Top questions clients should ask
Should I post about my case on social media?
Generally, no. Posting about your case on social media is unlikely to help your case and is very likely to harm your case. Insurance adjusters and defense attorneys know to look for your social media and defense attorneys routinely request posts about the incident and your injuries after you file suit. Your statements can hurt your case by showing differing versions of the facts over time, bad motives like wanting to sue for lots of money and being angry at the defendant, downplaying or understating your injuries and their effects on you, overstating your injuries, or joking or making light of the incident and injuries.
If you did post about your case on social media, do not delete that because it will likely be viewed as destruction of evidence. Instead, increase your privacy settings and do not accept friend requests from people you do not know. And, even better, call your friends or talk in person instead of putting it in writing.
Should I text or email about my case, including my fears about litigation?
It’s fine to text or email your attorney’s office about the case because those communications are attorney-client privileged. If you text, email, direct message, or private message anyone else, that writing is likely not privileged and will be discoverable if you file suit. If you forward emails from your attorney to someone else, the privilege will likely no longer protect that communication. Much like social media posts, it’s better to call your friends or talk in person instead of putting it in writing.
What is the money out problem and how could it hurt me?
Generally when an insurer pays for medical bills or wage loss for an injury, and you recover money for that same injury, your insurer will want their injury-related money back. Insurance representatives loosely refer to the concept as subrogation, lien, reimbursement, or third party liability. Common subrogation claimants in an injury case include your auto insurer, health insurance, employer sponsored health plans (ERISA and public employee plans), Medicare, Medicaid (Oregon Health Plan), and workers compensation. If those payers paid your bills or if you do not know who paid your bills, you need to figure that out before your case is resolved. Here’s why: if you settle your case and they show up later asking for money, it will eat into your net recovery and may even take all the money you recovered.
PIP ran out and my injuries are not resolved, should I keep getting treatment?
That depends on a few things. Do you have health insurance which will pay for the treatment? If so, great. Your health insurer will want to be reimbursed for injury related payments, usually out of the proceeds of your case, which may raise an issue about how much liability and UM/UIM coverage is available. If you do not have health insurance, then you need to pay cash or find a provider who will treat you and let you run up a bill, usually with a letter of protection where they agree to forebear from collection attempts until the case is done and you agree to pay them out of the proceeds of your case. That may raise an issue about how much other insurance is available, and about how much you are likely to recover. The provider will probably not want to discount their rates because of problems with your case, so you (and hopefully the provider) should evaluate your likely recovery and how much the treatment is likely to cost.
PIP wants a medical examination, should I go to that?
Generally, yes. You have a duty to cooperate with your insurance company, and virtually every auto insurance policy says you have to attend medical examinations when your insurer reasonably requires the exam. You should also audio record the examination and you may want to have someone else attend the exam with you. Examining doctors, the exam vendors, and the insurers often complain about that, but the fact is they probably did not write anything into the policy which forbids you from audio recording or having someone else present.
PIP cut me off after a medical exam, what should I do?
If you still need treatment and you still have PIP money left, you should probably keep getting the treatment you need, get the providers to keep billing PIP to put them on notice of the post-cutoff bills, and hire an attorney. Attorney’s fees are recoverable in addition to medical bills if you sue your own insurance company and win*, and if the fees claim was set up properly. That forces the insurer to consider whether to stick with the denial of a few thousand dollars of medical bills and run the risk of more thousands of dollars in attorney’s fees. Most PIP insurers do not want to run that risk and end up paying the denied medical bills and some amount in fees shortly after suit is filed. It gets you out of debt, gets your providers paid, and gets your attorney paid for the work on the PIP case.
*technically, beat any offers they made within six months from your proof of loss, which is usually a $0.00 offer after a PIP denial.
How do I get my medical expenses paid after an accident? What if I am a pedestrian or on a bike?
In Oregon, private car insurance policies are required to have Personal Injury Protection, or PIP coverage. PIP covers your medical expenses regardless of who is at fault for the collision. In Washington, PIP coverage is not required and can be waived in writing. In premises injury cases, there will often be a medpay policy, which will cover the medical expenses regardless of who is at fault. PIP and medpay policies often cover the medical expenses incurred within a certain time. The Oregon PIP minimum is $15,000.00 in payments for treatment within 2 years of the injury. Medpay is usually $1,000.00 or $5,000.00 for treatment within 1 year of the injury.
In claims against third parties like people who cause car wrecks, the reasonable value of necessary medical expenses is recoverable. That includes past and reasonably likely future medical expenses.
Pedestrians in Oregon use their own PIP first, then their health insurance and similar government programs, then the bad driver’s PIP.
Bicyclists in Oregon count as pedestrians and follow the same order of benefits—your PIP, your health insurance, then adverse PIP.
How do I get my lost wages paid?
In Oregon, PIP must also cover 70% of your lost wages up to a maximum of $3,000.00 per month, but the wage loss payments are not triggered until the insured is disabled for 14 days. The balance of the lost wages are recoverable in the third party claim against the person who caused the wreck. Good documentation from the physicians and the employers is often the key to getting the lost wages paid.
How do I get my property damage paid? How much is a totaled car worth?
For repairs, most insurance contracts do not specify where the car is to be repaired or what kind of parts are to be used for the repair. That means the insurer cannot tell the insured where or how to get the car repaired. If the cost of repairs are more than 80% of the actual cash value, or ACV, the car is considered a total loss. Adjusters sometimes have discretion to go as low as 65% of the ACV to deem a vehicle totaled.
