American Access Denies a Right Hook.

by Jim Freeman

In this case my client, a bicyclist, was traveling southbound on Clark.  As he approached the intersection of Clark and Deming a pickup truck over took him and made a quick right turn onto Deming, crossing the path of the cyclist.  The cyclist was unable to avoid the truck and struck the passenger side.  My client suffered a fractured vertebra.  He had no health insurance. 

As with almost every case we handle, we gave the driver's insurance the opportunity to settle without the wasted time and expense of litigation.  American Access denied the claim stating, "Our insured was stopped on Clark with his right turn signal activated waiting to make a right turn onto Deming.  While our insured was stopped, your client drove up to our vehicle at a high rate of speed and struck the passenger side of our vehicle with the front end of his bicycle.  It was your client's negligence that caused this loss to occur."

Logically, it makes no sense that a bicyclist would spontaneously run into the side of a truck.  It also makes no sense that the truck would be stopped waiting to make a turn at such an angle that a bicyclist would be able to run into the side of the truck.  Nevertheless, American Access denied all liability and refused to pay anything.  We were forced to file suit to obtain a fair result for the bicyclist.

Universal Casualty Company Tries to Deny a Left Cross.

by Jim Freeman

Years ago a girl came to me after being left-crossed by a driver at Damen and Elston.  Her injuries were severe, and she had no health insurance to pay for her medical.  The case seemed to be straight forward.  There was an independent witness who was waiting at a red on southbound Elston.  He saw the whole thing.

My client, the bicyclist, was southbound on Damen.  The bicyclist intended to proceed straight though the intersection of Damen and Elston to proceed southbound on Damen.  The hitter, northbound on Damen, entered the intersection and made a quick left turn to Northbound Elston.  In so doing he struck my client causing severe injuries and destroying the bicycle.

The driver was issued a ticket for negligent driving.  At the traffic court hearing he plead guilty to the ticket and essentially admitted fault.

We gave the driver's insurance company, Universal Casualty Company, every opportunity to do the right thing and pay their policy limits (which were woefully inadequate to satisfy my client's claim) to avoid the unnecessary burden of filing suit.  I thought the case would be easy to resolve since they basically had no defense and their client had admitted fault.  Much to my surprise, Universal Casualty Company refused to tender their policy.  As to the issue of fault, Universal Casualty Company stated, "...a bicyclist has a greater duty to maintain a proper lookout and retain control of their bicycle as they have a greater risk of harm."  I'm not kidding folks, I couldn't make this stuff up if I tried.    

We were forced to file suit.  In the end we obtained a result that was well in excess of Universal Casualty Company's policy limits. 

Insurance Denials on Bicycle Doorings.

by Jim Freeman

Some people think that the best thing to do after an accident is to just deal with the insurance company directly.  There is an idea that exists in such people that is promulgated by the insurance industry.  I call it "The Myth of Nobility."  People under the illusion of this myth seem to think that if they don't hire a lawyer, no lawyer will be involved in their claim against the insurance company.  This completely ignores the reality that every insurance company has an army of in-house lawyers.

Don't take my word for it though.  Take a look at some examples of real insurance denials on some real basic cases.  I like denials on doorings best because there is no effective defense to a broad daylight dooring, and yet insurance companies deny these claims.

Scenario 1:  A driver, parked northbound on Milwaukee, doors a cyclist traveling northbound on Milwaukee.  The driver is insured by Universal Casualty Company.  Three days following the collision Universal Casualty Company sends the bicyclist a denial stating, "Our insured reported his car was parked when you ran your bicycle into his parked car."  They also claim to regret being unable to pay the claim.  I'm sure they regretted paying the claim after we filed suit.  Needless to say, their defense wasn't too effective.

Scenario 2:   A box truck is parked next to a bike lane.  An independent witness, who was driving by when the dooring occurred, verified that the driver opened his door directly into a passing bicyclist causing several injuries.  The insurance company, Traveler's Insurance in this case, sent an unintelligible letter in which they claimed the collision was 50% the fault of our client stating, "The box truck's door was ajarred for almost a minutes before your client was aware and did not react to avoid a collision."  They paid us on that one as well. 

In a way I'm grateful when insurance companies are unreasonable, because if insurance companies were always fair with people making claims I'd be out of business.  Next up; a left cross denial...

A Big Fat Primer On Insurance For Bicyclists

Do I write about insurance too much?

