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Matthew D. Kaplan

A recent article in the Los Angeles Times (see link below) details the struggles that many people in northern California have faced in the wake of devastating fires that swept through the area late last year. Thousands of homes were destroyed in counties across the state. As the newspaper reports, 44 people died. Sadly, in the wake of this tragedy has come the inevitable reminder: in the words of the LA Times headline ‘your insurance company is not your friend.’

I wrote about this issue six months ago after hurricanes hit Florida and Texas. In the wake of the California wildfires the core issues are similar: an industry that will use the fine print to its advantage whenever possible, blithely ignore rules and regulations and do everything it can to do as little as possible for its customers, all while assuring them that it is there to ‘help’.

According to the LA Times the specific issue in California has been an influx of “adjusters who poured in from other states to help companies process claims” and who then “misinformed policyholders about their rights.” The paper reports that many of the out-of-state adjusters came from the South and were clearly unfamiliar with California law, which provides far stronger consumer protections than are in effect in many other parts of the country. Many of the out-of-state adjusters also appear not to have been properly registered to work in California, the paper reports. In the wake of lawsuits filed by victims, the paper quotes a spokesperson for the California Department of Insurance saying that “the agency is already investigating whether unregistered and unsupervised adjusters worked the Northern California fires.”

Lawsuits filed in Tennessee and South Carolina against a guardrail manufacturer whose products are used throughout the country are drawing attention to a potential hazard on highways nationwide. The different reactions of the states where the suits were filed, however, also requires our attention because of the potential legal issues it may create in the months and years to come.

According to a recent article in Claims Journal the lawsuits “accuse the Omaha, Nebraska based Lindsey Corporation of negligence in the design of X-LITE guardrails. Instead of telescoping to absorb impact when vehicles hit them, the guardrails pierced through vehicles, killing one woman and injuring another so severely she had to have a leg amputated, according to the complaints.”

Though Claims Journal reports that the company maintains “that their guardrails still meet federal guidelines” it’s obvious that Lindsey faces serious legal consequences for making and selling a product that many users now believe is defective. But the different responses from Tennessee and South Carolina also deserve our attention. According to Claims Journal “scrutiny of the guardrails has prompted Tennessee and other states to remove them from their roadways, but South Carolina transportation officials said they would leave the rails in place until they are damaged or outlive their lifespan.”

Considering the number of shocking stories that Oregon’s child care system has generated over the last few months one would think that reforming the system would be a priority for everyone involved. Yet as a recent report in The Oregonian details, pushback and outright obstruction on the part of the officials who manage the system is widespread and has continued for years.

Citing a new report by state auditors, the newspaper writes: “Officials as high-ranking as Gov. Kate Brown and former agency director Clyde Saiki repeatedly attempted to reform the system and pointed out key steps to do so, only to have agency leaders abandon those plans.” It goes on to quote the report, saying: “For over a decade, management’s response to crisis and scrutiny has been to reorganize the system, not to effectively plan to fix it.”

The auditor’s report reveals particular problems with the foster care system, according to the newspaper. This includes the striking acknowledgement that the Oregon child welfare “agency hasn’t been tracking its successes and failures in recruiting foster parents.”

Washington’s distracted driving law, formally known as the Driving Under the Influence of Electronics (DUIE) Act has been in effect since July. Many state residents, however, may only see it really take effect this week. A six month grace period that has been part of the law’s implementation is ending, according to a recent article in The Seattle Times.

The paper reports that the grace period was not mandatory, meaning that “some law-enforcement agencies have been ticketing offenders for months… (while) others issued warnings to educate drivers about the law.”

Fines under the Washington law are somewhat lower than those in Oregon: $136 (as opposed to $260) for a first offense and $234 for a second infraction within five years (in Oregon it’s $435).

Earlier this month the Portland City Council voted to approve “reducing the speed limit on all residential streets to 20 mph,” according to a statement issued by the city’s Bureau of Transportation. Street signs – and with them the speed limit street by street – will begin changing next month. The PBOT statement says it expects “to complete the process by April 1.”

Lest you think this is a minor thing, by the PBOT’s own reckoning “residential streets make up around 70 percent of Portland’s street network and a large proportion of the city’s total space… Most residential streets in Portland are narrow, have few marked crosswalks, and no bike lanes; given the tight space and lack of protection for people walking, using mobility devices, and biking it is important that people drive slowly on residential streets.”

The new lower speed limit is the latest element of the city’s “Vision Zero” plan – a series of initiatives launched in Portland and other cities around the country with the goal of eliminating pedestrian traffic deaths.

In the wake of two Oregon day care deaths in as many months late last year one might have thought that it would be a simple thing to build momentum in the legislature for reform and increased oversight, but in politics things are rarely that simple.

