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Steve Magas, Ohio's Bike Lawyer

Don't let a bicycle crash turn your life Upside Down! Lost wages and medical bills pile up while you are in pain. The last thing you need is to be taken advantage of by an insurance company.

Steve Magas, The Bike Lawyer, has been protecting the rights of riders for more than 25 years. Steve has handled more than 200 "bike cases" including wrongful death and brain damage cases, and accidents causing riders to suffer major injuries, fractures, disk injuries, back injuries, neck injuries, surgeries, road burns, clavicle and scapula fractures, rotator cuff injuries and more. Steve provides a FREE CONSULTATION to discuss your claim. Call him at 513-484-BIKE [2453] or write to him at bike lawyer [at] aol dot com to discuss your crash TODAY!

Ohio Bike Laws

OHIO BIKE LAWS

By Steven M. Magas, Ohio’s Bike Lawyer[1]

I originally wrote this piece in 2010.  Today I am modifying, adding some new content and republishing this summary of Ohio Bike Laws.I am including a brief discussion of “Home Rule” issues and local municipal codes.

Have you ever wondered what “The Law” actually SAYS about riding a bicycle?  Many Ohio riders are familiar with some of the common rules or phrases.  The “AFRAP” rule, for example.  Many of us also have a sense that we have a “right” to ride our bicycles on the roadway, but where does that right come from? What limitations are there on that right? Can that right be taken away? Can cities pass their own bike laws? Can those be different from State Law?

One nice thing about 2015 that is far different than 2010? You can now download my Bike Crash App!  This App has ALL Ohio Bike Laws listed so you can carry them with you wherever you ride! [Yes, yes… I realize there are problems with the Android version! We are working on that. For iPhones, however, the App works very well!]

WOSU in Columbus is a public radio station associated with The Ohio State University. Ann Fisher's All Sides is a very popular show. Ann has invited on for a "Bike" show for the past few years.

WOSU in Columbus is a public radio station associated with The Ohio State University. Ann Fisher’s All Sides is a very popular show. Ann has invited Steve to be on her annual “Bike” show for the past few years.

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WHAT TO DO IF YOU CRASH??

WHAT TO DO IF YOU ARE IN A CRASH?
I have seen an article floating around some of the bike pages on the “What To Do If You Crash” topic. It’s pretty good, but lacking in a couple critical areas, I think…particulary for Ohio cyclists who crash and are injured when they are struck by a car.

Here’s a short list off the top of my head…

1. Protect yourself – if you can move – move – but leave the bike and debris where it is – do NOT allow the car to move if possible – yes, it’ll cause a back up of traffic, but once the scene is changed, evidence is destroyed…
2. Get police AND EMT’s to the scene
3. Do NOT refuse treatment – get checked out – your adrenaline rush will wear off and pain may well set in. I had one client who rode away from a crash on bike then pedaled directly through the front doors of an Urgent Care when he realized his clavicle was fractured.

