How a Bike Claim is Generally Handled (McGilberry & Shirer Cyclists at Law)

HOW A BIKE CLAIM IS GENERALLY HANDLED16-Sep-2014

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As an accident & injury claim attorney I often represent cyclists when they have been hit by a vehicle. The most common and immediate question I receive is, “what should I do if I’m hit by a car?”

With such a broad question, the answer to what should be done contains many variables; some of which I will cover in this, and some in subsequent articles.

The first thing to do is to prepare for the loss before it happens.

Two ways to do this are:

1. Insure yourself

2. Ride defensively, because you are invisible when you are on your bike.

Part I. Preparation and AvoidanceHOW A BIKE CLAIM IS GENERALLY HANDLED

(a) Your Auto Insurance: You don’t have to be in your car when you are hit in order to be coveredunder your auto insurance. Meaning, you can be covered by your insurance while in another’scar, or even on a bike.

In Texas, there are many drivers who have no liability insurance (or not enough), so you mustprotect yourself. It is important to make sure you have uninsured/underinsured (UM) andpersonal injury protection (PIP) coverage under your auto policy. When a cyclist is hit by a car,often the medical expenses are well in excess of the Texas required $30,000 minimum liabilitylimits. If you do not have UM coverage, and the other driver has minimum limits, the most youcan recover is $30,000 no matter how high your medical bills (even if you were to get a judgmentagainst the driver for a whole lot more, the chances of collecting on that judgment are slim to none).


(a) Your Auto Insurance1. Insure Yourself

Get as much UM coverage as you can afford. Get quotes. You will be surprised at the minimal increase of premiums for increasing coverage.

Note: Your UM limits cannot be higher than your liability limits.


(a) Your Auto Insurance1. Insure Yourself

(b) Health Insurance Subrogation: Hopefully you have health insurance that will cover most ofyour bills. Even if your health insurance covers your medical expenses, the health insurer has theright to be reimbursed from whatever money you collect from others; up to the amount it paidfor your medical expenses.

Note: The health insurer’s right to get its money back is called “subrogation.” It’s complicated and tricky and beyond the scope of this article, but will be discussed in upcoming articles of mine.

If you don’t have health insurance, then you would be fully responsible for all of your hospital and medical bills. Either way, you end up paying the medical providers if you recover from the other person’s insurance by either paying back your health insurer for paying your doctors, or paying the doctors yourself, directly. Often, the amount you recover from the driver that hit you is just not enough. This is why you must have UM insurance.


(b) Health Insurance Subrogation1. Insure Yourself

(c) You Don’t Own a Car: If you don’t own a car and ride your bike everywhere, you probablyneed this coverage more than anyone (and you can get it cheap). Call up an insurance agent, andask them about “non-owners” coverage.


(c) You Don’t Own a Car1. Insure Yourself

(d) Property Damage: A liability insurer pays for the damage to your bike under the “collision” part of the policy. It is separate from the bodily injury part of the policy. The minimum limit for property damage is $25,000; which means there will always be plenty of coverage for your bike(I wonder why the State Board of Insurance set the property damage minimum limits ($25k)almost as high as the bodily injury limits ($30k). However, if the driver that hit you has no insurance coverage, then it gets tricky. Under the UM portion of your auto policy, the damage to your bicycle is probably not covered. You could then turn to your homeowner’s policy, but there is usually a deductible that is quite high.

An interesting option for coverage is to consider is a company called Velosurance(https:velosurance.com/). It provides coverage for the damage to your bike; not only from car accidents, but also from any accidental damages. Velosurance also provides medial insurance.


(d) Property Damage1. Insure Yourself

https://velosurance.com/

The Bottom line: Make sure you have ample Uninsured Motorist and PIP coverage under your auto policy, even if you have health insurance. The Velosurance is a nice option, although most of us can somehow make do if our bike is banged up.


The Bottom Line1. Insure Yourself

Most drivers who hit cyclists say that they did not see the cyclist. So you must constantly remindyourself that you are invisible when you ride your bike.

