Question for those who have been doored, or hit by a car, and had damage to your bike

Despite what we all personally feel.  Who has the legal liability when you get hit, doored, cornered, etc?  IF the driver stops that is.  If you call the police, will they do anything?  Bikes, and parts, aren't cheap.  Are you expected to pay for the damage done to your bike by some inconsiderate driver?

Just curious to know how you have dealt with this.

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Permalink Reply by Kevin C Dormant on September 20, 2013 at 8:58am

A very thorough list of things to do. You would/will make an ideal client.

Christine Simmons said:

I was hit by a car in July. Luckily the woman stopped. It was her fault. Here's what's happened since then, all of which is based on legal advice I received from several bike lawyers I spoke with:

 

- I wasn't coherent enough to do this, but if there are pedestrians nearby and even those who stopped to help you, ask them for their name and contact info as witnesses.

- I went to the ER, and the police officer stopped by to hand me a copy of the police report. He had issued her three tickets: 1) No turn signal, 2) Failure to yield to a bicyclist, and 3) expired insurance. The 3rd one ended up getting dismissed because she did have insurance, she just didn't have the most recent stub to prove it in her car at the time.

- Took pictures of my injuries.

- Lawyers told me to 'make myself whole again'. That includes all medical treatments, fixing my bike, replacing my torn clothes, etc.

- I have medical insurance through my work, so currently I have paid through my deductible, and am now paying through the percent required under my plan until I reach my yearly maximum out-of-pocket expense.

- I got my bike fixed, but I had to pay out of pocket for it.

- When all of my treatment is over with, or within 2 years, whichever is sooner, I am able to file a lawsuit with the insurance company who covers the woman who hit me. However, a lawsuit is only needed if the insurance company will not be willing to settle with me based on a negotiated amount. I am hoping that we will be able to settle, which according to the lawyers, is 3-5x the total cost of treatment, lost time at work, the cost to fix my bike, pain and suffering, etc. If my treatment is still occurring at the 2-year mark (I hope it's not), then this negotiated amount will need to factor in the cost of future treatment etc.

- The insurance company tries to avoid you. Be persistent with calling the person in charge of the claim. They will threaten to close the claim on you if you don't provide them the cost of repair, etc. But you need to tell them that your treatment is ongoing, there is no total cost yet, and they need to keep the claim open. Speak to supervisors if needed, or if you don't get a call or a letter confirming they'll keep the claim open.

- Document EVERYTHING. Keep a diary of how you're feeling. Track how many hours from work you are missing or the sick time you are taking. Keep track of expenses, including your medical insurance's Explanation of Benefits (EOBs) and the associated bills from doctors. Record all travel expenses, including mileage, gas, tolls, CTA rides, taxis, whatever is needed to get you to your necessary therapies and appointments. Keep track of the dates, times, and people you're talking to at the person who hit you's insurance company. Get medical records, images, etc. from doctors you see (x-rays, MRIs, etc.).

- There will be a court date for the tickets the person was given. The City Attorney likely will make them an offer to plead guilty to the most expensive ticket, and all other tickets will be dropped. So in this case, the most expensive of the two tickets actually was no turn signal (I think it was $190), so the failure to yield to a bicyclist got dropped. That ticket was only $90! I was concerned that the fact her ticket was being dropped could eliminate some of my 'proof' that she had hit me, but the City Attorney explained to me that the traffic tickets have absolutely no impact on any lawsuits or insurance claims because of different jurisdictions. I don't really understand it, but had to take his word for it.

- It sucks but you have to pay for all of this until you get the settlement. When the settlement is received, the first chunk of money goes back to your medical insurance company for the amount they shelled out to cover the costs of your treatment. If you have a lawyer, the second chunk of money will go to your lawyer, and the going rate right now for them is a whopping 33.33%. The rest goes to you!

- You don't NEED a lawyer right after your accident. There's nothing for them to do until it is time to settle, or if necessary file a lawsuit. For this reason I myself do not have a lawyer yet. I'm actually hoping I won't need one, I'll see how the settlement negotiation goes and if the insurance company will be willing to pay me within that 3-5x range. If they try to BS me, then I'll consider hiring a lawyer.

 

I hope this helps! Stay safe.

Permalink Reply by Christine on September 20, 2013 at 9:29am

Well I'm hoping I'll get to keep that 33.33% for myself :)

Kevin C said:

A very thorough list of things to do. You would/will make an ideal client.

Permalink Reply by Christine on September 20, 2013 at 12:45pm

I had to look into this when I was hit by a car, because she had an expired insurance card in her car at the time, so I wasn't sure if there would be any insurance on her end to pay for everything.

If you have car insurance that includes the underinsured motorist policy, and you are on your bike and get by a car whose driver is uninsured/underinsured, your policy will kick in. It doesn't matter that you yourself weren't in a car; it's still considered an auto accident because you were in an accident that involved a vehicle.

