YOU HAD THE RIGHT OF WAY...SO WHY IS THE INSURANCE COMPANY BLAMING YOU FOR YOUR OHIO CAR/MOTORCYCLE ACCIDENT?

HOW OHIO’S RIGHT OF WAY LAWS WORK

Under Ohio law, if you as a motorist have the right of way, you are the “preferred driver” in your lane of travel. The other driver is automatically at fault unless you were not driving “in a lawful manner” at the time of the crash. If you have the right of way and you were not speeding, you are driving in a “lawful manner” and the other driver is 100% at fault.

So far, so good.

However, if you were speeding, or were impaired, then you are no longer the “preferred” motorist with the right of way. It doesn’t necessarily mean you were at fault, but it allows the insurance company the opportunity to claim that you share some of the fault/blame, even if your “unlawful driving” (say, 5 MPH over the speed limit) wouldn’t have made a difference in avoiding the crash.

A few years ago, I handled a motorcycle crash claim for a motorcyclist who "laid it down" to avoid a crash with a van that had pulled out from a stop sign directly into his path/right of way. He came to me after dealing with the insurance company for the driver on his own. They told him he was partially at fault in the crash, and, not happy with that, he came to see me.  I wrote the adjuster a letter and accused them of nitpicking my client’s actions based on hindsight. Here was the adjuster’s response (misspellings included): 

“Your position states Farmers really has nothing to argue here other then the fact plaintiff (the motorcyclist) should have done something differently then he did. You stated plaintiff was not speeding. We can concede to 25% comparative negligence but our insured states she slammed on her brakes then plaintiff laid the cycle down. Our insured stated plaintiff had half or the very least a third of his lane open and not blocked by our insured vehicle.

Our insured's perspective is plaintiff was going at least 30 in a 25 MPH zone and her above average witness qualifications would be compelling to a jury since you mentioned your trial experience.”

Huh? Their argument, translated: the motorcyclist was 25% at fault even though the van pulled out directly in front of him, because he could have swerved (into oncoming traffic) and avoided her and was 5 MPH over the speed limit (for a whopping 25 MPH) based on the negligent driver’s estimate of speed as she was illegally pulling out in front of him….

BS? You bet it is. So why did they argue 25% rider negligence in this case? They simply plucked it out of thin air in an attempt to reduce what they wanted to pay on the claim by that amount. I refused to accept ANY percentage of fault on behalf of my client, ignored their “25% negligence” argument, rejected their offer, and filed a lawsuit. A new adjuster was assigned to the case, and we were able to resolve it favorably to the client.

But what if the insurance company was right about their 25% argument? A simple example shows how your contributory negligence can impact your injury claim:

You are injured in a motorcycle crash and take your case to a jury trial. A jury returns a verdict for you in the amount of $100,000, but determines that you were 25% negligent in contributing to the crash (with the driver who hit you being 75% negligent).

Your verdict is reduced to $75,000.

If a jury found you 50% at fault, your $100,000 verdict would be reduced to $50,000.

If a jury found you 51% at fault, you would recover zero.

See how that works? After your crash, the insurance company is looking to open a door to discover some…ANY…evidence of speed/panic/improper evasive maneuvers, etc they can use to pay less on your claim. Fair? Not really. It taps into some of the long-held prejudices and biases against motorcyclists on our roadways. Those attitudes are fading, but they are still prevalent, and I’m sure you’ve heard some of that from non-riders.

But now you at least know where they're coming from, and why they are looking to pin fault on riders any way they can.

Yet Another "Turning Left In Front Of A Motorcyclist" Crash.

It happened AGAIN. Another phone call to my office. "My husband was hit by a driver (this time by someone operating a piece of agricultural equipment) who turned in front of him." As is typical, the injuries were horrendous. Numerous fractures, surgeries, lousy hospital and rehab center food, immobility, physical therapy, lifestyle changes, arthritis--you name it.

