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NEWS from Around the Web

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Claims

Adjusters

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Oregon

AUGUST 2016

Return of the Tort Cap! — Page 5

Case Study

Membership in OCAA ~ TIME TO RENEW DUES! We extend membership to anyone involved in the resolution of an insurance claim: Claims Adjusters, Casualty Claims Support Staff, Defense Attorneys, Private Investigators, Fire Origin & Cause Experts, Forensic Engineers and Forensic Accountants. Trade Vendors can support the organization by becoming a Vendor Partner-Advertiser — a form of membership.

To apply for membership or to RENEW DUES for 2016-17, please visit our website where you’ll find the membership application in PDF and the opportunity to pay dues online with a credit card.

Or find the application on page 4 of this newsletter.

Renew before November 1, 2016 to save $5 on your dues!!!

www.oregoncasualtyadjusters.org Next OCAA Meeting is

Sept 13, 2016 See page 2 for time, location & other details

12 Factors Impacting Dog Bite Claims

— Page 19

OCAA — August 2016 - 2 -

Time 11:30am to 1:00pm Location Old Spaghetti Factory 715 SW Bancroft St, PDX Menu Choices $15 Spaghetti, Lasagna, or Chicken Ceasar Salad Checks, cash or credit card accepted RSVP Requested www.oregoncasualtyadjusters.org

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Note: The July meeting presentation on Crude Oil in Oregon had to be rescheduled. We apologize and hope you will attend the October meeting to hear this presentation. Thank you!

OCAA Membership

We extend membership to anyone involved in the resolution of an insurance claim: Claims Adjusters, Casualty Claims Support Staff, Defense Attorneys, Private Investigators, Fire Origin & Cause Experts, Forensic Engineers and Forensic Accountants. Trade Vendors can support the organization by be-coming a Vendor Partner-Advertiser — a form of membership. To apply for membership or to RENEW DUES for 2016-17, please see page 4, or visit our website where you’ll find the membership application in PDF format and the opportunity to pay dues online with a credit card.

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IAAI — 2016 Training Conference

Riverhouse ~ Bend, Oregon September 12-15

Come join us for some great fire education at one of the most beautiful places around, Bend, Oregon. Add to your arsenal of arson knowledge in a comfortable learning environment at the Riverhouse Convention Center. Make sure to plan on joining us for the banquet; Wild Bills will be putting on a fun Casino Night for conference attendees and guests! Traveling solo or with a family, Bend in September is sure to please all!

For more information go to: www.oregoniaai.org

October 11 Meeting Presentation About Our Topic David Kephart, PE assesses the hazards of crude shipments, the dangers, and where it’s going. And why, in a state without any oil refineries, are so many crude tankers moving through it.

About Our Presenter David Kephart PE Senior Mechanical Engineer

Dave Kephart is an experienced mechanical engineer specializing in product failure analysis with a strong practical background in heavy industrial consulting. He has exten-sive experience in the fields of commercial metals, power production, petrochemical,

pipeline, chemical, cement production, mining, marine opera-tion, general manufacturing, liquid and dry bulk terminals, industrial toner and ink production industries. Mr. Kephart has thirteen years of experience and is a licensed Professional Engineer in Oregon, Washington, New Mexico, Nevada, and Wisconsin. He has a Bachelor’s of Science in Mechanical Engineering from Oregon State University.

He has wide experience in project management and process design as well as, detailed design and construction in all phases of industrial systems; fluid dynamics and mechanics, environmental control, automation, process safety, and energy conversion (heat exchange). Dave has experience producing drawings for construction, permit reviews and installation of process and industrial systems, in addition to conducting the functional and hazard analysis prior to startup. Mr. Kephart has managed diverse phases of consulting work of multidisci-plinary engineering teams; from concept evaluation through construction, commissioning, and process failure analysis. Dave is skilled in the use of the following software: Cadworx, CaesarII, Pipe-Flo, AFT Fathom, AutoCAD, Standard Micro-soft Product, SAP, and Mathcad.