Earlier this month The Oregonian reported that Governor Kate Brown’s initiative to “beef up oversight of day cares” was receiving a “tepid response” in Salem. The paper reports that “the proposal would increase maximum fines for rule-breaking day cares while closing a licensing loophole that can allow bad providers to escape consequences.” At an Oregon House hearing, however, “committee members questioned if the state’s bid to create 14 new positions would actually move the needle and help ensure kids are safe.”

When the legislature does not move as quickly as it should, it is worth remembering that even without changes to current law our courts offer powerful tools for protecting children and enforcing accountability. For example, ORS 163.545 is a relatively short statute defining second-degree child neglect. This is criminal law but when it is invoked it also opens the legal door to civil actions.

The death of a 28-year-old apprentice electrician at a Klamath Falls mill just before Thanksgiving was recently the subject of a long article in The Oregonian. It explored the victim’s life in detail and also considered the broader workplace safety issues this tragedy raises.

According to the newspaper the man’s death was “Oregon’s 68th workplace fatality of 2017.” State records (see link below) indicate that this number grew to 79 by the end of the year. The paper reports that after answering a call for an electrician late in his shift the man fell “through the lid and into an in-ground vat filled with corrosive liquid heated to 170 degrees, which is used to soften logs before they are processed into plywood.” Doctors say his death would have been instantaneous.

After the incident “the company… installed a railing around the roughly 30-foot long vat,” according to the newspaper, but one must ask why such a basic safety precaution was not in place already. As an apprentice electrician regulations required the man to be supervised in such a dangerous area or to have a supervisory waiver from the state. The paper reports that state records indicate there was no waiver in place. Questions should also be raised about the amount of time that passed before the man’s disappearance at work was reported to the police.

The holiday season is drawing to a close. New Year’s Eve is here. But it is not too late for a reminder that, amid the celebrations, tonight and tomorrow will be especially dangerous times to be on Oregon and Washington’s roads and highways.

Police across the region will be stepping up enforcement, as they always do at this time of year. But activists, local organizations media and law enforcement have joined forces to offer area residents and visitors a variety of safe and affordable ways to help people celebrate, and return home, safely (see links below).

As KGW-TV notes on their website “TriMet officials say all public transportation will be free after 8pm. That includes the Portland Streetcar. MAX trains will run until 3am.” Bars throughout Old Town will be offering $20 taxi coupons. These will also be available from police officers and security guards patrolling in the Old Town area.

A recent CNN investigation highlights a problem that is both widespread and under-reported: the abuses that can arise when drug companies pay doctors to prescribe their medications. Though not widely known or appreciated this is a common practice in the medical and pharma industries. But, as CNN outlines, it can lead to life-threatening abuses.

As the story linked below documents one major pharmaceutical company paid “nearly 500 doctors to speak or consult on its drug, Nuedexta, between 2013 and 2016, according to government data.” According to CNN this raised two separate and equally serious issues.

First, the manufacturer was not particularly discriminating about who it paid to promote its drug. Among the doctors on the manufacturer’s payroll: one doctor who “had his prescription pad taken away after he repeatedly failed tests for his competency. Another was banned from treating mentally ill inmates and accused of endangering nursing home patients by prescribing excessive dosages of medications. At least three others had criminal convictions for illegal prescribing.”

The exact details surrounding this week’s horrible train crash in Dupont, Washington, south of Seattle, are still being pieced together. If the media reports that have emerged this week are accurate, however, they paint a picture of an extremely reckless engineer. That, in turn, raises questions about the safety controls and background procedures which Amtrak has – or should have had – in place to prevent exactly this kind of accident.

According to The New York Times, investigators at the crash scene near Tacoma are “focusing on the possibility that the engineer was distracted by a cellphone, another person in his cab or something else when the train barreled into a curve 50 miles per hour over the posted speed limit.” The driver and other members of the train crew, all of whom are currently hospitalized, will also be tested for drug and alcohol use.

As numerous media accounts have noted in the days since the crash, this accident in many ways resembles another fatal Amtrak crash near Philadelphia in 2015. In that instance the train was also traveling much too quickly, leading it to jump the tracks. An investigation showed that the engineer, who died in the accident, had “lost situational awareness,” according to the Times. The combination of distraction and lack of familiarity with the train’s route is emerging as a focus of the National Transportation Safety Board’s investigation. Monday’s crash took place during the inaugural run of a new Seattle-to-Portland passenger service and took place on a new portion of the route where tracks had recently been upgraded. The paper quotes a rail safety expert asking rhetorically whether the engineer driving Monday’s train was sufficiently familiar with the new portions of the route. “I’m sure there was some familiarization, but the question is, how familiar was he with it?”

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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