Billingsley Crash Scene
4. If you can, document the scene – photos photos and more photos – get the names of everyone – do NOT assume that if they talk to the cops that their names will be recorded – they likely won’t. Police only corral witnesses in obvious “big” cases – severe/fatal crashes. In the run of the mill case in which one party is blatantly at fault they often talk to people confirm it, but then let them go
5. Do NOT refuse treatment – did I mention that above… oh yea… I wonder why??  Because it is IMPORTANT! Cyclists are hard-nosed, self-sufficient, don’t-tell-me-what-to-do, suck it up, get it done, to heck with a little pain, bootstrappers whose first question after returning to a state of quasi-consciousness is “How’s My Bike???”  Do not refuse treatment – get checked out – at the scene…and follow up at home…
6. Give a solid statement to police – Try to get them to take photos – of your injuries- the scene – all vehicles.
7. Do NOT leave without the other person’s contact info, the name of their insurer and a policy number preferably.
8. Try to find out if the other driver was “working” at the time of the crash and get the name of the employer
9. Do NOT simply “start an insurance claim” as the article floating around suggests. Again, do NOT simply call up the driver’s insurer and “report” the claim.  This ought to be done after much thought – the initial communications with the insurer can be critically important. Having worked as in-house counsel for an insurer I know that insurers are required to set “reserves” on cases on Day 1 – knowing how to use buzz words that cause the reserve to be set as high as possible is definitely a skill to be developed. Do NOT call them – Do NOT  “give them a statement”  – “oh, it’s just a short statement –  we need it for our records  blahblahblah”  –  Do NOT give them your Social Security Number. 
10. Do NOT give out your AUTO INSURANCE to doctors, hospitals and the like. In Ohio, anyway, your care providers have taken the approach of  ignoring your health insurance and submitting claims to your auto insurance to try to tap into your “Medical Payments” coverage. Why?  Well… MONEY of course…  Your health insurer will only pay a percentage of the bill – maybe 50% or less – whatever is the negotiated rate. The hospital knows that your auto carrier will pay 100 Cents on the Dollar – IF they are aggressive and get there first before any other care providers you may see… Whatever the E/R submits, up to your policy limits, will be paid with virtually no questions asked. I had one case where a guy had $10,000 in “Med Pay” – and we discovered that it was used up entirely by the E/R facility without his knowledge or consent! YOU should remain in control of that money – you may need it to pay your deductible, or the 20% of the “80/20″ policy that you owe.
11. There are as many as 4 or 5 insurance policies which can be triggered at the moment of a crash – Your Health insurance, Auto Insurance, the other guy’s Auto insurance – the other guy’s Employer’s insurance, your HOMEOWNER’s insurance and any “umbrella” or excess coverage you may have. As I researched and wrote the “Insurance” chapter in “Bicycling and the Law” I dug deep into the relationships of all these carriers – it’s not pretty…
12. IF you have a claim of ANY magnitude at all – disabling injuries, big bills, scars and wounds, fractures, serious out of pocket losses or wage loss, then consult a good lawyer EARLY in the game – don’t go through the process yourself and then call a lawyer when it gets mucked up… What’s a “small” claim? Tough to say – minor injuries which heal quickly and no complications. Clear liability. Nice adjustor who wants to give away some money and finish the claim… For all the rest, you’re likely going to need counsel.

13. Download the Bike Lawyer’s Crash App! The app is pretty cool. You can read ALL Ohio bike laws, and get my commentary [commentary which, I would note, rates “Moderate” on the Magas Humorosity Scale]. You also get an app that helps you gather every bit of information you need after a crash – GPS coordinates at the scene – video – photos – take recorded statements – type data – get to the closest hospital, or bike shop. The app keeps all this disparate data in one place and allows you to send it to me with one button – you don’t have to wander all over your phone to grab the various pieces. The app stores them all together for you!

14. Send me an Email and I’ll send you 10-100-1000+ of my Bike Law/Art Cards. Keep ‘em handy – you never know when they’ll come in handy.

-0- 2014 Bike Card

15. Keep track of EVERYTHING! Every document relating to your injuries is important. The EOB’s from your insurer- the bills – your payment of the bills – photos – your bike – your helmet and bloody clothes… keep EVERYTHING – In Ohio our Supreme Court, in its infinite wisdom, changed the rules for ALL injury claims in which health insurance is involved. It made our jobs of representing you far more difficult, and helped tamp down the value of claims. Our court now requires you [and me] to keep track of your insurance payments, your insurance policy terms, all the “write offs” your insurance makes, your share of the bills, your deductible and more… it’s crazy…

16. GOOD Photos – Get GOOD photos of wounds, scars, bloody goopy stuff… hospital shots are fantastic [in the crazy little world I work in]. But GOOD photos – did I mention that the photos have to be GOOD – I cannot TELL you how many times I’ve received an envelope of photos…out of focus photos … of fleshy blobs… with no possible way to tell WHO it is… or WHAT body part was in the photo… I’m not talking about phone photos – unless your phone has a fantastic lens – I’m talking about pro quality photos – images sell the case – I have invested heavily in camera gear and shoot a LOT of photos – I’ve got wide angle lenses, close up lenses, flashes and a tripod. I’ve got props that measure wounds, backgrounds and high end f1.2 lenses that take gorgeous photos of gory stuff… I usually shoot 100 or so photos in every case… the scene – the property damage – the bike, jersey, shoes, helmet, gloves – and then the wounds and scars…

Screen Shot 2015-05-22 at 11.44.38 PM

There you go – my Top Ten…er… Sixteen Things to do or think about after you crash… This is the tiny tippy top of the iceberg of To Do’s in a typical bike crash case… I could write a book, or a chapter anyway, on each one…maybe I’ll do that one day… but for now…

Stay Safe and Keep On Riding!