CONSTITUTION AND BYLAWS OF THE OREGON CLAIMS ADJUSTERS ASSOCIATION ARTICLE III (Membership) The term “Claims” will include all types of Liability, Casualty, Property, Workers Compensation, Auto, Marine, Inland Marine, Subrogation and first party Medical Claims. “Adjuster” is any person, whose primary employment is the adjusting functions of investigating and evaluating coverage, liability and damages, including the negotiation and resolution of insurance claims.

Section 1. Active Member - Voting Privilege: Any person employed or retained by an insurance company or self-insured entity to engage in the active supervision or adjusting of Claims as described above upon application, acceptance and payment of dues.

Section 2. Honorary Member - Voting Privilege: Any Past President of the OCAA, not removed from office for due cause, upon retirement from the qualification of Active Member, or upon change of occupation, lifetime dues will be waived, with continuing voting privilege.

Section 3. Special Member - Non-Voting: The Insurance Commissioner of the State of Oregon and a Deputy selected by the Commissioner to represent the Commissioner in this Association. These memberships will be exempt from payment of dues.

Section 4. Associate Member - Non Voting: Any person retained or hired by an insurance company or self-insured entity who does not qualify as an Active Member may, upon application, acceptance and payment of dues, be an Associate Member. Associate Members will be limited to the following: Attorneys, Private Investigators, Fire Origin & Cause Experts, Forensic Engineers and Forensic Accountants whose work involves insurance defense work. Additionally, any person employed by an insurance company or self-insured entity engaged as active support staff in the adjusting of Claims.

Any person who has been an Active Member in good standing for at least five years and does not presently qualify as an Active Member may qualify as an Associate Member upon application, acceptance and payment of dues.

Section 5. Retired Member - Non-Voting: A person retiring while qualified as an Active Member may be considered a Retired Member. Retirement means no longer employed in the insurance industry.

Send your completed application, along with your check payable to: OCAA — PO Box 87, Dexter, OR 97431

Application is: (Check one) Renewal ______ New ______ Change ______ Referred by ______________________

Applicant is: (Check one) Active Member Associate Member —

You qualify for membership if you are an You qualify for this type of membership if you are any person employed by an insurance Active Claims Adjuster (all lines) or company or self-insured entity engaged as ACTIVE SUPPORT STAFF in the adjusting of a Claims Supervisor Insurance Claims; or if you are an Attorney, Private Investigator, Fire Origin & Cause Expert, Forensic Engineer, Forensic Accountant, whose work involves insurance defense Honorary Member — OCAA Past President Retired Retired — Any Claims Adjuster or Supervisor retiring while an Active Member

If you do not qualify for membership in the OCAA, please visit the OCAA website at www.oregoncasualtyadjusters.org, click on the Vendor Partner page then click on "Advertise with Us" for information on how to become a Vendor Partner. Name__________________________________________ Job Title_______________________________________ Company______________________________________ Property Casualty Auto Work Comp Other

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OCAA ANNUAL MEMBERSHIP APPLICATION FOR 2016-17 AUGUST 1, 2016 TO JULY 31, 2017

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OCAA — August 2016

In the July case study, we discussed the Oregon Supreme Court’s holding in Horton v. OHSU that because the right to a jury trial under Article I, section 17, of the Oregon Constitution was “procedural” rather than

“substantive,” the legislature could define the ele-ments of a claim or the extent of damages available for a claim. Thus, the legislature’s limit to claims for personal injury was constitutional under Article I, Section 17. However, the Court also indicated that such a cap may violate the right to a remedy under Article I, Section 10, of the Oregon constitu-tion. See the discussion below regarding the Court’s analysis of the remedy clause of Article I, section 10.

