insurance

Litigation Shenanigans & the Attorney Fee Multiplier-What You Need to Know

Most consumer and personal injury lawyers represent clients based on a contingency fee agreement. That means that the attorney will not get paid unless the client receives a settlement, award, or judgment in their favor. Many firms and attorneys defending lawsuits charge by the hour. They are then paid monthly by the corporate defendant or insurance company. This can often result in defense lawyers using tactics that are meant to drain the plaintiff’s attorney’s time, money, and resources in an effort to force the plaintiff to settle or divert the plaintiff’s lawyers attention from the issues in the case. These tactics can come at a price though, and an unpublished Ninth Circuit opinion sheds some light on the remedy available to a party who is subjected to litigation shenanigans. In Beck v. Metropolitan Property and Casualty Insurance Co., No. 16-35816 (9th Cir. June 5, 2018) the Ninth Circuit approved an attorney fee multiplier of 2.0 due to the defendant’s litigation tactics. What this means is that the plaintiff’s lawyers attorney fee claim of $597,669.25 was doubled to $1,195,398.50 “due to the nature of this case and the conduct of Metropolitan and its Counsel.” Beck v. Metropolitan Prop. and Casualty Insurance Company,. 3:13-cv-00879-AC pg 44. (Dist. Or. Sept. 16, 2016)

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You are probably wondering how was the plaintiff able to force the defendant Insurance company to pay double the amount of her attorney fees. Thankfully, John Acosta, United States Magistrate Judge, drafted a 56 page order that provides a clear road map for lawyers who are seeking an attorney fee multiplier in Oregon. In this breach of insurance contract case, Judge Acosta addressed the legal standard that permitted the plaintiff to seek fees under ORS 742.061 (whether or not the plaintiff satisfied the “proof of loss requirement). Judge Acosta found the plaintiff had satisfied the proof of loss requirement under ORS 742.061. As a result the defendant was forced to pay plaintiff’s reasonable attorney fees. The question then became, What is the reasonable amount of fees?

The Judge used the ORS 20.075(1) and (2) factors to determine what was reasonable. First, the Judge rejected defendant Metropolitan’s argument that the ORS 20.075(1) factors apply only to the court’s determination whether to award fees and not the amount of fees, and not to the reasonableness of the fees.. In doing so, the court provided clear guidance that both ORS 20.075(1) and ORS 20.075(2) factors are to be used to determine the reasonable amount of attorney fees to award.

The Court then delved into the factors under ORS 20.075(1). The court evaluated the parties’ respective pre-litigation conduct and did not look kindly at Metropolitan’s attempts to resolve the case on unilaterally established terms. The court also looked at the objective reasonableness of the claims and defenses asserted by the parties under ORS 20.075(1)(b). In addressing that factor the court acknowledged that the case was a simple breach of contract case. However, the defense asserted unreasonable defenses in its answer, and advanced unreasonable arguments to use as the equivalent of defenses. For example the defense asserted a merit-less “Fraud” defense. This is a common defense tactic in consumer cases, and the court did not take kindly to it. The Court then delved into the various other ORS 20.075(1) factors and found they either weighed in plaintiff’s favor or they did not apply.

The court then turned to the ORS 20.075(2) factors. The court did a fantastic job concisely addressing each of the numerous factors. In doing so, the court addressed the prevailing market rates for legal services in the relevant community. In this case the plaintiff’s attorneys submitted expert declarations as expert evidence of the plaintiff’s attorneys’ skill and experience in insurance law and to support the hourly rates she requested. The court used the expert opinions and the 2017 Oregon State Bar Economic Survey to assist in establishing the attorneys’ respective hourly rates.

The court also addressed whether the fee is fixed or contingent factor under ORS 20.075(2)(h). The plaintiff’s lawyer initially worked under an hourly fee and then transferred to a contingency fee. The Beck case is similar to many consumer cases, because the defense used tactics which made it impossible for the plaintiff to pay the lawyer an hourly rate. However, the firm representing Ms. Beck continued to be able to do so under a contingency fee agreement. The court noted that the defense’s litigation strategy increased the risk to Beck’s attorneys that they might not be fully compensated for their time, and that factor weighed in favor of an attorney fee award.

