Richard Rizk

Fear of Miscarriage: A Separate Pain & Suffering Claim ...

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The following information is important if you were injured in an automobile accident while pregnant. The rule discussed below also applies for other personal injury claims suffered while pregnant.

Oregon Courts recognize a special claim of pain and suffering claim for fear of miscarriage.

Fehely v. Senders 170 Or 457, 135P.2d 283 (1943).

Fehely involved a plaintiff who was injured in a car accident. After the accident, plaintiff "was afraid of what the blow on her abdomen might do to the child or might do to herself. This apprehension continued until the baby came and for a few days thereafter." 170 Or. at 460. The baby was born healthy — "there was a normal delivery and normal baby." Id.

On appeal the Supreme Court framed the question as follows:

"[W]hether the apprehension (which in this instance proved to be groundless) of a pregnant woman that her child may be born dead or deformed as the result of an injury to her person is an element of damage." Fehely, 170 Or. at 460.

Ultimately, after canvassing the law of several jurisdictions pertaining to the recoverability of emotional distress damages, the court concluded:

"We think that apprehension of that sort is the natural consequence of a blow on the abdomen such as the plaintiff suffered, or at least that a jury could so find, and that it could be mental distress the most acute."Id. at 474.

Fehely is remains good law. In fact, its application has expanded. For example, in Simons v. Beard, 188 Or. App. 370 (2003), the Oregon Court held that an emotional distress claim based for fear of losing an un born child requires neither:

1. Viability of the fetus; Simons at 381; nor,

2. Physical impact (as long as breach of care causing the apprehension exists); Simons at 383

If you were injured in an accident, due to the fault of another, while pregnant, contact Richard Rizk at (503) 245-5677 or rich@rizklaw.com. He can help you obtain the pain and suffering damages you deserve.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Oregon Uninsured Motorist Claims ...

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During a bad economy, we all cut costs. Now more than ever many Oregonians cut costs by driving uninsured or driving with not enough insurance. Richard Rizk receives many calls from panicked drivers seriously injured by an uninsured driver or underinsured driver. Good News: If you have an auto insurance policy issued in Oregon, you also have at least $25k in uninsured motorist coverage. When you are hit by an uninsured motorist, your own insurer “stands in the shoes” of the bad driver. Your own auto insurer is, by contract, responsible for your reasonable and necessary personal injuries.

Strange as it sounds, if you have sufficient uninsured limits, getting hit by an uninsured driver (as opposed to an insured driver) can actually be a good thing since you have more rights against your own insurer than someone else’s. Also, if your case goes to trial, jurors may award more against an insurance company than they would against an individual driver. Your policy may require you to arbitrate uninsured claims against your auto insurer. Arbitration is not necessarily bad either as it is often quicker and cheaper than trial.

Unfortunately, many insurers know uninsured motorist coverage is widely misunderstood. Confusion is fueled by the fact that many claims examiners from the same company may work the same claim from different perspectives. For example, there may be a claims person assigned to value your car, another to pay benefits under no fault (PIP) coverage and still another to evaluate fault and even another to assess underinsurance claims.

Avoid endless debates with claims reps. If you are faced with an uninsured or underinsured auto injury accident claim, call or email Richard Rizk at (503) 245-5677 or rich@rizklaw.com.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Basics of Oregon Ski Law...

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"The Basics of Oregon Ski Law" was presented by Northwest Ski Club Council V.P. and Oregon Attorney Richard Rizk at N.W.S.C.C.’s February meeting. Main points of his presentation are set out below.

1. The “Inherent Risk Rule”: (ORS) 30.975

Under Oregon law “.... an individual who engages in the sport of skiing, alpine or nordic, accepts and assumes the inherent risks of skiing insofar as they are reasonably obvious, expected or necessary.” ORS 30.970.

