29 Trial Lawyer • Fall 2022 injured party receiving less than policy limits is presumed “fully compensated.”8 In Oregon, presumptions don’t mean the matter presumed is conclusory and binding. In a civil case when basic facts giving rise to a disputable presumption are established, the presumption binds the trier of fact if there is no opposing evidence.9 If there is opposing evidence, the trier must weigh all evidence, giving the presumption the value of evidence, and then must determine which side has proved a matter with the preponderance of evidence.10 Framework analysis Washington has had “make whole” for decades. Many wrinkles have developed over time in Washington’s make whole framework that may be of use as persuasive authority as ORS 742.544 is litigated. During a recent CLE on differences between Washington and Oregon Personal Injury Protection (PIP), an OTLA colleague who practices mostly inWashington impressed me with her aggressive stance against Washington PIP reimbursement claims. More recently, she has told insurers her client had to “settle short” due to not being able to get a trial date soon due to the Covid-19 epidemic and therefore was not made whole despite a settlement for less than third party policy limits. “Settling short” is a reality for many of our bicyclist and pedestrian clients. They choose to take a third-party offer considering the risks of bias toward their type of case and thirdparty insistence on their fault. Many of them do indeed have some level of fault and admit to it. Bias against non-drivers using the road, even if just puffery on behalf of the third-party adjuster, is a known factor. A mentor once warned me about cases involving bicyclists and pedestrians. He said, to paraphrase, “when you represent a bicyclist or pedestrian, assume everyone other than you and your client believes your client is at fault.” I still take these cases and so does he, so I guess neither of us have been dissuaded by this belief. My analysis is only in its nascent stage, and I invite all of us to think this through and find a path to victory in getting the most dollars possible into our clients’ pockets. I'm thinking how to best serve pedestrians and bicyclists and get them fairer compensation by avoiding reimbursement to insurers in cases where getting the adverse driver’s limits is not feasible. I’m just smart enough to be dangerous, and I’d defer to wiser appellate minds among us.11 One of you might very well write me an email after reading this article saying “you’re all wet Robinson.” And, I am a little wet. The statutory nature of our make whole system — the plain language of ORS 742.544 — is less helpful than other states’ common law decisions that aren’t so limiting, particularly Washington’s, which we will focus on because that’s what I, and perhaps more importantly what adjusters, know outside of Oregon. However, the right cases deserve a good fight. If anything, the fear of no reimbursement may cause an insurer to negotiate a reimbursement reduction. ORS 742.544 creates a series of presumptions. A judgment is presumed to fully compensate an injured person. A claimant who gets policy limits is presumed to have not been fully compensated. A claimant receiving less than policy limits is presumed fully compensated. If fully compensated, the injured person must reimburse the PIP carrier and/or health insurer. If not fully compensated, no reimbursement is required. No method of challenging these presumptions is in the statute, and it is shocking a carrier has not yet sued an insured to argue the presumption against reimbursement where an insured has received limits is rebutted by the facts of the case. In the obverse, perhaps it is time for us to start finding the right cases to argue against the presumption of full compensation and therefore against reimbursement. Bicycle and pedestrian cases may be the best type of case to move forward on for rebutting these presumptions, given what our friends across the Columbia have provided as a “make whole” framework. To the north In Washington, there is no statutory equivalent of ORS 742.544. Subrogation is a creature of common law with some equitable considerations thrown in. Our WSAJ friends have a decades-long head start in discussing matters such as “make whole,” “presumptions of make whole,”12 and of creative lawyering to avoid subrogation. In Thiringer v. Am. Motor Ins. Co.,13 the Washington Supreme Court defined make whole: While an insurer is entitled to be reimbursed to the extent that its insured recovers payment for the same loss from a tort-feasor responsible for the damage, it can recover only the excess which the insured has received from the wrongdoer, remaining after the insured is fullycompensated for his loss. For many Washington lawyers, whether an injured person was fully compensated is a regular source of argument post-settlement and post-verdict. Reported cases are helpful to define the playing field and help with our analysis to Oregon courts. In Sherry v. Fin. Indem. Co.,14 the Washington Supreme Court established the general rule that an insured found partially at fault is not fully compensated and no subrogation can be had as the injured person will never receive full damages for their injuries.15 Key to Sherry was that a factfinder found the plaintiff partially at fault. There was an adjudication of fault on the merits and Sherry would never receive his full damages. Open for presumptions Our statute is problematic in this See Oregon Law Investigated 30
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