Claims Pointer: After years of cases predomi-nantly finding tort caps to be unconstitutional, the Oregon Supreme Court held in this case that the Oregon Tort Claims Act’s (OTCA) cap on damages was constitutional. While this case specifically ad-dresses the tort cap for public bodies, it does pro-vide for the application of Oregon’s $500,000 limit on noneconomic damages in personal injury cases. However, the Court determined that because the Oregon Constitution preserves a citizen’s right to a remedy in the remedy clause of Article I, section

(See Case Study… continued on page 7)

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Return of the Tort Cap! Part Two: The Application of the Remedy Clause

Case Study

From the desk of Jeff Eberhard:


10, there are limits to the application of a tort cap. Specifically, the resulting remedy cannot be a “paltry fraction” of the damages sustained by the plaintiff. Whether applying the cap in a particular case is constitutional under the remedy clause is to be determined on a case-by-case basis. However, from prior case law, we know that reducing an award by roughly 60% ($507,500 in total damages reduced to the OTCA cap of $200,000), is accept-able, while reducing an award by nearly 99% ($17,000,000 in total damages, $12,000,000 of which was economic, reduced to $200,000) is not acceptable.

Horton v. OHSU, 359 Or 168 (2016)

Case Study… (Continued from page 5)

The facts of this medical malpractice case were dis-cussed in our prior update and are repeated in brief here. A six-month-old boy underwent surgery at Oregon Health & Science University (OHSU) to remove a cancerous mass on his liver, but during the operation, blood vessels going to the child’s liver were inadvertently transected, requiring a liver transplant, removal of his spleen, additional surger-ies, and lifetime monitoring. The child’s mother, Lori Horton (“Horton”), brought suit against the physicians and OHSU.

At trial, the jury awarded economic damages of $6,071,190 and noneconomic damages of $6,000,000 against OHSU and one of the physi-cians, Dr. Harrison (Harrison). OHSU and Harrison filed a motion to reduce the jury’s verdict to $3,000,000 pursuant to the Oregon Tort Claims Act (OTCA). The trial court granted the motion as to OHSU, ruling that because sovereign immunity ap-plied to OHSU, the legislature could constitution-ally limit the damages for which OHSU was liable. However, the trial court denied the motion as to Harrison, ruling that the OTCA limit as applied to Harrison, violated the Oregon State Constitution’s remedy clause of Article I, section 10, and the jury trial clauses of Article I, section 17, and Article VII (Amended), section 3. The trial court then entered a limited judgment against Harrison for all the dam-ages the jury had awarded, and Harrison filed a di-rect appeal to the Oregon Supreme Court.

Sovereign Immunity and the Oregon Tort Claims Act

As we discussed in our prior update on Horton, this case involves an exception to the principle that states have “sovereign immunity” from being sued. Prior to passage of the Oregon Tort Claims Act (OTCA) in 1967, Oregon public bodies were im-mune from tort liability. A person injured by the negligence of a public employee acting within the scope of his or her employment could sue the em-ployee but not the public employer. The OTCA par-tially waved that immunity while simultaneously limiting the state’s potential monetary liability. A later revision to the OTCA required public employ-ees be indemnified by the state and extended the limit on damages to claims against public employ-ees. A second revision eliminated any cause of ac-tion against public employees, requiring any action be filed against the public body, but the Oregon Su-


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preme Court determined in Clarke v. OHSU, 343 Or 581 (2007), that the elimination of a cause of action against public employees violated the remedy clause of Article I, section 10, because the substituted rem-edy against the public body was an “emasculated version of the remedy that was available at common law.” This decision prompted the Oregon legislature to increase the cap to $3,000,000 for claims against the state in 2009 and provide for incremental in-creases of $200,000 per year for five years, after which subsequent increases will be tied to the cost of living (the cap will rise to $4,147,100 as of July 1, 2016). In later decisions, the Court compared the remedy available if the cap applied to the remedy provided by the jury verdict on a case-by-case basis to determine whether the resulting award violated the remedy clause.

