I live, practice, and ride my bike in Whatcom County. Whatcom County is one of the more bicycle friendly counties in Washington State. It offers epic mountain biking terrain within the city limits and access to some of the most spectacular road rides in the Northwest. Unfortunately, one product of a large and active bike community is a large number of bike collisions. As a cyclist and a personal injury attorney, I get a lot of questions from both lay people and attorneys regarding the best way to handle a bike accident case.
Not too long ago the biking community was shocked when a particularly meretricious case involving a badly hurt cyclist resulted in a defense verdict at trial. A biker was left with permanent life changing injuries after a collision that was clearly caused by a negligent motorist. I was asked over and over, “How does this happen?” The unfortunate but very simple answer is that this happened because an experienced personal injury lawyer who was accustomed to handling car collision cases waded into bike accident litigation without the right information.
Don’t misunderstand me; most competent personal injury lawyers can effectively handle a bike accident case, so long as there is some awareness of the specific differences. I focus on three key issues that must be addressed when handling bicycle accident claims.
The injuries are much more serious.
When a car hits a bicycle rider, the injuries are typically much more serious than whiplash or soft tissue injuries. Because of the cyclist’s position on the bike, the typical injuries are fall-on-an-outstretched-hand (FOOSH) injuries. That is, Colles type wrist fractures, clavicle fractures, Humerous (arm) fractures, shoulder dislocations (both glenohumeral and AC), and rotator cuff tears. However, this is just the beginning. More often, these FOOSH injuries are combined with other, often more serious orthopedic injuries.
The important thing to remember here is that these are serious injuries and should be documented properly. Having your client collect their medical records and sending photocopies to the insurance adjuster is going to send an immediate signal that you are not accustomed to working up serious injury cases (why, because it looks amateur?). My view is that the lawyer should obtain 5 to 10 years of certified, Bates stamped records from a professional records-retrieval service such as JS&L or Medrecs. Using a retrieval service demonstrates that the claim is serious and that the personal injury attorney is willing to take extra effort and spend a bit of money to document injuries fully.
Moreover, an Independent Medical Exam (IME) or physical capacities work up should be considered mandatory in every case. Even if the injuries are limited to the typical FOOSH injuries, if these are not reduced or otherwise treated carefully, you can end up with a client with significant disability. An IME can often uncover poor or atypical outcomes and allow the increased disability to be addressed by the defendant at the demand or litigation stage.
The laws are different – but not that different.
Probably the biggest mistake that lawyers make when analyzing a bike crash that occurs on the road is to treat the cyclist differently than a car. Motorists habitually think differently when they see a cyclist pedaling in the traveled portion of the roadway. Typically motorists either try to provide extra deference and caution to avoid a collision with the biker, or they are irked by the delays that these cyclists can often cause. Either way, while most of us are accustomed to treating bicycles differently, Washington law treats them the same as any other vehicle.
If you are an attorney sitting down for the first time with a bicyclist with his or her arm in a sling, force yourself to analyze the collision as if it were between two cars. Remember, RCW 46.61.755(2) is clear that a cyclist is afforded all the rights and responsibilities required of any other motorist.
In my practice I have had the opportunity to represent a large number of injured cyclists in claims against negligent motorists, and have come to recognize that there several common types of bike-car collisions. I want to spend some time discussing these collision types and the statues and rules which govern the responsibilities of the parties.
Turning motor vehicles - Probably the most common bicycle vs. car collision is when a cyclist is struck by a motor vehicle turning right. Unfortunately, in this type of collision the cyclist is normally doing everything correctly; they are simply proceeding straight through an intersection, often in a marked bike lane. These collisions occur because motorists just are not accustomed to checking to their right prior to making a right turn. Inattentive drivers simply don't look, and drive right into a biker. This collision also occurs when an inpatient motorist doesn't wait for a cyclist to clear an intersection and attempts to overtake a biker while making a right turn.
While not as common, bicyclists are often hit by drivers turning left at an intersection or into a driveway. Again, these cases are simply caused by drivers who are not looking where they are going. In relation to a car, a bike is a small, hard-to-see object that many folks simply are not accustomed to looking for. The analysis of this collision scenario is simple; just as you cannot turn right or left in front of another car traveling in an inside lane, you cannot turn right or left in front of a bicyclist. If you have a police traffic collision report, look for citations for RCW 46.61.140 (lane travel), 46.61.305 (proper right hand turns), or 46.61.110(2) (passing bicycles and pedestrians on the left). If no citation was issued, you will still want to reference these statutes when discussing the matter with an adjuster or opposing counsel.
The wrinkle that I have often encountered in these cases is the vehicle lighting requirements for bikes. Because the collisions are typically caused by someone failing to see the cyclist, police and insurance investigators are often interested in the biker's compliance with light requirements. Here, look at RCW 46.61.780. You will want to ensure that you client was displaying the proper lights if the collision occurred during "hours of darkness." The lighting requirements are relatively intuitive; a front white light is required. However, one often-overlooked portion of this statute is that the rear lighting requirement is only a red REFLECTOR. Red "tail lights" for bikes are quite common now in bike stores; however, they are not required equipment by statute.
