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Time Limitation Concerns in Washington-Oregon Dual-State Cases

Posted by Bradley Thayer | Feb 28, 2019 | 0 Comments

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Time Limitation Concerns in Washington-Oregon Dual-State Cases

Because we represent injured persons in both Washington State and Oregon, we often see circumstances that involve both states.  For example, if a Washingtonian is driving in Oregon when a car crash occurs.  In that scenario, the Washingtonian has an insurance policy that is controlled by Washington law.  Assuming the other driver is an Oregonian and they have an insurance policy—that policy is controlled by Oregon law.  The facts of the crash, because the crash occurred in Oregon, are controlled by Oregon law.

The following is not intended to be legal advice, but simply generalized considerations for folks who have been injured in an incident which may involve both Washington State and Oregon laws, potentially. Specifically, the following is meant to highlight common concerns with respect to time limitations on the claims those injured folks might have.  These cases involving more than one state are complex for myriad reasons and it is likely best to get on the phone with an attorney who fully understands those reasons as soon as practicable to get a sense of how the interstate interplay actually applies to the specific circumstances you face.

Where the Crash Happened in Washington

  • Underinsured Motorists Claims Against Your Own Oregon Insurer: In Washington State, an injured person typically has three years to pursue their claims (by properly filing and serving a lawsuit). This is with respect to your claims against the person who injured you by causing the crash.  But, if that person wasn't carrying sufficient liability limits on their automobile insurance policy to pay the damages you have suffered, it will be necessary for you to pursue an Underinsured Motorist claim under your own automobile insurance policy.  If you purchased your Underinsured Motorist coverage on your automobile insurance policy in Oregon, then there's a time limitation of two years within which you need to take certain actions in order to preserve your potential Underinsured Motorist claim.  The particular time frame and conditions at issue governing your policy depend on the specific language of your particular policy, however, Oregon statute dictates that your policy language can be no more restrictive or less favorable to you than what follows:

“(12)(a) The parties to this coverage agree that no cause of action shall accrue to the insured under this coverage unless within two years from the date of the accident:

(A) Agreement as to the amount due under the policy has been concluded;

(B) The insured or the insurer has formally instituted arbitration proceedings;

(C) The insured has filed an action against the insurer; or

(D) Suit for bodily injury has been filed against the uninsured motorist and, within two years from the date of settlement or final judgment against the uninsured motorist, the insured has formally instituted arbitration proceedings or filed an action against the insurer.”

ORS 742.504.

The key here is to remember that, even though a three year time limitation may govern your potential liability claims, a two year time limitation could govern your Underinsured motorist claims and you need to act to preserve your separate claims accordingly.

  • Tort Claims Against a Governmental Entity: A pre-suit claim form is required to be presented to a particular governmental entity prior to filing a lawsuit in tort for damages against that governmental entity and its officers, employees, or volunteers. That form must include particular information required by RCW 4.96.020. 

The purpose of this tort claim presentment requirement is to allow governmental entities time to investigate, evaluate, and settle claims before they are sued.

Practically speaking, there is a 60-day waiting period which is required between presentment or “filing” of this type of notice of a tort claim against a governmental entity and filing a lawsuit based on such a claim.

“A claim is deemed presented when the claim form is delivered in person or is received by the agent by regular mail, registered mail, or certified mail, with return receipt requested, to the agent or other person designated to accept delivery at the agent's office.”  RCW § 4.96.020 (West). 

A claim form that is mailed should be sent at least 63 days prior to the statute of limitations.  A statute of limitations is a prescribed (by statute) deadline by which—if a lawsuit is not properly filed and served on the at-fault party—the injured person loses their claims and any opportunity to pursue their damages forever.  Again, in Washington State, an injured person has three years to pursue their claims—but, as discussed here, claims against a government entity shorten that time period by at least 60 days.

Washington courts typically demand strict compliance with the “filing” procedural requirements of RCW 4.96.020.  Because strictly complying can be tricky, if you believe you might have claims against a governmental entity in Washington, you should get in touch with an attorney as soon as practicable.