Smothers v. Gresham Transfer, Inc. and the Remedy Clause

The Horton Court overruled two previous decisions: Lakin v. Senco Products, 329 Or 62 (1999), which we discussed in our prior case update, and Smothers v. Gresham Transfer, Inc., 332 Or 83 (2001). In Smothers, Plaintiff sued his employer for negligence after his workers’ compensation claim was denied. Plaintiff’s claim was dismissed by the trial court on the grounds that Oregon law made the workers’ compensation system the exclusive remedy for work-related injuries. Plaintiff appealed, arguing that he was left without a remedy for the injuries he suf-fered at work in violation of the remedy clause of Article I, section 10 of the Oregon constitution, which guarantees every person a remedy by due course of law for injury to person, property, or repu-tation. The Oregon Supreme Court held that the leg-islature could not abolish or alter absolute rights re-specting the person, property, or reputation that ex-isted when the state constitution was adopted in 1857 without violating the remedy clause; the legis-lature was not authorized to define what constituted an injury under the remedy clause; and under the remedy clause, the exclusive remedy provisions of the workers’ compensation statute were unconstitu-tional as applied to Plaintiff.

In reviewing Smothers, the Horton Court determined that Smothers clearly erred in holding that the rem-




mon-law duties or eliminated common-law causes of action and the premises underlying those duties and causes of action had changed, the court consid-ered whether the common-law cause of action that was modified continued to protect core interests against injury to persons, property, or reputation, or whether, in light of changed conditions, the legisla-ture could permissibly conclude that those interests no longer required the protection formerly afforded them.

The Standard: Whether Post-Cap Damages are a “Paltry Fraction”

The Horton Court determined that when it was faced with a question of whether the legislature’s actions impaired a person’s right to a remedy under Article I, section 10, it had to weigh the extent to which the legislature had departed from the com-mon-law model against its reasons for doing so. The Court further explained that the substantiality of the legislative remedy was a factor in determin-ing whether the remedy was consistent with the remedy clause. In circumstances where the legisla-


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Fact Finding Through Forensics

edy clause locked courts and the legislature into a static conception of the common law as it existed in 1857, and so the Court overturned Smothers. In its subsequent discussion of the remedy clause, the Court noted its prior cases had considered three general categories of legislation relevant to the rem-edy clause. First, when the legislature had not al-tered a duty but denied any remedy to a person in-jured as a result of a breach of that duty, the com-plete denial was a violation of the remedy clause; similarly, providing an insubstantial remedy for a breach of a recognized duty also violates the rem-edy clause. Second, if the legislature adjusts a per-son’s rights and remedies as part of a larger statu-tory scheme that extends benefits to some and lim-its benefits to others (such as, for example, the workers’ compensation system at issue in Smothers or the partial waiver of sovereign immunity Horton addressed), this type of quid pro quo exchange would be considered in evaluating whether the re-duced benefit provided to an individual plaintiff was “substantial” in light of the overall statutory scheme. Third, where the legislature modified com-



ture does not limit the duty a defendant owes a plaintiff but does limit the size or nature of the rem-edy available to the plaintiff, the legislative remedy need not restore all the damages that plaintiff sus-tained to avoid violating the remedy clause, but if the remedy is reduced to only a “paltry fraction” of the damages that the plaintiff sustained, it would likely not be sufficient. However, the Court further stated that other factors, such as the existence of a quid pro quo, can bear on the determination.

Of course, this analysis raises the question of whether a remedy is a “paltry fraction” of the dam-ages sustained. In Horton, the remedy was reduced from a jury award of over $12,071,190 to $3,000,000, a number that did not even cover the plaintiff’s verifiable economic damages. Neverthe-less, such a reduction (the final remedy was just under 25% of the original jury award) did not vio-late the remedy clause, both because the OTCA par-tially waived sovereign immunity, thus falling into the quid pro quo category, and also because plain-tiffs suing the state were provided with a solvent defendant available to pay any damages up to, in the case of Horton, $3,000,000, an assurance that would not be present if an uninsured, judgment-proof state employee was the defendant rather than the state itself. The Court specifically stated that the holding in Horton was limited to the circumstances of the case, and it did not express an opinion on whether other types of damage caps that do not im-plicate the state’s constitutionally recognized inter-est in sovereign immunity and which are not part of a similar quid pro quo, comply with Article I, sec-tion 10. While we know from prior case law that reducing a total damages award of $507,500 to the OTCA cap of $200,000 was an acceptably substan-tial remedy, while reducing a total damages award of $17,000,000, of which $5,000,000 were none-conomic, was an unconstitutionally insubstantial remedy, future damages awards are to be evaluated on a case-by-case basis.

