Why is fault important in collisions?

???????????????????????????????

The at fault party has to pay for damages they cause through their negligence. This includes property damage, medical bills, and pain and suffering. There are limitations, so read on.

 

A good way to illustrate the importance of fault in a collision is to compare a single car accident with a two car collision.
Driver A is driving too quickly and loses control on a rainy curvy road and piles into a telephone pole. The driver is injured. Does the driver receive any money for pain and suffering? What about medical bills? Damage to the car? How about the owner of the telephone pole?

 

In the single car accident the driver’s coverage depends on the insurance policy coverage in effect at the time of the accident.

 

Property damage to the driver’s car? Lenders require it, but many people drop that coverage as their cars age, so the answer is probably; but no guarantee. If the car is uninsured, there is no money to repair your car. It was the driver’s fault; there is no one else to collect from and no insurance if you don’t buy the coverage.

 

Medical bills? PIP covers you and passengers even if the accident is your fault. So, yes is the answer, but only up to the limit of PIP (personal injury protection). The more you buy, the better protected you are. There is a balance, but higher PIP coverage usually does not cost a great deal more. Most people carry a minimum $10,000 PIP; which can be exhausted in the ER room. You better have good work or private medical insurance if you don’t want to go bankrupt with your medical bills. It is a terrible bind for lower or middle income families; so you have to be smart where you spend your money. If your medical bills exhaust PIP coverage and you do not have medical insurance (or it’s a high deductible policy) you could be in a world of hurt.

 

Telephone pole owner? Yes; the liability portion of your car insurance will pay for the damage done to the property owned by someone else; why? Liability insurance is designed to pay others for accidents that are your fault; and here, the accident was the driver’s fault.

 

Pain and suffering for the driver? Not a dime. Remember, the accident was the fault of the driver. But I had my leg amputated because of the accident. Not a dime. The driver died; not a dime. Life insurance or accidental dismemberment insurance, maybe if the driver had it; but nothing from your car insurance policy.

 

Driver B is approaching an intersection on a standing green light at a reasonable speed when out of nowhere gets t-boned in the intersection by Driver A who runs a red light. Wham!!

 

For Driver A, see above for the single car accident analysis. Instead of a telephone pole, driver A hit driver B.

 

Driver B has coverage from his own policy and from the policy of Driver A.

 

Driver B’s car gets repaired or replaced by Driver A’s insurance liability coverage. Driver B has medical coverage from his own PIP and ultimately from Driver A’s liability coverage. If Driver B’s liability coverage exceeds Driver A’s coverage, Driver B will be able to make a claim against his own policy for uninsured or underinsurance coverage. So when you buy high liability coverage who are you protecting? Yourself and your family and your passengers. Driver B may get pain and suffering compensation as well, depending on the level of coverage of Driver A and Driver B and the amount of medical bills that it takes to bring Driver B back to health.

 

It is nasty out there. You can be in a world of hurt even with insurance if you are hit by an uninsured or underinsured at fault party. With the cost of medical treatment these days, the amount of money available for pain and suffering has taken a big hit.

 

Complicated? Kind of. Need a lawyer? Absolutely.

Personal Injury Damages

Howard 2

As a personal injury attorney in Salem, I have handled many types of accident cases involving, cars, trucks, motorcycles and pedestrians. There are two typical types of damages that must be handled when people are injured in an accident.

People have generally heard of pain and suffering as a form of damages. In Oregon they are referred to as noneconomic damages, which is a much broader category of damages. The scope of damages was originally part of the common law, but Oregon has added a statutory definition of noneconomic damages.

ORS 31.710 defines noneconomic damages as “subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.”

You can see that pain and suffering is included in this definition, but there is so much more. None the less, it is a good practice to only seek those elements of noneconomic damages if you are willing to reveal your complete past.

To describe pain resulting from the accident is pretty straight forward. To show that the permanent injury to your leg now causes you interference with your normal and usual activity of walking can be shown in many ways. But let’s say that you are in emotional distress over the accident; that as a result you have become totally incapable of riding in or driving a car. Believe me there are real emotional impacts to automobile and vehicular accidents that remain for years. However, in claiming emotional distress, you entire life history of emotional or mental conditions or treatments become an area of great scrutiny and examination by the insurance defense lawyers. So if you happen to have suffered from emotional or mental conditions prior to the accident for which you received treatment and medication, these elements will have to be revealed. If you do not mind the personal exploration of your history, then seeking emotional distress as an element of noneconomic damages is certainly proper.

