Is my claim too small?
Oregon law allows recovery for attorney’s fees in small cases under certain circumstances. This can get a little complicated. If the total claimed is $10,000 or less, you can formally ask the defendant and the defendant’s insurer to pay that amount 30 days or more before filing a lawsuit. The defendant’s insurance company must then make their best offer to you within these 30 days. If you are not satisfied with the offer and go to trial, and the verdict is more than the amount offered by the other side’s insurance company, the trial court will then grant you attorney’s fees in addition to the damages awarded.
To qualify as a “demand” under Oregon Revised Statute 20.080, your initial request must meet certain requirements stated in the statute. We can help you decide whether an ORS 20.080 demand best meets your needs.
What information do I need to gather? What should I document?
Gathering and keeping important information to support your claim is essential. Such information helps your case settle without having to go to court. When in doubt as to whether some information is important, keep it. It is easier to later discard unimportant information than it is to attempt to recover discarded information.
In providing documents and other materials to your attorney, produce anything and everything that even remotely might be relevant. Sometimes small details that don’t seem important at the time can become crucial later. Document everything you can. Take photos of any property damage. If it is safe to do so, and the police have not done it already, take photos of the location where the injury happened. Take photos of visible injuries. As soon as possible make notes about any conversations you had with anyone at the time of the injury, particularly anything the at-fault person said. Document the medical care you have received and keep receipts of anything you bought to treat your injuries (such as ice packs, wound dressings, special medicines, special shoes, etc.). Keep receipts for services you had to hire others to do, which you would have done yourself if you had not been injured (such as yard work, in home nursing care, etc.). If specifically directed to do so by your attorney, keep a diary, log, or calendar to help refresh your memory later on. In such a record make notes about your pain and injuries and how they have interfered with your life, what doctors you have seen and what they have told you, and what doctors you can’t afford to see, or anything else that seems relevant. If you have had to give up a treasured activity (golf, tennis, hunting, fishing, horseback riding, hiking, camping, dancing, etc.), write down when and why you had to stop. If you have had to sell items of enjoyment (motorcycle, snowmobile, etc.) because you can’t use these things anymore, keep receipts and record the dates. Make notes periodically about how you’re feeling and anything new that has happened. Specific examples and dates are very useful later. Any of these records may become very important later on.
We can help you sort all this out at the appropriate time. It is almost impossible to provide us too much information. The more we know about what happened to you and how it has affected you, the more we can help you.
More than anything else, remember that your most important responsibility to yourself and to your family (and to your attorney as well) is to do all you can to get better and to return to work as soon as possible. Juries are more kind to people who get back up and keep going than to those who stop trying. Therefore, carefully follow your doctor’s advice and keep all your medical appointments. Do any home exercises prescribed. Do your best to heal and to get on with life. Doing so not only helps you physically and mentally, it also helps your case. While it is important to document your pain, do not become so absorbed in doing so that you begin to obsess about your injuries. You need to get back as much of your former life as soon as your can.
Do you handle property damage claims?
Most personal injury cases also involve property damage. This is particularly true in automobile accidents. Such property damage will usually be paid by an insurance company, either your own or the other driver’s.
As a law firm, we generally do not handle property damage cases. We decline to do so for a very simple reason. It is easy for you to objectively verify the value of the damaged property. You usually do not need an attorney to do this. Because property damage is such a small part of a serious injury case and it is easy to separate the property damage from the personal injury claim, it makes sense not to pay an attorney to handle the property damage portion of most claims. Do not, however, take the property damage claim to any court (including small claims) because doing so will later bar your injury claim.
If you are not able to settle your property damage claim, we can of course add it to your personal injury claim and take both claims to court at the same time. If you have questions, please contact us.
Will I have to disclose my prior medical treatment?
Often the injury victim has had a prior medical condition that makes him more likely to be injured than the average person. Personal injury law throughout the United States says that a wrongdoer “takes his victim as he found him.” This means that the wrongdoer cannot insist on a healthy victim who would have suffered less harm. Just as a person who carelessly breaks a precious crystal vase cannot complain that it would not have broken if it had been made of cast iron, neither can the wrongdoer who carelessly harms a person with a fragile condition complain that a sturdier person would not have been harmed. Oregon Uniform Jury Instruction 70.08 says:
“If you find that the plaintiff had a bodily condition that predisposed him to be more subject to injury than a person in normal health, nevertheless the defendant would be liable for any and all injuries and damage that may have been suffered by the plaintiff as a result of the negligence of the defendant, even though those injuries, due to the prior condition, may have been greater than those that would have been suffered by another person under the same circumstances.”
If you have a prior medical condition, the law still protects you. There is no need to hide that condition from your doctors or the insurance company or us. In some cases the prior medical condition may actually strengthen in your case.
When you make an injury claim, you are putting your medical condition “at issue.” This means that the other side has a right to look at your relevant medical records to see the state of your health before and after you were injured, and to see what kind of medical care you have received.
Many insurance companies overreach by trying to get all your past medical records, even for conditions that have nothing to do with your claim. We can protect your privacy from unwarranted snooping and prevent the other side from obtaining irrelevant records. Talk to us if you are concerned about your privacy.
I’m in bankruptcy. How will that affect my claim?
Some injury claims are so devastating that the injury victim is driven into bankruptcy. If that happens to you, you can still make an injury claim, but the bankruptcy court will control the decisions. The details of what happens will vary depending on the type of bankruptcy and the specific claim you have. But if you are in bankruptcy, your injury claim belongs to the bankruptcy trustee, just like the rest of your assets. The trustee will therefore have to approve any settlement, and any money recovered over $10,000 will go to your creditors. Any amount left over after your creditors are paid will come back to you.
What happens if I’m on Medicare or Medicaid?
The rules regarding reimbursing Medicare and Medicaid out of personal injury settlements have changed dramatically in recent years. As a result, many insurance companies now assume that every injury victim has received Medicare or Medicaid until proven otherwise. Because of the new regulations, we now ask all our clients to fill out Medicare and Medicaid paperwork, even if they have not received such benefits. (The paperwork is usually needed to prove that you have not received such benefits.) The new regulations complicate personal injury settlements because insurers now demand detailed private information (such as your Social Security number). We will help protect your privacy, while at the same time complying with the new laws.
Will my settlement be taxed?
Physical injury damage and wrongful death awards are not considered income under the federal tax code (or under Oregon’s state tax code) because such compensation only replaces something that was lost. Because nothing new is added to your net worth, physical injury damages are not taxed.
By contrast, awards for non-physical injury damages are taxed. This means if your claim is based only on emotional or psychic damages without physical harm, any money received in compensation is taxable. Nearly all the cases we accept arise out of physical injuries, even though these cases also have elements of emotional loss as well. As long as the claim arises out of a physical injury there is no tax on any part of the award, even the emotional elements.
If I make a claim will my insurance premiums go up?
The short answer is no.
Many clients worry if they make a claim against their PIP coverage, against the bad driver who hit them, or against their uninsured or underinsured motorist coverage, their insurance premiums will go up. We have spent decades asking clients to report to us if their premium goes up for these reasons. We have never seen it happen. If another event – such as an at-fault collision – happens, then the premiums may rise, but it is because of something else, not when the person is simply asking for the benefits he or she has paid for and when he or she was not at fault for causing the wreck.
Let Us Help You
If you have been injured and you are not sure what steps to take next, call us. We can help.