Getting “doored” - Another extremely common injury-causing collision involving bicycles is when someone in a parked car opens their door into the path of a cyclist. Bikers often refer to this as being "doored", which has the potential to cause severe injuries, particularly when it occurs when a bicycle is traveling downhill at 20-25 mph. These collisions are unfortunate because they occur as a result of a biker adhering to RCW 46.61.770, which requires cyclist to ride "as near to the right side of the right through lane as is safe…" When on-street parking is permitted on a roadway, the cyclist is presented with the choice of either riding near the line of parked cars and risk being struck by someone opening their door, or traveling in the center of the lane of travel and risking being struck by a moving car or causing traffic delays. While it may be cold consolation to a client recovering from serious injuries sustained in a collision of this type, RCW 46.61.620, which requires that "No person shall open the door of a motor vehicle on the side adjacent to moving traffic unless and until it is reasonably safe to do so," can at least ensure that your client is appropriately compensated. The bottom line - if someone opens a door into a biker, they are responsible for the biker’s injuries.
Car v. bike collision on sidewalk - The last type of collision that you will see in your practice is when a cyclist is traveling on the sidewalk and is struck by a car entering or exiting a roadway into a private driveway, parking lot or alleyway. It it important to remember here under RCW 46.61.755(1) that when a cyclist is riding or walking their bike on the sidewalk, they are subject to and afforded all the rights and responsibilities of a pedestrian (incidentally a cyclist in a crosswalk is also considered a pedestrian under this statute). These cases must be analyzed in the same way you would analyze a car v. pedestrian collision. RCW 46.61.365 provides the most helpful guidance in these types of collisions, requiring that a driver "emerging from an alley, driveway, or building shall stop…prior to driving onto a sidewalk or onto the sidewalk area extending across the any alleyway, or driveway, and shall yield the right-of-way to any pedestrian…"
Of course if you handle bicycle accident collisions in your practice, you will inevitably encounter numerous unique accident scenarios which require a different analysis. When you are confronted with one of these unique crashes do not hesitate to use the statutes cited above as the starting point for your investigation and research into the ultimate responsible party in a collision.
Insurance companies (and juries) think about these cases differently.
At the most basic level, bicycle cases are treated differently because cyclists are not required to carry bicycle insurance. For many cyclists, one of the primary reasons they bike is the cost savings realized when one does not own an automobile. Unfortunately, the downside to this is that when a cyclist is struck by a motorist, they often are deprived of the resources available to a motorist carrying even a minimal policy.
If your client has no insurance, this means they obviously lack their own Personal Injury Protection benefits. However, recall that if your client has automobile coverage, the PIP coverage they pay for in their auto policy applies with equal force if they are struck by a motor vehicle while riding their bicycle. Fortunately for those cyclists with no insurance, the law requires that, just as for pedestrians, the at-fault motorist's PIP coverage must help pay for medical bills and other covered expenses after a collision. Because you are often dealing with very serious injuries requiring extensive treatment, also note that in Washington a cyclist can "double dip" on PIP (use both the at fault driver’s PIP and their own PIP coverage). This can make a huge difference for bikers after a major injury.
Like PIP, an insured cyclist’s UIM coverage will cover a bicycle collision. If the cyclist does not have insurance, be sure to full investigate other possible policies. If the cyclist lives in a home with an insured vehicle, those policies may provide benefits for your client. This is simply the same analysis you perform in every case involving a search for additional insurance coverage.
While the practical issues are important, it is likely that the most difficult obstacle you will face representing cyclists is the subtle prejudice that many people have regarding bikers. The truth is that most adults, even in bike friendly areas, simply don't ride bikes. They drive cars, and their only exposure to the bikers is when the bikers are either slowing them down or making them nervous when they ride on the road. Insurance companies capitalize on this and consistently offer less for the same injuries in bike cases, which forces these cases to trial.
A sample of the data makes this clear. Recall that the most common injury you will see in a bicycle collision case is a FOOSH shoulder/arm injury. While not as common in automobile accidents, they do happen. I surveyed the results from hundreds of shoulder injury cases which were settled or proceeded to trial involving both motor vehicles and bicycles. I compared settlement and verdict results for shoulder injuries in motor vehicle cases and shoulder injuries in bicycle accidents. For shoulder injuries in motor vehicle cases, I found a median value of $25,662 and a mean value of $60,339. The same shoulder injuries in bicycle collisions? Here, I found a median value of $17,322 and a mean value of $46,116.
It doesn't have to be this way. A lawyer who is passionate about helping a bicyclist, who believes in making things right for them, can overcome these prejudices. It simply requires the lawyer to recognize the hurdles present in a bicycle collision case and address them properly.