PUNISHING CELL PHONE KILLERS

DWD – Driving While Distracted – Has become an epidemic throughout the country. CFBWD is a huge problem – [“Checking Facebook While Driving] – What happens when a distracted driver maims or kills a cyclist?

2010_04_17_16_17_42.pdf007

The typical injury claim is pursued for the injured rider, or the grieving family of a cyclist killed by a distracted motorist. Damages awarded can include paying medical bills, wage loss and out of pocket expenses as well as a significant pain and suffering award. This seems so… inadequate -getting some money from someone’s insurer to cover the damages her/his careless driving has wrought… from the trial lawyer’s perspective, it’s usually the best we can do.

Oh, there may be a criminal case or, more likely, a “traffic” matter. These provide some modicum of satisfaction for some folks… sometimes…

Do “tickets” for texting change driver behavior? Well… first of all, very few tickets are ever written. Do you know anyone who’s got a texting ticket in Ohio? Ever read a story about it? In 2014 the Columbus Dispatch did a story about the limited value of texting laws…

One thing that may work, though, is “punitive” damage claims being brought by the victims.

In the typical injury claim described above there is no “punishment” involved. In fact, a jury in Ohio is instructed by the judge the purpose of “compensatory” damages is NOT to punish, but to make the victim whole. “Compensatory” damages are intended to “compensate” the victim for out-of-pocket losses, wage loss, and pain and suffering. Juries are instructed that sympathy for victim is completely irrelevant when measuring the damages assessed.

A punitive damage claim goes beyond the basic “injury” damages and IS designed to “punish” the wrongdoer with an extra award of money damages to the victim. These are only available in very rare cases in which the victim can prove the wrongdoer acted with “malice” … intentional aggression… OR… if the wrongdoer acted with a “…a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm …”

Punitive damages are unique in that they are NOT covered by insurance. They must be paid directly by the wrongdoer.

Punitive damages claims have come under fire by those seeking “tort deform” …er… “reform.”  There are those who feel that the less than 1% of cases seeking punitive damages is just too many… that these claims arising when “malice” is an element need to be reigned in… Doctors paved the tort reform path in Ohio by amending medical malpractice rules in 2003. A Pro Tort Reform legislature followed suit in other tort cases and, after the Ohio Supreme Court became the best court insurance dollars could buy, the reforms were upheld [despite being found by prior versions of the Supreme Court to be unconstitutional…].  Currently, if you are catastrophically maimed in Ohio, your recovery options are severely because the legislature has deemed your injuries to be of less importance than the careless party’s money or insurance… but I digress…

In 1994 the Ohio Supreme Court recognized that evidence of intoxication is sufficient to pursue a punitive damages claim. The court said “…We are convinced that the conduct of drinking and driving may well, under the circumstances of each individual case, constitute the kind of reckless, outrageous behavior justifying a jury to conclude that the defendant possessed a willful indifference to the rights and safety of others justifying an award of punitive damages. We hold that evidence that a negligent driver had consumed alcohol prior to a vehicular accident is relevant and admissible to establish whether the driver can be deemed to have acted with actual malice justifying the award of punitive damages…”

In 2014 a court in Montgomery County upheld a $2.0+ million award against a drunk motorist and the bar serving drinks. The jury included a $50,000 punitive damages award. This case was rather unique because the motorist was a dancer at the club – and was encouraged by the club to drink on the job. She was drunk when she crashed into, and maimed, the victims on her way home from “work”… The award against the club was significant.

In more recent years there have been many studies indicating that texting while driving is far WORSE than drunk driving. Even the venerable “Car & Driver” concluded that texting was far worse than drinking and driving in its admittedly non-scientific testing.

However, there is currently no Ohio Supreme Court case which holds that a motorist who kills or maims while texting or downloading a fax or updating their FB page is sufficient to lead to punitive damages.

We are working on this – lawyers representing victims in Ohio are doing research and filing motions, seeking to have a punitive damage claim added to such cases. In Florida courts have allowed such claims to proceed to the jury.

In this day and age, it should be very clear though the research, as well as the legislative pronouncements, that texting and driving can, and should, lead to serious consequences when the [reasonably foreseeable] catastrophic crash ensues… I hope Ohio joins the growing number of court systems which will allow a punitive damage award in cases in which a texting drivers causes a catastrophic crash.

 

Happy Bike Month – More Great Bike Art!

