Get Legal with Ray Thomas: What to do if you’re in a collision

Get Legal with Ray Thomas: What to do if you’re in a collision

Scene of right hook NE Couch and Grand-1

It might never happen to you,
but just in case…
(Photo © J. Maus/BikePortland)

What should you do if you are in a collision with a motor vehicle? First, be prepared. While the odds may be pretty good that you will never be involved in a collision there are several tips you can follow which will make any collision less of a disruption in your life. An understanding of the fundamentals of insurance, medical services, and the legal system will help you after your collision.

This article is a very basic primer on these areas.

If you are in a collision

If you do get in a collision with an automobile while riding your bicycle, make sure that you obtain complete and accurate information about the driver. It is an unfortunate fact of modern life that some people with driving and insurance problems carry false identification. Make sure that the driver shows you an official document such as a driver license or other photo ID as well as a certificate of current insurance coverage before they leave the scene of the collision. If they will not do so, then call the police.

Many people think that calling the police will result in investigation and preparation of a police report. However, unless it is apparent to the responding police that there has been an injury in the collision they will usually not prepare a report, but instead will merely assist in an exchange of information. Many serious injuries are not visible at the scene of a collision when the injured person’s adrenaline is flowing and there is the usual confusion about what to do next. If possible, return to the scene or send a friend with a camera and take photographs of skid marks, glass, or marks on the road showing point of impact, direction, speed, or force. Try to document what the conditions were like and how the collision happened.

Time after time, I have seen clients outraged and disappointed when a person who freely admitted to being at fault at the scene later changed his or her story in an attempt to shift fault to the bicycle rider.

Medical treatment

If you have any question at all about whether or not you are injured, you should immediately go to an emergency room or get in to see your regular doctor. Many internal injuries, including closed head brain injuries, as well as soft tissue neck and back injuries are not fully appreciated by the injured person until some time has passed since the collision. It is important that you document your injuries so that later, if need be, you can show through proof from a medical person that your injuries were caused by the collision.

Bicycle riders need insurance

Most people do not realize that their automobile insurance policy also covers them while they are riding a bicycle. This is important as “insurance consumers,” because everyone who has an automobile insurance policy is paying part of each premium dollar toward coverage that will apply if the insured person is injured while walking or riding a bike.

For example, if you are hit on your road bike by an uninsured drunk driver one afternoon while you are on a training ride and seriously injured, it is important to realize that your own automobile insurance will provide two types of coverage for you. First, Personal Injury Protection (PIP) will pay for your medical bills and loss of income. PIP is a part of your own policy and will apply in every bicycle collision regardless of whether or not the other person is insured, and regardless of whose fault caused the collision. It is “No fault” coverage. “No fault” means that even if a collision is your fault, PIP protection will cover you. Even if you have no car insurance because you are not a car owner, you may be covered by the car insurance policy for your parents or your employer.

The second type of applicable coverage is Uninsured Motorist Coverage (UM), a legally required part of every automobile insurance policy. UM may provide an important safety net for riders whose injuries are a result of the fault of another person who has no insurance, or insufficient insurance to cover the damages resulting from the collision. UM coverage may pay not only for medical services and wage loss, but also for pain and suffering, interference with activities, future impairment of earning capacity and punitive (or punishment) damages.

All people who bike should have some sort of insurance coverage, and I recommend to my clients that they seriously consider raising the limits of their PIP (statutory minimum $15,000) and UM (statutory minimum $25,000) coverage above the minimum amounts. If you shop for insurance, you will discover that the cost per dollar of coverage is relatively inexpensive once you get above the minimum coverage amounts. If you are ever unlucky enough to get seriously hurt, you will be greatly relieved if you at least have adequate insurance to cover your damages.

It will never happen to me

Most people like to live their lives as if tragedy is not around the next corner. Studies have shown that people with a positive mental attitude are less likely to be collision prone and have better longevity than the perpetually worried. However, the experienced rider crashes an average of once every 8,000 miles of riding, or once in every 800 hours of riding (if you average around 10 miles per hour). This is an unacceptably high number of collisions and is not representative of the number of collisions involving injuries, which is much lower.

However, for some people who cannot get a driver license due to mental, legal, or substance addiction problems, bicycle riding is one step above walking as the transportation option of last resort. The difficulty of getting and keeping a driver license, maintaining mandatory insurance, and the high cost of car ownership, explains the findings in a recent study conducted by researchers at the Johns Hopkins Injury Prevention Center which revealed that one in three people involved in fatal collisions while bicycling had been drinking and nearly a fourth had a blood alcohol level over the legal limit.

The only advantage to drinking and driving a bicycle instead of a car is that at least when someone crashes their bike the resulting damage is usually limited to themselves. People who think that they are immune from arrest for DUII on a bicycle are wrong; under Oregon law a bicycle rider can be cited for Driving Under the Influence of Intoxicants just like a driver.

Should I handle my own case?

If you are seriously injured and the other driver is at fault and insured, it is likely that you will receive solicitation letters, “courtesy copies” of the police report, and even refrigerator magnets (argh) from lawyers who want to represent you. Remember, lawyer services are like any other personal service — be an educated consumer, make your selection carefully after interviewing several people who come highly recommended by people you trust. If your collision involves minor injury or property damage, it will be more difficult to attract excellent counsel. If you have a collision that is clearly the fault of the other party and don’t mind the hassle of bird dogging your claim then go for it and save the money (usually one-third) you would otherwise pay for a lawyer. If you do decide to go it alone, there are resources available. My law firm, in conjunction with Bicycle Transportation Alliance (BTA), has conducted legal clinics for bike riders trying to learn their legal rights for the last five years. Our goal is to provide important information that riders need to know about the legal system. Call the BTA at (503) 226-06769 for the date of the next clinic. Our office has also posted a number of Oregon laws and information on our web site.

Why am I being treated this way?

After your collision, you feel like a victim. For some people, dealing with the other driver, medical services and insurance is smooth and uneventful. But for many people, they are shocked when the expected “benefit delivery system,” turns out to be a “benefit denial system.” Every injured rider is entitled to be treated with respect and courtesy. Questions about insurance coverage, medical services costs, and available benefits should be answered fully and without hesitation, and no person should be pressured to settle their claim. If you do not have the type of positive experience described above, something is wrong, and you should discuss these issues with a trusted friend or family member, or consult with an attorney. In any event, as a collision victim you have a right not to be pushed around by the system which supposedly exists to help you recover from your injuries; no one should be allowed to add insult to your injuries.

— Read more about bicycles and the law in our archives.

Ray Thomas
(Photo © J. Maus/BikePortland)

This article is part of our monthly legal series with Portland-based lawyer and bike law expert Ray Thomas of Swanson, Thomas, Coon & Newton. (Disclaimer: STC&N is a BikePortland advertiser and this monthly article is part of our promotional partnership.)

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