It's an all to familiar story for me as a personal injury attorney. This is probably the 12th consecutive "left turn in front of the motorcyclist" case I've handled in the last couple years. As always, there are 2 common denominators: the driver of the offending vehicle "never saw the motorcyclist," and the injuries to the motorcyclist are always serious.

It has to be disconcerting to riders that someone can turn abruptly in front of them and not see or hear them. But it happens all of the time. Riders have asked me over the years: "How can this be avoided?" Many times, it can't be. Every single one of my clients were free from fault, and riding their motorcycle safely and legally when they were hit. You can't control other peoples' inattention and other idiocy, like texting and other distracted drivers.

But my best advice to riders, as someone who's handled so many motorcycle accident cases over the years, would be:

DON'T SPEED.  If you are not speeding, you do not lose your right of way under the law. Besides, speeding can (in some cases, but not all) reduce reaction time to avoid the crash.

WHEN APPROACHING AN INTERSECTION OR SIDE ROAD, PRESUME THE WORST: THAT EVERY DRIVER MAY SUDDENLY TURN IN FRONT OF YOU. In most cases, this may not help you at all. But it might in that one in a hundred scenario.
client
WEAR BRIGHT CLOTHING AND AS MUCH SAFETY GEAR AS POSSIBLE. Yellow may be loud and gaudy, but it just might make you more visible. A yellow helmet did not protect my 
client in a recent left turn crash, but, again, it might help in certain scenarios.

The real shame here is that the REAL focus should be on the car and truck drivers' actions and why they SHOULD but don't see you as a motorcyclist. You as a rider cannot control that. But you can control  some variables that just might decrease the chances of being involved in a crash, or increase the chance of avoiding a crash, however slight.

PURCHASE AT LEAST $250,000 OF UNINSURED/UNDERINSURED MOTORISTS' COVERAGE FOR YOU AND YOUR MOTORCYCLE. IF YOU CAN AFFORD $500,000, BUY IT!

I'll make this simple: bad crash + hundreds of thousands of dollars in medical bills + bad driver has little or no liability insurance + you had little to no uninsured/underinsured motorists' coverage ='s you recover little to nothing or file bankruptcy. If you want more information on this equation, I wrote a book on the subject. Call and ask for it--it's FREE.   

 

THE FOCUS OF THE "LOOK OUT FOR MOTORCYCLES" BUMPER STICKER IS WRONG

        

The sentiment is correct: we do NEED to look out for motorcycles when we’re driving. But if you ride one, before anyone should be looking out for you on the roadway, what are YOU doing to LOOK OUT FOR YOUR OWN INSURANCE PROTECTION in the event someone hits you?

After 30 years or representing motorcyclists in crashes, here is a rule that is as sound as the laws of gravity, Einstein’s E=MC2, and the laws of physics: Car hits motorcyclist =’s motorcyclist loses. Bad injuries and thousands if not hundreds of thousands in medical bills. I’ve seen more of my clients with more surgeries, plates and screws, wheelchairs, walkers, canes, therapy, etc than I care to imagine.

Many of them were negligently plowed by careless drivers with minimal or still low liability limits—say 25 or 50 or $100,000. That coverage is useless if your bills exceed $100,000—which they often do.

So what can you do about it? Simple—take the irresponsible/careless driver who may hit you, and their cheap liability policy—out of the equation. AT A MINIMUM, YOU NEED AT LEAST $250,000 OF UNINSURED/UNDERINSURED COVERAGE ON YOUR BIKE AND $500,000 AND MORE IF YOU CAN AFFORD IT!

This will cover you in the event someone with little or no insurance wipes you out. This coverage is relatively cheap---you may find you can add it for around $200 a year or less!

Look, you’re essentially riding naked with no protection against the laws of physics and 3,000 lb bullets being driven by texting drivers (and we’ve all seen them). So at least cover yourself with some REAL insurance protection if you ride.

I actually wrote a book about the ins and outs of how to buy insurance to protect you (and you’ll NEVER hear any of this stuff from your insurance agent). Call me for a free copy.