Uninsured and Intoxicated Drivers To Be Denied Noneconomic Damages
September, 1999

     Effective October 23, 1999, most drivers in the State of Oregon who are involved in motor vehicle accidents while either driving uninsured or under the influence of intoxicants will be unable to recover noneconomic damages from another driver who has negligently caused the accident. This is the result of House Bill 2417, which was signed by Governor Kitzhaber on September 1. This new legislation provides that a defendant in a civil action may establish, by a preponderance of the evidence, that the plaintiff was driving either while uninsured or while intoxicated. If this is established, and unless there is an exception (see below), the jury will be instructed to not consider a claim for noneconomic damages.

     There are several exceptions to the legislation, which would make it inapplicable in certain situations. Those are: (1) Where the defendant was also driving uninsured or under the influence of intoxicants; (2) Where the injury resulted from the defendant’s intentional tort; (3) Where the defendant was driving “recklessly” (which is more than mere “negligence”); (4) Where the defendant was engaged in a felony at the time of the accident; and (5) Where the plaintiff had been insured within 180 days before the date of the accident but that coverage has lapsed, and the driver had not driven while uninsured for a period of one year before the date coverage lapsed. This last exception appears to have been the result of a compromise. It purports to provide that an uninsured driver who has only been uninsured for less than 180 days, and who had not driven while uninsured for a one-year period before coverage lapsed, is not subject to the new rule taking away the claim for noneconomic damages. This looks like a “newly uninsured” exception. This may have been designed to exclude drivers from the effect of the new rule who did not know coverage had lapsed (for example, due to a spouse or former spouse failing to pay a premium). In creating the exception, however, it also excludes even drivers who knew coverage lapsed but continued driving uninsured for 180 days anyway. There seems to be no particular reason for this exclusion to be as broad as it is, which is what suggests compromise in the legislative decision making process.

     As a result of this new legislation, careful attention should be paid to whether a claimant driver was insured at the time of the accident or was driving while under the influence of intoxicants. If either were true, a claim for noneconomic damages may not need to be entertained. Rather, assuming the defendant was negligent, the only damages which would usually need to be considered in such a situation would be economic damages. If the driver was uninsured, the question of exceptions to the new limitation rule will need to be examined, as discussed above.