We (Bruce Hagen and Ken Rosskopf) met with a group of Atlanta-area bicycle commuters recently at an event called “Two Wheel Tuesday.” The questions that came up were great, and are ones we get a lot. We decided to write them down and maintain a regularly updated list of FAQs.
Q: A car makes an illegal left turn across your path and hits you. The driver admits that he is at fault and is given a traffic citation. True or False: The driver’s insurance will pay the full cost of my medical treatment?
A: Sadly, the answer is false. Several issues come into play that can impact you. These include:
The amount of insurance coverage available. If you have $100,000 in medical bills and the driver that hit you has the minimum liability policy limits of $25,000, then the most that the insurer will pay is $25,000, leaving you exposed to the rest of the bills. You can protect yourself by having both Uninsured (“UM”)/UnderInsured Motorist (“UIM”) coverage on your auto policy if you own an automobile.
You are responsible for your own medical bills at the time of service. There’s no mechanism for the other driver’s insurance company to pay your bills directly. Its not like health insurance. Typically, the insurer will consider your entire claim when your treatment has ended. For some people, this can limit their access to medical care. Many times we can help clients find top quality medical care from doctors who will defer collection until the time that the case is resolved.
The insurance company may challenge you over any pre-existing conditions, claiming that they’re not responsible for your treatment since you needed it anyway. This gets into both the causation of injury and aggravation of pre-existing injuries. Insurance companies are responsible for the harm caused by the negligence of their drivers, even if the harm is simply making a dormant condition active or a bad condition worse. However, this will often be a point of contention when injuries aren’t objective. For example, if you suffer a broken collar bone in a crash, that will be an objective finding that shows up on an X-ray. If you have pain in your lower back, that is a subjective complaint that will not be verified by any tests and is subject both to attacks on your prior medical history and your credibility. We fight these attacks constantly.
Q: A car cuts you off and you lay down your bike to avoid impact. Your bike is damaged and you’re injured. The car leaves the scene. True or False: Your Automobile Uninsured Motorist Coverage will be responsible to pay for your property damage and injury claim?
A: It depends. (How’s that for talking like a lawyer?)
Some people wanted to know whether they needed to call the police and make a report, even in minor incidents where they are not badly injured. We answered a resounding “Yes” and one of the reasons is that Uninsured Motorist (“UM”) coverage will not apply in the absence of a police report. So, in the above example, no police report means no recovery under the UM policy.
In the absence of contact with the other vehicle, you must have a corroborating witness to confirm that you were injured or your bike was damaged due to the actions of the driver. The question came up of whether a Go Pro or other video recording of the incident would suffice and, while that question hasn’t been answered in Georgia law, it makes sense that a video corroboration would be sufficient to make the UM coverage applicable, since it serves the same purpose as a live witness.
UM coverage only applies if the vehicle that cut you off was negligent and more negligent than you. If you were equally negligent, it will not cover you. That’s yet another reason to have Medical Payments coverage (“Med Pay”) which will pay for your medical care regardless of fault.
Q: If I make eye contact with a driver, that means he sees me and it’s safe for me to proceed. Who disagrees with this statement?
A: Fortunately, very few people agreed with this statement. Everyone seems to realize that vision is less a function of your eyes and more of your brain. If someone is not looking for you, your presence may not register in their brain, even though they appear to be making eye contact with you.
How can we deal with this as cyclists? One thing is to do what you can to make yourself visible. Bright clothing and flashing head and tail lights both add to visibility. Your position in the lane makes a difference, but where you should ride really does depend on circumstances. “Taking the lane” can be the safest course, particularly on narrow lanes where a driver might not see you on the right or misjudge passing. A slight weaving of the bike also makes you stand out and be recognized.
Encourage your friends to commute via bicycle. The more bicycles there are on the road, the more drivers will be conditioned to both expect to see and respect us.
Q: True or False: The Sharrows symbol means that bicycles have the legal right to use the full lane. Who disagrees? Who agrees?
A: That statement is false because bicyclists have the legal right to use the full lane with or without the presence of a Sharrow symbol. The Sharrows is simply a sign to alert motorists to the presence of cyclists in the area, which ties into the question above about vision being a mental process. A Sharrow tells motorists “Remember There are Such Things as Bicycles.”
Some people mistakenly believe that a Sharrows indicates a bike lane, which is does not. The placement of the Sharrow has some meaning, though, as it should be placed just outside of the danger zone for a car opening up its door and hitting a bicyclist. Bike safety experts suggest that the safest place to ride is down the center or through the “arrow” of the Sharrow.
Q: What can I do for insurance if I don’t own a car? I’ve given up my car and rely solely on my bicycle and public transportation. Is there any insurance that will protect me and/or my property in a hit and run or theft situation?
