30 Trial Lawyer • Fall 2022 analysis, in that a judgment creates a presumption of made whole, and our judgment will include the factfinder’s percentage reduction. However, that is a presumption. This argument is a potential argument to avoid reimbursement in cases we take to trial or arbitrate where the factfinder finds some comparative negligence attributable to our client. It may even be of benefit to suggest to the factfinder that our client is partially at fault, just a smidge. If the medical bills won’t be paid in full from an economic damages award, are they made whole? What about when the case is settled before adjudication on the merits because an injured party doesn’t want to take the risk of going to trial due to any number of factors, e.g. comparative negligence, multiple criminal convictions, or arguments such as our colleague’s above? In Peterson v. Safeco Ins. Co. of Ill.,16 and Truong v. Allstate Prop. and Cas. Ins. Co.,17 theWashington Court of Appeals looked at some of these arguments. In Peterson, the plaintiff settled well short of the defendant’s limits and argued he was not made whole because he had to pay his attorney a percentage and had to reimburse litigation costs. The Court of Appeals made quick work of this argument, holding that he was fully compensated and must reimburse Safeco’s PIP payments with a reduction for proportional fees and costs under Mahler v. Szucs.18 Payment to an attorney was a separate matter and was a payment from Peterson who didn’t have to hire a lawyer to get compensation. In Truong, the plaintiff settled for less than policy limits and then argued he had to because he took seriously the adverse insurance company’s argument he was partially at fault. The court agreed that the presumption of “fully compensated” was rebuttable and that it was Truong’s burden to provide evidence in rebuttal. The court found that Truong’s evidence at the trial court was insufficient to overcome summary judgment. Key to the decision was that Truong hadn’t provided evidence to prove his fault or other reason for lack of confidence in winning. But, this doesn’t mean the avoidance of subrogation due to any number of factors such as those stated above won’t work. It just means there must be a good paper trail. In the recent case of Grp. Health Coop. v. Coon,19 a court held the plaintiff was not made whole despite settling for less than limits. Coon suffered a horrendous fungal infection at a hospital and lost his leg. He hired counsel who had experts review the matter. None of those experts could find the proximate cause of how the fungus got into the hospital. One had a theory, but it was weak. Coon was a landscaper and the hospital contended that he likely carried fungal spores with him through his work. Without extensive discovery to pinpoint an exact theory of causation, his lawyer concluded that at best they had a res ipsa loquitur case. While investigating the case, the hospital paid Coon over $300,000 for medical care and invited Coon to mediate the matter pre-filing. Coon and his lawyer jumped at the chance and settled the matter for an additional $2,000,000. Group Health Cooperative, Coon’s health insurer, sought reimbursement of what they paid on his behalf. When he said he was not made whole, Group Health sued. The Washington Supreme Court overturned the trial court’s summary judgment in favor of Group Health, finding a question of fact for a factfinder to parse. With a sufficient paper trail, the court is going to allow “make whole” to be decided by the factfinder. What does that mean for us in Oregon where these issues have not been litigated — at least on an appellate level — since the statute changed? Here is where we have the upper hand if we have been thinking about this issue and laying forth a paper trail throughout. Would the report and later testimony an accident reconstruction expert we retained who pinned part of the blame on our bicycling client be sufficient? Is a human factors expert’s opinion that our client missed what was obvious when walking on the street and later testimony enough to avoid subrogation or reimbursement? How about the findings of numerous focus groups? I don’t know the answer, but when faced with creative, truthful, ethical arguments, many insurers may likely take at least a substantial cut to not have to go through litigation. Let’s work on this together and make some good law. Devin Robinson practices in Oregon,Washington and California. He primarily focuses on personal injury and first-party insurance cases, and also serves as local counsel for national asbestos/mesothelioma powerhouses. His mailing address is 9450 SWGemini Dr., PMB 27074, Beaverton, OR 97008. You can reach him at devin@ nwtriallaw.com or 866-985-2884. Oregon Law Investigated Continued from p 29 Your client has a story to tell. Hire a communication professional to help tell it.
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