Wednesday, October 3, 2018



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.

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