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The court then addressed the attorney fee multiplier. The court noted, “Oregon law permits an enhancement of fees when it is supported by the facts and circumstances of the case. See Griffin v. TriMet, 112 Or. App. 575, 585 (1992) aff’d in part and rev’d in part, 318 Or. 500 (1994) (approving trial court award of 2.0 multiplier).” The court then spent significant time addressing the facts leading up to the litigation and the defense’s litigation tactics. The court noted that the defense’s efforts to attempt to obtain irrelevant evidence through the discovery process, using theories that lacked any relevance, and the defenses disorganized or deliberately untimely approach to raising various issues resulted in the plaintiff incurring fees for having to respond to both the substance of the issues and their “procedural infirmity.”

However, the court limited the 2.0 multiplier to the fees the plaintiff only incurred during the litigation. The court concluded that pre-litigation fees that were incurred were not subject to the multiplier because the defense’s litigation counsel played no role in the parties’ negotiations.

Judge Acosta did a magnificent job in providing a road map and guidance for future litigants facing a defendant who desires to engage in litigation shenanigans in a fee shifting case. Hopefully the opinion will have a deterrent effect and help litigants combat litigation shenanigans. The opinion is also a fantastic example of the various issues a fee petition should address and the arguments a fee seeking party may face. Lastly, the opinion is an excellent example of the facts and factors the court looks to when deciding if a fee multiplier is appropriate in a particular case.

If you are having an issue with an insurance company or have questions about attorney fees, call Jeremiah Ross at 503.224.1658. Ross Law PDX represents people in various claims against their insurance companies Ross LAW PDX is happy to represent Oregonians in Personal Injury Protection Insurance disputes, and claims for Uninsured Motorist Benefits and Under-insured Motorist benefits. Please remember the law is constantly changing and to not solely rely on this post.


Oregon Women Pay More For Car Insurance Than Oregon Men! Here is Why...

As an Oregon Personal Injury Lawyer and Consumer Lawyer, I am regularly asked by people if making a claim to their auto insurance will cause their insurance rates to go up. This is not an easy question to answer, because Insurance Companies are for profit businesses. As a result, Insurers are going to do what they feel is necessary in order to make a profit unless regulators or attorneys’ stop them. For example, GEICO was ordered to pay $23,000,000.00 to one of their insureds for GEICO failing to pay benefits, and denying payments on a whim. State Farm agreed to pay its customers $250,000,000 (That is not a typo) in order to avoid a racketeering trial in which customers claimed that State Farm was rigging an election for a Judge that had made favorable rulings for State Farm. USAA agreed to pay $39,000,000.00 to settle a lawsuit filed by its insureds (Veterans, Active Duty Military, and their families). These cases are evidence that some Insurance Companies are willing to skirt the law and disregard the moral high-ground in an effort to make a profit. Another example of insurers putting profit over people is how insurance companies are charging Oregon women more than Oregon men for auto insurance.

A recent study by an insurance search engine, The Zebra, found that Oregon women’ paid roughly $70.00 more for auto insurance last year than men did. A recent Pew Research study also came to the same conclusions on a national level. The studies found certain states prohibit gender based pricing, but Oregon is not one of them. What this means is that Insurers are at liberty to charge women more for insurance than men, and they do not have to have any justification for doing so.

The statistics support the fact that Oregon insurance companies are charging dramatically different rates for women than men. In 2016, insurers charged Oregon women $13.00 more for auto insurance than men. However, in 2018 that number inexplicably jumped to women paying $71.00 more for auto insurance than men. Does that mean that women are more dangerous on the road than men if insurers are charging them more? The answer is no.

The data does not support the Insurance Industry’s decisions to charge women more for car insurance in 25 States. The Zebra study affirmed that women and men equally engage in distracted driving, so that could not be a basis to charge women more. Additionally, fatality statistics do not support the insurance industry’s decision to overcharge Oregon women for car insurance. For example, men are the drivers in the vast majority of fatal Driving Under the Influence (DUII) crashes. Men also cause more speed related wrongful deaths on the road. The statistics show that men are riskier to insure than women.

Additionally, different companies charge different rates to similarly situated women throughout the country. For example, State Farm charged middle aged women the same as men. However, GEICO charged middle aged women 16% more than men. This is an important statistic. If insurance companies rates reflect the risk of a particular demographic of drivers then there would not be such a large disparity between the rates particular insurance companies are charging.

Then why are insurance companies charging women the so called “pink tax” to insure their vehicles? Why have the number of states where women pay more than men doubled in the past two years? The answer is simple, profits. The insurance industry is operating in a relaxed regulatory environment that permits them to take actions that will make their companies more profitable, even if that means imposing the “pink tax” on women.