The general measure of a car's value is it's actual cash value, or ACV, at the time of the loss. Another way of thinking of this is as the fair market value, or what a willing buyer would pay a willing seller in an arms-length transaction where nobody is pressured.
Oregon Administrative Rule 836-080-0240 sets out some guidelines for how the insurer and insured deal with total losses. In particular, if a computer valuation like CCC or ADP results in an offer so low that a replacement cannot be purchased, the insured should consider this rule.
What if I owe more than my car is worth?
You need to check your policy for gap coverage to pay for the difference between the market value of your car and your loan balance.
What if my car was repaired but it's not worth as much now?
So, your car is repaired, but now you're stuck with a heap. Or at least, you will have to tell people about that frame damage when you try to sell the car. And who wants to pay full price for a car that has had frame damage?
Nobody, and that's why diminished value claims developed. The idea is the vehicle is not worth as much even with good repairs because of the stigma of damaged and repaired vehicles. Diminished value claims are often asserted in nicer late model cars with frame damage because those are the easiest cases to prove. And surprisingly, the diminished value is often overlooked!
What do I do if the other driver took off without exchanging information including a hit and run, gave bad insurance information, or is uninsured?
Report the incident to the police immediately. Hit-and-run collisions are covered under your uninsured motorist coverage, but you have to report them to the government within 72 hours. Sometimes a phantom vehicle causes the collision without any contact between the vehicles. The 72 hour reporting requirement applies to phantom vehicle claims, and you need a witness without a claim as well.
You also have an uninsured motorist claim on your own Oregon car insurance policy.
What if the other driver does not have enough insurance to cover my medical bills, earnings losses, and pain and suffering?
You look to your own insurance company for underinsured motorist (UIM) coverage, which has to pay for damages beyond the bad driver’s liability insurance limits.
Should I give a recorded statement to an insurance company?
You have a duty to cooperate with your own insurance company and your policy probably says that includes giving them a statement. You can give it to them as part of settlement negotiations, which will likely make it inadmissible in later proceedings.
For an adverse insurance company, they probably want to see if you will say things which damage your case, but they may also need documentation in their file to support an evaluation and offer to you. If the issue is that your version of events is different than their insured’s version of events, and there is no other witness to break the tie, then your statement is not likely to persuade the adverse insurer to find liability in your favor. If there are independent witnesses who support you, then your statement might persuade the adverse insurer to find liability in your favor. You can give a statement to them as part of settlement negotiations, which will likely make it inadmissible in later proceedings.
How do I pay my attorney and do I have to pay up front?
Most plaintiff attorneys work on a contingent fee which is a percentage of your recovery, with a provision for how to deal with statutory attorney’s fees if the case allows you to shift the fees to your adversary.
Case costs are dealt with separately from attorney fees and payable in addition to the attorney fee. If I spend money on your case, I expect that to be repaid whether you win or lose. For most cases, costs will be repaid when the case is resolved and you will not need to pay up front, but many attorneys will ask you to pay for the case costs if your case has significant risks like who is at fault or whether your injuries are related to the subject incident or to something else.
How much is my case worth?
It depends on many factors, including how you and the adverse party will be perceived by a jury, the medical proof of your injuries and the defense’s medical proof and alternative theories of the source of your symptoms, the extent of your injuries, and the amount of the medical bills and earnings losses. Ultimately the case value is what a jury decides or what you and the insurance company think a jury will do with the case.
How long will it take to get my case resolved?
You generally want to get completely done with treatment so you know the full extent of your damages before resolving your case. For some ballpark timelines, take that date and add six months for a case which settles, add six to nine months in litigation for a case which goes through arbitration, and add ten to fourteen months in litigation for a case which goes to trial.
How long do I have to get a case resolved?
In general, for bodily injury claims, the case must be filed by the two year anniversary of the date of the loss. If the case is not filed by then, whatever rights the claimant may have will disappear.
There are some exceptions and wrinkles to it, but the safest course is to get the case filed by the two year anniversary to ensure that there is no question about whether the case was timely filed. You should consult an attorney immediately if you think you may have a limitations issue.
A somewhat related issue is giving notice of the claim when a government body is responsible for causing the injury. In that case, the Oregon Tort Claims Act generally requires formal notice as defined in the OTCA to be given within 180 days of the date of loss. Again, there are some wrinkles to it, but the safest course is to get the proper notice to the proper government officer(s) within 180 days. The Federal Tort Claims Act says you need to submit a claim form listing all of your damages within 2 years and has additional administrative requirements before you can file suit. And again, you should consult an attorney immediately if you think you may have a notice issue.
How does arbitration work?
Generally, arbitration is a less formal process than trial, with an arbitrator or panel of arbitrators making legal rulings like a judge and making factual findings and conclusions like a jury. In Oregon, private binding arbitration of an uninsured (UM) or underinsured (UIM) motorist claim and court annexed arbitration are the most common. Private binding arbitration involves a panel of three arbitrators and follows the local rules, including the Uniform Trial Court Rules allowing admission of documents including narrative letters from your providers, which is a significant cost savings. Court annexed arbitration involves a single arbitrator, the UTCR admissibility standards, and either side can request a trial after the award is filed. The good news is if you get a bad result you can request a new trial, the bad news is if you get a good result your adversary can request a new trial. Because the party who requests a trial after court annexed arbitration may pay the other side some attorney’s fees if they do not do better at trial than they did at arbitration, most individuals do not request a new trial, while many insurers will request a new trial. The net result is you have to get a good result twice—once at arbitration and again at trial—if you want to keep it.