When you use this part of your policy, your rates *shouldn't* go up because it wasn't your fault. But I bet they'd find another way to raiser your rates, like you got a speeding ticket back in 2004 or something ridiculous like that.

KayCee said:

Good question-  I'm actually looking into a "non-owners" insurance policy to cover me for when I borrow or rent a car, and I figured it is also useful in that you can elect under insured motorist coverage to help out in case of an accident.  I am definitely going to do some research on how this might relate to biking as well.  Would love to know if anyone has any information on this.

Permalink Reply by El Dorado on September 20, 2013 at 4:55pm

It is the responsibility of the taxi driver and we are always to remind passengers to look before they are exiting. Well, we are suppose to at least.

Permalink Reply by Mike Keating on October 16, 2013 at 4:08am

This is a very interesting thread that I'm sorry I didn't respond to before as there are several points that a "bike lawyer" would have insight into. I recently was retained by a couple of clients who were injured in this exact same fact pattern and I was reminded of this thread.

First, the answer to the question of "who has the legal liability" is both the cab driver and the passenger. The passenger has a duty to not open the taxi door into traffic and to "keep a proper lookout," meaning to watch where they are going. The taxi driver has a duty to instruct the passenger to only exit on the curbside. Moreover, the taxi driver should only let the passenger out where it is safe to do so. I've handled a few cases where the taxi driver let the passenger out directly onto a bike lane and that is where the collision occurred.

It's important to note that a taxi driver has a "higher" duty of care than just "ordinary care." The law says that this higher duty of care only extends to the passengers in the cab and there is no higher duty of care to those outside of the cab, such as an approaching bicyclist. However, I've successfully been able to argue with insurance adjusters that it was this violation of the taxi driver's higher duty of care to the passenger that put both the passenger and the bicyclist in harms way. It is of utmost important to prepare a case for liability against the cab company/driver because a passenger rarely has insurance that covers a situation like this. Auto insurance coverage only covers a person when they are driving, not a passenger in a cab. I have made a successful financial recovery for my client from the cab company on every single case like this I have ever handled. Many of these claims were originally denied by the insurance company.

As for the other comment that a lawyer isn't needed until the very end of a case, I couldn't disagree more, and not just because I'm an attorney. That's like saying you can put a cast on a broken arm by watching a video on the internet and you don't need to go to the doctor. It's true in theory, but a horrible idea in practice.

I can only speak for myself, but I only handle cases where I know that my involvement will directly influence the amount recovered for the client in excess of my fee. I also advance all case expenses in preparation of prosecuting the claim and handle all of the interactions with doctors, claims adjusters, billing companies, etc. This gives the injured bicyclist the chance to focus on the most important thing: getting better. Given that the fees in a personal injury case are typically contingent, the injured cyclist rarely has anything to lose and much to gain.

As for dealing with the insurance adjusters on your own, please remember they are called insurance adjusters, not insurance "payers," not insurance "check writers," not insurance "advocates." Their sole, exclusive job is to pay you (the claimant) as little as possible by adjusting the claim in favor of the insurance company. To this point I once had an insurance adjuster with a major local insurance company who was a friend-of-a-friend tell me candidly that they call injured people without attorneys "unreps," which is short for unrepresented. This adjuster said that their practice is to pay the "unreps" only 10% of what they pay someone who has an attorney. The reason for this is there isn't really any pressure from an unrepresented claimant.

You should always at least consult with an attorney, you truly do have nothing to lose. If you tried to handle a claim on your own and the insurance company is trying to lowball you or outright denies your claim, do not despair, this is their common practice. They are just trying to wear you down. Please know that I'm always happy to talk to anyone free of charge in an initial consultation. You can hit my link to the right to go to IllinoisBicycleLaw.com for all my contact info.

Ride Safe.

Permalink Reply by Andrew Bertocchini on October 16, 2013 at 9:21am

I got doored, the guy actually had the balls to say I ran into the door on purpose. Trust me it hurt a lot it is not something I would recommend. I got a lawyer, it was the best thing I could have ever done. Unfortunately it took two years to settle, but I was very happy with the settlement, and I did not have to go to court. Christine Simmons list is excellent and it should be laminated and kept in every cyclist back pocket. If I had that kind of information I probably would have gotten a larger settlement. Funny thing is I was not interested in going after anyone until the driver’s insurance company gave me the run around, and when he said I hit his door on purpose. That was the last straw. The best advice is to stay safe and do not swerve into traffic to avoid the door. Wow this really bringing up some bad memories.