For example, the insurance industry knows that Oregon does not have a bad faith claim, and Insurance Companies are specifically exempted from Oregon’s Unlawful Trade Practices Act (UTPA). The UTPA is a law that provides consumers a remedy if consumers are ripped off by a business. However, the insurance industry lobbied the legislature to be exempted from that law. As a result the insurance industry knows they are likely immune from any real consequences of arbitrarily charging women more for insurance than men.

Despite the insurance industry’s protections, here at Ross Law we will sue insurance companies if a person has been wronged by an insurer and there is a recognized legal remedy for that person. For example we regularly sue insurance companies on behalf of people whose automobile insurers deny paying personal injury protection benefits. We also sue insurance companies to collect uninsured and under-insured motorist benefits. Ross Law has also sued insurance companies for denying insurance coverage for a car crash.

If you or someone you know has an issue with an auto insurance company please call Jeremiah Ross at 503.224.1658 for your free case evaluation. Ross Law PDX is happy to represent Oregonians in many types insurance disputes.

Please note that Ross Law PDX is not affiliated with The Zebra or the Pew Research Center. Please refer to the links in the article for the most accurate information. Please note that this blog may be considered attorney advertising and expresses the opinions of this law office. Please remember that the law is constantly changing and insurance issues are usually very complicated. Please consult with an Oregon attorney if you have a dispute with an Oregon insurer. Do not simply rely on this blog post.




Ross Law files Suit against USAA Casualty Insurance for Wrongfully Denying PIP Benefits

USAA has been my insurance company my entire adult life. They market themselves as supporters of the military and veterans. That may be the case, but as a personal injury lawyer, I often witness USAA doing anything they can to deny veterans and their families personal injury protection benefits. As a result USAA is often the target of PIP lawsuits in which the insured is forced to sue USAA for wrongfully denying benefits in an effort to obtain their insurance benefits. Recently Ross Law PDX filed a lawsuit against USAA Casualty Insurance Company in an effort to obtain our client PIP benefits.

In our case USAA through Auto Injury Solutions sent our client’s medical record out to a hired gun doctor to give an opinion that my client was not hurt as bad as she claims to have been. This is often referred to as a “record review” or “file review.” USAA then failed to provide any notice that it was denying our client’s bills or explain why. We have alleged this is in violation of Oregon Law and its contract. USAA appears to have taken a position of vigorously defending the action.

If you or someone you know have been wrongfully been denied PIP benefits, please call Oregon Personal Injury Lawyer Jeremiah Ross at 503.224.1658. Ross Law PDX is happy to fight insurance companies that have wrongfully denied insurance claims. Please note that the litigation noted above is pending, and the opinions espoused by me on this blog are my opinions and based on my personal experiences.

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Where Does Oregon Rank on "The States with the Worst Drivers"

As a personal injury lawyer, I often hear about Oregon's worst drivers.  Oregon's drivers can do some incredibly dumb things that often result in injuring others.  A recent survey from SmartAsset (a tech/finance company) has ranked the States' drivers from best to worst.  Oregon ranks number 26 on the list. The optimist in me says that we are lucky to live in Oregon, because there are 24 States that have more terrible driving habits than Oregonians. However, the reality isn't so rosy.  Oregonians have serious room for improvement, to drive safer and reduce traffic caused fatalities and injuries.  The survey also noted some interesting facts about Oregon Drivers: 

1) Only 83.3% of Oregon drivers have insurance.  All vehicles are required by law to be covered by insurance, so this is a troubling statistic.   This is why it is imperative to have sufficient uninsured ("UM") motorist coverage on your auto insurance policy. The State minimum $25,000.00 is likely not enough to cover you if you are in a crash.  Click here to learn three things you should know about Oregon's Auto insurance. 

2) For every 1,000 drivers in Oregon 3.16 of them will be arrested for DUII (Driving While Under the Influence of Intoxicants).  This is also a troubling statistic because this is for DUI arrest, not the actual number of DUII drivers.  This statistic is not surprising to me because I regularly represent people that were injured by DUII Drivers.  In case you were curious, North and South Dakota both top the charts for DUII arrest with over 11 DUII arrests for every 1,000 drivers.  