Happy Bike Month – Day 2

I hope you got out to ride today – a gorgeous day here in The Queen City.

I hope you got to see some groovy Bike Art too! One of my favorite Bike Artists is Taliah Lempert. You can see her work in NYC or here.

When I first opened my solo practice I was looking for “Bike Art” and ran across Taliah’s gorgeous work. I checked in with her about using one of her pieces in a new card I was developing. She was agreeable and my “Bike Law/Art” card was developed. This 4″x6″ card was printed on heavy stock – full color – and my thought was that you would carry it with you on the bike. If you were stopped by a police officer for something stupid you could look at the painting first, take a deep breath, then turn it over and use the Ohio Revised Code citations to help you in your discussions with the officer.

Fast forward a few years and now THOUSANDS of these cards are floating around the panniers and seat bags of Ohio Cyclists…

If YOU would like 1… 100… 1000 + of these cards just let me know. Send me an email – give me a call – let me know How Many and Where To Send and I’ll get them out!

Stay Safe!

Steve Magas

-0- 2014 Bike Card

 

HAPPY BIKE MONTH

May is “Bike Month” you know… just what does that MEAN anyway?

To me, it’s a celebration of ALL things “BIKE” – the celebration of the sheer JOY that comes from moving yourself about on 2 wheels – the many types of riding – the diversity of cycling and cyclists – the color and art – the races – the tours – the transportation of folks from point A to point B – the KIDS –

As we start to work on the NEW & IMPROVED Ohio Bike Lawyer webpage, I’m going to try to write a bit each day of Bike Month… some fun and funny, some very serious. Joys And Sorrows…you’ll Laugh, you’ll Cry…

OK… Maybe I’m overstating this a bit…

To Kick Off our serial Bike Month postings, here’s a gorgeous piece of art by artist Carolyn Vibbert. Carolyn is a well known artist whose gorgeous work can be seen in many venues and genres.

ENJOY!

bike week

2015 – The Latest Fatal Crash In Ohio …makes NO Sense

We’ve had remarkably few fatal bike/car crashes so far in 2015. The crash which occurred in Muskingum County on April 23, 2015 seems, at first blush, like another stupid one – car goes off the road to the right and hits a two cyclists, killing one… riders who were using a paved berm to the right of the white line… makes NO sense…

For now, our thoughts and prayers go out to the family and friends of Brenda Hoffman and Bradley Hollingsworth.

Brenda Hoffman Killed while Cycling on State Route 60 in Ohio - 4/23/15

Brenda Hoffman Killed while Cycling on State Route 60 in Ohio – 4/23/15

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NEW LOOK COMING SOON

The Bike Lawyer’s Webpage will be undergoing major changes soon!! When we started this page NOBODY was looking at things on their PHONES… it was back in the Technological Dark Ages … 2009 or so… In fact, I think I had a party line…  Back then you could barely get the cell phone to work beyond the outerbelt let alone update Facebook [was that even a THING in 2009?], download photos, read email, get faxes, check websites, pay bills, 1-click order from Amazon or send a “page” [what??]  … OK, maybe I’m exaggerating a tad wee bit…

The new look webpage will still focus on the blog of hot button issues in the cycling world. The blog will be updated more frequently. There will be regional pages to help folks around the state be guided to resources they can use – links to local/city bike ordinances, advocacy groups, bike shops and more. The same quasi-humorous tone will pervade, I’m certain…

The Spam Filter will continue to aid in fighting crime [285,405 bits of Spam already noted], but you will also be able to post [moderated] comments to blog pieces…

The new page will be Bigger & Brighter & Bolder while fitting on your iPhone , iPad, Surface,  Kindle, Palm Pilot, Blackberry [do they still make those?] and more with ease…

The sFountain Pen Yellowpecial APP BUTTON will remain. You will STILL be able to download the ONLY Bike Law App in Ohio – You will be able to read all of Ohio’s Bike Laws [and my commentary]  – Plus, you can Report a Crash and store ALL phone data relative to your crash in one place- photos, videos, GPS data, witness statements – All that fun App stuff…

New and Improved Articles are coming – Articles discussing Crashes, What to Do, Cycling in the Digital World, GoPros Dogs, Insurance, Statistics [ooo…my favorite], How To Handle Angry Cops, Protecting YOUR Right to the Road, and lots lots more..