— View full opinion at: http://www.publications.ojd.state.or.us/docs/S061992.pdf

— If you would like to be notified of new cases, please send an email to: [email protected].

This article is to inform our clients and others about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information without seeking professional counsel.

Case Study… (Cont. from page 11)


NEWS from

Around the Web

Federal Decisions and Oregon Tailoring By Michael Wood Reprinted from Oregon OSHA Health & Safety Resource August-September 2016

As federal OSHA head David Michaels approaches the presumed end of the longest serving tenure in the agency’s history, it’s not surprising that the agency has been rushing to resolve a number of is-sues. And when you add to that mix the unexpected decision by Congress last fall to increase federal OSHA penalties, we here in Oregon have been get-ting quite a few questions about exactly how we will respond to a variety of federal rules and other changes.

So, first things first, when a federal rule change takes effect, that generally does not mean it has taken effect in Oregon (many stories in the media rely on national sources and frequently do not make that distinction). Strictly speaking, we do not en-force federal rules. We enforce state rules adopted under Oregon law (that does include federal rules that we have adopted by reference, just to add a touch more confusion to the mix).

What a new federal rule triggers is a requirement that we adopt a rule that is “at least as effective” as the federal rule, generally within six months. While “at least as effective” doesn’t necessarily require our rule to be at least as stringent as the federal rule, we would need to be able to make a very convinc-ing argument to explain why we adopted something “less than” a new federal requirement.

So, for example, our silica rule can vary from the federal rule (our current proposal does indeed in-clude some variations, although they are generally not substantive) – but it’s difficult to see a situation where we could adopt a less protective permissible exposure limit.

On the other hand, the rule we developed on report-ing amputations does a better job than the federal rule, we believe, in requiring employers to report events that represent the greatest likely hazard by


focusing on bone loss (and also including avulsions, which technically fall outside the federal rule). So, we believe we have a good argument that our rule is “at least as effective as” the federal rule, even though there are some minor “amputations” without bone loss that are required to be reported in federal states, but not in Oregon.

With rules related to recordkeeping, we have less flexibility – in those rare cases, we are actually re-quired to adopt a substantively identical rule (although we still can exceed the requirements of the federal rule in certain respects).

And then there are requirements that really start outside of rulemaking. Federal OSHA expects us to have penalty authority at least equivalent to theirs, and they expect us to have an enforcement program that is at least as effective as theirs in encouraging employer compliance through effective deterrence (of which penalties are a part). Those are actually two distinct expectations, and the first one is a bit easier to define. So when federal OSHA imple-mented the congressional decision to increase the maximum penalties, that generated a requirement that we increase our maximum penalties in order to maintain our status as a federally approved state plan, and we are going to be asking the Legislative Assembly to do so in 2017.

But the question of exactly how we use that penalty authority will remain a question that must be con-sidered in light of our overall approach to enforce-ment – taking into account, for example, our much higher enforcement presence – just as it has in the past. And that approach is one that we will continue to lay out through rulemaking. We will be updating those rules after the law has been changed to give us the underlying penalty authority comparable to federal OSHA.

How those details work out in Oregon will be an issue that we will work out in Oregon, in discus-sions with Oregon employers and workers. And, no doubt, our approach will continue to differ from the federal approach in a number of significant re-spects.

And for the time being? In Oregon OSHA’s juris-diction, nothing has changed.