I will seek to explain more about this topic in the next blog post about damages arising out of personal injury cases.

Does It Matter When I File For Divorce?

Howard at desk

Does it matter when I file for a divorce?

Oh yes it does and it can affect you, depending on which side of the fence you are standing. Let’s assume for the moment that no one is in physical danger of domestic violence and leaving or seeking divorce is a decision rather than a reaction or forced on you by pain. Let’s also assume for the sake of writing that husband is the primary breadwinner (we all know that is not necessarily the case) and that wife is the homemaker child rearing parent (again, not necessarily the case.)

Husband and wife have been married for 15 years, they got married young, had children after 5 years and now the kids are in school. Husband earns a base of $60,000 with bonuses of $5,000 to $7,500 a year, but he just came out of several years of underemployment or no employment. Debt is high due to the bad years but manageable with sacrifice. Wife is capable with reasonable education but little outside the home employment because of a family decision to raise the children with a mother at home. The children are now school age; not in diapers, preschool or kindergarten.

The relationship has evolved to roommate status; not angry, just grown apart. The tough finances took their toll, differing parenting styles and husband puts in 50 to 60 hours a week plus time at home so both feel absent.

When should husband file?

From a purely tactical situation, Husband should have filed before he got the job. Earnings were in the toilet. Child support would have been modest and spousal support may not have been awarded at all. Once a judgment is entered without spousal support, the judgment cannot be modified to create an obligation of spousal support that did not exist in the Judgment of Dissolution of marriage.

Now that he has a good job, he will face child support and potentially spousal support for a limited duration. The cost of delay to Husband is spousal support.

When should wife file?

Wife should file when his earnings are up for exactly the reasons stated, so she may benefit by spousal support. Wife may be able to seek transitional support (to get an education for employment) or maintenance support to allow her to live (with working) at a level not too disproportionate from that enjoyed during the marriage.
Divorce is complex; probably some of the most complex litigation in court is divorce work, plus it is real, it affects the lives of each party involved and the children.

Timing is important and there are many other factors that come into play, so this little article is by no means exhaustive or conclusive. Seek advice from an attorney.

You Can Be DUII When You Don’t Realize It

IMG_0142

Did you know you can be DUII below .08?

I believe it is important that you know that .08 is a chemical standard for DUII, but it is not the only standard for a DUII citation or conviction. If you are affected to a perceptible degree by the substances or combination of substances in your body and you drive a vehicle on premises open to the public you could be cited and convicted of DUII. You could blow less than .08 and still be guilty of DUII.

Being “affected to a perceptible degree” is a very low standard. A little slurred speech; a slight wobble in your walk; clumsy getting your license out of your wallet; difficulty putting your key in the door or ignition; weaving in your lane while driving; too fast or too slow when driving; any physical manifestation of being affected by alcohol or other substances is “perceptible.”

One 11 oz. beer usually does not affect anyone to a perceptible degree; but if you are that person to whom alcohol has a disproportionate affect, then don’t drive. Two beers and you are on the edge of being affected; your speech might be slightly off; you might stumble over a door sill that you would ordinarily step over, etc., be careful. Three beers and it is my opinion that you are probably in more trouble than you think. Simply do not drive. If you feel buzzed DO NOT DRIVE.

If are pulled over I would suggest that you do NOT do the field sobriety tests; but that you do blow into the intoxilyzer after the officer has arrested you and taken you to the station. Here is why: If you don’t blow into the intoxilyzer your license will be suspended for one year and you will have another citation for failure to blow. Besides, we are assuming you have only had one or two beers (really only one or two 11 oz beers) and the results of the intoxilyzer should be less than .08.

As for the field sobriety tests, there is currently no legal obligation to do field sobriety tests and no penalty if you don’t do them. If you have only had one or two beers but you think you might be affected to a PERCEPTIBLE degree, don’t do the field sobriety tests. The officer is trained to scrutinize your field sobriety tests closely for physical signs of being affected to a perceptible degree. So don’t give the officer that opportunity or information by performing the field sobriety tests. JUST SAY NO.

The officer is then left with no information from tests designed to flush out if you are affected by alcohol and if the intoxilyzer is less than .08, you will probably be released and told to go home. You might have to walk or call a taxi or friend, but that is much cheaper than a DUII conviction. Maybe you will still get cited, but your defense is stronger as the officer and the State has less to work with and with an intoxilyzer result less than .08 it may be dismissed or a jury could find you not guilty.