I am a bit self conscious about tapping out another post about insurance.  (Maybe it is the law dork equivalent of, Does this dress make me look fat?)  But buying insurance it is the number one thing bicyclists can and should do to protect themselves in case they are injured in a crash.  So, here is a look at the types of coverage bicyclists should consider purchasing.  It originally appeared in my Cycling Legalese column at Urban Velo.  If this blog post makes me look fat, so be it.

It comes up amongst serious commuters all the time, should cyclists carry insurace? Are you already covered by existing policies? In this column Brendan lends some insurance guidance on what to look for in a policy.

Q:My bike is my primary means of transportation, so I ride a lot. Should I have insurance just in case, and, if so, what kind?

Talking about bikes is awesome. Insurance, not so much. But if you ride a lot in the city it is time to eat your peas and contemplate it, if only briefly. If something bad happens you will wish you thought about it. Cars, trucks and buses tend to produce horrible results when they collide with people on bicycles. For that reason, motor vehicle owners are generally required by law to have insurance to compensate anyone they may injure. Nevertheless, nationally one in seven drivers, over 14%, fails to carry the necessary coverage, according to the National Association of Insurance Commissioners. In big cities, based on my experience, the statistics are ever scarier. I would guess that in Chicago where I practice, one quarter to one-third of all drivers go without auto coverage. That means if you get hit by one of these scofflaws your chances of being compensated for your injuries and damage to your bike are nil. But you can protect yourself by purchasing insurance before a crash.

Here is a brief primer on the coverage you should have:

Health insurance: I know, it is expensive and these days fewer employers offer it to their employees. Those dreary facts noted, do whatever you can to get yourself covered. Get on a parent’s policy. Look for a job with great benefits, even if the salary is not the best. Companies like Whole Foods, REI and Starbucks are well known for providing employees good benefits packages. Even with a seemingly minor injury medical bills can mount up fast. An ambulance trip to the hospital alone can run you close to a thousand dollars. Add in some x-rays and an ER trauma protocol and your bills could be jaw-dropping. The bottom line is that if there is any way that you can swing getting health insurance, you should.

Auto insurance: A bicyclist should have car insurance. If you get hit and injured by a driver you may look to your own auto policy for protection. It matters not that you were on a bike instead of in your car at the time of the crash. If one of the conveyances involved was a motor vehicle, then your auto policy may provide you with coverage. Your auto policy will likely have two relevant provisions: “med pay” and un/underinsurance motorist coverage. The medical payments provision of your policy will pay your bills up to a set amount, usually between $5,000 and $10,000. Med pay can get eaten up fast by medical bills but it is better than nothing. Also, it will not be necessary to prove that the other driver was at fault to recover under the medical payments provision of your policy. If you are injured by a motorist that coverage is generally available. Uninsured and underinsured coverage generally provides more substantial coverage. However, you will be required to provide proof that the un/underinsured driver was at fault for causing your injuries. You may wish to have an attorney assist you in recovering un/underinsured motorist coverage from your insurer.

Non-owners auto insurance: No car? No problem getting car insurance. Consider non-owners auto insurance. These policies are offered by many insurance companies and tend to be more affordable than owner’s coverage, generally about half the premium of a traditional auto owner’s policy. They may provide medical payments coverage, just like traditional auto policies. Also, they may protect the non-car owning bicyclist who is injured by an uninsured or underinsured driver. The other nice thing about non-owners policies is that if you decide that the no car thing is not for you, you will have established an insurance history which may help you get a fair rate on car insurance.

Bicycle insurance: This is another option for the bicyclist who does not own a car. Also generally less expensive than traditional auto insurance, these policies provide coverage to pay your medical bills and to fix/replace your bike. They may also protect you should you injure another cyclist or pedestrian. There seem to be more and more companies sprouting up to offer bicycle insurance. One company that seems to be aggressively marketing its services is Markel American. Curious about what they had to offer, a few months ago I investigated. What I found was that for $310 a year, $25.83 a month, I could receive $25,000 in “bicycle liability” and “vehicle contact protection.” Markel defines bicycle liability coverage as “protection for bodily injury or property damage” for which the insured cyclist becomes liable to another person such as a pedestrian, another bicyclist, or motorist. Vehicle contact protection is coverage to benefit the bicyclist should he or she be injured by an uninsured or underinsured driver. That $310 price also includes $10,000 in medical payments coverage defined by Markel as coverage providing “protection for the reasonable charges for necessary medical, surgical, x-ray, dental, ambulance, hospital and professional nursing services and funeral service expenses incurred within one year form the date of an accident causing bodily injury to an insured while using an insured bicycle.” Generally, the insured may receive compensation under a medical payments provision of an insurance policy regardless of who was at fault for causing his or her injuries. The quote I received also provided some nice benefits should the insured bicycle become damaged in a crash.

