24 Trial Lawyer • Fall 2022 By Michelle DuBarry In December 2011, I nervously walked into Oregon State RepresentativeTina Kotek’s office clutching a folder containing a handful of newspaper clippings and a copy of an insurance reform law recently passed in Colorado known as the Make Whole Doctrine. Just over a year prior, my husbandEric and our 22-month old son Seamus had been struck by a careless driver in a crosswalk. Eric’s injuries were deemed minor. Seamus endured two surgeries and a night in intensive care and then died the next day. I was at Rep. Kotek’s office to ask her to support legislation that would prevent other families from having to navigate the health and auto insurance nightmare we encountered in the aftermath of our son’s death. Seamus was our first child. He arrived on Christmas day, 2008 and quickly grew Michelle DuBarry into a tank of a toddler, with huge feet, curly blonde hair and a pot belly that peeked out from beneath his t-shirts. Eric and I learned to disregard the baby books as Seamus blew through his motor milestones months ahead of schedule. He took his first wobbly steps across our living room at 8 months, when most babies are just starting to crawl. When I picture our lives back then, it’s a blur of exhaustion, joy and bewilderment, like an adorable tornado was tearing through our lives. A few hours before the crash, Eric sent me a photo he snapped at a neighborhood park, where Seamus spent the morning running up and down a large hill, practicing his new words: “Uphill!” and “Downhill!” This made it all the more disorienting to sit with him at a hospital bedside later that evening, where he lay unconscious, surrounded by beeping machines. We were left wondering if he would ever wake up and what these injuries might mean if he did. When the doctors declared a time of death, 27 hours after our arrival at the hospital, it was like a bomb went off in my life — I did not know what my world would look like when the dust settled, or what would become of my family or my career. I had some certainty, though, that our insurance would take care of us financially while we searched for a path forward. I explained to Rep. Kotek that, at the time of the crash, we had what was considered “good” health insurance, and the driver who killed Seamus had “good” auto insurance, including $100,000 in bodily injury coverage. Eric and I assumed the auto insurance settlement would come to us in a straightforward manner and would help us pay for our out-of-pocket medical costs, follow-up care (Eric was also injured in the crash), therapy and funeral expenses. Most crucially, a settlement from the at-fault driver would help us afford time off work to adjust to the sudden absence of our chubby, green-eyed toddler, to seek therapy, to be with family and to grieve a loss we could never have seen coming. “We were shocked to learn our auto and health insurance companies would be paid first, before we were paid,” I told Rep. Kotek. “Wait, what?” she responded. I explained that — as I had painfully learned — in Oregon and many other states, auto and health insurers must be paid first to compensate them for their crash-related losses. The victims are only entitled to settlements after the insurers are fully compensated. In catastrophic crashes like ours, there is almost never money left after the insurers are paid. I told her it doesn’t have to be that way. I retrieved a copy of the Colorado bill from my file folder and slid it across the table, explaining, “It’s called a Make Whole Doctrine because it makes sure victims are paid first or ‘made whole,’ and insurers are entitled to reimbursement only if there are leftover settlement Passing a Make W hole Law in Oregon
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