• Inherent risks include…

• conditions which are an integral part of the sport;

• changing weather;

• variations in terrain; and,

• failure to ski within ability ORS 30.970

2. Inherent Risk rule protects defendant ski areas from suit, not bad skiers / riders or bad manufacturers

• Stiles v. Nidecker Enterprises Or App (2002): Snowboarder sued board manufacturer

• Court disallowed use of inherent risk rule as defense

3. Give Notice to Ski Area after ski accident

• If injured

• before leaving the ski area if reasonably possible.

AND

• Notify by certified mail w/ 180 days (or claim against ski area may be disallowed)

• Suit within 2 years ORS 30.985

4. Skiers / Riders Must Act Reasonably

• Ski riders assume risks of out of bound skiing

• Reasonable “control of speed and course”

• Judge of own skill

• Abide by ski area operator directions

• Familiarize with posted information

• Not cross the uphill track (unless marked)

• Yield to downhill skier & as entering slope

• Use ski runaway prevent devices

Failure to ride / act reasonably could result in civil liability.

5. Duty to Rescue?

• No duty to rescue unless…

SPECIAL RELATIONSHIP

Thus, ski areas as land possessors have a duty to invitees to rescue injured or ill while on premises.

6. If Recue, Rescue Reasonably

Even though no duty to rescue in the first place exists, once the rescue begins… it must be done reasonably

Richard Rizk may be reached at rich@rizklaw.com or (503) 645-5677. For more information on him go to www.rizklaw.com.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Water Losses: Pain & Suffering Damages...

2010-02-19 16:12:30

Most states do not allow pain and suffering damages for property losses. Oregon is an exception.

In Edwards v Talent Irrigation District, 280 Or. 307, 309, 570 P.2d 1169 (1977), defendant's negligent acts caused water from their irrigation ditch to flood the plaintiff's property. The court awarded the plaintiff damages for "mental anguish" as a result of the defendant's interference with the plaintiff's use and enjoyment of his property.

The Edwards court observed:

"The testimony in this case clearly reveals that the mental anguish for which plaintiffs recovered was the direct result of their concern for the damage to their property caused by defendant's negligence and their attempts to minimize that damage. They were anguished over the loss of the use of their laundry and bath facilities and the necessity of spending hours attempting to drain their land, and for other concerns
caused by the entry of the water." 280 Or. at 310.

The "Edwards rule" allowing mental anguish damages for interference with the use and enjoyment of land was applied in McGREGOR v. BARTON SAND & GRAVEL, INC., 62 Or. App. 24 (1983).

The McGregor Court stated:

"We understand Edwards to hold that an interference with use and enjoyment can be a kind of direct and natural result of an intrusion that will permit an award of emotional distress damages. Here, there was ample evidence that plaintiffs suffered emotional distress and that the distress was attributable to defendants' interference with plaintiffs' use and enjoyment of their property."

The McGREGOR Court added that that the theory of wrongdoing (negligence, intentional, recklessness) makes no difference in whether pain and suffering damages are available. The Court reasons:

"We conclude that the Edwards rule, allowing emotional distress damages for interference with the use and enjoyment of land, is as applicable in intentional trespass actions as in negligence or nuisance actions. No reason occurs to us why the same kind of injury resulting from the same kind of act should not be compensable solely because the actor's conduct is deliberate rather than negligent." McGREGOR at 32.

Still, even the Edwards Court recognizes that emotional distress damages are not available in all instances of property damages. The Edwards Court explained:

"Although we hold in this case that emotional distress damages may be recovered in an action for nuisance, we emphasize that our holding is limited to this particular species of case. The law involving recovery for emotional distress generally is confused and perhaps in need of rethinking by the courts. We have concluded, however, that this case does not provide a proper vehicle for reconsideration of the rules governing recovery for this type of injury." 80 Or at 310, n 4.

Nonetheless, the McGregor Court rejected defense attempts to use the above quoted footnote to limit the availability of pain and suffering damages stating:

"Defendants appear to understand that footnote as in some manner limiting emotional distress damages to nuisance actions. In our view, the purposes of the Edwards footnote were only to dispel any understanding that the case decided anything beyond the immediate issue presented and to suggest that the general subject of emotional distress damages might eventually receive more extensive attention." McGREGOR at 32.

