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Scenarios

1) The driver at-fault caused a fatality. Is Oregon law different in this situation?

Yes, faulty driving causing death triggers state wrongful death laws. These laws set out unique procedures designed to protect and compensate family members of the deceased.

For example, Oregon law requires a personal representative of the deceased’s estate to be named by the court. See, ORS 30.010-ORS 30.100. Usually a family member is selected personal representative of the estate. The personal representative, through an attorney, asserts claims for beneficiaries.

Persons with potential wrongful death claims usually include the deceased’s spouse and children. Depending on the circumstances, grandparents, significant others, step children and step parents may also be eligible for wrongful death compensation.

TIP: Lawyer assistance is almost always needed to resolve a wrongful death claim. Wrongful death claims are more complicated than injury claims and require court approval.

2) The insurance company for the driver at fault wants to talk with me. What should I do?

Don’t talk to representatives for the other driver unless that insurer also provides PIP benefits to you or you need the other insurer to fix your vehicle because you did not purchase collision coverage. Your own auto insurer will provide PIP benefits unless you were a passenger of an at fault driver and have no PIP coverage yourself.

Avoid speaking to an adjuster whose interests are adverse to yours. Remember adverse adjusters are witnesses who could testify against you and whose aim is to limit your claim. On the other hand, per the terms of your policy you do have a duty to cooperate with your own insurer. Don’t negotiate to settle the personal injury claim until and unless you are reasonably certain of the extent of injuries and need for any future treatment and have consulted with a qualified lawyer.

TIP: The “uninsured at fault driver situation” is especially tricky because you have a duty to cooperate with your insurer AND its interest is directly adverse to yours. Similarly, you and your insurer’s interests collide when your own insurer seeks to have you examined by one of their own medical experts. Seek advice from a lawyer whenever you sense any insurer does not have your interest at heart.

3) Does it matter that I was in a prior motor vehicle accident?

Maybe. Insurers will want to know about other injuries that could have been a cause of your need for treatment. Expect insurers to question causation if you have another injury close in time or involving the same body part or condition.

4) The adverse insurer claims the accident is part my fault. How will that affect my claim?

Your claim is reduced proportionate to the percentage you were at fault. The law on this issue varies by state. Washington State is a “true comparative fault” state without a fault threshold for recovery. In other words, a Washington a plaintiff who is mostly at fault will still recover to the extent the defendant was also at fault. In Washington State, for example, a plaintiff who is 60% at fault would recover 40% of his proved damages—the percentage the other driver was at fault.

By contrast, Oregon is a “modified comparative fault” state. In Oregon, a plaintiff must meet a liability threshold of 51% in order to be eligible for any recovery. An Oregon plaintiff who is mostly at fault will not recover to the extent the defendant was also at fault. Using the same example above, in Oregon a plaintiff who is 60% at fault would recover 0% of his proved damages because he is has not shown the defendant was at least at least 50% at fault—the recovery threshold in Oregon.

5) I contacted a lending company who is willing to advance me money toward my claim. Should I?

It is generally a bad idea to take a loan from one of these companies. The interest rates are typically very high. In Oregon there are no anti “usury” laws to protect consumers against loan sharking. Beware of predatory lenders.

6) The airbag in my car did not inflate properly and I was injured. Do I have a claim against the airbag manufacturer?

Yes. According to news reports some airbags explode under normal conditions. One airbag manufacturer, Takata recalled millions of vehicles fitted with their airbags. Takata airbags are used throughout the auto industry and the recall impact vehicles made 2000 and 2011. If you were injured by an airbag you may also have a claim against the at fault driver as well. The recalled Takata airbags contain a propellant which can break, cause the airbag to crack and then jettison shrapnel. Faulty airbag can cause cuts, eye injury, chest trauma and even blindness.

7) Police did not investigate my car accident. Will that affect the outcome?

Maybe. Many police departments, especially in urban areas like Portland, choose not to investigate perceived minor traffic accidents. Police also do not investigate crashes occurring on private property. Generally speaking, police reports are helpful documentation. But sometimes police get the fact wrong. Inaccurate police reports are not unusual— especially when police resources are stretched thin.

TIP: Documentation (photo / video) of the accident scene and the parties as soon as possible. Get witness names and contact info. Get insurance and plate info for vehicles and operators involved.

TIP: Do not tell anyone you are not injured. It’s hard to know at the scene whether you are injured. Many people do not experience symptoms from an accident for a day or two. If you suspect a serious injury, accept an ambulance ride.

TIP: Prepare and file an accident report with DMV. Oregon law requires it if the crash involved more than $1,500 worth of damage to the car you were driving or injury. Oregon law also requires you to promptly notify police of any such accident.