Dangerous looking car – Could this be an Uninsured Motorist? – Image by Christian Ferrari
Often a personal injury lawyer will handle a car accident when the at-fault other driver was uninsured. This is called an uninsured motorist claim. The defendant is your own insurance company.
The general statute of limitations for an uninsured motorist claim in Oregon is 2 years.
Oregon Revised Statutes 742.504(12)(a) provides:
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.
Uninsured motorist cases can be decided in a civil trial before a Judge and jury in the courthouse, but are often decided in arbitration before one or more arbitrators in a lawyer’s office. Arbitration of a UM claim is faster and sometimes advantageous.
Given the two year limit, a civil case filed in court is commenced when the complaint is filed with the Clerk of the Court, subject to it being served on the defendant within 60 days thereafter (This is the Oregon state court rule).
For an arbitration, a complaint is not filed in court. The question is what is enough to be formally institute arbitration proceedings.
For an arbitration in areas other than UM car accident claims, to formally institute arbitration proceedings, a party has to institute arbitration in the manner required by the Uniform Arbitration Act, specifically Oregon Revised Statutes 36.635(1). That statute, about arbitrations in general, provides:
A person initiates an arbitration proceeding by giving notice in a
record to the other parties to the agreement to arbitrate in the agreed manner
between the parties or, in the absence of agreement, by certified mail, return
receipt requested and obtained, or by service as authorized for summons
under ORCP 7 D. The notice must describe the nature of the controversy
and the remedy sought.
The Oregon Supreme Court gave guidance about the formality requirements for commencing a UM arbitration in Bonds v. Farmers Ins. Co., 349 Or 152, 240 P3d 1086 (2010). A July 2011 opinion from the Oregon Court of Appeals, Luka v. Tri-Met, revisited this subject. The Oregon Court of Appeals commented:
In Bonds, the [Oregon] Supreme Court held that, “to ‘formally institute’ arbitration proceedings, an insured or an insurer must expressly communicate to the other party that the initiating party offers to arbitrate or otherwise commits to the arbitration process.” Bonds, 349 Or at 162. Applying that holding, we conclude that plaintiff formally instituted arbitration proceedings by sending defendant a written request that her uninsured motorist claim be submitted to binding arbitration. Accordingly, we reverse the trial court’s order, which denied plaintiff’s petition to compel arbitration, and remand.
…Thus, we held [in an earlier case that was overruled by the Oregon Supreme Court] that a party had to send–either in an agreed-upon manner or by certified mail or service akin to a summons–a notice to the other party that described the nature of the controversy and the remedy sought. … On review, the Supreme Court held otherwise…
…
[I]n this case, plaintiff sent a fax to Tri-Met, and the fax cover sheet stated, “[P]lease let this correspondence serve as written notice of our request to have this matter submitted to binding arbitration in accordance with ORS 742.061.” That statement is an express communication of plaintiff’s willingness to commit to the arbitration process. Thus, under the Supreme Court’s decision in Bonds, plaintiff formally instituted arbitration proceedings. Plaintiff sent the fax on May 12, 2008, which was within two years of the May 13, 2006, accident. Therefore, plaintiff’s uninsured motorist claim was not time barred by ORS 742.504(12)(a)(B).
Therefore a fax or other written offer to arbitrate is sufficient to meet the UM deadline; no certified letter is necessary. Later in the process, when you get to the uninsured motorist arbitration, your personal injury attorney will present the facts that support liability, and will present the facts that support a high damages award.
This post written by E. J. Simmons, a Portland personal injury lawyer.
