INJURED BY A DRUNK PERSON COMING FROM A SUPERBOWL PARTY? THE LAW CAN HELP….

The Superbowl is here again.  People are stocking up on junk food, beer, and liquor.  This festive time of year can become disastrous if a person gets struck by a DUII driver.   This is why people hosting Superbowl Parties must be careful to not over-serve a person alcohol and allow them to drive home.  In Oregon, homeowner’s can be held responsible for injuries suffered by a person that were caused by a visitor to the homeowner’s party.  This is important in serious injury cases when the bad driver’s insurance policy may only be $25,000.00.  The $25,000.00 can be evaporated by an ER visit, surgery, and a short hospital stay.  The injured person may be stuck with tens of thousands of dollars in unpaid medical expenses that can drive them into bankruptcy.

Oregon has a way to obtain compensation from additional insurance policies. Homeowner’s can be held responsible for serving alcohol to a person that is visibly intoxicated and later injures another in a DUII crash. (ORS 471.565). Oregon courts have determined a person who receives guests in a social l setting, in which the host serves or directs the serving of booze or beer to guests can be held accountable if the overly intoxicated person later injures another in a DUII crash. See Solberg v. Johnson, 306 Or 484, 490 (1988). This type of liability is referred to as “Dram Shop” liability. Dram Shop liability is important because home owner’s and renter’s insurance policies may cover DUII crash injuries and provide tens of thousands, or hundreds of thousands of dollars, in additional insurance coverage. This money can be used to pay medical bills, physical therapy, vocational rehabilitation, and to compensate the injured person or their family for their harms and losses.

It is important to keep in mind if you intend on making a dram shop claim there are time limitations that notice must be given in. Specifically, if it is a wrongful death claim then notice must be given within one year of the date of death, or within a year after the date plaintiff discovered, or should have discovered, the claim, whichever is later. (ORS 471.565) In a personal injury matter, notice must be given within 180 days of the injury, or 180 days after the injured person discovered or reasonably should have discovered, the existence of a dram shop claim which ever is later. (ORS 471.565) However, these notice requirements may not always apply and there are exceptions. Please refer to a current version of ORS 471.565 for notice requirements and time limitations.

Dram shop cases can be complicated and there are other theories an attorney can use to attempt to obtain maximum recovery for a person’s injury or loss. Please contact Portland Personal Injury Attorney, Jeremiah Ross, at 503.224.1658. for a free personal injury consultation. Please remember this post is for informational purposes only and you should rely on the current statute and case law when considering a dram shop claim. Please consult with an attorney if you believe you have a dram shop claim or have been injured by a DUII Driver.

ROSS LAW PUBLISHED IN STATE BAR PUBLICATION RELATED TO DEALER FRAUD

Ross Law LLC Elder Law Feature for OSB

Article by Portland Consumer Attorney Jeremiah Ross

BUSHING SCAMS, YO-YO SALES, AND SPOT DELIVERY OF VEHICLES

I often get frantic calls from people that recently purchased and financed a vehicle.  These people are asking for help because the dealer is claiming the consumer must return to the dealership and sign additional financing documents with terms less favorable to the consumer.   Consumers are confused and angry when they learn the financing fell through and the dealer no longer has their trade-in to return to them.   Most of the time these consumers are victims of a bushing scam.  These bushing scams are also known as “spot delivery” or yo-yo sales.

Here is the way bushing scams typically work.  The dealer will sell a person a car and offer to finance the vehicle.  The consumer signs financing paperwork and takes the vehicle home.  Usually the consumer is under the impression the financing is complete and the vehicle is theirs.   Unbeknownst to the consumer, after the consumer leaves the lot the dealer is still attempting to find a finance company to finance the vehicle.  Consumers may receive credit denial letters in the mail, but think it is in error because the dealer told them the vehicle was financed.  Eventually, the dealer contacts the consumer and informs them financing could not be obtained.  The scam is complete when the dealer has the consumer agree to new less favorable financing terms for the vehicle.  This often results in the consumer paying a higher interest rate and putting an additional down-payment down on the vehicle.

The dealer benefits from this transaction because the consumer is usually under the impression the vehicle was theirs the day they drove it off the lot.  Consumers have often put money into the vehicle to buy things like floor mats, a stereo, or other items.  As a result, they feel trapped and will sign new less favorable financing terms.  Additionally, dealers may inform the consumer that their trade-in has been sold and the dealer does not have “authority” to refund their down-payment.  These are frustrating issues for consumers and practitioners alike.  However, in Oregon there are laws to protect consumers in these situations.