CAUTION THE LANGUAGE IN THE VIDEO MAY BE OFFENSIVE and IS NOT ENDORSED BY ROSS LAW

3) 1.3 people will die in Oregon Roads for every million vehicle miles traveled.  To put it another way, 2 people will die on Oregon Roads after all of the vehicles in Oregon travel a combined 3 million miles.  These wrongful deaths become more frequent as more people move to Oregon and more people drive in Oregon.  As of May 2018, 17 people had died in traffic crashes.  Things are not looking better for the remainder of the year. For example, last week a motorcyclist was killed near the St. Johns Bridge. Almost all of these wrongful deaths are completely preventable if drivers simply obey the rules of the road.  or the 

If you were wondering where the worst drivers are, well here it is.  According to Smartasset the states with the worst drivers are:

1) Mississippi

2) Tennessee

3) California

3) Missouri (Tied with California)

5) New Mexico

5) Texas (Tied with New Mexico)

7) Alabama

8) Florida

9) Alaska

10) Arizona (Tied with Alaska)

Click here to read more about the survey and the methodology they used. Remember if you or someone you know where in an Oregon car crash call Portland Personal Injury Attorney Jeremiah Ross at 503.224.1658.  Ross Law PDX provides free case evaluations for wrongful death and personal injury matters.   Jeremiah Ross also represents people in disputes with their insurance company in uninsured motorist claims, underinsured motorist claims, and personal injury protection benefits claims.  Please note that Jeremiah Ross, and Ross Law PDX, do not have any affiliation with Smartasset, nor have they confirmed any of the statements or statistics are accurate. 

 

 

Man Injured on E-Scooter in PDX-A Predictable Crash That Shouldn't Have Happened

On July 27, 2018 I wrote about Portland's Electric Scooters and the dangers they pose.  I wrote "I have no doubt that someone in Portland, Oregon will eventually suffer a serious injury due to an electric scooter incident." As predicted, it happened.  On Friday night, an E-scooter was hit by a car in NE Portland.   This tragic incident did not have to occur, and I am sure litigation will ensue as a result due to the e-scooter companies are enablers of negligent conduct.

Oregonlive reports that the male rider was hit by a car that was turning right.  I have previously written about the dangers of the "right hook" with cyclists, but this appears to be the first publicized incident in Portland with an electric scooter.  As predicted, the rider was also not wearing a helmet.  The e-scooter companies are accomplices to the rider's negligent behavior by providing a vehicle that can travel up to 15 MPH, is hard to see, and is required to ride on the street.  The e-scooter companies do not require any formal training, but instead are most likely relying on their "disclaimers" and "waivers" on their app when riders sign up.   To compound the issue helmets are legally required, but there is not easy access to helmets. (Bird does say they have a free helmet program that will ship a helmet to a rider)  The Companies know this and make them available without helmets.  I fear that this unfortunate incident is just the beginning. Hopefully regulators, policy makers, and industry will be able to collaborate to make a safer riding experience.  Until them it will be left to the lawyers and courts to sort out the liability issues.   

If you or someone you know has been injured on an e-scooter read my blog what to do if injured in a crash with a shared scooter.  Then call Ross Law PDX at 503.224.1658 for your free case evaluation.  Jeremiah Ross is a Portland Personal Injury attorney with experience litigating motor vehicle cases, bicycle cases, and other vulnerable road use cases.  Please note that this blog can be considered Attorney Advertising.     

3 Things Auto Insurers Don't Want You to Know About Your Whiplash Injury!

Most people in car crashes suffer some type of soft tissue injury.  Soft tissue injuries are injuries to the muscles, ligaments, and tendons in the body.  Whiplash is a type of soft tissue or bony injury to the neck or brainstem caused by the sudden back and forth movement of the neck. These injure typically occur in rear end or side impact car crashes.  That movement rips, tears, and stretches the soft tissue in the neck, and can cause more severe injuries.  Some soft tissue injuries are minor and don't warrant medical treatment, while others can take months or years to heal.  Some soft tissue and whiplash injuries are permanent and may require surgical interventions.  Although these injuries are serious injuries, insurers regularly discount them.   Here are some things you should know about whiplash injuries that insurance companies don't want you to know:

1) Whiplash Injuries Are The Most Common Injury Associated with Motor Vehicle Crashes:  Insurers often discount claims of whiplash as malingering (making an injury up with the purpose of obtaining an award) or somatoform disorder (psychological issues causing physical symptoms).  They attempt to convince the injured person that they couldn't have suffered an injury that lasted for as long as it did.  Insurers for the bad driver often make the injured person feel as if they are the only person to have whiplash symptoms last as long as they did or were as severe as they were.  This is an effort to attempt to convince the injured person that the crash could not have injured them. However, the insurer is wrong.  Whiplash injuries are not unique.  In fact, up to 83% of people involved in a car crash suffer from whiplash injuries.   Medical studies have shown these are real injuries that can dramatically impact a person's life and health.