Best advice: DO NOT DRIVE if you have any alcohol or have taken any medications that warn about driving. A designated driver or a taxi is a beautiful thing.

Divorce: Is Oregon a Separate or Community Property State?

photo 2

The correct answer is that Oregon is a separate property state. So what? Well, it can make a big difference when it comes to dividing assets that have accumulated in a marriage; but perhaps, not as much as you might think.

In theory if you own property separately you would assume you can keep it. Let’s do a summary of the arguments:

Does this apply to property accumulated before a marriage? Generally, yes. If you bought and paid for that beautiful car before the marriage, kept it titled in your name, it remains yours at divorce. The answer remains the same whatever you call the asset, car, investment account, or cash. The answer is it generally remains the same.

What if you buy property during the marriage that only you own? The answer is not as clear. Did you buy it with that pile of premarital cash you brought into the marriage and kept in your own account; then yes, the property is going to be yours, generally speaking.

If you bought that piece of property with money you earned during the marriage, but only put it in your name, the answer is that the value of the property will be divided at divorce. It is a marital asset (one acquired during the marriage) using income that would otherwise be available for the family. But, but, but, I earned that money and I should be able to keep what I buy. Sorry, generally, under most conditions, the asset will be shared.

Property acquired during the marriage is marital property, whether purchased by you or your spouse, whether or not it is owned jointly or separately. Generally it will be subject to division in a divorce.

What if I bought the couch with my own premarital money, but I bought it during the marriage? Technically it is your couch. But assets that you buy with your own separate money will become marital property if the use of the asset is shared and or access is shared. For example, if you take $10,000 out of a premarital personal separate account and put it into the joint checking account for use by you and your partner, it becomes a marital asset subject to division at divorce, if it is still there. You will not get paid back at the end of the marriage for separate money you contributed to the marriage.

The overriding, but rebuttable presumption is that marital property is equally acquired and is to be divided equally. Pre-marital property goes to the owner of the premarital property; unless it has become commingled, used by both parties, accessible by both parties and intended to be part of the marital estate.

In most long term marriages all property is marital. It is all subject to a presumption equal contribution and equal division. I mean, really, after 15 or more years, everything you generally have has come from the mutual effort of both parties. Maybe only one has worked outside the home, but do not underestimate the value of the spouse contribution who has contributed by staying at home; doing all that it takes to keep a home functional.

Now the real issue comes from shorter term marriages. In the 0 – 7 year range. All of the issues raised above come into play in the shorter marriage.

To those entering into a marriage where the parties have significant differences in assets, debts, education, earning capacity, etc., the real word of advice is to have a prenuptial agreement prepared. To those who are getting married later in life and each has assets they want to protect from the other; or to just keep to themselves, a prenuptial agreement is very helpful to the parties and to the court.

This summary is full of innuendos, variations, and some exceptions; but generally and I mean generally, it tells us that marital property is divided equally; that pre-marital property, if held separately, will remain separate property in a divorce. In long term marriages the issue is usually moot; but in short term marriages the issues are very important and a prenuptial agreement can be helpful in most circumstances where there are assets to be protected.

DMV Hearing Request – Time Sensitive

Hand on mouse

You only have 10 days from the date of your DUII arrest to ask for a DMV hearing.

When you have been arrested for DUII and released from jail you are given a date to appear in court. Sometimes that appearance in court is several weeks after your arrest and citation.

You have ONLY 10 days to ask for a DMV hearing. If you miss the deadline you are pretty well screwed out of a DMV hearing. Your DMV hearing is not the court appearance on your citation or release agreement. It is different and requires a different type of request.

If you fail a breath test (intoxilizer) by blowing .08 or more, your license in Oregon is going to be suspended from 90 days to three years depending on your particular situation. A DMV hearing may, and I mean may, avoid that suspension. In the vast majority of cases, the license suspension for the failed test remains, but occasionally a challenge will be effective; or alternatively, the office fails to send in their paperwork timely or fails to show up without an acceptable excuse and the DMV hearings officer dismisses the suspension.

At times it is better to be lucky than good, but you don’t get a chance to get lucky if you don’t request the hearing within 10 days.

Information on this web site is of a general nature and is not intended to be legal advice. Use of this web site does not create an attorney-client relationship with Howard W. Collins.

DUII: Should I Blow Or Not?

photo 4This blog gives general guidance and in each circumstance you have to make your own decision or call an attorney for advice at the time of being asked to take a breath test. This commentary does not cover Commercial Drivers Licenses (CDL).