Some ideas to consider:

• Ride in a Group: A car driver might not see a lone cyclist or two, but will probably see a large group (I have handled only one case where a rider was hit in a group; and all the rest of my bicycle injury cases have all been solo riders, or with one other person).

• Intersections: Most bike/car collisions occur at intersections. If there is a road/driveway to your right, assume that the driver doesn’t see you and will turn in front of you. These scenarios include a driver turning left at Intersection, as well as the “right hook” where the driver passes and then turns right.


You Are Invisible to Vehicles!2. Ride Defensively on Your Bike

• Sun in Eyes: If you are riding towards the sun, then you are in danger.

• Right of Way: In the Texas Driver’s Handbook it says, “in every situation, right-of-way is something to be given, not taken.” As a cyclist, you just can't take something that is not being given. Yes, legally you are in the right-of-way, but when you start arguing about rights, the damage has already been done.

Next month, I will cover what should be done right after the crash. If you have any questions, send me an email: [email protected]


You Are Invisible to Vehicles!2. Ride Defensively on Your Bike

mailto:[email protected]

At The Scene: Do the best you can to remain calm and remember to do all of the following, as long as you are not hurt to badly.

1. Police: Call the police even if it appears that there is little property damage, or you don’tthink you are hurt that bad. 2. Photos: Take a bunch of photos, or have someone else if you cannot.

3. Witnesses: Get names and numbers if possible. If you are unable, ask someone else to do so for you.


Part II. When it HappensHOW A BIKE CLAIM IS GENERALLY HANDLED

4. Attitude: Yes, you are hurt. Yes, you are pissed off; but don’t start screaming profanity and never threaten anyone.

It will seem hard to believe, but the person that hit you did not intend to do so. Sure, they did something stupid that has damaged you and your bike, but they did not intend to hurt you (by the way, liability insurance covers only negligent acts; it does not cover intentional ones).

If you get angry, and there is any question as to who’s fault the collision is, your anger could burn you. Especially, when talking with the police officer, whose report can be all the importance in determining liability. You don’t want to get prissy with the police officer.




5. Emergency Care: If there is any question regarding whether or not to go to the ER, opt to go. Cyclists want to shake off the injuries; however, after the adrenalin drops you will probably start hurting more. If you hit your head or it hurts, go to the hospital regardless. No question about it.


A FEW DAYS AFTER THE ACCIDENT…

1. Evidence - Obtain the following documents & information, if possible:

(a) Police Report: Request it from the appropriate authority (it could take a week or so).

(b) Witnesses: If you didn’t get any witnesses’ names at the scene, there might be someon the police report. You can also request the 911 call from the local authorities; which may contain some additional helpful information. You can do such through “Freedom of Information Act, or “FOIA” request.



(c) Photos: Take pictures of everything including bike, clothes, your body, the accident scene. Keep taking pictures of your injuries and wounds at various intervals. These can be very helpful later.

(d) Garmin Data: Determine if it is helpful or not. Do not post it to Strava, or any other social media (i.e. Facebook).

(e) Property Damage: Get a detailed estimate to repair/replace your bike, clothing, gear, etc

from your local bike shop.



2. Follow-Up Medical Care: Schedule necessary medical appointments. Even if you don’tThink you are hurt too badly, it is still probably wise to see your preferred provider.

If your preferred provider is an M.D., don’t be surprised if they give you the song and danceof “we don’t treat people involved in auto accidents.” If this happens, ask to speak to theoffice manager, and tell them that you have health insurance and that they can bill it just thesame as if you were drunk and fell off a ladder. Fault and negligence are simply irrelevant towhether the doctor can bill your health insurance company. If that doesn’t work, call anotherdoctor’s office. I’d estimate that 25% of my clients tell me that their M.D. would not treatthose injured in auto accidents.



