2/22/2016 3:05:51 PM

16CV05148

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

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)
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Plaintiff,
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v.
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GARY CLARK, TIK TOK RESTAURANT )
& BAR and THE CITY OF PORTLAND, )
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a municipal corporation,
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Defendants.
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ALLISON RENANDER,

Case No. ________________________

COMPLAINT PERSONAL INJURY
(NEGLIGENCE; NEGLIGENCE PER SE;
DECLARATORY JUDGMENT)
Not Subject to Mandatory Arbitration
Amount in controversy: $318,467.75
Negligence/Negligence Per Se (Clark/Tik
Tok); Declaratory Judgment (City of Portland)
Filing Fee Authority: ORS 21.160(c)
Jury Trial Demanded

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Plaintiff alleges as follows:

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GENERAL ALLEGATIONS

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1.

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At all material times, SE Stark Street, near the intersection of SE 155th Avenue, was and
is a public highway in Multnomah County, Oregon.

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2.

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At all material times, plaintiff, Allison Renander (RENANDER), was the operator of a

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2009 Ford Crown Victoria and was employed by defendant The City of Portland (THE CITY)

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as a police officer.

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Page 1 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461

3.

At all material times, defendant Tik Tok Restaurant & Bar (TIK TOK), is authorized to

do business, and was doing business, as a restaurant and tavern located at 11215 SE Division

Street, Portland, Oregon, and was licensed to sell and was selling alcoholic beverages to the

general public.

4.

On or about February 27, 2015, defendant Gary Clark (CLARK) was operating an

uninsured white 1987 Dodge pickup truck while he was intoxicated, when he collided with

RENANDERs vehicle from behind at the location in paragraph 1 and caused injuries to her.

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FIRST CLAIM FOR RELIEF

(Against Defendant CLARK)

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COUNT 1
(Negligence)

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5.
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Plaintiff realleges paragraphs 1-4 above.

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6.
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CLARK was negligent in one or more of the following particulars, which directly led to
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RENANDERs injuries and damages:

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a. In failing to yield to an emergency vehicle;

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b. In failing to maintain a proper lookout;

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c. In failing to keep a safe distance from RENANDERs vehicle;

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d. In failing to maintain control of his vehicle;

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e. In driving too fast under the circumstances; and

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f. In failing to exercise due care.

Page 2 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461

7.

As a direct result of CLARKs negligence as alleged above, RENANDER suffered a

closed head injury, including a mild traumatic brain injury and a cephalohematoma, a cervical

strain, temporomandibular joint disorder with recurring muscle spasms and post-concussive

syndrome. These injuries, and the consequences of them, caused RENANDER to suffer

noneconomic damages including but not limited to past and future pain and suffering, as well as

past and future inconvenience and interference with normal and usual activities apart from

gainful employment, all to her noneconomic damages in a fair and reasonable amount to be

determined by the jury and not to exceed $300,000.00.

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8.

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As a further result of CLARKs negligence, RENANDER required medical treatment

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resulting in past and future reasonable medical care and expenses related to services, all to her

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economic damage of $14,301.75, or an amount to be proven at trial.

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9.
As a further result of CLARKs negligence, RENANDER sustained wage loss in the
amount of $4,166.00, or an amount to be proven at trial.

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COUNT 2
(Negligence per se)

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Plaintiff realleges paragraphs 1-9 above.

10.

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At all material times, the following legislative enactments were in existence for
the protection of the general public, including RENANDER:
813.010 Driving under the influence of intoxicants. (1) A person commits the
offense of driving while under the influence of intoxicants if the person drives a
vehicle while the person:

Page 3 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461

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(a) Has 0.08 percent or more by weight of alcohol in the blood of the person
as shown by chemical analysis of the breath or blood of the person made under
ORS 813.100, 813.140 or 813.150;
(b) Is under the influence of intoxicating liquor, a controlled substance or an
inhalant; or
(c) Is under the influence of any combination of intoxicating liquor, an
inhalant and a controlled substance.

*****
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11.
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CLARK failed to comply with the aforementioned requirements of the Oregon vehicle
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code and was, therefore, negligent as a matter of law.

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12.
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CLARKs violation of the above statute was a substantial factor in causing

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RENANDERs injuries.
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SECOND CLAIM FOR RELIEF

(Against Defendant TIK TOK)

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COUNT 1
(Negligence)

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13.

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Plaintiff realleges paragraphs 1-8 above.

14.

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On or about the evening hours of February 27, 2015, CLARK consumed numerous

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alcoholic beverages at TIK TOK. After consuming the aforementioned alcoholic beverages,

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CLARK drove his motor vehicle in the manner described in paragraph 4 above.
15.

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TIK TOK was negligent in serving alcoholic beverages to CLARK at a time when he was
visibly intoxicated.

Page 4 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461

16.

Many patrons who consume alcoholic beverages at TIK TOK and other similar

establishments arrive by motor vehicle, and leave the premises in the same manner. Many of the

persons consuming alcoholic beverages at TIK TOK during the evening hours of February 27,

2015, arrived by motor vehicle and later drove a motor vehicle after leaving TIK TOK.

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17.
It was reasonably foreseeable that CLARK would operate a motor vehicle after
consuming alcoholic beverages at TIK TOK as described above.

