SLR 4-9.055: SETTLEMENT OF PERSONAL INJURY OR WRONGFUL DEATH CLAIMS

CLAIMS (1) Except as permitted by ORS 126.725 for a minor child, a petition for approval of a settlement of a personal injury or wrongful death claim on behalf of a minor child, incapacitated person, financially incapable person, or decedent shall be accompanied by a declaration in conformance with HB 3008 3(2): (a) A description of the incident causing the injury or death; (b) A description of the injuries; (c) The amount of the prayer and settlement. (If a structured settlement is requested, the present value of the future payments should be indicated); (d) The amount of the attorney fees and costs; (e) The proposed disposition of the settlement proceeds; (f) A concise statement explaining the reasons for the settlement and the efforts to maximize recovery; (g) A statement explaining that the attorney has independently evaluated the interests of the injured party; (h) A statement explaining that the attorney has examined every medical record; and (i) A statement explaining why it is necessary and proper to settle the case at the present time. (2) The Chief Judge, or designee, shall approve any settlement of a personal injury or wrongful death claim on behalf of a minor child, incapacitated person, financially incapable person, or decedent. (a) For personal injury when a civil action is filed, the original petition and affidavit must be filed in the civil action. The order shall be directed to the Probate Department by the Civil Department. (b) For wrongful death, or a personal injury claim for which approval is sought on behalf of a minor child, incapacitated person, or financially incapable person prior to filing the civil action, the petition and affidavit shall be filed in the Probate case. (c) If a beneficiary of a proposed settlement has had a fiduciary appointed by a court, a court-certified copy of the judgment or order of appointment along with the declaration in support of the settlement must be filed with this court. (3) A conservatorship on behalf of the minor child or incapacitated person generally will be required for any case where personal injury or wrongful death settlement proceeds are at issue in excess of the amount allowed in ORS 126.725. (a) Bond and standard annual accounting requirements may be waived if the funds are restricted until the minor attains the age of majority. In lieu of such accountings the court will require copies of the first and last bank statements for each standard accounting period to be filed with the court. (b) Restricted accounts on behalf of a minor child or incapacitated person must be confirmed by a signed acknowledgment from the bank or brokerage firm which discloses the account number, type and account balance as required by UTCR 9.050 and 9.080. Exceptions for diminutive amounts may be requested. (c) As indicated above, damage settlement amounts on behalf of a minor child, incapacitated person, or financially incapable person shall be submitted for approval to the Chief Judge, or designee. The allocation of funds and the structuring of such funds is likewise the Chief Judge’s responsibility. Minors, incapacitated persons, and financially incapable persons should be provided with independent counsel for such issues and most commonly when a minor’s funds are proposed to be withheld from them after age 18. (4) A fiduciary appointed by the Probate Court is required to comply with paragraph (1) of this rule and must file a motion for an order approving a settlement of a personal injury or wrongful death claim on behalf of a protected person. The motion must be supported by an affidavit setting out the required information.