Deadline to file suit may be extended when insurer makes an “advance payment.”

Occasionally, a liability insurer will make an advance payment toward a claimant’s personal injury or property damage claim before final settlement.  An example would be payment of the damages to the claimant’s car in an automobile accident case.  When the insurer makes an advance payment, it must give written notice to the claimant of the date that the statute of limitations (the legal deadline) to file suit for the injuries will expire.

If the insurer fails to send this notice 30 days after the date of the advance payment, then the statute of limitations to file suit is extended (tolled) until written notice of the statute of limitations is sent to the claimant.  ORS 12.155.

When ORS 12.155 was enacted, the Oregon legislature wanted to protect injured persons from being lulled into a false sense of security by early payments made by their insurance companies toward their personal injury or property damage claims.

ORS 12.155 may serve to extend the statute of limitations for property damage and injury cases that otherwise might have expired.  Our firm looks carefully at the facts of each case to determine if an “advance payment” was made to our client, and whether the carrier sent the written notice required by ORS 12.155

Defendants and Their Insurance Companies Must Pay Attention to Moderate Injury Claims or Pay Attorney’s Fees

If you have been injured or suffered property damage through the fault of another, but your injuries/damages are not extensive or permanent, your claim should, and can still be settled quickly and fairly.

ORS 20.080 provides that when the claim is for $10,000 or less, if the injured person sends a written demand for payment to the defendant, and also to his insurance company, if known, and the defendant or his insurance company do not make a fair offer within the 30 days, then we are entitled to recover attorney’s fees in addition to damages, as long as the verdict or arbitration award exceeds any offers made within the 30-day period.

ORS 20.080 was enacted by the Oregon legislature to force liability insurance companies to actually pay attention to moderate personal injury and property damage claims. Ignoring such a claim is a very expensive mistake for the insurer, due to the exposure for attorney fees.

Dog Owners are Strictly Liable in Part for Injuries Caused When Their Dog Bites Someone

If you have been injured by a dog bite, you can recover your economic damages without having to prove that the owner should have known the dog would bite, as long as the dog was not provoked to attack. ORS 31.360 states as follows:

“(l) For the purpose of establishing a claim for economic damages, as defined in ORS 31.710, in an action arising from an injury caused by a dog:
(a) The plaintiff need not prove that the owner of the dog could foresee that the dog would cause the injury; and
(b) The owner of the dog may not assert as a defense that the owner could not foresee that the dog would cause the injury.
(2) This section does not prevent the owner of a dog that caused an injury from asserting that the dog was provoked, or from asserting any other defense that may be available to the owner.”

“Economic Damages”, are defined in ORS 31.7l0 as objectively verifiable monetary losses, including but not limited to:

1. Reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses;
2. Loss of Income;
3. Past and future impairment of earning capacity;
4. Reasonable and necessary expenses incurred for substitute domestic services;
5. Recurring loss to an estate;
6. Damage to reputation that is economically verifiable;
7. 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.

In order to recover non-economic damages for pain and suffering and emotional distress, the claimant still needs to prove that the person who owned or controlled the dog had reason to know the dog would bite.

Insurers may be liable to their insureds for attorney fees

Welcome to “Notes on the Law.” We offer this as an educational feature to highlight areas of the law. It is not intended to be legal advice.

Oregon Revised Statute 742.061 provides that:

“If settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of the state upon any policy of insurance of any kind or nature, and the Plaintiffs recovery exceeds the amount of any tender made by the Defendant in such action, a reasonable amount to be fixed by the court as attorneys fees shall be taxed as part of the costs of the action and any appeal thereon.”

Oregon Revised Statute 742.061 encourages insurance companies to settle fairly with their insureds or risk attorneys fees in addition to any payment on the loss if the claim is unjustly handled.

In PIP, uninsured motorist or underinsured motorist cases, the insurance company may be able to avoid the attorney fee risk. However, to do that it must, within the six months from the date proof of loss is filed, admit there is coverage for the loss and consent to binding arbitration if the insured and the insurer cannot agree on the value of the claim. If the insurer fails to concede those two points within six months from the date proof of loss is filed, it is liable for the insured’s attorney fees if the insured’s recovery in court exceeds any tender.

Oregon Revised Statute 742.061 does not apply to personal injury actions where an injured claimant sues the actual defendant who caused his injuries. However, the statute is an important consumer protection law that benefits insureds who need to directly sue their own insurance company for not paying fair value on a claim.