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The negligence and/or fault of TIK TOK in serving alcoholic beverages to CLARK, prior

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to the crash, at a time when he was visibly intoxicated, was a substantial factor in causing the

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aforementioned crash of CLARKs motor vehicle into RENANDERs vehicle, resulting in

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injuries and damages to her as set forth in paragraphs 7 through 9.

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19.
Notice of this claim was given to TIK TOK pursuant to the provisions of ORS 471.565
on or about April 28, 2015.

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COUNT 2
(Statutory Liability)

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20.

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Plaintiff realleges paragraphs 1 - 19 above.

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21.

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TIK TOK violated the provisions of ORS 471.565, which provide that no licensee,

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permittee, or social host is liable for damages incurred or caused by intoxicated patrons or guests

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of the licensee, permittee, or social host unless the licensee, permittee, or social host has served

Page 5 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461

or provided alcoholic beverages to the patron or guest while the patron or guest was visibly

intoxicated, by serving and/or providing alcoholic beverages to CLARK at the aforementioned

establishment at a time when he was visibly intoxicated. Said acts on the part of TIK TOK were

a substantial factor in causing the crash of CLARKs motor vehicle into RENANDERs vehicle,

resulting in injuries and damages to her as set forth in paragraphs 7 through 9 above.

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FOURTH CLAIM FOR RELIEF

(Against CLARK and TIK TOK)

COUNT 1
(Punitive Damages)

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22.
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Reserved.
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FOURTH CLAIM FOR RELIEF

(Against Defendant THE CITY)

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COUNT 1
(Declaratory Judgment)

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Plaintiff realleges paragraphs 1-22 above.

24.

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At all material times, THE CITY was and is a municipal corporation and a governmental
body/political subdivision of the state of Oregon.
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At all material times, THE CITY was a self-insured entity for its liability arising out of

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collisions involving motor vehicles it owned and operated. As a self-insurer, THE CITY was and

Page 6 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461

is required by law to comply with uninsured (UM) and underinsured (UIM) motorist statutes

including ORS 742.502 and 742.504.

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In June 2015, RENANDER notified THE CITY she had an UM case. At some point

thereafter, after first agreeing that by law it had UM coverage, THE CITY communicated that

while they carried UM insurance, it was at the state minimum of $25,000 per person and

RENANDER waived coverage by accepting disability benefits.

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27.
THE CITY did not, prior to February 27, 2015, complete and sign a written election of
lower UM/UIM limits than its liability limits in the manner required by ORS 742.502.

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28.
THE CITYs liability limit for motor vehicle collision injury claims is its applicable tort
claim limit, which as of February 27, 2015, was $666,700.00, pursuant to ORS 30.272.

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THE CITY failed to comply with ORS 742.502, and as a result, by law has UM/UIM

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limits equal to its liability limits. THE CITY has refused to acknowledge its UM obligation to

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plaintiff.

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30.
A controversy under the provisions of ORS Chapter 28 now arises and exists among the
parties as follows:
a) RENANDER claims she is entitled to UM coverage for compensatory damages from
THE CITY;

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b) RENANDER further claims the limits of coverage for uninsured and/or underinsured

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motorist protection applicable in this case are $666.700.00, by law, for reasons

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originally explained in such cases as White v. Safeco Insurance Company of America,

Page 7 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461

68 Or. App. 11 (1984); Blizzard v. State Farm Automobile Insurance Company, 86

Or. App. 56 (1987) and numerous authorities that reformed UM limits or read higher

limits of UM/UIM coverage into insurance policies when an insurer purports to have

lower UM/UIM limits than liability limits but failed to comply with provisions such

as now existing in ORS 742.502;

c) This Court should order RENANDER and THE CITY to arbitrate the amount of

RENANDERs damages in the manner provided in ORS 742.504(10).

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31.
RENANDER is entitled to an award of her reasonable attorney fees pursuant to ORS
742.061.

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WHEREFORE, RENANDER demands judgment as follows:

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As to defendants CLARK and TIK TOK:

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a. $14,301.75 in economic damages in the form of past medical expenses;

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b. $4,166.00 in economic damages in the form of lost wages;

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c. Not more than $300,000.00 in noneconomic damages; and

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d. Her costs, expenses and fees incurred in pursuit of this action.

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As to defendant THE CITY:

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a.

For a declaration that under the terms and conditions of Oregon law and the facts

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herein:

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(i) That THE CITY has UM/UIM limits covering plaintiffs bodily injury

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compensatory damages in the amount of $666,700.00;

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(ii) That RENANDER and THE CITY shall arbitrate the determination of the amount

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of her compensatory damages in the manner provided in ORS 742.504(10);

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and

Page 8 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461

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b. For judgment for her attorney fees, costs and disbursements against THE CITY
pursuant to ORS 742.061.

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RESPECTFULLY SUBMITTED this 22nd day of February, 2016.

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s/ Josh Lamborn____________
Josh Lamborn, OSB# 973090
Email: jpl@pdxinjury.com
Attorney for Plaintiff

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Plaintiff requests trial by jury.

s/ Josh Lamborn____________
Josh Lamborn, OSB# 973090
Attorney for Plaintiff

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Page 9 of 9 - COMPLAINT

The Law Office of Josh Lamborn, P.C.

820 SW 2nd Avenue, Suite 280
Portland, Oregon 97204
503.546.0461