First of all, if you own a car, then you absolutely want to make sure that you have both Med Pay and UM coverage on your policy. Get the most UM that you can afford. Also, you want to make sure that you get the “Add On” type of UM coverage which will add your limits on top of the limits of an underinsured motorist.
If you don’t own a car, you may be covered under a relatives policy. If you live with any relatives who have car insurance, make sure that they list you on their policy and that they have both UM and Med Pay coverage.
If a relative’s policy is not an option, you may consider purchasing a cheap scooter or motorcycle. The cost can be negligible, but you can get the insurance you need.
Recently, some companies have started to issue insurance policies for bicycles. Given the increasing number of bicyclists who have abandoned motor vehicles, you can expect this market to grow. A couple of companies who are in this market include Big Ring, a subsidiary of Transamerica Casualty Insurance Company, SPOKES, and Markel Bicycle Insurance. These companies offer stand alone bicycle insurance policies including liability protection, vehicle contact protection, Med Pay, and roadside assistance for as little as $10 to $12 a month.
You can also check under certain renters and homeowner’s insurance policies as they may provide coverage for certain things, such as the loss of your bicycle to theft. They also may protect you in the event that your negligence injures someone or causes damage to their property.
Q: When should I call an attorney if I get hit on my bicycle and is there a time limit to file a claim?
First and foremost, get medical attention if you need it. If you’re able to gather information and preserve evidence at the scene by, for example, taking pictures and getting witness information, you should do so.
As to an attorney, it makes sense to call someone as soon as possible. Most attorneys will not charge for an initial consultation so there’s no cost to you. You should speak to someone who only handles personal injury claims, particularly for bicyclists as the issues that affect bicyclists are different and even experienced attorneys don’t always understand cyclists rights.
Georgia has a 2 year statute of limitations for bringing personal injury claims, with very few exceptions. That means that you have up to 2 years either to resolve your claim or file a lawsuit. Certain claims, however, require that you provide timely notice within a very short time after an incident. For example, if you are hit by a City or State owned vehicle, there are specific notice requirements that you must satisfy or your claim is barred. Additionally, claims involving uninsured motorist coverage require that you give prompt notice to your insurer after a wreck.
There are also many decisions that you will make in the early days of a claim that will have an impact on the ultimate result. These include decisions regarding your healthcare and how you will pay for your treatment. Mistakes made early in this process can prevent you from recovering or can severely limit the amount of your recovery.
Further, when you’re dealing with an insurance company, keep in mind that you’re dealing with a corrupt industry that’s systematically designed to prevent you from getting full compensation (OK, my bias is starting to show through). I’ve seen very competent and educated people be overwhelmed by the nonsense that insurance companies throw at them, all in an effort to avoid responsibility for the harm caused by their insured. Insurance companies can string you along as a law person, but they can’t do that to a serious bicycle crash lawyer who will hold them accountable in Court if necessary.
Q: Who is responsible if I am in a bike lane and have to dodge a car or truck that’s blocking the lane, and then I get hit by a passing car? Am I in error for not stopping?
A: We would all agree that a vehicle should not park or stop in a bike lane and that, if they do so, they are violating the law. However, whether you should change lanes or stop is going to depend on the circumstances. If you cannot change lanes safely without avoiding a car, then you should not change lanes. If you do so, you are very likely to be held accountable for colliding with the car. You may be able to cast some of the blame on the improperly stopped vehicle, but that’s of little consolation when you’re hurt and your bike is destroyed.
In most instances, the presence of a Bike Lane does not mandate that a cyclist is prevented from being in an adjacent lane of traffic. If the bike lane is obstructed, treat it like any lane change and proceed with caution and with a hand signal that you intend to change lanes, doing so only when it’s safe.
Q: If I’m hit on my bicycle (minor or more seriously), should or could you demand the driver be ticketed? What happens if a driver who is at fault for an accident isn’t ticketed?
A: A traffic citation is a criminal charge; a personal injury/property damage claim is a civil case. Whether a driver is cited for causing a crash is not relevant to your civil case for damage to your bike and your injuries.
That being said, it is often easier to convince a driver’s insurance company that they are responsible for the damage that you have suffered when the driver was given a traffic ticket. But the presence of absence of traffic charges is not ultimately decisive to the issue of who is at fault for the civil damages. The exception to that comes when a driver is given a traffic citation and then pleads guilty to the charge. In that situation, the guilty plea is considered to be an “Admission Against Self Interest” and can be used in the civil case to create a presumption that the driver who pleaded guilty to a charge did, in fact, violate the law.
So, while it’s a good idea to emphasize to the investigating police officer that the driver was at fault and you were not, and you can request that the driver be issued a traffic ticket, if the officer refuses, there’s likely nothing that you can or should do about it there at the scene. If so inclined, you can complain to a superior officer about the officer’s conduct and/or his lack of knowledge of bicyclists’ rights.