28 Trial Lawyer • Fall 2022 Devin Robinson By Devin Robinson OTLA Guardian My co-counsel and I had just settled a case. Our client, a pedestrian, walked around a series of jersey barriers and bollards blocking the crosswalk and back to the crosswalk. She then started to walk across the street in a closed crosswalk. She veered several feet out of the crosswalk toward her car rather than getting to it from the sidewalk on the other end. She was struck by a car turning left. We took the case because we liked her and wanted to help despite her being turned down by several other excellent attorneys. Through the help of a mediator, we were able to get our client a good settlement that was well below the defendant driver’s large policy. Our settlement took into account our client’s likely comparative negligence, biases toward pedestrians, and other, more personal issues. We are now fighting her health insurer who expects reimbursement for the benefits paid on her behalf after PIP was exhausted. Our argument is our client was not made whole because of her comparative negligence and biases toward pedestrians, as well as those personal issues, despite the presumption in ORS 742.544 that settling for less than policy limits means she was made whole. We’re not exactly flying by the seat of our pants because we can’t find any case law in Oregon on what evidence there is that will create an issue of fact if the carrier sues us because we have knowledge, as do many of the adjusters and counsel we’ll be arguing with, of Washington law on make whole scenarios. Fully compensated? Recent changes to Oregon law, making us a “make whole” state, may provide an avenue for avoiding subrogation claims even in cases where our client is presumed “fully compensated.” Bicycle and pedestrian cases are among the best cases to challenge insurers’ reimbursement rights even when our client is presumed “fully compensated.”1 Oregon has had “make whole” since 2015 after amending ORS 742.544 to include a “make whole” requirement before reimbursement or subrogation for PIP benefits or health insurance benefits. This means the injured party must be made whole before any insurer gets reimbursed for what it paid. (b) An insurer may not receive a reimbursement or subrogation for personal injury protection benefits or health benefits the insurer provided to a person injured in a motor vehicle accident from any recovery the injured person obtains in an action for damages except to the extent that: (A) The injured person first receives full compensation for the injured person’s injuries; and (B) The reimbursement or subrogation is paid only from the total amount of the recovery in excess of the amount that fully compensates for the injured person’s injuries.2 This is applicable to most PIP and health insurance company reimbursement claims3 and is a sea change in Oregon law for car crash victims.4 The statute also creates a series of rebuttable presumptions.5 The amount of any judgment the injured person obtains is rebuttably presumed to be the amount necessary to fully compensate them.6 An injured party receiving policy limits from the third party insurer is rebuttably presumed “not fully compensated.”7 An MAKE WHOLEOREGON LAWINVESTIGATED
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