, it could not estimate whether the claimant’s damages would exceed the at-fault driver’s coverage limits. The Court of Appeals disagreed, finding that the information the claimant provided gave the insurer an “adequate opportunity for investigation” of its potential obligations. The Court mentioned that, had the insurer attempted to investigate the underlying liability limits, there might have been a basis for the insurer’s delay. However, because that did not happen, the Court ruled against the insurer.

This decision puts insurers in a precarious position in dealing with possible UIM claims. In effect, once the insured applies for benefits and the insurer is aware of the extent of the injuries, Hall places the duty on the insurer to investigate the underlying liability limits to determine whether the insured’s damages may exceed available coverage. Insurers who have not been following this practice can likely expect an increased number of claims for attorney fees under ORS 742.061.