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Oregon’s cap on non-economic damages ruled unconstitutional in some cases:

Personal Injury and Insurance Law

Personal injury case outcomes are, well, highly personal. Because of their injuries, many clients are permanently disabled, have lost jobs, or have otherwise had their lives turned upside down. Because of that, most injured people look back on litigation, even successful litigation, as something they’d rather forget. WLG is sensitive to those privacy concerns, so we generally do not publish case-specific settlement information. This section therefore includes only publicly available cases and information, and cases which WLG has specific permission to share.

Most cases settle before trial, but some do not. And some of the cases that go to trial are then appealed to the Oregon Court of Appeals or the Oregon Supreme Court. The following are some notable appellate decisions in the personal injury/insurance law arena that could impact your case:

An unfortunate part of Oregon law is that insurance companies have successfully lobbied to cap the amount of non-economic damages available to catastrophically injured victims. See ORS 31.710 (capping non-economic damages in most cases to $500,000). The situation was exacerbated by the 2016 Oregon Supreme Court decision in Horton v. OHSU, 359 Or 168 (2016), which undermined juries’ rights to determine victims’ damages. Fortunately, three recent appellate decisions offer hope for seriously injured Oregonians: Vasquez v. Double Press Mfg., Inc., 288 Or App 503 (2017), aff’d on other grounds, 364 Or 609 (2019); Rains v. Stayton Builders Mart, Inc., 289 Or App 672 (2018); and Busch v. McInnis Waste Sys., 292 Or App 820 (2018). In each case, the Court of Appeals ruled that the cap was unconstitutional as applied under the remedy clause of the Oregon Constitution. Specifically, the court found that application of the cap left the seriously injured victims with an insubstantial remedy. Under Horton, all victims are entitled to a “substantial remedy.”

The defendant in the Vasquez case appealed to the Oregon Supreme Court, but that court did not address the constitutional question under the remedies clause. The Rains case settled. But the Busch case is pending before the Oregon Supreme Court, and there is good reason to be hopeful about the outcome in that case.

For now, seriously injured Oregonians can rely on Vasquez, Rains, and Busch to protect their right to have a jury of their peers decide the amount of their damages. If an insurance company tries to apply the statutory damages cap to a jury’s decision, then the judge will decide if the cap prevents the victim from receiving a “substantial remedy” under the Oregon Constitution.

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