DAMAGES

DAMAGES IN OREGON PERSONAL INJURY CLAIMS

Economic Damages are Objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical services, burial
and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property, and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.

Non economic Damages are subjective, non monetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to
reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment. Non economic damages are unlimited, with two notable exceptions: In most wrongful death cases, non economic damages are limited to $500,000. Claims against public entities are subject to statutory limits. The statutory limit for non economic damages does not apply to bodily injury or property damage claims because it was held to be unconstitutional. 

PUNITIVE DAMAGES Punitive damages are allowed if plaintiff proves by clear and convincing evidence that the defendant acted with: Malice, or reckless and outrageous indifference to a highly unreasonable risk of harm; and a conscious indifference to the health safety and welfare of others. There is a special procedure for asserting punitive damages. The claim cannot be asserted in the initial Complaint. The party seeking punitive damages must give notice that they will seek punitive damages and then file a motion supported by evidence. The motion can be filed any time after the Complaint is filed. Punitive damages appear to be constitutionally limited to approximately three to four (3 – 4) times economic damages, absent some particularly egregious circumstance.
Attorney Fees in Oregon Personal Injury Cases
Fees are only recoverable when prescribed by statute or contract.

Claims Involving $5,500 or less — ORS 20.080
Plaintiff is allowed attorney fees if:  Plaintiff prevails in any action for property damage, personal injury or contract where the amount plead is $5,500 or less; and if a written demand for the payment was made on defendant no less than 10 days before the commencement of the action or filing a formal Complaint. Plaintiff’s written demand must be made “in a manner reasonably calculated to apprise the defendant of the demand” at least 10 days before an action is filed. The written demand does not need to be sent by certified mail, or even to the insurance company handling the claim in order to meet this requirement. A defendant may insist on a release when settling a claim for $5,500 or less without being subject to attorney fees under ORS 20.080.  Defendant is not responsible for attorney fees, costs, or disbursements incurred after the date of the offer if defendant submits to the court an offer to allow judgment and plaintiff does not prevail in an amount that exceeds that offer.

NO PAIN AND SUFFERING FOR DRUNK OR UNINSURED DRIVERS IN OREGON PERSONAL INJURY CLAIMS

The Oregon Supreme Court recently confirmed that ORS 31.715 is constitutional. That statute prohibits a claimant from recovering non-economic damages resulting from personal injuries sustained in a motor vehicle collision under two circumstances: If the Oregon personal injury plaintiff was intoxicated at the time of the collision or if the Oregon Personal Injury plaintiff was not insured under an automobile liability policy.
No Non economic Damages for Uninsured or Intoxicated Oregon Personal Injury Claimants
     ORS 31.715 prohibits the recovery of non-economic damages by a plaintiff who is in violation of ORS 806.010, as follows:

“(1) Except as provided in this section, a plaintiff may not recover non-economic damages, as defined in ORS 31.710, in any action for injury or death arising out of the operation of a motor vehicle if the plaintiff was in violation of ORS 806.010 (driving uninsured) or 813.010 (driving under the influence of intoxicants) at the time the act or omission causing the death or injury occurred. A claim for non-economic damages shall not be considered by the jury if the jury determines that the limitation on liability established by this section applies to the claim for non-economic damages.”
“(2) For the purpose of the limitation on liability established by this section, a person is conclusively presumed to have been in violation of ORS 806.010 or 813.010 if the person is convicted in a criminal proceeding of one or both of those offenses.

The statute also provides an exception for plaintiffs with lapsed insurance policies:

“(6) The limitation on liability established by this section based on a violation of ORS 806.010 does not apply if the plaintiff in the civil action was insured under a motor vehicle liability insurance policy within 180 days before the act or omission occurred, and the plaintiff has not operated a motor vehicle in violation of ORS 806.010 within the one-year period immediately preceding the date on which coverage under the motor vehicle liability insurance policy lapsed.”

     This statute had previously been upheld by the Court of Appeals. As in the lower court, the plaintiff made two primary arguments. First, plaintiff contended that the Oregon Personal Injury law violated Article I, section 10 of the Oregon Constitution, often referred to as the “Remedies Clause.” This ensures that “every man shall have remedy by due course of law for personal injury done him…” The Supreme Court framed the issue as whether the Oregon Personal Injury “plaintiff, who was herself in violation of a law relating to her right to be on a public highway at the time of the collision (driving uninsured), nonetheless would have had an absolute right to recover damages for all her personal injuries – including non economic injuries – resulting from defendant’s negligence.” Since the Court’s previous holdings required such rights to be determined as of the date of the Constitution’s drafting in 1857, this necessitated an interesting survey of such nineteenth century oddities as “Sunday laws,” which prohibited unnecessary traveling on Sundays (some courts prohibited recovery for those in violation of such laws).

     The Court’s holding on the Remedies Clause argument was actually quite broad, concluding that “no absolute common-law right that existed when the Oregon Constitution was drafted in 1857 would have guaranteed plaintiff a remedy for her injuries – either economic or non economic – under the circumstances of this case.” By contrast, the Court of Appeals had rejected the Remedies Clause argument because plaintiff, in fact, had some remaining remedy - economic damages. This should put to an end one theory advanced by some plaintiff’s attorneys, that the Court of Appeals had actually held the statute unconstitutional under most circumstances. The parties in the case had agreed that economic damages were $4,210 and non economic damages $5,790. The argument has been that the Court of Appeals actually decided that the plaintiff had a “substantial remedy” because the economic damages amounted to 42.1% of the total stipulated damages. This analysis was not even mentioned in the Supreme Court opinion.

     As had the Court of Appeals, the Supreme Court quickly dispensed with plaintiff’s argument under Article I, section 17 (right to trial by jury). The right to a jury trial does not create a “substantive claim or theory of recovery in favor of any party.” Instead, it “guarantees a jury trial in civil actions for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857.” Having already held that there was no right to such an action, it follows that there was, and is, no right to a jury.

     ORS 31.715 has once again been held constitutional and should be relied upon to deny non economic damages to uninsured or intoxicated claimants under the circumstances described in the statute. Furthermore, the unequivocal nature of this opinion should discourage any creative arguments that the statute remains unconstitutional under some circumstances.

Contact Joe Durkee: Phone 971.998.6790
E-mail kjdurkee@yahoo.com

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DISCLAIMER
Oregon Personal Injury Lawyer / Attorney Web sites, including this one, provide general information but do not provide Oregon Personal Injury Attorney / Lawyer legal advice.  Consult an experienced Oregon Personal Injury lawyer / attorney who handles car collision injury,injury, bike collision injury, bicycle collision injury for Oregon Personal Injury advice about specific Oregon personal injury claims or Oregon personal injury cases.  Remember that virtually all Oregon personal injury, car injury, motorcycle injury, bike injury, bicycle injury, wrongful death and premises injury claims and lawsuits are time sensitive.  So, don't delay in seeking Oregon Personal Injury Lawyer / Attorney advice by a qualified Oregon Personal Injury Lawyer / Attorney in Oregon.  Oregon Personal Injury attorneys / lawyers are governed by the Oregon Code of Professional Responsibility.  If you have been been injured in an automobile, auto, car, bike, bicycle, motorcycle, moped, bicycle or truck related collision causing injury, consider Oregon lawyer / attorney Joe Durkee.  This web site may be considered an advertisement for services under the Oregon Code of Professional Responsibility.  Mr. Durkee is an Oregon Personal Injury attorney / lawyer handling car collision, auto collision, automobile collision, motorcycle collision, moped collision, bike and bicycle collisions in Oregon land does not seek cases outside of the State of Oregon.

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