Below is a list of questions and answers to assist practitioners and consumers that are facing a spot delivery issue:

Is Spot Delivery Legal In Oregon? Yes, but dealers must comply with ORS 646A.90 and 137-020-0020 (3).  These requirements allow dealers to make an offer to sell or lease a vehicle to a consumer that is subject to future acceptance by a lender.  ORS 646A.90 (2)

How long does a dealer who spot delivers a vehicle have to obtain financing for the vehicle? A dealer must find financing for the vehicle under the exact terms negotiated between the dealer and consumer within 14 days after the date on which the buyer takes possession of the vehicle. ORS 646A.90 (3) (a)

What happens to a Consumer’s trade-in in a spot delivery deal?  In a spot delivery deal, the dealer cannot sell or lease the consumer’s trade-in before the dealer has received final approval of funding from the lender. ORS 646A.90 (3) (b) 

Can a dealer offer to obtain financing for a vehicle knowing that the financing will not be approved?  No, a dealer cannot spot deliver a vehicle to a consumer unless the dealer has a “reasonable basis to believe the consumer could qualify for the terms of financing quotedat the time of delivery.” 137-020-0020 (3) (x)  This is a powerful rule that consumers with horrible credit can use when the dealer initially has them sign a retail installment contract or lease with a low interest rate and little money down.

Does a dealer that fails to finance a spot delivered vehicle have to tell a person why the financing fell through?  Yes, If a dealer spot delivers a vehicle and fails to obtain financing under the original terms, the dealer cannot make a misrepresentation regarding why the consumer does not qualify for the original financing terms or misrepresent why the transaction cannot be completed under the original terms. 137-020-0020 (3) (y)  This rule prohibits dealers from calling the consumer back to the lot to sign new less favorable financing terms, even after the consumers original terms were approved by the lender.

What does the dealer have to do if they cannot obtain financing for the vehicle under the original terms?  A dealer that spot delivered a vehicle to a consumer and later learns the consumer does not qualify for the original terms must do the following prior to offering, negotiating, or entering into new terms for the purchase or lease of the vehicle:

1. Inform the consumer the consumer is entitled to have all items of value received from the consumer as part of the transaction, including any trade-in and down payment, returned to the consumer.

1. If the consumer is physically present when the dealer informs the consumer that the consumer does not qualify for the terms offered, the dealer must return all items received from the consumer as part of the transaction. The dealer must have a refund check and the Trade-In keys immediately available.

1. If the dealer informs the consumer by telephone, text, e-mail, letter, or other means without the consumer present, that the consumer did not qualify for the terms offered. The dealer must clearly disclose the consumer’s right to receive the immediate return of all items of value, i.e. trade in and down payment, when the consumer returns the vehicle.  The consumer must have the actual ability to obtain these items of value and the dealer cannot simply inform them of their right to receive these items back. The dealer must have a refund check and the Trade-In keys immediately available.  Dealers usually have a difficult time complying with this law as they usually sell the consumers trade-in prior to obtaining the financing.

Dealers shall inform consumers of these options and cannot hold the trade-in and down payment for ransom to have the consumer enter into a less favorable financing agreement.  The Commentary 137-020-0020 (3) (z)  makes it clear, “The consumer has an absolute right to walk away from the deal if the original offer is not going to be honored.”  137-020-0020 (3) (x); See Also, ORS 646A.90 (4)

In a failed Spot Delivery, can the dealer charge the consumer for vehicle damage and the mileage the consumer put on the vehicle?Yes, but only if the offer or contract to sell the vehicle provided in writing that the buyer is liable for: the fair market value of damage, excessive wear and tear, or loss of the motor vehicle while the vehicle is in the consumer’s possession.  Additionally, if, within 14 days of that date the buyer takes possession of the vehicle the seller sends notice to the buyer by first class mail that financing is unavailable, the dealer may charge for mileage the buyer put on the vehicle.  ORS 646A.90 (4) (b) explains how the mileage is computed and notes, “The [mileage] charge may not exceed the rate per mile allowed under federal law as a deduction for federal income tax purposes for an ordinary and necessary business expense.” ORS 646A.90 (4) (b).

The above list is not exhaustive as many other statutory violations often occur during bushing scams.  However, each situation is unique and these statues and rules are helpful in guiding the practitioner and consumer who is facing a spot delivery issue.  ORS 646A.90  and 137-020-0020 (3) do not explicitly state a consumer has a right of action to sue under these statutes and rules.  However, a creative practitioner can use these laws as a basis for a claim for relief.  If you have any questions feel free to contact Portland Oregon Attorney Jeremiah Ross at 503.224.1658.

Please remember the law is constantly changing and you should refer to the statute and applicable case law before relying on any of the information in this post.

TEENS, TEXTING & DRIVING, A DEADLY COMBINATION

Imagine having  your hopes and dreams shattered by a decision to take your eyes off of the road for a few seconds to text on your cell phone.  Many young drivers are being forced to face the consequences of their actions.  A new video released notes that many state prosecutors are charging teens that cause a crash while they are texting with serious crimes.  Instead of spending their summer on vacation these teens will be spending their summer in Jail or prison.