(See News… continued on page 17)


SALEM – ODOT is expanding the capabilities of the TripCheck.com traffic tool to include Waze, the free traffic and navigation app powered by drivers. Waze reports, generated by anonymous users known as “Wazers,” will show up on ODOT’s Trip-Check.com, allowing travelers around Oregon to view information such as traffic jams and incidents. By adding certain data to TripCheck from the Waze Connected Citizens Program, a free, two-way data share of publicly available traffic information, ODOT hopes to help users of the transportation sys-tem get where they are going more efficiently.

“We want to take advantage of new ideas and inno-vative technology that improve safety and reliabil-ity for everyone traveling around the state,” said ODOT Director Matt Garrett. “TripCheck.com has been a valuable resource for Oregonians for more than a decade, and adding Waze user-generated re-ports allows us to bypass the process of building and maintaining our own app for crowd-sourced data collection.”

The Waze Connected Citizens Program works with nearly 80 partners globally to promote greater effi-ciency, deeper insights and safer roads around the world. Established as a two-way data share, Waze provides partners with real-time, anonymous, Waze -gene ra t ed i nc ide n t and s l ow-downinformation directly from the source: drivers themselves. In exchange, ODOT provides real-time government-reported construction, crash and road closure data to Waze to return one of the most suc-cinct, thorough overviews of current road condi-tions today.

"Waze is thrilled to see how ODOT continues to evolve its traffic management through the Waze Connected Citizens Program,” said Paige Fitzger-ald, Connected Citizens Program Manager at Waze. “By harnessing the power of our crowdsourced traf-fic information, ODOT is enhancing TripCheck and further optimizing the local driving experience.”

To find out more about Connected Citizens, visit http://www.waze.com/ccp. To download the free Waze app for iOS or Android, visit https://www.waze.com/get.

News… (Continued from page 15)

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When resolving opposing claims in dog bite cases, all sources of evidence need to be secured, and two in particular are the most reliable: the dog and the bite wounds.

The dog There are three things about dogs that make them very important evidence:

1. Dogs are creatures of habit. 2. A dog’s temperament doesn’t change over time. 3. Dogs don't lie or change their behavior because they are involved in litigation.

Typically, a dog’s behavior can change due to old age, illness, injury, or if they have been trained or had their behavior modified after an incident, but their temperament does not change over time. That is why a professional forensic evaluation of a dog is valid even years after the incident.

There are 12 areas to consider as part of a bite inci-dent since they may be very important in establish-ing a defense.

1. Breed Many plaintiff attorneys litigating a dog bite case believe if the defendant’s dog is an “aggressive breed” such as an American Staffordshire terrier or other type commonly called a “pit bull” that their case is in the bag. However, this may not help the case unless it is being tried in a state or county in which pit bulls have been declared a dangerous or vicious breed. If a client’s canine is not the vicious dog portrayed by opposing council, the negative association can be countered by a videotaped foren-sic investigation and evaluation along with expert testimony to the contrary.

2. Sex Intact (un-neutered) male dogs are involved in 70-76 percent of reported dog bite incidents (Wright J.C., "Canine Aggression toward people: bite sce-narios and prevention").

3. Age/Health Certain breeds see males become much more ag-

(See Dog Bite Claims… continued on page 21)

12 Factors Impacting Dog Bite Claims By Ron Berman Reprinted from www.propertycasualty360.com


gressive between one to three years of age. Older dogs also become aggressive due to painful physi-cal issues like hip dyspla-sia or eye issues like glaucoma. Confirm that the defendant’s dog was physically able to do what the plaintiff claims.

4. Size Large breeds can cause more damage, especially when the incident involves a child. Check the dog’s veterinary records at the date closest to the incident for the dog’s weight. Sometimes, even though the defendant’s pet is the larger dog, in a case involving dog-on-dog aggression an evaluation of both dogs can support witness testimony that the plaintiff’s own dog bit him or her and was actually the aggres-sor.

5. Behavioral history Since each dog is an individual within of a breed and may not present any of the characteristics com-monly attributed to that breed, behavior history can be extremely important. An investigation into the defendant’s dog’s temperament and previous be-havior is a must, especially since owner denial is a common factor in many bite incidents. A recorded evaluation can provide an accurate picture of the dog and its behavior.