Having given you the caution that this does not cover every possible circumstance, it is my hope this blog post will help give advice thatis helpful. At the time you are being arrested for DUII, you are probably not as clear minded as you would otherwise be, so this guide, if read with a clear mind, may assist you when it is not so clear.

The general rule: BLOW.

Otherwise you will be cited under a different statute (ORS 813.100) for failure to take a breath test and your license will be suspended for a minimum of ONE year. It could be up to three years if the circumstances of your driving meet the criteria for an enhanced penalty. The grounds for increasing the suspension to three years include:

(1) You are currently in a DUII diversion program in Oregon or similar program elsewhere;

(2) Within the last five years you had your license suspended under ORS 814.410 or 482.540;

(3) Within the last five years you have been convicted of a DUII in Oregon or elsewhere; including a driving offense in another jurisdiction while having a blood alcohol content above that jurisdition’s permissible blood alcohol content.

Remember, the general rule is to blow.

Here are some for reasons:

If you blow less than .08 your license will NOT be suspended;

If you blow .08 or above your license will be suspended for 90 days, but you can get a hardship permit after 30 days.

Do not blow if:

You have enhancement factors as listed above.

Blowing into the testing machine provides additional information to the police, but if you have enhancement factors and you blow, you are making their job easier, but you are not creating any benefit for yourself. In essence, if you have had a DUII or DUII program or diversion with in the last five years, you are probably better off not blowing.

 

Information on this web site is of a general nature and is not intended to be legal advice. Use of this web site does not create an attorney-client relationship with Howard W. Collins.

Child Support

photo 3Child support is determined by a complex formula called the Child Support Guidelines. It is available to everyone to use to assist in trying to figure out the level of support you will have to pay or may receive.

The primary factors that most affect the level of child support are the levels of income of each party, the number of overnights the children spend with each parent, the amount of work-related day care expenses, and the cost for health care premiums.
Income is usually an average of income over at least a 12-month period. An exceptionally high pay check should not be used to set child support; conversely, a particularly short pay check should not be used to set child support either. Overtime and bonuses are part of income and although they may not be predictable, they are averaged into your income for child support purposes.

Here is a link to the Oregon Child Support Program Guidelines.

PAY YOUR CHILD SUPPORT FIRST

If you want the judge to really listen to your case and your arguments for being named the custodial parent or for more parenting time than what your ex wants you to have, pay your child support. Even if it has not yet been established. We can help estimate child support and then pay it. No judge likes to hear a parent say: “But I wasn’t ordered to pay child support.” Doesn’t that sound pretty lame? Your children need to eat, be supported, have a roof over their heads, they need stability and your child support helps to provide that; especially in the middle of a divorce.

“BUT I HAVE OTHER BILLS AND CANNOT AFFORD CHILD SUPPORT”

There is no doubt that paying child support can be painful due to other financial obligations. The court understands this and attempts to be as reasonable as possible, with the exception of child support. To all judges, almost universally, paying child support is so important, they would prefer that your other bills fall into arrears or even prefer to have you declare bankruptcy than not pay child support. The State of Oregon child support division is equally unsympathetic to non payers of child support. They will attempt to collect against your paycheck, they will attempt to hold you in contempt of court; they will suspend your driver’s license. It is better that you think of child support as a MANDATORY payment that is similar to taxes, social security, or union dues, over which you have no control.

I know this is hard news; but really, it is better to learn this now, early on, than later in front of a judge that is hammering you because you have not paid child support. To be forewarned is to be forearmed; you can get yourself ready and get ahead of the game so you can prevail in the long run.

Divorce is Complicated

Tie

Divorce is complicated, emotional and difficult for everyone involved.

What a shocker!!!

The emotional components of a divorce usually start with issues of custody and parenting time. There is often a loss of trust in the other parent and the emotional loss of the relationship, which makes agreeing about the children difficult. Too many times people expect their lawyer to be able to guide them on these emotional issues as well as the legal issues. Let me tell you, just giving good legal advice is tough enough, but attempting to be the emotional counselor is asking too much of any lawyer. The solution is to get a support system, including professionals, to help you deal with all of the issues you face. The children also have their own issues of loss, change, and a complete upset in their lives, so a counselor for them would be a valuable tool as well. Besides, it gives them someone other than you to talk to; someone to talk about their issues and advise without all the luggage the parents bring to their advice. Here is a simple list of common issues that must be decided in many divorce cases.

