No-Fault, Personal Injury Protection (PIP)

By Allison C. Bizzano and Walter H. Sweek

OREGON LAW

No-Fault, Personal Injury Protection (PIP):

  1. Minimum PIP coverage required is for “all reasonable and necessary expenses of medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one year after the date of the person’s injury” up to $10,000. 
  2. PIP must cover reasonable and necessary funeral expenses incurred within one year after the date of injury, up to $2,500 and 70% of lost income if the person’s disability lasts more than 14 days, with a maximum payment of $1,250 per month for up to 52 weeks.  ORS 742.524. 

BI Threshold: N/A

Liability Apportionment:

Oregon is a modified comparative negligence jurisdiction.  Plaintiff may not recover if his/her fault is greater than defendant’s (i.e., 51%).  Recovery shall be reduced by the percentage of plaintiff’s negligence.  ORS 31.600.

Statute of Limitations:

  1. Personal injury actions must be commenced within two (2) years.  ORS 12.110
  2. Property damage actions must be commenced within six (6) years. ORS 12.080
  3. Contract actions generally must be commenced within six (6) years.  ORS 12.080.
  4. Actions for waste or trespass upon or for interference with or injury to any interest of another in real property must be commenced within six (6) years. ORS 20.080. 
  5. Actions for taking, detaining or injuring personal property must be commenced within six (6) years.  ORS 12.080.
  6. Actions for damages from construction, alteration, repair, or improvement to real estate shall be commenced within the applicable period of limitation otherwise established by law; but in any event such action shall be commenced within ten (10) years from substantial completion or abandonment of such construction, alteration or repair of the improvement to real property.  ORS 12.135.
  7. Products actions
    1. Actions for death, personal injury or property damage that is caused by a product and that occurs more than eight years after the date on which the product was first purchased for use or consumption.  ORS 30.905.
    2. Under ORS 30.905, actions for personal injury or property damage must be commenced not later than the earlier of:
  • i. Two years after the date on which the plaintiff discovers, or reasonably should have discovered, the personal injury or property damage and the causal relationship between the injury or damage and the product, or the causal relationship between the injury or damage and the conduct of the defendant; or
  • ii. Ten years after the date on which the product was first purchased for use or consumption.
    1. Under ORS 30.905, actions for death must be commenced not later than the earlier of:
  • i. The limitation provided under ORS 30.020 (Oregon’s wrongful death statute); or
  • ii. Ten years after the date on which the product was first purchased for use or consumption.
    1. Actions for damages resulting from asbestos-related disease shall be commenced not later than two years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the disease and the cause thereof. ORS 30.907. 
    2. Actions for death, injury or damage resulting from breast implants containing silicone, silica or silicon as a component must be commenced not later than two (2) years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered.  ORS 30.908.

Minimum Limits:

Under ORS 806.070, minimum policy limits are as follows:

  1. $25,000 because of bodily injury to or death of one person in any one accident;
  2. $50,000 because of bodily injury to or death of two or more persons in any one accident; and
  3. $10,000 because of injury to or destruction of the property of others in any one accident.

W/C Subrogation:

Personal injury protection benefits may be reduced or eliminated, if it is so provided in the policy, when the injured person is entitled to receive, under the laws of this state or any other state or the United States, workers’ compensation benefits or any other similar medical or disability benefits.  ORS 742.526.

Priority of Policies:

1.  The personal injury protection benefits are primary with respect to:

  • a. The insured and members of the family of the insured residing in the same household injured while occupying the insured motor vehicle;
  • b. Passengers injured while occupying the insured motor vehicle;
  • c. The insured and members of family residing in the same household injured as pedestrians;

2.   The personal injury protection benefits are excess with respect to:

  • a. Insured and members of family residing in the same household injured while occupying a motor vehicle not insured under the policy; and
  • b. Pedestrians injured by the insured motor vehicle, other than the insured and members of family residing in the same household, shall be excess over any other collateral benefits to which the injured person is entitled, including but not limited to insurance benefits, governmental benefits or gratuitous benefits.

Premises Liability:

  1. Generally, the occupier of business property is liable if: (a) it placed a foreign substance there; or (b) it knew the substance was there, but failed to use reasonable diligence to remove the substance; or (c) the substance had been there for so long that the occupier should, in the exercise of reasonable diligence, have discovered and removed it.  See Griffin v. K.E. McKay’s Market of Coos Bay, Inc., 125 Or App 448, 865 P2d 1320 (1993), rev den, 319 Or 80 (1994).
  2. Generally, where defendant’s negligence merely facilitates an unintended result produced by the criminal act of a third party, defendant’s negligence is not considered the cause of the harm and defendant will not liable for negligence.  See Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993).

Liability:

Oregon is a modified comparative jurisdiction.  Plaintiff does not recover if he/she is more than 50% at fault.  Plaintiff’s award is reduced by his/her percentage of fault. ORS 31.600.

Negligence Standard:

Negligence is defined as conduct that falls below the standard of conduct established for the protection of others or of oneself against the unreasonable risk of harm to a protected interest of the kind of harm that befell the plaintiff. See Fazzolari v. Portland School District No. 1J, 303 Or 1, 734 P2d 1326 (1987).

Assumption of Risk:

The doctrines of last clear chance and implied assumption of risk have been abolished in Oregon. ORS 31.600.

Joint and Several Liability

Under ORS 31.610 liability is several, but uncollectible shares may be reallocated unless:

  1. Plaintiff’s fault is greater than or equal to defendant’s fault, or
  2. Defendant’s fault is 25% or less.

Punitive Damages:

    1.   In Oregon, an award of punitive damages is not excessive if itis within the range that a rational juror could award plaintiff based upon the record as a whole.  The court must review a jury’s award of punitive damages  to determine whether the award is unconstitutionally excessive. ORS 31.730.

    2.   A plaintiff in a civil action may only recover punitive damages after proving by clear and convincing evidence that defendant acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety, and welfare of others. ORS 31.730.  

Wrongful Death Actions:

  1. Under ORS 30.020, when a person’s death is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals entitled to recover under the law of intestate succession of the state of the decedent’s domicile may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission.
  2. The action shall be commenced within three (3) years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer.
  3. Damages include reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent; would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death; justly, fairly and reasonably compensates for pecuniary loss to the decedent’s estate; and justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent.
  4. Punitive damages that the decedent would have been entitled to recover from the wrongdoer if he/she had lived shall be separately stated in finding or verdict.

Minors:

Minors (under 18 years old) are held to the standard of a reasonable minor of like age, intelligence, and experience under similar circumstances, unless the minor engages in an adult activity for which adult qualifications are required. Nielsen v. Brown, 232 Or 426, 374 P2d 896 (1962).     

The material contained in this document is intended as a general overview of Oregon law and is not legal advice.  For questions concerning any areas of law discussed, please contact Walter Sweek at Cosgrave Vergeer Kester LLP.