If you do not have health insurance, you can still get treatment from certainproviders under a “letter of protection.” Essentially, an LOP is an I.O.U. your attorney (hopefully, me) would send to the provider. The doctor would then treat you and be paid out ofthe settlement at a later date.

When you talk to your doctor, keep the facts limited. He/she does not need to know how fastyou were going, what happened, and really doesn’t care who was right or wrong. All the doctor wants/needs to know is where you hurt, and if it was caused by trauma.



Moreover, there’s always a chance that your doctor will get the exact facts wrong when he/shewrites them down or transcribes them later when it comes to how the accident occurred, andthose botched notes can come back to haunt you later. I often hear defense attorneys ask in adeposition, “were you being honest when you talked to your doctor?” Of course, there is only oneanswer to that question, after which the defense attorney pulls out the doctor’s notes andproceeds to hoist you by your own petard.



3. Lost Wages/Income: If you know that you are going to be out of work or will lose incomedue to your injuries or treatment, start keeping track of the amount lost. You must befastidious in doing so. Date, reason, hours, etc. With some employment, it is difficult toprove wage loss, such as with commission sales or self-employment. Nonetheless, try to keeptrack of all data you’re able to in regards to lost sales/income.

Next month, I will cover your dealings with the various insurance companies. If you haveany questions, send me an email: [email protected]




There are potentially three insurance companies you will be dealing with:

• the at-fault driver's insurance (liability)• your insurance (if you have PIP/UM coverage)• your health insurance (if you have it)

Now is where things get tricky. The adjusters know the in-and-outs of game, the rules, and thearena. You probably do not. Therefore, I strongly suggest you call me or another personal injuryattorney before you talk with any insurance company. There is no cost to call myself (as well as Numerous other attorneys), and I can give you some valuable information that can help you evenif you are not seriously injured and will handle your own case.


Part III. Dealing with the Insurance CompaniesHOW A BIKE CLAIM IS GENERALLY HANDLED

Here are some notes on the various insurance claims:

1. Property Damage (made against the driver’s insurance): If there is no dispute as to liability(who’s at fault), the bike damage claim is usually settled within a few weeks (there can besubstantial variations). It takes a bit longer than a car claim, because insurers don’t deal withmany bike damage claims. Adjusters are often surprised when a bike costs $5,000 or more.

It is incumbent on you to get an estimate of the damage done to your bike. Most bike shops willdo this for you. If you have receipts for your bike and associated equipment, get those together,as well and take pictures.

Some insurers talk about depreciation. Others want the bike back as salvage. You may need toeducate the adjuster on why your particular bike is worth more than other bike frames.



2. Bodily Injury Claim (made against the driver’s insurance): Assuming your property damageclaim is settled, your claim then goes into hibernation while you receive your medical care.

I’m frequently asked, “how much is my claim worth?” The value of your personal injury claim isbased mostly upon the extent and duration of your physical injuries; and that can’t be knownuntil after you have finished treating and all of the medical bills have been obtained. Yourpersonal injury claim should never be settled until you have reached “maximum medicalimprovement” (you heal to your full potential). The liability insurer might try to give you a fewthousand dollars up front to settle your case immediately. This is a slimy tactic employed byinsurers. You should always decline this.

Take your time with medical treatment; cyclists are often in a hurry to get back on the bike, butdon’t rush it. In Texas, you have two years following the date of the incident to either settle yourclaim or to file suit.



3. Your Health Insurance/PIP: The driver’s insurance company will pay nothing on your personal injury claim until you have finished treatment. It will not pay your medical bills as they areincurred. Hopefully you have health insurance, and if you do, use it!

Also, if you have PIP/Med Pay, this claim should be set up with your auto insurance carrier. It’sfairly simple to do.

Note: PIP/Med pay is “no fault” coverage. What this means is that even if you are at fault in thebike/car accident, your auto insurer will still pay for your medical expenses up to your PIP/MedPay limit. You will first need to file the claim with your insurance company.