Now I’m pretty Old School in some ways – I like the feel of a nice fountain pen on good paper and the workings of a nice watch.  However, we try to stay on top of the technological world as well as the legal world here at The Bike Lawyer’s World Headquarters.The new website/blog will make it easier than ever for me to provide you with some random thoughts on the nature of life, the universe and everything…along with the very latest news in the Bike Law world!

All in all it should be a fun party… and you’re invited!  Hoping to get this all Up and Running by June… Exciting Stuff!!

ROAD RAGE E/R Doc – Remember Him?

Remember the Road Rage E/R Doc?

Dr. Christopher Thompson was an emergency room physician back on July 4, 2008. He’d had some run-ins with cyclists in his very hilly neighborhood but on this day he really took it to ‘em.  He engaged in a verbal battle then drove off, only to stop suddenly with the intent to have the cyclists crash into him. Two cyclists hit the back of his Mercedes, one went through the rear window and suffered very serious injuries.

Injuries caused by Dr. Thompson -

Dr. Thompson was charged with felony road rage, among other charges. He made statements at the scene which gave police reason to believe he intentionally caused the crash to “teach them a lesson.” The trial was closely watched by the cycling community, including me on this page.  Dr. Thompson fought the charges vigorously but was found guilty and sentenced to prison. He appealed…and lost... he served his time – and was ultimately released from prison.

Now, we can stop calling him “Doctor” Thompson.

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The BLS – Revisited

THE B.L.S [Boring Legal Sh…err… Stuff] FOR TODAY’S CYCLIST – 2014 Edition
By Steven M. Magas, The Bike Lawyer

Can’t you just picture it – maps laid out, clothes folded ready to be loaded into waiting panniers, bike all tuned up, stretchy Gore-Tex gear abounds and the banana-like smell of Teflon oil floating about the room. The last thing on the touring cyclist’s mind as she/he goes through their mental Pre-Trip Checklist is the “BLS.” Unfortunately, failure to consider the BLS of Insurance and Estate Planning can end up costing the touring cyclist, and his family, time, money and peace of mind!

PART I – INSURANCE ISSUES for Today’s Cyclist

Insurance? You don’t need to worry about no stinkin’ insurance, right? You’re driving a BIKE for two weeks, not a car … what can POSSIBLY happen? [For this part of the article, let’s assume you are staying inside the United States – things REALLY get crazy in the insurance world when you cross sovereign borders!]

Health Insurance

First, and foremost, before you leave the house make sure you are carrying all of your health insurance information. Keep it close at hand – better yet, pack your insurance card, or a copy, in a small [2”x3”] baggie with a copy of your ID, emergency contact information and list of medical allergies. Store this on your person – or in your helmet!

If you are hurt on the road, unable to communicate and need emergency care or serious medical intervention you do NOT want healthcare professionals wondering who you are, who to contact and whether or not you’ve got health insurance!

I, like many others, wear a RoadID bracelet as a safety measure… and a fashion statement… This allows first responders the opportunity to address you by your given name when you don’t remember what country you are in… There are many versions of these safety bracelets out there… Get One – Wear It –

Fountain Pen Yellow

WARNING: While I have not yet seen this in my “bicycle law” practice, I have learned from my “motorcycle law” practice that a few health insurers are limiting the benefits they provide if an insured is injured while riding a motorcycle or engaging in certain other “hazardous sports.” As you might expect, motorcycle groups have been up in arms and preparing to do battle. However, under insurance policies in force right now, a motorcyclist can hit by a DRUNK driver and have NO health insurance coverage! If insurers find this effective, you can BET they will apply the concept to cycling very soon!

Homeowner’s Insurance – Say WHAT?

Why in the world would you need your homeowner’s policy information while riding your bicycle? Let’s say you ride from Ohio to Wisconsin. While touring through Madison you are distracted by the foliage and the incredible bike facilities and you run into a pedestrian who has the right of way in a crosswalk. The pedestrian is injured severely, and screams “I’m Gonna SUE YOU” as he is loaded into the ambulance. The police report shows you to be completely at fault… what do you do? Who pays this claim?

Surprisingly, your HOMEOWNER’s or RENTER’S insurance can provide liability coverage to pay the claim! A claim against you due to your careless riding is generally covered the same way a slip and fall or other premises liability claim would be covered.

