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BIKE LAW 101 – INSURANCE ISSUES IN BIKE/AUTO ACCIDENT CLAIMS


BIKE LAW 101
INSURANCE ISSUES IN BIKE/AUTO ACCIDENT CLAIMS
By, Steven M. Magas, Attorney at Law

Let’s say you’ve been involved in an bicycling accident with an automobile. Maybe a passing motorist clipped you with a mirror or an oncoming motorist turned left in front of you completely oblivious to your 25 mph downhill descent. I’ll discuss the actual claims process in a future column. Let’s begin, though, by looking at how your little accident caused papers to ruffle in insurance offices around the country.

Several insurance policies were jumpstarted as soon as you hit the ground following the accident. First, and foremost, is the automobile insurance policy of the negligent motorist. Hopefully, the motorist is insured and has adequate limits to cover your claim. A motorist in Ohio only need carry $12,500 liability limits to be “legal.” This is a woefully inadequate amount of money to attempt to compensate victims of the driver’s negligence. The total cost of virtually ANY surgical procedure required as a result of the accident will approach this sum by the time the doctor, anesthesiologist, hospital, post-surgical therapists and other critical medical care providers are paid. This leaves NOTHING under the state minimum policy to cover your lost wages, your pain, suffering, anxiety, inability to sleep, permanent scarring, future medical expenses, future pain and suffering, future lost wages, permanent diminution in earning capacity or any other item of damages relating to your claim. These minimal limits MUST be raised, and you should support any legislative effort to do so!! [End of Lecture]

The next insurance policy which will probably come into play is your health insurance coverage. Many of my clients have no health insurance and are forced to rely on the kindness of medical care providers to provide treatment without expecting immediate payment since they typically lack the inability to pay “up front.” Lawyers are strictly prohibited from advancing money for medical expenses to their clients. The victims of motorist negligence often suffer because the motorist’s insurer refuses to advance medical expenses and they cannot afford treatment. Then, during trial, the defense lawyer for the motorist criticizes the victim during trial for making his or her problems worse by failing to follow the doctors orders, failing to follow up, failing to go to physical therapy, failing to purchase the prescribed [expensive] medications, etc.

Some people who have health insurance don’t want to present claims to their insurer thinking, “It was the motorist’s fault, HIS insurer should pay this.” While this is true, on a moral level, there is no way to force the negligent motorist’s insurer to advance money to pay medical bills and, often, if the insurer senses that it is at an advantage in negotiations by withholding such, it will flatly refuse to do so.

“Subrogation” is an insurance issue that arises in many cases. “Subrogation” is the right of an insurer, typically your health insurer, to be reimbursed after you settle a claim for monies it advanced due to your injuries. If you have an attorney handling your claim, she/he will keep track of all of the monies of the case…all of the medical bills, who paid them, all of the case expenses, and all other spending on the case. At the end, when the settlement is divided up, the attorney will pay the subrogated medical carriers their share out of the settlement. Often, your attorney will be able to negotiate with these insurers to take less than the full amount due. The reason for this is that you are paying your lawyer to do THEIR work–collecting their money. Since the lawyer’s fee is typically calculated as a percentage of the total settlement, any reduction in the amount paid to your health insurer goes directly to you.

Your automobile insurance policy can also come into play when you are injured while riding your bike. Hmmmm….you’d better read that sentence again. If the driver who clobbered you is uninsured, or if his low policy limits simply can’t cover your damages, then your own “uninsured/underinsured motorists coverage” ["UM/UIM" coverage] can be used to pay your claim. [You DID keep this coverage in force, didn't you, since it directly benefits YOU?!]

Instead of presenting the claim to the motorist’s insurer, you present the claim to your insurer. If you can’t negotiate a settlement with your insurer, you sue your insurer, not the motorists insurer. The rules relating to UM/UIM claims are very tricky, changing with virtually each new Ohio Supreme Court decision on the topic. The best advice is to put your insurer on notice of a potential claim as soon as possible following the accident and keep it informed of the progress of the claim.

You may also have “Medical Payments” coverage in your auto policy which can be used to medical expenses incurred as a result of your auto/bike collision!! Again, you contact your insurer to make such a claim. GOOD LUCK AND GOOD RIDING!!