If you have an Oregon property loss claim, call Richard Rizk at (503) 645-5677. He will help you evaluate whether you may also have a claim for pain and suffering. He can also be reached at rich@rizklaw.com.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Understanding Auto Insurance Coverages...

2010-01-27 12:32:13

You were in an auto accident. You have insurance. So you are covered…right? Well, maybe.

Auto insurance policies contain multiple coverages. Each coverage serves a specific purpose. If your accident involves more than two vehicles, high damages or two vehicles insured by the same company, sorting out insurer roles can be tricky. This problem is compounded by claims examiners who do not clarify roles.

To understand motivations of respective insurers, one must know the basic types of auto insurance coverages listed below:

1. Liability

Liability Insurance refers to insurance coverage for the person at fault in the collision. Policies may refer to this coverage as “third party liability” or “bodily injury and property damage liability” coverage. It is ultimately the liability insurer’s responsibility to protect the party at fault by compensating injured parties for their auto accident losses.

The liability insurer is motivated to show that its’ driver was not at fault or that if he or she was, damages to the injured person were small. To reach this goal, liability insurers often attempt to settle liability claims immediately after collision before injuries and damages are fully realized.

Never prematurely negotiate your liability claim. When you give the liability insurer a demand early on, you set a ceiling which may make eventual settlement more difficult.

2. Personal Injury Protection

So, if the other guy is at fault, why will my insurance company pay my medical bills due to the accident? Because, Oregon lawmakers decided that folks in car accidents should get medical care without having to first prove who was at fault.

As a result, all Oregon auto insurers (with very limited exceptions) are required to provide at least $15,000 in medical PIP or “Personal Injury Protection” insurance coverage. This coverage pays for “reasonable and necessary” medical coverage related to the crash up to one year. PIP also provides a wage loss benefit. See other blog entries on this website for more information about PIP and how it works.

Your PIP insurer is motivated to show that your injuries are either excessive, not reasonable or otherwise not related to the accident. To do this PIP insurers may ask you to be examined by a doctor of their choosing. If this happens, your PIP insurer is gathering evidence so it can cut off your PIP benefits before the crash anniversary when PIP benefits would normally expire.

3. Uninsured / Underinsured Motorist Coverage

You are driving along. Suddenly you are hit. But that’s not all… the guy who hit you has no insurance. Are you stuck?

Probably Not. Your own Oregon policy provides insurance for the bad driver where the bad driver has none. Your own insurer’s surrogate liability insurance in this instance is known as “Uninsured Motorist Coverage”.

“Underinsured Motorist Coverage” is similar to “Uninsured Motorist Coverage”. Underinsurance provides coverage when the bad driver has some insurance, but not enough to cover the loss.

As the Liability Insurer described in #1 above, the “Uninsurer” or “Underinsurer” is motivated to show that your injuries were not that bad. However, the Uninsurer or Underinsurer is almost always also the PIP carrier who wants reimbursement of PIP benefits. As a result, resolving uninsured or underinsured claims without the aid of counsel can be risky and confusing. Also, Oregon case law in this area changes frequently.

4. Collision

Collision coverage under your policy pays for damage to the covered vehicle due to a collision-- regardless of fault. This coverage is not required in Oregon so check your policy.

If you have collision coverage, you probably want to have your car fixed by your own insurer, not the insurer for the driver at fault. Your insurer will seek then reimbursement from the driver at fault.

Richard Rizk is a former insurance company litigator and claims attorney. If you were injured in a car accident and have questions about how auto insurance works or need help resolving your auto claim, contact him at (503) 645-5677 or at rich@rizklaw.com.

Richard Rizk, Attorney at Law
www.rizklaw.com

18330 SW Alexander St.
Beaverton, OR 97006
(503) 642-2114
Fax: (503) 848-7149

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Insured v Insurer: Motivating Insurers ...