In one recent case I handled, my cyclist/client was hit by a guy on a motorcycle. The motorcyclist was passing my client, over a double yellow, on a blind curve at a point on the curve where a bike trail intersects. My client was moving towards the bike trail when he was struck by the motorcyclist. As we were preparing to present the injury claim to the motorcyclist’s insurer I received word the motorcyclist had sued my client! I then notified the client’s homeowner’s insurer, who assigned a lawyer to defend that claim. I then filed a counterclaim against the motorcyclist, who notified HIS carrier, and that carrier retained an insurance defense lawyer to defend him. So now there were 4 lawyers in this case!

If you are going on an extended trip, take your agent’s phone number and your policy number. If someone claims YOU did something wrong, causing them loss, damage or injury, you will need to file a claim right away!

Another reason to keep your H/O policy up to snuff is that you can use it to replace your bike in a crash, or add your high-end bike to the policy through a “rider.” A rider is a separate mini-policy covering particular, usually high end items.  You pay a bit of a premium but if your $10,000 bike is squished by a teen-ager who rear-ends you while texting XOX to her BF you will likely get it “replaced” with one of similar value. Dealing with the errant motorist’s insurance carrier on high end, custom bikes is tricky. I’ve had a lot of experience here, and have a game plan for working with your shop, but sometimes we find that the client does “better” by getting the bike replaced through her/his homeowner’s policy. The H/O carrier then pursues the motorist, or her insurer, for reimbursement. Many people do not like using their insurance when the bike was smashed by someone else. However, they sometimes find that the fight with the other insurer isn’t worth the stress and hassle.

Auto Insurance – Medical Payments Coverage

Why would you need to take information about your automobile insurance policy on a 3 week bike ride? If you are injured in a crash with a motor vehicle you may find some financial assistance buried within your automobile insurance policy!

Your auto insurance may provide “medical payments” coverage. This coverage pays YOUR medical bills if you are in a crash with a car.

WARNING: AVOID NATIONWIDE INSURANCE for your AUTO COVERAGE IF YOU RIDE A BIKE

For several years now I have been fighting with Nationwide Insurance, trying to get Nationwide to pay Medical Payments benefits when its insureds are struck by cars while riding their bicycles. Nationwide’s standard auto policy says it will pay medical bills up to the policy limits if the insured is in a car – duh. However, in a section of the policy labeled “Covereage Extensions” Nationwide extends the Medical Payments coverage to insureds “…as pedestrians…” if they are hit by any motor vehicle or trailer.

Most auto policies have similar language. ALL insurers I have worked with, EXCEPT NATIONWIDE, pay Medical Payment benefits to cyclists who are whacked by cars. Nationwide DENIES the claims of cyclists. Why? Because a cyclist is not a “pedestrian” according to Nationwide. Nationwide takes the position that a “pedestrian” is a “person afoot” – using a definition found in the Ohio Revised Code’s Traffic Rules.

Now, Nationwide wrote the policy – and defined many of the important words it chose to use in the policy. It chose to NOT define “pedestrian.” That’s right – it didn’t incorporate the statutory definition, or ANY definition, into the policy. Then, in 2004, an Ohio appellate court ruled that the word “pedestrian,” as used in an auto policy was ambiguous. That court held that a cyclist was a “pedestrian” for auto insurance purposes. After this case, Nationwide chose to define “pedestrian”…er…. NOT. Nationwide continued to deny Med Pay claims presented by cyclists and, to this day, has chosen to not define “pedestrian.”

I have run across this problem in several cases I have had with Nationwide over the years. Each case is the same – cyclist injured in a crash caused by a motorist – cyclist incurs medical bills – cyclist presents medical bills for payment under the Med Pay provisions of the Nationwide auto policy – Nationwide denies the claim. The problem with fighting these claims via litigation, from a lawyer’s perspective, is that these are typically very small claims. Many or most people have $500 or $1000 policy limits. Some have $5,000.00, a few have $10,000.00 or more. For $500/$1000 or even $5,000.00, it typically just isn’t worth it for a lawyer to file a lawsuit and sue Nationwide over this. Further, since most lawyers may have 1 or 2 “bike cases” in an entire career, this issue does not arise often in the practice of most lawyers. Most lawyers have no reason to question Nationwide on this – I mean a woman riding a bicycle is not a “pedestrian”… right?

I sued Nationwide over this issue. I’ve handled almost 400 bike cases now, though, and this issue has arisen repeatedly in my cases. I think it is and important, and “winnable” issue which, over time, can result in hundreds of thousands of dollars of insurance benefits for Ohio cyclists.