Great Video Regarding Texting and Driving

According to the video, texting and driving has become the leading killer of American drivers.  This is a serious issue and most states have laws preventing texting while driving. In Oregon ORS 811.507prohibits drivers from using a mobile communication device while driving.  There are exceptions to  ORS 811.507, but even a person using a hands free device must be over the age of 18.

Despite these laws, the vast majority of young drivers believe they are good drivers while texting.  This false confidence results in these inexperienced drivers taking their eyes off of the road for an average of five seconds for each text message sent or received.  Five seconds is a very long time to take  your eyes off of the road.

In Oregon, a texting driver that injures another in a crash may be charged with the crimes of  assault, reckless driving, reckless endangerment and more serious crimes relating to manslaughter if the texting and driving kills someone.  Furthermore, most likely the injured person will be forced to file a lawsuit against the at fault driver if the at fault driver’s insurance company refuses to reasonably compensate the injured individual.  Many teens find themselves being the defendant in a lawsuit because their insurance won’t agree to pay a reasonable settlement. This is a difficult position for the injured person and the teen that caused the crash, but the teen must be held responsible for texting and driving and the civil process is a way to do so.

If you or someone you know were injured by a driver that was texting and driving call Portland personal injury lawyer Ross Law LLC at 503.224.1658 for your free personal injury consultation. Jeremiah Ross is happy to discuss your case with you at no cost and no obligation to you.  Please remember this post is for informational purposes only and is not to be considered legal advice. Please remember to consult with an Oregon attorney about your case.

ROSS LAW PREVAILS IN PUBLISHED LEGAL OPINION

Jeremiah Ross and Ross Law LLC recently won a judicial battle relating to an insurance company's legal right to take money from Ross’ client’s settlement.  The issue involved a Worker’s compensation case that was resolved by a Disputed Claims Settlement (DCS).  Jeremiah Ross’ client then sued the injured worker’s non-complying employer and settled that case.

The Worker’s Compensation Insurance company claimed they were entitled to a portion of the settlement proceeds.  The insurance company relied on Oregon Statutes ORS 656.587 and ORS 656.593 and the language of the signed DCS.  The statutes that the insurer relied on allow for the insurance company to receive a portion of a personal injury settlement if the insurance company is deemed a paying agency that paid benefits on a compensable claim.

Jeremiah Ross argued that the insurance company was not a paying agency because there was not a compensable claim and  the insurer never provided benefits.  The Worker’s Compensation board agreed with Ross and determined the insurance company was not entitled to a portion of the settlement proceeds and ORS 656.587 did not apply. For the full opinion Click here.Worker’s Compensation Board Opinion Regarding DCS Extinguishing Lien

If you have been injured or have questions about a worker’s compensation lien on your personal injury settlement, please call Jeremiah Ross at 503.224.1658.  Please remember the law is constantly changing and this post may not be accurate if the Decision is overturned on appeal.

CYCLIST BEWARE OF THE RIGHT HOOK..(CARS TURNING IN FRONT OF YOU)

As an avid bike commuter and cyclist, I encounter or often see dangerous situations involving vehicles and cyclists.  A particular intersection at 2nd Ave and Main St. in Portland, Oregon is a magnet for dangerous incidents. At that intersection, I routinely see cars make a right turn immediately in front of a cyclist who is riding straight in the bike lane. Vehicles often don’t account for cyclist in the bike lane when they are turning right. In downtown Portland, the problem is compounded by the various other distractions and dangers the driver is facing.  Pedestrians crossing the street, cars pulling out of parking spots and garages, buses, Max, and Street Cars all pose an added distraction for a driver.  The cyclist who is lawfully riding in the bike lane is often overlooked when the driver makes the right turn.  See The YOUTUBE video below for an example of the right hook. 

This causes the front of the cyclist bike to usually impact the side of the car.  These crashes are serious and often result in significant injuries to the cyclist and minimal damage to the vehicle.  The cyclist will likely suffer broken bones,  a head injury, soft tissue injuries (strains, sprains, etc.), bruises and swelling (edema), significant road rash.  Shoulder injuries and upper extremity injuries are common as many time the shoulder is the first thing to hit the car or pavement.  Some injuries are fatal because the driver ends up running over the cyclist wit the driver’s rear tire.  These unthinkable tragedies can be avoided if driver’s obey Oregon’s Laws. ORS 811.050  states: A person commits the offense of failure of a motor vehicle operator to yield to a rider on a bicycle lane if the person is operating a motor vehicle and the person does not yield the right of way to a person operating a bicycle, electric assisted bicycle, electric personal assistive mobility device, moped, motor assisted scooter or motorized wheelchair upon a bicycle lane.  This requires the vehicle to yield to the cyclist before initiating the right turn across the bike lane. Many drivers insurance companies will deny fault and claim the cyclist was traveling too fast, or not paying attention, or that the law requires the car to make the right turn as close as practicable to the curb. Some insurance companies will seek payment  from the cyclist for the damage to the vehicle. If you were injured or know someone that was hurt in a right hook crash, call Portland Personal Injury Attorney Jeremiah Ross at 503.224.1658 for a free personal injury consultation.  Please note this post is for informational purposes only and you should contact an attorney about your case immediately.