Why would you make a claim against your own insurance company when it’s the other guy’s faultin order for your insurance company to pay your medical expenses up your PIP/Med Pay limit?

• The PIP is paid fairly quickly, and you can use those funds to make pay certain

expenses that you are incurring, such as deductibles.

• You are not profiting. A personal injury claim is an attempt to minimize losses. At the end of a claim, no one ever thinks the money they got from the settlement was worth what they went through.

• You are not taking advantage of your insurance company. You paid money to your insurance carrier for the exact loss you have sustained. The reality is that insurance is a form of legalized gambling (with lots of small print). You are betting you will have an accident. If you win the bet, you collect.



• It won’t affect your premiums. Auto premiums are going up for everyone all the time justbecause they do. If you collect $2,500 in PIP (the minimum amount)and your insurer raised yourpremiums $200 a year, it would take 12 years to recoup the amount paid to you.

• The driver’s insurance does not get a credit for the PIP that you receive.



4. Health Insurance Subrogation: At some point, you will probably get a letter from your healthinsurance company asking about claims and the other driver’s insurance. Your health insurance isdoing this to get back the money it paid for your medical care. This is called “subrogation.”

Subrogation is a complicated issue, and as previously mentioned, beyond the scope of this particular article. Sometimes, dealing with the health insurance subrogation is the biggest issue to deal with in a case. Be sure to keep your eyes out for my upcoming article on this subject, which will contain detailed information about subrogations.



Here are a few things to consider when dealing with insurance companies:

• Good Neighbor or Lizard/Cave Man: How smooth things go with the insurance companies involved (both yours and that belonging to the other person involved in the accident) will greatly depend on the specific companies you are dealing with. Larger companies are generally more responsive. Smaller companies (insuring high risk/low-rent drivers) will tend to be more difficult to reach, and your negotiations are likely to go less smoothly.

• Insurer’s Rarely Use Ethics & Morals in Business: The adjuster might seem friendly and may even want to help you, but that adjuster has a supervisor, who has supervisor, and so on. At the end of day, they only care about numbers and not so much the injured people. I’ve had many clients who tried to deal fairly with the insurers only to be shocked and upset that the insurer didn’t want to treat them fairly.



• Don’t Be a Tough Guy/Gal: When you first talk with any insurer, you will be asked,“are you injured?” Your answer should always be, “yes, I believe so.” Often you won’t know the full extent of your injuries until weeks after the incident.

• Recorded Statements: You will probably be asked to give a recorded statement before any payments will be made. Just remember that the purpose is to build a case against you, and thus your word choice is important. Everything you say to any insurance company, “can and will be used against you in a court of law.” Also, you don’t have to give the statement the moment the insurer calls you. If you are on medications that affect your cognitive function, tell the adjuster that you will do so later.

• Be Nice, But Firm: You must remember you are trying to persuade someone to give you money, so be polite and responsive. If you get sideways with the adjuster, nothing good will come from it.



• Handling Your Own Claim: If you have sustained “minimal” injury (say extensive road rash or medical expenses of less that $1,000), you may be able to handle your own claim. However, if your injuries are significant, then you should most definitely contact me or another personal injury attorney. It is the same with medical treatment. If you cut your finger and a Band-Aid gets the job done, all is well…but if you cut your finger off, you obviously need help.



An attorney specializes in handling all aspects of your claims, including:

• dealing with all the various insurers• handling the property damage claim• obtaining all medical records and bills, reports, and statements• negotiating the settlement• filing suit, if necessary

If a settlement is reached, an attorney will also attempt to negotiate reduction in the amount ofany of your unpaid medical bills as well as the subrogation lien asserted by the health insurer. Anattorney will also provide advice as to what a "reasonable” value is for your case.

(More on that next month)

If you have any questions, send me an email: [email protected]




How a Bike Claim is Generally Handled (McGilberry & Shirer Cyclists at Law)

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Transcript of How a Bike Claim is Generally Handled (McGilberry & Shirer Cyclists at Law)