I had a case which was being fast-tracked towards litigation. My client was a Nationwide insured. He was struck by a hit/run drunk driver. I laid out the legal argument in great detail to the Nationwide adjustor prior to the lawsuit. Nationwide denied the claim. We sued the drunk driver – and added breach of contract and bad faith claims against Nationwide. Nationwide filed a motion asking the court to throw out the claim. I filed a Motion asking the judge to rule as a matter of law that the word “pedestrian” was ambiguous and was broad enough to cover my client.

The trial court ruled in favor of my client. We WON at the trial level. Nationwide was ordered to pay the Medical Payments claim with the court holding that a “cyclist” was a “pedestrian” for auto insurance/Med Pay purposes.

The rest of the case then settled. I thought this case was in a good position, procedurally, to try to win a bigger victory at the appellate level. After reviewing the procedural issues with opposing counsel, I made some agreements which made it easier to immediately appeal the key issue – does Med Pay apply to a cyclist whacked by a car.

Right now, as of November 4, 2014, the case has been appealed, the legal briefs have been filed, and I am scheduled to appear in the appellate court in December to argue the case to a three judge panel. Hopefully, within the next 6-12 months the court will issue a favorable ruling. THAT part is up in the air.

From a business perspective, I guess this is a dumb move. A lawyer can’t make money spending dozens of hours researching an appellate brief, then making a six hour round-trip for a 15 minute oral argument on a case in which a “victory” means getting Nationwide to write a check to the client for $5,000.00.

This is an important issue to me, though. Since when do MEDICAL benefits depend on your mode of locomotion. Under Nationwide’s argument a Mom pushing a baby carriage who is hit by a car would be eligible for Med Pay, but her baby, who is not “afoot” is not? Is someone in a wheelchair eligible for Med Pay when a drunk driver veers off the road and smashes into them? Is someone sitting on a bench waiting for a bus eligible since they are not “afoot?” This makes no sense to me.

Yesterday, November 3, 2014, I received an email from a Nationwide adjustor denying the Med Pay claim – because my client was on a bicycle. This case is even “better” for the client as she was riding in a crosswalk from sidewalk to sidewalk when she was hit by a left turning motorist. She was truly behaving “as a pedestrian.” No matter… Nationwide’s position remains NO MED PAY FOR CYCLISTS!

I’ll keep you posted.

Auto Insurance – Uninsured/Underinsured Motorist Coverage

The “uninsured” [UM] part of this is obvious. If you are struck by motorist who simply has no insurance, your UM coverage should pay your injury claim just as if it was the motorist’s coverage even though you are on your bike.

The “underinsured” [UIM] may not be so obvious. If the motorist who hit you has “some” coverage, but not enough to pay the full value of your claim, your policy’s “UIM” coverage may be used to pay more towards your claim depending on your policy limits.

I advise my cycling clients to buy as much “UM/UIM” coverage as they can afford. It protects YOU in the event you are injured by an errant motorist.

Be wary of arguments similar to those raised by Nationwide – i.e., that cyclists are not covered by auto insurance. I have not encountered this argument here in Ohio – particularly since 2004 when an Ohio appellate court ruled that cyclists were covered. In today’s “Let’s Not Pay Claims” word in which insurance companies live, I would not be surprised to see it raised again…

Are you carrying an Umbrella?

Do you carry any type of excess or umbrella insurance? NO, not a policy to replace your cheap umbrella after a storm.  These types of policies are designed to fit over the top of all other policies and only come into play when all other available insurance is used up and you still have losses. An umbrella policy is usually written with large policy limits – often $1,000,000 or more. The carrier writing the umbrella usually requires significant underlying coverage – usually $250,000.00 or more.

Play the “What If” game for a minute – What If you are killed by an uninsured, or underinsured motorist. What would happen to your family, financially. What if you are rendered incompetent – or unconscious. Are you a small business owner? What would happen to your dental practice – or your bakery –if you are taken out on a bike ride? How much money would your family need to be covered sufficiently.

I advise ALL bike riding clients to consider an umbrella policy. These are typically very inexpensive policies and, in that once-in-a-lifetime situation, can save your financial life! The more you have to LOSE the more you NEED a high level of insurance protection!