2009-11-30 18:37:24

You paid thousands in insurance premiums and have presented few, in any, claims… until now. As a loyal customer you innocently believed that if someday you made a claim, it would be promptly and fairly resolved. Wrong!

Instead of quick claim resolution, you were delayed, denied and treated like a petty criminal. Instead of prompt claim payment, you now face a “no win” choice: accept a denied claim or file suit. What a way to treat a loyal customer?! Good news for Oregon policyholders: there are ways to set up and motivate your insurer in this situation.

First, send your insurer and agent a written “Proof of Loss”. Label the letter “PROOF OF LOSS” in big letters at the top. This “Proof of Loss” letter should describe the loss in sufficient detail so to “permit an insurer to estimate its obligations.” In other words, the letter should plainly and accurately describe the loss and the events and persons involved. Include copies of relevant, favorable photos and estimates. Don’t say what you don’t know.

Next, fax and mail (certified) the “Proof of Loss” to BOTH your agent and claims examiner. Print out the fax confirmation sheets and keep the return postcard. Keep a copy of everything you sent your insurer.

Now, should you eventually be awarded more than the amount offered by your insurer within 6 months of the insurer’s receipt of the proof of loss, your insurer will be exposed to attorney fees should a suit be needed. ORS 742.061. Since insurers don’t want to pay your fees in addition to the claim, many insurers will now be more reasonable about claim value. In the event you take the case to trial, a trial judge now has a basis to award fees.

ORS 742.061 applies to many, but not all, insured v. insurer suits (where you have to sue your own insurer or your own insurer sues you, over insurance coverage). ORS 742.061 may not apply, for example, to uninsured or underinsured auto claims where the only issues are liability and damages, and the insurer, in writing, consents to binding arbitration within 6 months of the loss. See, Scott v. State Farm Mutual Ins. Co.

If you have a claim against your own insurance company and need help, contact Richard Rizk at (503) 645-5677. As a former insurance company attorney and supervisor of high exposure claims, Richard knows how insurers think and how to most effectively resolve your claim.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Chart Notes & Insurance Claims...

2009-11-30 16:49:40

It's not fair!! When it comes to claims, what happened in an accident matters less than what is documented...

Insurers are more accepting of injury claims which are well documented in medical chart notes. Why? Because real time documentation is strong evidence of what really happened and because insurers know folks are most truthful when speaking to their own doctors.

Consider this example: You are in an accident. Your back hurts very badly. Your head is pounding. Hoping to resolve your claim amicably, without first describing your symptoms to a medical provider, you honestly detail your pains to a claim examiner. The claims examiner seemed sympathetic. You are later shocked when claims presents you with a minuscule and insulting offer.

What went wrong?

1. The insurer knows that because your symptoms were not explained to a doctor at or near the time of accident, you don't have the medical documentation needed to eventually obtain a favorable outcome.
2. Since you aren't represented by an attorney, the insurer knows it will never have to answer to a jury or arbitrator. Without threat of litigation, insurers have little motivation to be reasonable.

What should you do?

1. Seek medical treatment as soon as possible after an accident.
2. Specifically and consistently describe all symptoms to your doctor or medical provider. Then, request he or she document your complaints in the chart notes.
3. Ask for your medical records. They are yours, not your doctors.
4. Review your medical records. If a doctor does not support your claim, you will want to know right away. Doctors rarely reveal unfavorable opinions to their patients while medical records accurately reveal a medical providers true feelings and opinions.
5. If your medical provider does not support your legitimate claim, fire that medical provider. Favorable claim resolution is very difficult where a patient's own doctor supports the insurer rather than you, the patient.

If you are frustrated by a low ball insurer offer for an Oregon accident after an injury accident that was not your fault, call Attorney Richard Rizk at (503) 645-5677. He spent a decade working for insurers and their law firms. Richard knows how insurers think and can get you the best result.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Death and Serious Injury Claims against Drunk Drivers...

2009-11-25 17:04:36

It happens in different ways.