Child custody
Parenting time
Child support
Spousal support
Determining the value of assets
Distribution of the assets between the parties
Determining the debts
Distributing the debts
Real estate valuation
Vehicle values
Retirement accounts
Valuation of retirement accounts
Distribution of retirement benefits

Almost each item listed above has a compete subset of issues that are relevant to that issue. It pays to be prepared when you come to see me. I suggest you call in advance so I can send you an intake questionnaire and a sample spreadsheet so you can gather information to make your process more orderly, successful, and less expensive.If you have been served with divorce papers, you are already a few months behind the curve. The filing party has usually been thinking and planning for several months in advance of filing. You can catch up, but you will need help.

Boring but Important: Mandatory Discovery

In divorce actions, it is required that each party supply the other with certain information. This arises out of the mandatory discovery statute ORS 107.089. It is designed to create an obligation of disclosure so as to prevent the hiding of assets from each other. The better prepared you are to meet these discovery requirements, the better off you will be in reaching an agreement that is acceptable to both parties. No one, including the court, wants people to agree to a divorce and then discover that the other was hiding assets. It just complicates a difficult situation. There are remedies for intentionally hiding and secreting assets, but the purpose of the discovery statutes is to help reduce having to go back into court to clean up a mess created by hiding assets.

Spousal Support Is Important to Consider

Did you know that if you do not have spousal support awarded in the Judgment of Dissolution of Marriage, you cannot go back and get it later? Let me explain with an example. Assume a longer term marriage, say 8-20 years. Of the two parties, one has been the primary breadwinner and makes $75,000 or more a year. The other has just started to work in the workforce and earns $24,000. But you are feeling pretty good about yourself, you are making some money and getting by; just barely, but getting by. Instead of seeking spousal support you agree to a Stipulated Judgment, which does not provide for spousal support. Six months later, you lose your job (not your fault) and you have no income. You cannot return to court to seek spousal support. You are out of luck. NOTHING.

Spousal Support Is Not All Bad

For those who are obligated to pay spousal support, did you know that at this time it is deductible against your income? For example, assume you earn $4,000 a month and must pay $1,000 a month in spousal support. Your income is taxed on $3,000 a month; not $4,000. You can then make adjustments to your withholdings, so to adjust your net income in order to meet your tax obligations, pay your spousal support and still have some net income for yourself. It is not easy, but at this time, the Federal government is subsidizing your spousal support. Talk to your accountant if this is an issue for you.

Why Is Not Relevant

The reason for the divorce is NOT important to the court. I know he/she cheated on you; I know that he/she left you for another he/she or both. It doesn’t matter to the court. Egos are hurt by the choices and reasons for divorce, but the court doesn’t care. It is frustrating to all people in divorces that they cannot complain to the court about why they are getting a divorce. They want their moment in court but rarely does it matter.As in most things in law, there are some exceptions to the rule above, but they generally revolve around the issue of custody and parenting time of the children. When the issue causing the divorce affects the ability of one of the parents to meet the needs of the children, then and only then will a court listen.

Misdemeanors Are Not Minor Offenses

Misdemeanors are not minor when it comes to the consequences.

Reckless driving is a Class A misdemeanor. It has a maximum jail sentence of one year in jail and a $6,250 fine; PLUS a license suspension of 90 days, which for many people costs them their job. You can also be put on probation.

Last Friday I spent a full day in trial defending a client charged with reckless driving. My client, a CDL holder, would have lost his job, his income. and perhaps the ability to be hired again as driver for another employer if convicted.

In his case a report to law enforcement by the alleged victim led to a charge of reckless driving, to which the District Attorney would not back down. My client was adamant he was not guilty and had the resources to take it to trial. The facts that were alleged were questionable at best but my client was forced to go to trial in order to clear his name.

We put on a solid defense by cross examination of the alleged victim and with good witnesses to show the absurdity of the allegations. The jury was out only 25 minutes and came back with a Not Guilty verdict. My client was so relieved. He kept his job; but oh what a cost!! For a not guilty verdict, I spent hours preparing, a full day of trial and my client had months of emotional turmoil.

For the average law abiding adult, felonies are only something we read about; misdemeanors, however, are very real. It is surprisingly easy to be accused of committing a misdemeanor. Pleading guilty just to get it over with can have negative consequences that are much harsher than the fine and probation the court can assess. Misdemeanors are not minor charges; they must be analyzed for defenses and vigorously fought if you are not guilty.