 Where the Crash Happened in Oregon

Note: In Oregon, an injured person typically has two years to pursue their bodily injury claims (it is three years for a wrongful death).  The statute of limitations for injury to real or personal property is six years in Oregon.  Tolling of statutes of limitations can occur for minors or incapacitated persons (among others).  As discussed here, other critical time restrictions in addition to the applicable statutes of limitation might apply, though.

  • Tort Claims Against a Public Body: The Oregon Tort Claims Act (OTCA)—ORS 30.260 to 30.300—governs any tort action arising out of an act or omission of a governmental or public body and requires timely notice to the particular governmental or public body. The limiting time periods to be aware of are different for personal injury or property damage (or otherwise) and wrongful death.  See ORS 30.275(1)–(2).  Under nearly all circumstances, for personal injury or property damage (or any other) tort claims, notice of claim must be given “within 180 days after the alleged loss or injury.”  For wrongful death, notice of claim must be given “within one year after the alleged loss or injury”.  Under certain circumstances, where “the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity”—the 180-day time period may be tolled a maximum 90 additional days.  Formal notice or actual notice of claim is required to be provided and better explained in ORS 30.275. Because complying with all of the requirements in these statutes is difficult, if you believe you might have claims against a governmental entity or public body in Oregon, you should get in touch with an attorney as soon as practicable.
  • Tort Claims Against Ski Resorts: A person injured at a ski resort must notify the ski area operator of the incident/injury by registered or certified mail within 180 days after the injury, or within 180 days after the skier discovers or reasonably should have discovered the injury. The 180-day notification time period also applies where the claim is for wrongful death, in the ski resort context.  See ORS 30.980.
  • Tort Claims Against Servers of Alcohol: Oregon's liquor-liability law, limiting the liability of servers of alcohol, imposes notice requirements on an injured person who brings an action for damages caused by an intoxicated patron or guest. See ORS 471.565.  Formal notice of a claim may be made by several methods, but must meet particular requirements detailed in ORS 471.565.  The limiting time periods to be aware of are different for personal injury or property damage (or otherwise) and wrongful death.  “If a claim is made for damages arising out of wrongful death, notice must be given within one year after the date of death, or within one year after the date that the person asserting the claim discovers or reasonably should have discovered the existence of a claim under this section, whichever is later.”  ORS 471.565(3)(a).  “If a claim is made for damages for injuries other than wrongful death, notice must be given within 180 days after the injury occurs, or within 180 days after the person asserting the claim discovers or reasonably should have discovered the existence of a claim under this section, whichever is later.”  ORS 471.565(3)(b).  There are some tolling aspects at issue with respect to claims in this context as well, but which won't be discussed here. 
  • Tort Claims Involving Tribal Lands, Entities, and Persons: Tort claim time limitations involving an Indian tribe or a tribal member may, depending on the facts, vary. Indian tribes are separate sovereigns under the United States Constitution and a legal analysis of the specific facts at issue is required to determine which law (i.e., state, federal, tribal, etc.) might apply.

Again, cases involving more than one state are complex for myriad reasons and it is likely best to get on the phone with an attorney who fully understands those reasons as soon as practicable to get a sense of how the interstate interplay actually affects critical time deadlines potentially at issue under the specific circumstances you are dealing with.

About the Author

Bradley Thayer

Brad Thayer is a partner at the Schauermann Thayer firm. Brad is licensed in both Oregon and Washington. He has been practicing law since 2015. He was presented the 2018 Rising Star Award by the Clark County Bar Association. Brad's practice focuses on automobile collision, motorcycle, bicycle, pedestrian injury, dog bite, and myriad other types of injury and insurance cases. During his free time, Brad enjoys following the Portland Trail Blazers, playing basketball, going to concerts, and playing the drums. He especially enjoys hiking in the Columbia River Gorge and exploring other Northwest wonders.

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