Driving Wheelchairs Under the Influence

January 12, 2017

Most driving under the influence laws include bicycles and a broad range of motorized wheeled vehicles in their scope. Oregon is no exception to this. But what’s the rule for motorized wheelchairs? A recent case, State v. Greene, 282 Or App 120 (2016), <http://www.publications.ojd.state.or.us/docs/A154816.pdf>, rules that in most cases, they are not subject to driving under the influence law. Read the rest of this entry »

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Oregon Now Allows Negligent Emotional Damages Without Physical Contact

January 7, 2017

In 1986, the Oregon Court of Appeals ruled that a person could not recover for emotional damages unless he or she suffered some physical contact from a negligent action. Saechao v. Matsakoun, 78 Or App 340, 717 P2d 165, rev dismissed, 302 Or 155 (1986), <http://law.justia.com/cases/oregon/court-of-appeals/1986/717-p-2d-165.html>. That was the law in Oregon for 30 years. In a recent case, however, the Oregon Supreme Court disagreed, expanding the right to recover emotional damages. Philibert v. Kluser, 360 Or 698 (2016), <http://www.publications.ojd.state.or.us/docs/S063738.pdf>.

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No Penalty for Giving Everything to Your Spouse to Qualify for Medicaid in Oregon

December 29, 2016

To qualify for Medicaid, an applicant must have limited income and limited assets. Once a person receives benefits, the State of Oregon may, after the person and any surviving spouse dies, recover benefits paid by claiming against property the person held at the time of death. As a result, some people try transferring their property to trusts or their spouses. A recent case, Nay v. Dept. of Human Services, 360 Or 668 (2016), <http://www.publications.ojd.state.or.us/docs/S062978.pdf>, confirms that the state does not have the power to reach back to recover property given to a spouse before applying for Medicaid. Read the rest of this entry »


The Duty to Defend the Insured Confirmed

December 17, 2016

Liability insurance policies usually include two main agreements by the insurer. First, the insurer agrees to defend the insured against claims that may come within the policy. Second, if the insured is liable for a claim, the insurer agrees to pay up to the policy limit. Read the rest of this entry »


Nonparental Custody and Visitation Rights in Action

October 16, 2016

In 2000, the Supreme Court ruled that nonparents could only be awarded custody and visitation rights to children if the parents were not acting in the best interests of the children. Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000), <http://caselaw.findlaw.com/us-supreme-court/530/57.html>. As a result, Oregon, Washington, and most other states amended their third-party parenting rights laws to conform to the Supreme Court’s mandate. A recent case from Oregon, Husk v. Adelman, 281 Or App 378 (2016), <www.publications.ojd.state.or.us/docs/A158504.pdf>, illustrates how these laws are applied in practice.

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Sorry, You Still Can’t Sue Yelp for That Bad Review

October 7, 2016

Federal law protects social media sites and other interactive computer services from being sued for content posted by users. This protection doesn’t apply to services that also create content. A recent case from a federal appellate court, Kimzey v. Yelp! Inc., No. 14-35487 (9th Cir, Sept. 12, 2016), <http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/12/14-35487.pdf>, confirms that copying posts from other sites is not creation of content. Read the rest of this entry »


The Difference Between Arbitration by Agreement and Arbitration Under Court Rules

October 1, 2016

All states recognize private agreements to arbitrate disputes, and federal law also gives court fairly strong direction to enforce valid arbitration agreements related to interstate commerce. As a result, many business disputes go to arbitration, and many services exist to provide arbitrators. A private arbitrator’s award is usually binding unless agreed otherwise, and there are only a few ways to escape the decision, such as proving bias. Read the rest of this entry »