Oregon Bicycle and Pedestrian Lawyers
As lawyers representing injured bicyclists, we see one set of facts all too often. A bicyclist is hit by an automobile. The automobile driver is clearly at fault. Everyone stops, the bike is damaged and the bicyclist sometimes has minor injuries, like road rash or bruises. Information is exchanged and no ambulance is called. After the motorist apologizes for and takes responsibility for the collision, everyone departs.
One or two days later the bicyclist files a claim with the driver’s insurance company, provides the claims adjuster with a statement about what happened and fills out paperwork, all the while thinking that this will be a straightforward insurance claim for property damage and physical injury. Then, about a week later the bicyclist receives a letter in the mail from the insurance adjuster saying that after an investigation, the claim is being denied because the bicyclist was mostly at fault in causing the collision. Or another equally frustrating variant occurs when the adjuster merely stops returning the injured person’s phone calls.
At this point, the frustrated bicyclist sometimes gives up (rewarding the adjuster’s bad behavior). If the insurance adjuster was trying to make the claim “go away” by making it difficult for the claimant, by unreasonably denying liability, failing to return phone calls or making a “lowball” offer; if the adjuster was counting on the claim being too small to attract an attorney to work on it, it is a perversion of the rules of fairness, especially if it works and the bicyclist abandons the claim.
However, frustrated bicyclists can increase their odds of having the insurance company follow the rules of fair play by using several little-known Oregon laws to even the playing field.
Citizen Prosecution of Dangerous Drivers
Oregon provides a powerful legal tool for citizens to take control of the legal process and issue a traffic ticket to a bad driver. ORS 153.058 empowers a citizen to file a violation proceeding against drivers who break traffic laws. If successfully pursued to a conviction in court, a citizens citation can give you leverage to convince the insurance adjuster of the driver’s liability. See “Citizen Prosecution of Dangerous Drivers: A User’s Guide On How Others Have Done It and How You Can Do If for Yourself” for a how-to guide to ensure bad drivers are held accountable for their violations.
Citizen prosecution of a dangerous driver makes it possible to create real consequences for a driver who commits violations of the traffic law in causing damage to a cyclist, even if law enforcement can’t or won’t give the driver a ticket.
Unfair Claims Settlement Practices Law
Another little-known but important Oregon law makes it illegal for insurance companies to mistreat claimants. Knowledge and use of this law should change the behavior of most bad actors in the claims process because they don’t want to get caught.
ORS 764.230 is Oregon’s unfair claims settlement practices law. It sets rules of conduct for insurance companies dealing with claimants. The requirements include:
ORS 746.230 Unfair Claims Settlement Practices.
(1) No insurer or other person shall commit or perform any of the following unfair claim settlement practices:
(a) Misrepresenting facts or policy provisions in settling claims;
(b) Failing to acknowledge and act promptly upon communications relating to claims; *****
(d) Refusing to pay claims without conducting a reasonable investigation based on all available information; *****
(f) Not attempting, in good faith, to promptly and equitably settle claims in which liability has become reasonably clear;
(g) Compelling claimants to initiate litigation to recover amounts due by offering substantially less than amounts ultimately recovered in actions brought by such claimants;
Additional requirements include rules set forth in the Oregon Administrative Rules, known as OARs, as follows:
OAR 836-080-0225 Required Claim Communication Practices
An insurer shall:
(1) Not later than the 30th day after receipt of notification of claim, acknowledge the notification or pay the claim. *****
(3) Make an appropriate reply, not later than the 30th day after receipt, to all other pertinent communications about a claim from a claimant that reasonably indicate a response is expected.
OAR 836-080-0230 Standard for Prompt Claim Investigation.
An insurer shall complete its claims investigation not later than the 45th day after its receipt of notification of claim, unless the investigation cannot reasonably be completed within that time.