6. Types of aggression Canine aggression consists of growling, snarling, snapping, lunging and biting. It can involve domi-nant aggression, territorial aggression, protective aggression and maternal aggression.

Barking is not necessarily aggressive but based on tonality and other exhibited behaviors it may be construed as such. It is important to clarify the dog’s tone, body language, etc. to determine if ag-gression was actually what was being displayed.

Even if a dog has demonstrated aggression in the past, it can be problematic when used as a support for the plaintiff’s case unless it directly relates to the incident being litigated. For example, dog-on-dog aggression does not relate to dog-on-human aggression. Having evidence that the defendant’s dog has attacked other dogs or animals in the past will not carry much weight if the plaintiff’s case is

Dog Bite Claims… (Continued from page 19)

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strictly dog-on-human aggression and no other dog was present.

If there is evidence the defendant’s dog bit someone who was trying to take its food away, that evidence will only have weight if the plaintiff was bitten in the presence of food. A dog that is food aggressive may not be aggressive in any other situation.

Previous incidents of aggression can also fail to add support to a plaintiff’s case if they were provoked incidents where the dog was defending itself. If so, opposing council cannot use them to show that the client knew of his or her dog’s “vicious propensi-ties.”

7. Socialization Dogs that are not well socialized, especially as pup-pies, have a higher likelihood of aggression. This should be explored early in the case.

8. Inside/Outside Dogs that are kept outside and not allowed into the home are typically poorly socialized and more likely to demonstrate aggression towards strange people and dogs. However, your client’s outside dog might be an exception to the rule and be a total sweetheart.

9. Chaining Dogs that have been chained for long periods of time have been shown to be three times more likely to

bite. (PETA.org) How-ever, even if a dog has been chained, it doesn’t mean that it is dangerous or vicious. An evaluation can be very important here.

10. Stray or rescue Many stray or rescue dogs are wonderful pets, but there are a fair percentage with behavior issues, which may be the reason they were on the street or put up for adoption. Previous owners sometimes don’t tell the rescue organization about aggression issues because they are afraid the dog will be eutha-nized. Also important here is whether or not the dog was evaluated by the rescue organization and if the evaluation was done correctly.

11. Training If the defendant’s dog has been professionally trained, previous aggression may be one of the main

(See Dog Bite Claims… continued on page 22)


reasons why. The trainer can be an excellent per-cipient witness regarding the dog’s prior behavior and what the defendant knew about the dog prior to the day of the incident. Ask if the dog had aggres-sion issues and if not, the trainer can give a state-ment on the client’s behalf.

12. Exercise Dogs that are under-exercised can build up ten-sion that can fuel or inten-sify aggression.

Dog bite or dog attack? Although all dog bites are serious from a medical standpoint and emotionally due to the potential long-term damage they can do to a victim, there is a difference between offensive and defensive aggres-sion. All bites are an aggressive display, but a dog provoked into defending itself and responding with a quick inhibited bite is different from one that runs up to a victim and inflicts multiple deep punctures and has to be pulled off by the owner or handler.

Plaintiff attorneys often use the word “attack” to increase the emotional impact of their claim, whether or not the word is supported by the evi-dence.

Defensive aggression Dogs that bite defensively do so as a reaction to pain or to avoid a threat from a person who has pro-voked them. This could involve stepping on a tail or paw or someone putting his face very close to a strange dog’s face in an attempt to kiss or hug it. Inhibited bites are where the dog controls its sever-ity. In these cases the dog is simply trying to re-move a threat.

One quick bite usually succeeds in creating enough distance between the dog and the threat and no fur-ther aggression is displayed. They tend to produce only lacerations and abrasions, and occasionally contusions caused by blunt force trauma as a result of the direct contact of the dog with the victim. Medical records can also be confusing if one doctor states a wound is a puncture and another calls it a laceration. Clarity about the wounds is imperative.

