49 Trial Lawyer • Spring 2023 Comparing damages To highlight the difference between Oregon and Washington insurance bad faith laws, let’s make a direct comparison presuming the same case facts. In Oregon, where an insured could receive actual damages plus reasonable attorney fees and costs, in Washington, the same person may be entitled to actual damages, attorney fees, costs and additional damages in an amount up to three times the actual damages. It is naïve to say this difference will stop all insurer misconduct. However, where an insurer is faced with greater financial punishment, like in Washington, insurers are more incentivized to promptly acknowledge and pay wrongful denials, and also avoid — if not limit — misconduct altogether. For example, in a case where my Washington client suffered wrongful denials of PIP payments, I sent one letter and had one phone conversation with the insurance adjuster pointing out the improper denials. The next day, the adjuster apologized for the carrier’s misconduct and promptly paid my client’s medical bills. Clearly, Washington’s IFCA laws pose a greater threat, deterrent and punishment for insurance companies. This means the very same illegal conduct will result in harsher punishment against insurance companies in Washington than if it is to be done in Oregon. Of course, another concern is Oregon insureds may be experiencing insurance bad faith at a greater rate than insureds in Washington. I published an article in Trial News, Washington State Association for Justice, October 2018, titled “Fighting Aggressive PIP Tactics.” It provided attorneys avenues to fight some common PIP tactics utilizing Washington’s insurance bad faith laws. (For purposes of continuity and direct comparison of state laws, this article references the same claim as my aforementioned published article, the claim involving the Washington college student.) Washington’s insurance bad faith laws are relatively new and continue to develop. Oregon is now on the verge of making great strides following the critical 2022 Court of Appeals decision in Moody. I encourage fellow Oregon attorneys to look to Washington’s insurance bad faith laws and demand change. Particularly, the laws protecting PIP beneficiaries — or, seen another way — laws designed to enforce insurance carriers and ensure insurers comply with their own policies. What recourse exists when an insurance company sends an insured to a biased medical examiner who determines, without reasonable basis, that the insured no longer requires medical care? In Washington, pursuant to IFCA, the claimant may seek treble damages. Meanwhile, in Oregon, the claimant is limited to contract damages, attorney fees and Moody tort damages for emotional distress (at least until the Supreme Court rules on the pending appeal). Some examples of common PIP misconduct: PIP suddenly discontinuing or unreasonably denying PIP payments; PIP hiring chiropractors (usually from outof-state) to conduct peer review IMEs without physically examining claimants and offering an opinion that the claimant requires no further collision-related treatment; PIP-hired chiropractors to conduct IMEs resulting in medical opinions regarding the claimant’s orthopedic, neurology, or other non-chiropractic treatment. (Coincidentally, I have come across some of said peer review IMEs containing seemingly cut-and-paste language.) The key question is what laws protect the PIP claimant from PIP misconduct? There are contract laws in both Oregon and Washington to enforce the insurance policy, but, how effective, punitive and protective are these laws? How critical is a private right of action? This is where Oregon and Washington insurance bad faith laws differ drastically. Like I was able to do for my Washington client, I look forward to the day where Oregon attorneys can seek justice for clients harmed by insurer misconduct and promptly recover wrongfully denied PIP payments with just one letter, referencing the private right of action under Oregon’s insurance bad faith laws. Mona Moghimian practices Oregon and Washington personal injury and insurance law. She contributes to the OTLA Guardians at the Sustaining Member level. She is an attorney at Vames Wang and Sosa Trial Lawyers, 600 NW Fariss Rd., Ste. 118 Gresham, OR 97030. Moghimian can be reached at 503-479-1651 or mona@ vameswang.com. 1 (If a PIP carrier is relentless, the carrier is forcing their insured to sue their insurer, or otherwise give up. Put another way, the PIP insured and their attorney are analyzing the primary options of either 1) enduring the hassles of litigation (which includes stress, costs, and time), or, 2) forfeiting a viable PIP claim because the potential outcome is not worth enduring all the hassles of litigation. Imagine having to do all this because PIP improperly refuses pay just $1,000.00 worth of medical bills.) 2 For a helpful basic directory to IFCA laws and rules, see Washington state’s Office of the Insurance Commissioner’s website at this link: https:// www.insurance.wa.gov/insurance-fair-conductact-ifca-laws-and-rules 3 RCW 48.30.015(1), which is subsection (1) of IFCA, states “Any first party claimant to a policy of insurance who is unreasonably denied a claim for coverage or payment of benefits by an insurer may bring an action in the superior court. . . .” RCW 48.30.015(1) — https://www. millernash.com/industry-news/washington-supreme-court-narrows-scope-of-the-insurance-fairconduct-act 4 RCW 48.30.015(2) 5 See Georgetown II, 313 Or 97 (1992) 6 Some believe the latter could be properly labeled “Negligence - Breach of Fiduciary Duty” when labeling the cause of action. See page 4 of “Litigation Against the Insurance Carrier: The Plaintiff’s Perspective” by William Barton. 7 See, e.g., Grisby v. Progressive Preferred Ins. Co., 343 Or 175 (2007) Clearly, Washington’s IFCA laws pose a greater threat, deterrent and punishment for insurance companies.
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