These specific requirements provide basic legal ground rules for citizens involved in the claims process. Unfortunately, Oregon law does not provide meaningful financial penalties for violators. Some states, such as Connecticut, Texas and Washington, do provide financial consequences for unfair claims settlement practices. The Oregon Legislature could significantly improve Oregon law by following the example of these other states and reforming the Unfair Claim Practices Act to include administrative penalties and private rights of action in court against insurance companies who violate the law.
Oregon does have an insurance division that collects complaints about insurance companies and provides at least some oversight. The Oregon Unfair Claims Settlement Practices law provides for a finding against bad insurance companies of “bad general business practice”. The insurance division collects and tabulates the number of consumer complaints on a yearly basis. Complaints can be filed on line at www.cbs.state.or.us/ins/consumer/tomake.html or by phone at (888) 877-4894. These complaints are compiled into a published yearly report on insurance companies operating in Oregon.
If an insurance company you are dealing with does not follow the rules, file a complaint with the State to help create a record of that company’s behavior. The current report for last year can be found at www.cbs.state.or.us/ins/consumer/consumer.html.
If you are a bicyclist who has fallen into the bad insurance practices trap, you should first call the adjuster (or the adjuster’s supervisor) and say that you want them to follow the Oregon Unfair Claim Settlement Practices law. Then, send a copy of the law by email (scanned), facsimile or mail, and tell them you will file a complaint if they do not call you back within 24 hours. This should prompt quick action, an improved attitude and a fair resolution of the claim for damages.
ORS 20.080, Small Tort Actions: Moving Forward If The Claim Does Not Settle
If satisfactory settlement of a claim cannot be worked out over the phone, the next option may be to send a demand letter to the adjuster. This letter sets out the facts of a collision, the injuries and property damage suffered, the medical treatment undertaken, any lost wages or income and the impact of pain, suffering, and inconvenience on the injured person.
Oregon law creates a financial incentive for insurers to settle small tort claims fairly. Under ORS 20.080 if an insurance company refuses to pay a written claim for damages of $10,000 or less and the injured person later recovers in court, the insurance company must also pay the injured person’s court costs and attorneys fees. However, if the insurance company makes a settlement offer, the claimant must recover more than the offer to recover costs and attorneys fees.
When sending a written demand be sure to include language that will trigger application of the statute:
This letter is being sent pursuant to the provisions of ORS 20.080 to recover for [description of loss].
Demand is hereby made for payment of [$loss] within 30 days. I have enclosed supporting documents for this claim.
Unless a satisfactory agreement to pay the above amount is reached within the time allowed, I will proceed with court action. If I recover damages in court, I will seek attorneys’ fees and court costs in addition to the amount of the claim under ORS 20.080.
These documents are being sent to you and not your insured because you are acting as the sole and exclusive disclosed agent for your insured. If that is not correct, notify me in writing within 10 days so that I may take appropriate steps to contact your insured directly to resolve the matter in order to perfect this claim under ORS 20.080.
This language puts the insurer on notice (1) that you will seek attorney fees if you are forced to hire an attorney to litigate the case; and (2) that you are a well-informed claimant. Insurance adjusters who routinely “low ball” injured people risk having a successful claim made against their company, which, with the addition of attorney fees under ORS 20.080, may more than double the insurance company’s costs. The purpose of the law is to provide a financial inducement to the insurance companies to reasonably settle claims without claimants having to take small claims to court.
ORS 20.080 helps solve the problem of unfair settlement practices for small claims, but only if you know about it and use it.
Hopefully, in your case the adjuster will make a fair offer. It may not be as much as the amount you sought, but is still reasonable because it includes factors from the insurance company’s perspective that you had not considered as well as some “compromise discount”.
Sometimes, even the suggestions listed above will not generate a fair offer in your case. If so, it may be time to talk to an attorney about your options. At least by following these steps you have placed yourself in a better position because you included the ORS 20.080 language in your demand, making an attorney more willing to take you case because their fees will be paid by the insurance company if you win.