CONSUMERS SHOULD USE THE OREGON ATTORNEY GENERAL’S RESOURCES TO PROTECT THEMSELVES

Many people contact me who have  been ripped off by a business.  Unfortunately  I am unable to take every case that comes through the door.  Sometimes it does not make economic sense for the consumer to pursue the case, or the facts make the case difficult to prove.  These issues can often cause the consumer a great deal of grief and feeling of hopelessness.  However, the consumer should contact the Oregon Department of Justice for help.

The Oregon Attorney General has a wealth of information and resources to protect consumers.  Here are just a few resources:

1: Before making  a purchase you can check out the business before  you buy.  You can call the Oregon Department of Justice at 1-877-877-9392 or you can click on the link: https://justice.oregon.gov/complaints/

2: Report Fraud:  If you think  you have been ripped off you can call the Oregon Department of Justice at 1-877-877-9392 to request a complaint form, or you can click here for more information:  https://justice.oregon.gov/forms/consumer_complaint.asp

The Department of Justice can assist many people by conducting an investigation and contacting the business on your behalf in an effort to resolve the dispute. The Department also has the ability to fine and seek civil penalties and other remedies on behalf of all Oregonians.

The Department of Justice can assist consumers with concerns about: Automobile Sales, Credit or Debit transactions, Home Repair issues, Retail Sales, Fraud, Real Estate Transactions, telemarketing and Home solicitations.

If the Attorney General cannot assist you then feel free to Contact Ross Law LLC at 503.224.1658.  It is important to note Jeremiah Ross and Ross Law LLC are not affiliated in any way with the Oregon Attorney General or Department of Justice. Also, the information above may change and you should contact the Attorney General or Department of Justice Directly to assist you with your matter.  The above post should not be considered legal advice and is for information only.

GRADUATION IS HERE…HOMEOWNER’S RESPONSIBILITY FOR SERVING ALCOHOL TO A DUII DRIVER

I graduated high school in a rural coastal community.  Every few years a dark cloud would hang over the high school graduation as the names of students that were recently killed in a car crash would be read to the audience.  In my experience ,the loss of a loved one is incomprehensible and the void it leaves in your heart is everlasting.  The stresses of losing a loved one to a DUII driver are often compounded when a DUII driver kills or seriously injures a person and and only has minimal insurance coverage.  Medical bills will quickly chew through a policy and parents may be left with mountains of debt related to medical costs.

However, in Oregon there may be a way to obtain compensation from additional insurance policies.   Homeowner’s can be held responsible for serving alcohol to a person that is visibly intoxicated and later injures another in a DUII crash. (ORS 471.565). Oregon courts have determined that a person who receives guests in a social or commercial setting, in which the host serves or directs the serving of alcohol to guests can be held accountable if the overly intoxicated person later injures another in a  DUII crash.  See Solberg v. Johnson,306 Or 484, 490 (1988).  This type of liability is referred to as “Dram Shop” liability.  Dram Shop liability is important to remember because home owner’s and renter’s insurance policies may cover DUII crash injuries and provide tens of thousands, or hundreds of thousands of dollars, in additional insurance coverage. This money can be used to pay medical bills, physical therapy, vocational rehabilitation, and to compensate the injured person or their family for their harms and losses.

It is important to keep in mind if you intend on making a dram shop claim there are time limitations that notice must be given in.  Specifically, if it is a wrongful death claim then notice must be given within one year of the date of death, or within a year after the date plaintiff discovered, or should have discovered, the claim, whichever is later. (ORS 471.565)  In a personal injury matter, notice must be given within 180 days of the injury, or 180 days after the injured person discovered or reasonably should have discovered, the existence of a dram shop claim which ever is later. (ORS 471.565)  However, these notice requirements may not always apply and there are exceptions.  Please refer to a current version of ORS 471.565 for notice requirements and time limitations.

Dram shop cases can be complicated and there are other theories an attorney can use to attempt to obtain maximum recovery for a person’s injury or loss.  Please contact Portland Personal Injury Attorney, Jeremiah Ross, at 503.224.1658. for a free personal injury consultation.  Please remember this post is for informational purposes only and you should rely on the current statute and case law when considering a dram shop claim.  Please consult with an attorney if you believe you have a dram shop claim or have been injured by a DUII Driver