Jim should be alive. He waited for the crosswalk light and began walking across. About half way through a drunk driver ran him down, sped off and left him for dead.

Sally just finished tuning her road bike. Excited to meet friends later on, Sally happily pedaled in a bike lane she knew well. Seconds later, a taxi cab ran her off the road and into a guard rail. The taxi gunned it and disappeared. Sally also died.

Because of severe penalties, it is not uncommon for intoxicated drivers to leave the scene. A former insurance company attorney, Richard Rizk knows how to investigate hit and run and drunk driving cases.

Many cases involving drunk drivers, hit and run or reckless driving can yield very significant damages and even a punitive damages award. Insurers know this so they try to settle such claims quickly for “pennies on the dollar”. If an insurer contacts you to settle such a claim, don’t take the bait.

Even when it is impossible to identify a drunken driver who left the scene, you may have a claim against your own insurer under your uninsured or underinsured coverage. These coverages were intended to protect from incidents caused by persons who had no insurance, did not have enough insurance or fled the scene and could not be identified.

Another option you may not have considered would be to file a claim against the bar, store or host who served the alcohol while he or she was already drunk. Be aware that special rules and limits apply to claims against servers. Do not delay. If your loved one was seriously hurt or injured in Oregon by an intoxicated driver, call Attorney Richard Rizk at (503) 645-5677.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Life Insurance Disputes...

2009-11-25 16:32:00

Knowing this might happen, you or your loved were responsible. A life insurance policy was purchased. On paper you were protected against post death financial losses. You never dreamed you would inherit an insurance dispute rather than financial protection.

Sadly, some life insurers cannot resist temptation to evade life insurance promises. The potential savings to the insurer is just too great. There are many ways life insurers may attempt to skirt responsibility. For example, an insurer may argue that the policy should be rescinded due an alleged misrepresentation or omission in the application. Or, an insurer may contend that policy lapsed. Some denials claim death was triggered by an uncovered event or act. Other cases involve insurance agents who misrepresent policy terms in order to make a quick sale.

If you are frustrated by a slippery life insurer or agent, do not sign anything. Do not give recorded statements. Many insurers attempt to resolve life insurance disputes with unrepresented beneficiaries for “pennies on the dollar”. They want to resolve the dispute before you hire a qualified attorney. Richard Rizk has convinced life insurers to pay full policy limits in previously denied cases. Call Richard Rizk today at (503) 645-5677 to discuss your life insurance dispute at no cost.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.

Oregon PIP Insurance Update...

2009-10-01 14:59:54

“PIP”, an acronym for Personal Injury Protection, refers to medical and wage loss insurance benefits under your auto policy or the auto policy of the driver, if you were a passenger. PIP insurance is “no fault”. In other words, PIP benefits apply even if you were at fault. PIP also provides at least $2,500 for reasonable and necessary funeral expenses related to a motor vehicle accident.

Regarding the medical benefit, “PIP” pays “reasonable and necessary” medical, chiropractic, therapy, prescription and dental expenses related to the motor vehicle accident. As of the date of this article, Oregon law requires Oregon auto policies to provide at least $15,000 in PIP medical expenses, which expire one year after the accident. To avoid billing problems, be sure to use your PIP claim number (not your health insurance) for auto injury medical expenses incurred within a year of the accident as long as PIP benefits have not been exhausted.

As mentioned above, PIP coverage also contains a wage loss benefit. If your doctor releases you from work for at least 14 days, your PIP insurer should pay you a wage loss benefit equal to at least 70% of your wages up to a maximum of $1,250 per month for up to 52 weeks. Beginning January 1, 2010 this wage loss benefit will increase to a maximum of $3,000 per month.

In order to be eligible for the above benefits, you must complete and return to the PIP carrier a PIP application form. Do not delay completing this form because your bills will not be processed until you do. If you have additional questions about PIP or need help completing your PIP form, call Attorney Richard Rizk at (503) 645-5677.

Richard Rizk, Personal Injury Attorney, Disability Attorney, Insurance Attorney.