MRI and Whiplash Injury

2) Whiplash Injuries Do Not Typically Show Up on an X-Ray:  Insurance adjusters will often note that the Emergency Room X-Rays of the neck are unremarkable and do not show any evidence of injury.  Adjusters may attempt to convince the injured person that the crash didn't cause a whiplash injury because there is not any "objective" evidence of it (think X-Ray, or broken bone, misalignment of bones, etc.).  However, studies show  X-Rays do not typically show soft tissue injuries to the neck and whiplash type injuries.  However, MRI studies may show the soft tissue and whiplash type injuries.  However, MRI's may come with their own problems of high false positive results, and cannot see all pain associated lesions.  CT scans may be able to show some, but not all whiplash injuries.  However, they are costly and are not always readily available.  Other tests may not show injury.  This information is important because adjusters know that the injuries are real, but technology may not show these injuries.   A medical provider (Doctor, Osteopath, or Chiropractor) can diagnose whiplash injuries based on other objective findings without the need for imaging.   Insurers know this, but may try and convince you otherwise. 

3) Whiplash Injuries Can Be Permanent:  Insurance adjusters commonly say that the crash caused whiplash injury should have healed within 12 to 16 weeks.  They explain the lingering pain on "pre-existing" or age-related conditions. However, this ignores the science and studies that have shown that there is no scientific basis to assert whiplash injuries do not lead to chronic pain or permanent injuries.  These are real injuries that can be permanent

Hopefully, this information will assist you in combating an insurance agent to assist you in obtaining maximum compensation for your injuries.  However, if you are unsuccessful efforts or have questions for a personal injury lawyer, call Jeremiah Ross at 503.224.1658 for your free personal injury consultations. Ross Law PDX represents personal injury clients throughout Portland and Oregon.  PLEASE ASK A DOCTOR ABOUT YOUR WHIPLASH INJURY.  This post is meant for information purposes only and SHOULD NOT be RELIED UPON as or construed as medical advice, or legal advice.   Please remember that every injury is different and all legal cases are different.   

The "Wave Through" That Causes a Crash

When I drive to work I often find myself making a left across Eastbound Powell near the Ross Island Bridge.  Eastbound traffic is pretty heavy and is usually stopped or crawling.  However, traffic is clear in the far right lane.  Cars regularly speed through in the far right lane as the two other lanes are stopped.  In classic PNW style, the good citizens of Portland will stop on Powell with enough room to allow me to make a left turn across Powell.   

The stopped drivers will often use their hands to wave me across in front of them.  This welcome signal is greatly appreciated.  However, it can also be disastrous if the Eastbound driver waves a person through and a car traveling Eastbound in another lane fails to stop.  A serious collision will result if that is the case.    

I have represented people in "wave through' crashes that have sustained serious injuries.   These crashes are heartbreaking because the person waving the vehicle across was simply trying to help. However, their actions caused someone to be injured.   As a result, they may be responsible for causing the crash.  

The bottom line is, do not wave a vehicle across in front of you until you confirm that it is safe for the crossing vehicle to actually cross.  If you do direct a vehicle to come across and a crash is caused as a result, you may end up being responsible for the crash.   

If you or someone you know has been involved in a crash where a driver or pedestrian waved you across the street then call Oregon Personal Injury Lawyer Jeremiah Ross. Ross Law will give you a free case evaluation if you call 503.224.1658.   Please remember everyone's situation is unique and that results may vary.  Please do not solely rely on this post for information and contact an Oregon Personal Injury Lawyer if you have questions.     

Jeremiah Ross Selected As Super Lawyer, Again....

Jeremiah Ross has been named as a Super lawyer for the third year in a row.  Super Lawyers is a peer-rated group that has recognized Jeremiah Ross for the work he has done for his Personal Injury Clients throughout Oregon.  Only 5% of attorneys in Oregon receive this distinction.