Get legal with Ray Thomas: How to fight for your property damage claim (Part 1)

Get legal with Ray Thomas: How to fight for your property damage claim (Part 1)

Now what?
(Photo by J. Maus/BikePortland)

(Publisher’s Note: We’ve split this article into two parts because Ray is an authority on this topic and he gets into some important details. Come back tomorrow for the finale. Also worth mentioning is that Ray’s firm, Swanson, Thomas, Coon & Newton, is a BikePortland advertiser and this column is part of our partnership. — Jonathan)

I. Introduction

Sometimes it’s tough to get fair treatment when a collision results in property damage but no personal injury. While it’s always better not to have to deal with a physical injury, there is not enough money involved from the contingent fee (1/3) on a property damage case for most lawyers to even justify opening a file, so most riders end up representing themselves. If you are going to go it alone it helps to know the lay of the land before you start. This article contains an overview of the law of property damage and some tips on how to get a fair amount for your damaged ride.

Fortunately, most bicycle collisions do not result in personal injuries. Instead, wheels get bent, helmets scraped and, if the accident is the motorist’s fault, a “property damage” claim is made against an insurance company. For bicyclists, property damage claims can be frustrating because they typically have little or no experience in legal matters and find themselves advocating for damages with experienced claims adjusters. Since the amount involved is usually small, the bicyclist ends up appealing to the claims adjuster’s sense of fairness. Most claims adjusters are not experienced riders and they are frequently shocked by the costs of bicycle repair and parts.

Property Damage Claims – The Basics
  • 2 year statue of limitations, or notice required within 180 days if against a public entity;
  • Comparative fault reduces damages by the percent attributable for the claimant, up to 51% if the bicyclist is most at fault – no recovery;
  • Measure of damages is “Diminution in Value” – the difference in value before and after the collision;
  • Get a written damage estimate on a form with the bike shop letterhead;
  • Don’t forget to save all damaged property and include all losses in your claim; and
  • If you are injured you can still obtain a property damage settlement and present your injury claim after you fully recover.

II. Comparative Fault

Since property damages are not recoverable unless the motorist is more than 50 percent at fault, Oregon’s law requires a potential defendant pay their percentage of fault only if it is greater than the bicyclist. This means that if the bicyclist is 51 percent at fault and a motorist is 49 percent at fault, the motorist completely escapes financial responsibility. But if for example the motorist is 80% at fault, and the bike rider is 20% at fault, the motorist must pay 80% of the damage under Oregon’s “Comparative Fault” law. This means that bicycle riders need to be prepared to show the legal basis for their damage claim, and adjust their damages down by their own percent of contribution to the wreck.

Typical shared fault scenarios include collisions that result from multiple factors, like when a rider fails to exercise “due care” after a motorist makes a driving mistake, such as when a rider panics and crashes after being cut off by a motorist when if the rider had done nothing there would have been no contact or impact.

Since the claims adjuster’s job is to pay as little as possible on a claim, any fault arguably attributable to the bicyclist will be pointed out as a reason to reduce the amount paid. It is essential during these discussions that a bicyclist know the basic Rules of the Road. If possible, be prepared to cite actual Oregon Revised Statute (ORS) numbers.

III. Diminution in Value – The Law of Property Damage

The law relating to property damage claims is technical. Many people believe that they should receive the amount of money they will need to replace their damaged property. Unfortunately, that is not the law. Instead, the bicyclist is entitled to the amount of money equal to the difference between the fair market value of the property immediately before, and immediately after, the occurrence. This is called the “diminution in property value”. Bicycles depreciate rapidly and often the market value of a used bicycle is considerably less than its original purchase price. In order to establish market value, it is best to take your bicycle to a bike shop and get the following estimates:

  • Value of the bicycle in the condition it was in immediately before the accident. In other words, the appraisal should be of the same year and model as your bicycle in the same condition. Most bike shops only sell new bikes. If you are having trouble, call around and find the name of a bike shop that sells used bicycles or will help you with your brand.
  • Cost of repair of the bicycle. Do this even if you are certain the bicycle is beyond repair.
  • Value of the bicycle in the condition it was in immediately after the accident. This amount is usually very low; what market value is there for a bent bike? The claims adjuster will almost certainly call the shop to verify your figures. If your bike is “totaled” the adjuster will want to pay the value of your bicycle before the accident minus its salvage value.

Frequently, bicycles have little or no salvage value. If you have a particular attachment to some of the components, such as that Terry saddle or that wonderful old Campagnolo crankset, let the adjuster know and they will frequently be willing to let you have these parts. It has been my experience that the adjuster will usually recognize that a bike has no salvage value and allow you to keep the damaged bike if it is indeed totaled. On the other hand, if the bicycle can be fixed, it is up to you whether you want to fix the bike or not. You are not entitled to receive more money because your bicycle had a particularly high sentimental value. However, if your bicycle was a rare bicycle, and had an unusually high monetary value, you are entitled to receive that greater value if it is damaged or destroyed.

Remember, the diminution in value of the bicycle may be much less than it would actually take to fix the bike. The law states that the person responsible for the damage need only pay the loss in value, not the cost of repair.

IV. The Statute of Limitations

The Oregon statute of limitations for property damage claims caused by negligence is two years unless the defendant is an agent for a public entity, in which case written notice of a claim must be provided to the appropriate authority within 180 days after the accident. In serious injury cases, it can be a year or more before the person has recovered enough to know what if any permanent physical impairments may have resulted; however, property damage claims can be resolved immediately after the collision. There is no tactical reason to wait to resolve the property damage claim, and if a bicyclist also suffered physical injuries any release of claims signed by the rider can be limited to property damage only so that the personal injuries may be pursued at a later time within the statute of limitations.

— Come back tomorrow for part two.

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