• Broken, Not Burned: Your Rights in a Car-Bike Accident

    by  • September 18, 2014 • too random, trainin and tactics

    By Heather Johnson

    “It’s not a matter of if you crash; it’s when.”

    That’s what an experienced rider told me in my first year of bike racing. While these fatalistic words referred to crashing in a controlled (mostly) car-free environment, they could have just as easily applied to bike-car collisions on the open road.

    Riding prepared means more than wearing a Road ID, riding with your cell phone and gathering data with a GPS device and/or GoPro (all wise precautions). It means being in good health, having as much auto insurance as budget allows, and as morbid as it sounds, consider drafting a will. Odds are, you will not need them, but if the odds turn against you, well, you’re better off with a plan. In the event of an accident think of these tips to protect your interests and health.

    Get the Details, Don’t Discuss Them. Just as you would in a car accident, get the driver’s name and telephone number, proof of insurance and license plate number if you can. Obviously you can’t do this if you’re out cold, but your riding buddy might. Also get contact information for any witnesses. Do not discuss the crash with the driver or the insurance company. Don’t even say, “I’m fine, I’ll be okay.” Do not give a recorded statement after the accident.

    Todd Stone, a Cat 2 cyclist for VuMedi Elite Cycling Team, learned this lesson when he received repeated calls from GEICO almost immediately after one of its insured drivers turned into Stone one late afternoon. The accident left Stone with two broken femurs and some broken vertebrae. “They really downplayed what they were doing,” says Stone. “They said they were trying to get a better understanding of what happened, then started subtly probing me. It didn’t affect my case, but I’m glad I didn’t say too much.”

    Do, however, talk to the police. They may or may not show up, but at least make the attempt. “Each jurisdiction will respond based on their general attitude and how busy they are,” says Oakland-based personal injury attorney David Smith. “Recording the facts of the accident is very important.” Occasionally, a police officer will visit the cyclist in the hospital to get her version of the accident, but not always. “Sometimes the officer thinks they have a clear picture and won’t contact the injured person,” says Smith. If in doubt, call the police department to find out if a report was made; if so, give the investigating officer your side of the story.

    A police report and witnesses will provide backup if and when the driver’s story changes. Often he becomes less at fault when filing a claim, or his memory clouds over time.

    Are You Okay? Get medical attention, even if you think you are a Wolverine and never get hurt. Oftentimes, a substantial crash will necessitate a trip to the emergency room. If not, visit your doctor as soon as possible. The visit will generate medical records that will serve as proof that you were injured. Plus, you will get on the road to recovery that much faster. “If you are in any pain at all, go see your primary care doctor,” says Smith. “The doctor may refer you to a physical therapist, some other specialist or order an X-Ray. People that treat injuries aggressively, in the long run, heal better and more quickly than those that sit around and hope that it goes away.”

    But is the Bike Okay? Keep your bike and keep it broken, at least for a while. Take lots of pictures of your cracked frame. If possible, also take photos of the damaged vehicle. “If there are photos of vehicle and the bike, a lawyer can retain an expert if necessary to reconstruct an accident based on pictures and possibly the police report,” says Smith. A repair estimate from your local bike shop will help determine whether to repair or replace. The at-fault driver is required to pay either repair costs or fair market value of the bike at the time before the crash. Be prepared for the driver’s insurer to inspect the bike and dispute the estimate.

    To Lawyer Up, or Not. The short answer is, it depends. If the injuries are very minor or if both parties have minimal insurance, the cyclist may be better off to work with the insurance companies himself. If in doubt, it’s worth a free consultation, which most lawyers offer. Most personal injury attorneys work on a contingency basis, which means they don’t get paid unless and until you get a settlement. They typically take about a 33 percent cut, but there may be a little wiggle room. “Every lawyer I talked to said they wouldn’t take a full third unless we went to trial,” says Stone. And most cases don’t. “In my case, the lawyer wrote a simple demand letter to GEICO, and they were eager to settle.”

    If legal action is taken, hospitals and other medical providers will usually work on a lien basis, which means they will not pursue payment until the case is resolved. Considering a short trip in an ambulance can cost more than $1,500 and an emergency room visit runs into the thousands, deferred payment is helpful.

    The lawyer will also look for “deep pockets.” Did the driver hit you with the company car? The employer’s insurance might come into play. Did you hit a pothole that the city knew about? Did the driver not see you because overgrown hedges or a construction barrier blocked his view? The municipality could be partially liable.

    If you decide to negotiate with the insurers on your own, do your homework. “The individual is at a competitive disadvantage,” says Smith. “The insurance companies want to pay you as little as possible.”

    Claim It. Your insurance policies may help you in the event of a crash. The personal liability of your homeowners’ or renters insurance may provide coverage for property damage (the bike). Depending on the terms of your auto insurance, medical payments coverage will pay your bills, up to the policy limits. Uninsured/Underinsured (UM/UIM) motorist coverage will kick in if the driver has minimal coverage and your accident warrants much more.

    For Mike Stephanos, a longtime Berkeley Bicycle Club member, his UM/UIM coverage provided more benefits than anything recouped from the motorist that hit him from behind at 50 mph. “The guy had virtually no insurance,” says Stephanos, who suffered a traumatic brain injury and numerous other injuries from the hit. “He had enough to cover part of the bike…and the ambulance ride.”

    Stephanos stresses the importance of having extra insurance to help offset at least a portion of the costs that come from a life-altering event. “I could not work for almost four years. My business crashed, the economy crashed…and we had to fight with my own insurance company.”

    Life eventually turned around for Stephanos and his family. He got his “creative juices” back, started a new business—Home Town Honey—and has other projects in the works. Fully healed, Stone is enjoying a successful conclusion to the 2014 racing season. But because of the crash, he always rides with lights if there is a chance he won’t get home before dusk.

    With a lot of luck and smart, defensive riding, you will never be involved in a collision and will never need this information. But rather than gamble, just—as Stephanos so succinctly advises—“Get your shit in order.”

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