In response to a recent bus accident (April 24, 2010) in Portland that killed two individuals and seriously injured three others, TriMet announced today that it will change three of its bus lines serving Portland State University. Apparently, TriMet has decided that buses making left turns is excessively dangerous. Some bus authorities have long dealt with the risk of left turns by requiring drivers to honk while making a left turn. Yet others have installed beepers on buses that go off when a left turn is being made. It is unclear if these solutions actually save lives or just become additional city noise that pedestrians learn to drown out. In the meantime, ORS 30.272 creates a $1 million cap for all claimants and all claims arising out of a single accident. Therefore, the three individuals injured and the estates of the two individuals killed on April 24, 2010 will now have to fight each other in order to figure out how to fairly divide up the $1 million TriMet will get away with paying due to the cap.
Motor Vehicle Accident – What Are You Entitled To Recover?
Following a motor vehicle accident, are you entitled to recover 100% of your medical expenses, even when your medical provider takes a write off?
A 2008 Oregon case suggests that maybe you are. In White v. Jubitz, 219 Or.App. 64, 66–71 (2008), the Oregon Court of Appeals allowed the plaintiff, George White, to recover the amounts written off by medicare as economic damages because the full amount was due at the time of the treatment. In the White case, the jury awarded Mr. White $37,600 for his economic damages related to the medical bills he incurred as the result of another person’s negligence. The defendant asked the trial court to reduce that award by the amount of write off’s taken by Mr. White’s medical providers as a result of Mr. White’s Medicare insurance forcing the write offs. The court refused to reduce the jury verdict and the issue landed squarely before the Oregon Court of Appeals. Under Oregon’s collateral source rule (ORS 31.580), the court may deduct from the jury award collateral benefits a plaintiff receives from a party other than the defendant. However, under the statute and under White, there are certain circumstances under which the court may not reduce the jury award. For example, as in White, the Court may not reduce the judgment when the injured party received the benefit of medical write offs because of Medicare’s contractual agreement with the plaintiff’s medical providers. Thus, Mr. White’s total medical bills were almost $38,000. However, due to Medicare forcing write offs, the total paid to Mr. White’s medical providers in full satisfaction of the bills was $13,426. Mr. White was able to collect the full $38,000 and, presumably, paid $13,426 back to Medicare and pocketed the roughly $25,000 difference. I can think of a lot of situations where a party injured in a car accident might reap the benefit of the law and collect for their full medical bills despite write offs being taken by their medical providers. Further, under ORS 31.580(c), it is arguable that any time PIP (personal injury protection insurance required under all auto insurance policies in Oregon) pays for medical bills, and a write off has occurred, the injured party gets the benefit of collecting on the entire bill before the write-off.
Posted in Auto Injury.
Review of MSN Money article “Your 5-minute Guide to Estate Planning”
After reading an article in MSN’s Money section on “Your 5-Minute Guide To Estate Planning”, it was clear that some comments were valid and accurate, while many points were misleading and needed correction or clarification.
Valid and Accurate:
1. One of the most important aspects of estate planning is providing for minor children.
2. If you want a part of your estate to eventually go to your children from a prior marriage, don’t leave everything to your spouse; instead, use a trust to hold some assets and pay income off those assets to your spouse for life, then the trust can pass to your children after your spouse dies.
3. If you want to deliberately disinherit a child, spell it out to demonstrate you did not simply overlook the child.
4. Periodically confirm the beneficiary designations on retirement accounts and life insurance – those beneficiary choices generally override any provision in your will or trust; if all the named beneficiaries are deceased, the benefits will be added to your probate estate and disbursed according to your will, if any.
5. If you move, meet with an estate planning attorney in the new state where you live, as laws vary from state to state.
6. Name an executor in your will (also called the “personal representative”), and at least 1 backup; better yet, name several backups, as you never know who will die before you do, or decline to serve as your executor.
7. Plan to sign 3 additional documents when you sign your will: (i) financial power of attorney, so that a trusted person can handle your financial affairs if you are unable, (ii) advance medical directive (aka living will), and (iii) medical disclosure authorization, so that close friends and relatives can inquire about your medical condition without being blocked by medical privacy laws.
Corrections of inaccurate or misleading statements:
1. The guardian and trustee may be the SAME person. If you have someone in mind who is a nurturing parent AND a savvy and honest money manager, there’s nothing wrong with giving that person 2 jobs. If you don’t trust someone enough to do both, then you can’t trust them enough to do either.
2. Couples CAN be designated as guardians. If you feel your child will be raised well by a particular couple, but only if that couple is still together, you can specify that the couple be guardians provided they are married and living together. Keep in mind your will only expresses your preference, and is not binding on a court. In awarding guardianship, most courts will be influenced by the choices stated in your will.
3. If you don’t have a valid will, or fail to specify beneficiaries for all of your assets, the probate process will not last longer, and the court does not DECIDE how to split up your estate. Instead, there are default rules about where assets go, if there is no guidance from a valid will. The court is bound to promptly follow those default rules in dividing up your estate. Generally, the default rules mandate that your assets go to certain living relatives, in a particular order: spouse, children, parents, siblings, nieces and nephews, aunts and uncles, etc.
4. Probate is FAR more than a court review of the will. In fact, the court does NOT review the will unless someone challenges, or contests, the will. The main functions of the probate court include assurances that your legitimate debts are properly settled, your assets are properly valued, and administrative expenses are reasonable. The final function is to see that your net estate is distributed in accordance with your will, or pursuant to the default rules that apply if there is no will.
5. The executor is responsible for security of the decedent’s property including the home. A careful executor will obtain written confirmation of home owner’s insurance acknowledging the owner died and the house is vacant. Until the decedent’s home is sold, the executor should consider a good alarm and security system.
6. Death taxes arise at the federal level (Federal Estate tax) and the state level (state inheritance tax). Even if taxes are not owing, there are numerous death tax elections and record-keeping issues, as well as estate income tax issues, all of which should be addressed by a competent accountant and estate attorney.
Estate planning is a complicated area of the law, with many interconnected rules and exceptions. An experienced estate planning attorney can help you quickly navigate through the rules and achieve your objectives in a cost-efficient manner. For additional information on this topic, see the articles posted on my firm’s website: www.pmblaw.com and send me an email for a free initial consultation.
Posted in Business Law, Commercial Law, Estate Planning.