Homeowners and renters insurance: If you own a home or rent an apartment it is a good idea to have this sort of coverage. These policies may compensate you if your bike is stolen, even if it is swiped far from home. They may also protect you with liability coverage if you injure someone else while riding your bike. However, they probably will not offer a source of compensation to you if injured while cycling.

Insurance companies market themselves as offering safety and security should your world turn upside down. Sometimes they do. However, whether a particular policy is really worth the premium depends upon how it works when it is really needed. Please do not accept anything I have written here as an endorsement of any particular company or any service or policy it provides. I strongly encourage readers to investigate for themselves when purchasing insurance. Of course, all insurance policies are different. Ask lots of questions when purchasing a policy. Assume nothing.

Bicycle Insurance Options

Yesterday, Lindsay Caron of BikePortland.org posted a helpful article on insurance options for bicyclists. Back in September I wrote about the most common insurance coverage options available to the bicyclist injured in an accident. The focus of Ms. Caron's piece is a bit different. She writes about options available (and unavailable) to bicyclists who do not own cars. This is recommended reading for those bicyclists who do not have auto insurance coverage that might protect them in the event of a biking accident.

Insurance Coverage For The Bicycle Accident Victim

Bicycle accident litigation is about money. If you are injured while riding your bicycle due to someone else's negligence you may look to the person at fault to compensate you for your harms and losses. In Illinois, an injury victim may be compensated for his or her medical bills, lost wages, loss of a normal life, disfigurement and pain and suffering. Most of the time, monetary compensation will come from the at fault person's insurance. (I have settled cases that involved compensation from a defendant's personal assets, but that is rare. Frankly, most people do not have significant cash assets to contribute to settlement.) Which insurance policy or policies may the injured bicyclist look to? Here is an overview of the three most common scenarios that tend to arise in bicycle cases:

1. Bicyclist injured by insured motorist. This one is a no-brainer. If you are injured by a negligent motorist you are entitled to compensation from his or her motor vehicle insurance policy. The driver's policy will generally have two separate provisions that may provide the injury victim with compensation. First, you may look to the "medical payments" provision of the driver's policy. That provision will usually provide for a relatively small amount of coverage for medical expenses incurred regardless of who was at fault for causing the accident. Additionally, you may look the the policy's liability coverage provision for compensation. To receive compensation under that provision you will need to demonstrate that the driver was negligent in causing your injuries. All Illinois drivers are required to have motor vehicle coverage in an amount not less than $20,000.

2. Bicyclist injured by uninsured or inadequately insured motorist. Though Illinois law requires motorists to have insurance coverage, many do not. Also, if the injuries sustained are very severe, or if the incident resulted in the cyclist's death, the motorist may have coverage that fails to fully compensate the victim or the victim's family. In those instances, if the injured bicyclist has his or her own motor vehicle insurance policy, or is covered under another family member's policy, the cyclist may look to the uninsured or underinsured motorist provision of that policy. This is permitted even though the victim was riding a bicycle and the accident did not involve his or her own motor vehicle. Generally, your uninsured or underinsured motorist coverage protects you even when you are injured by a motor vehicle while a bicyclist or pedestrian.

3. Bicyclist injured by another bicyclist. Most serious bicycle related injuries arise from tangles with motor vehicles. However, bicyclists certainly do, on occasion, cause serious injury to fellow cyclists due to negligent conduct. My own experience suggests that that is especially true along Chicago's crowded lake front bike path during the very busy summer months. Under this circumstance, the injured cyclist may look to the at fault cyclist's homeowner's or renter's insurance policy for compensation. The applicability of homeowner's coverage is not a given, and will depend on the specific wording in the policy. (For those interested in an in depth analysis of the matter please see the Illinois Supreme Court's decision in United States Insurance Company v. Schnackenberg, 88 Ill.2d 1, 429 N.E.2d 1203 (Ill. 1981)).

Of course, many bicyclists will look to their own medical insurance to cover them, if they are lucky enough to have it, in the event of an injury. Doing so is perfectly fine and will not preclude also looking to the at fault party's insurance for coverage. Bare in mind, though, that your medical insurance provider will probably look to be reimbursed for a portion of the amounts it paid toward your medical bills once you are compensated by the other party's insurer.

It is worth noting that bicycle accidents can and do arise from negligently placed roadway barriers or negligent roadway design or maintenance. In those instances, the injured bicyclist may look to the party responsible for the design and/or maintenance of the road, path or trail for compensation. Consideration of when and how the cyclist may recover in that circumstance will be covered in a later post.