Permalink Reply by Mike Keating on October 16, 2013 at 10:06am

Pursuing a claim against an insurance company for personal injuries or property damage is not "going after" anyone. This is what the negligent party paid insurance premiums for; the event in which they unintentionally caused someone else harm. I know what you meant, but if there is one misconception I could change this is it. The idea that filing an insurance claim is somehow putting your hand out is exactly what the insurance companies want us to think. It simply isn't true; it's what insurance is meant for.

Andrew Bertocchini said:

Funny thing is I was not interested in going after anyone until the driver’s insurance company gave me the run around, and when he said I hit his door on purpose. That was the last straw.

Permalink Reply by Mike Keating on October 16, 2013 at 10:14am

The best thing that can happen with the traffic ticket is that the motorist pleads guilty. The reason for this is under the law a plea of guilty is treated as an admission in the civil case. A finding of guilty in the traffic case doesn't help you in the civil case, and probably also just ends with a fine anyways. So the motorist taking a plea is actually the best thing that can happen. This is also why either I or one of the attorneys at my office ALWAYS go with the client to traffic court. Not only is it good to have the moral support, but if need be we can talk to the city attorney or asst. state's attorney to do what we can to ensure that the rights of the injured bicyclist are protected.



Christine said:


- There will be a court date for the tickets the person was given. The City Attorney likely will make them an offer to plead guilty to the most expensive ticket, and all other tickets will be dropped. So in this case, the most expensive of the two tickets actually was no turn signal (I think it was $190), so the failure to yield to a bicyclist got dropped. That ticket was only $90! I was concerned that the fact her ticket was being dropped could eliminate some of my 'proof' that she had hit me, but the City Attorney explained to me that the traffic tickets have absolutely no impact on any lawsuits or insurance claims because of different jurisdictions. I don't really understand it, but had to take his word for it.

Permalink Reply by Alex Z on October 16, 2013 at 10:55am

Very well said.

Mike Keating said:

Pursuing a claim against an insurance company for personal injuries or property damage is not "going after" anyone. This is what the negligent party paid insurance premiums for; the event in which they unintentionally caused someone else harm. I know what you meant, but if there is one misconception I could change this is it. The idea that filing an insurance claim is somehow putting your hand out is exactly what the insurance companies want us to think. It simply isn't true; it's what insurance is meant for.

Permalink Reply by Mike Bullis 5.5-6.5 miles on October 16, 2013 at 3:28pm

If I had to do it all over again(I sure as hell hope not)I'd lawyer up ASAP. I also would recommend you get a copy of Bob Mionskes' "Bicycling and the Law" and read it cover to cover several times. I wish it had been published BEFORE I'd gotten whacked.

Permalink Reply by Christine on October 30, 2013 at 4:25pm

Thanks for the additional insight, Mike. Could you elaborate more on what lawyers do during the healing time, say when insurance EOBs and bills are coming in, but there is no lawsuit yet? From lawyers I have spoken with, they've said there really isn't anything for them to do until they know the whole cost of damages/recovery, and then they go after 3-5x that amount.

Mike Keating said:

As for the other comment that a lawyer isn't needed until the very end of a case, I couldn't disagree more, and not just because I'm an attorney. That's like saying you can put a cast on a broken arm by watching a video on the internet and you don't need to go to the doctor. It's true in theory, but a horrible idea in practice.

I can only speak for myself, but I only handle cases where I know that my involvement will directly influence the amount recovered for the client in excess of my fee. I also advance all case expenses in preparation of prosecuting the claim and handle all of the interactions with doctors, claims adjusters, billing companies, etc. This gives the injured bicyclist the chance to focus on the most important thing: getting better. Given that the fees in a personal injury case are typically contingent, the injured cyclist rarely has anything to lose and much to gain.

As for dealing with the insurance adjusters on your own, please remember they are called insurance adjusters, not insurance "payers," not insurance "check writers," not insurance "advocates." Their sole, exclusive job is to pay you (the claimant) as little as possible by adjusting the claim in favor of the insurance company. To this point I once had an insurance adjuster with a major local insurance company who was a friend-of-a-friend tell me candidly that they call injured people without attorneys "unreps," which is short for unrepresented. This adjuster said that their practice is to pay the "unreps" only 10% of what they pay someone who has an attorney. The reason for this is there isn't really any pressure from an unrepresented claimant.

You should always at least consult with an attorney, you truly do have nothing to lose. If you tried to handle a claim on your own and the insurance company is trying to lowball you or outright denies your claim, do not despair, this is their common practice. They are just trying to wear you down. Please know that I'm always happy to talk to anyone free of charge in an initial consultation. You can hit my link to the right to go to IllinoisBicycleLaw.com for all my contact info.

Ride Safe.

Permalink Reply by Liz W. Durham on October 31, 2013 at 7:01am

When I was doored, the motorist's insurance company paid for everything. That includes bike, all impacted accessories, my medical bills, and something that was in essence for "pain and suffering".

Filing a police report is A MUST!!

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