Offensive aggression Typically, offensive attacks involve multiple bites

Dog Bite Claims… (Continued from page 21) to different parts of the body. The depth of the bite wound and type says a great deal about the dog’s motivational state. Veterinarian records for each dog are important in dog-on-dog incidents where humans are bitten.

Often, false and exorbitant claims are made regard-ing incidents of dog aggression. Knowing what to look for will help adjusters and defense attorneys more accurately assess a client’s case and present the best possible defense.

— Ron Berman ([email protected]) is an expert in the forensic investigation and litigation of dog bites and pet-related injuries. He is an approved expert for the Superior Court of Los Angeles, a certified forensic expert and a licensed animal evaluator.

OCAA Meeting Minutes from 7/12/16 Past Presidents in attendance: Mike Meadows and Trevor Win-ter. Guests: None. Report of Treasurer: $20,555.47. $601.00 scholarship fund Report of Pres. Elect: None. Committee Reports: — Golf: Mike Meadows reminded us the tournament is this Friday, July 22, 2016 at Stone Creek. — Holiday Party: Contact Trevor Arnold or Nikki Christianson Unfinished Business: None. New Business: Still need members for the Board. Brian Beaudry, AIC Senior Claims Analyst at AIG has agreed to be-come the newest member of the OCAA Board. General Discussion: None. Speaker: Shawn Ray with Case Forensics, Mechanical Engi-neer; graduate of Southern Methodist University; registered Professional Engineer in Oregon, California and Texas; AC-TAR accredited accident reconstructionist; ASE Certified in a variety of disciplines Certified Fire and Explosion investigator. Member Drawing: No winners this week. Names drawn but not attending Lara MacConnell, Shawna Arndorfer, Matthew Bon-ney, Pam Kinaman and Lou Fortino. Raffle Winner: Two bottles of Oregon Wine donated by Case Forensics and won by Nancy Greenidge and Judy Daufel. Respectfully Submitted by Judy Daufel, Secretary/Treasurer.


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OCAA Past Presidents 35/36

Fred Greer* 54/55

Curt Leichner* 55/56

Ken Kennell*

56/57 Joseph Gillham*

58/59 Lou Fortino

59/60 Harley Degraff*

60/61 Ken Kerr

61/62 Ed Staska*

62/63 Howard Wolf

63/64 Dewitt (Doc) Blamer*

64/65 Don Marshall*

65/66 Art McLain*

66/67 Ken L. Fox*

67/68 Fred R. Buehner*

68/69 Robert Strong*

69/70 Glenn E. Throop*

70/71 John Wreath*

71/72 Gary Whelan

72/73 Joe Ricks

73/74 Richard Vuylsteke

74/75 Bill MacVicar*

75/76 Earl Thorsfeldt*

76/77 Dick Younge*

77/78 Marilu Hetzler

78/79 Curt Zink*

79/80 Bud See*

80/81 Dick Porterfield

81/82 Don Arthaud

82/83 Rudy Bencich*

83/84 Jim Ronning

84/85 Judi Brower

85/86 Dave Erickson

86/87 Don Williams

87/88 Shirley Wells-Meigs

88/89 John Boomer*

89/90 Del Williams*

90/91 Cheryl Gage

91/92 Ron Gray

92/93 Crystal Huffman

93/94 Jim Prestwood

94/95 Dennis Regelin*

95/96 Mike Meadows

96/97 Chuck Shikany

97/98 Spunky Gray

98/99 Mark Johnson

99/00 Susan Wood

00/01 Cynthia Conover

01/02 Chyrl Johnson

02/03 Margaret DeFrancisco

03/04 Nancy Kurth

04/05 Jeff Lucas

05/06 Mike Gray

06/07 Trevor Winter

07/08 Patty Ferguson

08/09 Janice Reyes

09/10 Marisa Adamo

10/11 Mary Luttrell

11-12 Linda Sell

12-13 Melissa Kalweit

13-14 Erica McDaniel

14-15 Tammi McEnaney

15-16 Trevor Arnold

*Deceased

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