BUSH RANCK

WARNING – When you get your umbrella, make sure it WORKS when you NEED IT!  In one case I handled, the client, [a CPA married to a CPA], bought an umbrella policy. They signed a bunch of forms when the insurance agent they dealt with presented the coverage. A couple years later the client was struck by an errant motorist and suffered severe injuries. The motorist had very low policy limits. The value of the claim exceeded even the relatively high coverage UM/UIM limits the client carried. Thankfully, I thought, the client had this $2.0 million Umbrella.

Unfortunately, when we dug into it, it turned out that the agent thought the client did not want the Umbrella to apply to the client’s AUTO policy – and used it more as a device to protect the client’s home and business. He had the client sign forms which caused the Umbrella to not apply to the auto coverage. The client didn’t realize what she was signing away. Unlike the doctor in my prior example, this client was left with a claim that exceeded her UM/UIM policy limits but had no place to turn to have the claim paid.

The bottom line, explain to your insurance professional what you want – and what risks you are guarding against. READ the stuff they ask you to sign. Make sure you understand the ramifications of any policy exclusions or limitations.

Disability Insurance – Covering the REAL Risk

Everyone knows about life insurance. However, the overall risk that you will be disabled is actually considerably higher than the risk of being killed. This risk evens out as you age. In one report I read, the likelihood of becoming disabled 4 times greater than being killed at age 30, 2.7 times greater at age 40. By age 55, becoming disabled was still 1.5 times more likely than dying. While deaths from cancer, heart disease and stroke have actually gone down, the risk of becoming DISABLED from one of these “Big Three” has climbed. So folks are surviving stuff that used to kill them – but are still becoming disabled.

On a bicycle, you are far more likely to be injured, and possibly disabled, than killed. In Ohio each year there are 1600-2000 bike crashes. Cyclists are injured in 70+% or so of those crashes. However, they are killed in less than 1% of the crashes. While “severe” injuries are not as likely as relatively “minor” injuries, the risk is there when you are dancing with two ton partners…

The bottom line – Disabilty Insurance is another product which every serious road cyclist should consider. As with life insurance, the more you stand to lose the more important this coverage is!

Real Life Insurance Example

My client, a physician who rides all the time, suffered a dangerous neck fracture in a crash caused by a motorist. The motorist carried Ohio’s paltry state minimum auto coverage – then $12,500.00. The client’s medical bills were in excess of $80,000.00and his wage loss was over $40,000.00.
Fortunately, the cyclist had $300,000.00 “underinsured motorist” coverage and $10,000.00 in “medical payments” coverage. We used the medical payments coverage to cover the “co-pays” the client incurred for his neck surgery and other treatment.

The doctor also maintained an excellent disability insurance policy that kept him afloat financially while he was off work. Finally, he had an umbrella policy with $1.0 million limits. Since the value of his claim exceeded the $300,000.00 “UM/UIM” limits, his “umbrella” was available to pay the balance and we were able to reach a reasonable settlement that was satisfactory to the client without filing a lawsuit. From an insurance perspective, the good doctor knew the risks and took appropriate steps to make sure he was well-prepared for the “once-in-a-lifetime event” that came out of the blue during a short post-dinner ride through the neighborhood!

NEW STUFF – “BICYCLE INSURANCE”

In just the past few years we have seen a brand new type of insurance product hit the market-  something called “bicycle insurance.”  A few insurance companies are recognizing that cyclists both have some special needs and likely have some extra cash and are willing to protect those special needs.

Take the cyclist who has given up his or her car. By not having a car, and not having auto insurance, the cyclist loses two of the most critical types of insurance coverage – UM/UIM and “Med Pay.” Some bicycle insurance policies are designed to substitute for Med Pay and/or UM/UIM. Velosurance provides a wide range of insurance products for the cyclist. Markel works with USA Cycling. Here’s one in Portland. Spoke Insurance is another carrier which is supposed  to be providing similar products in the future.

I do NOT “vouch” for any of these carriers. I have not reviewed the policies and have not sued them … yet …  :^) 

PART II – ESTATE PLANNING FOR THE TOURING CYCLIST
Why does the bicyclist need to worry about “Estate Planning?” What the heck IS “Estate Planning” anyway? Sounds rather vague and morbid – something for rich people!
“Estate Planning” for most of us [us NON-millionaires, that is] generally consists of having a will prepared, as well as possibly a trust. Even more important for the bicyclist, “advanced directives” should also be prepared.
Most people want their estate plan to provide financially for their surviving spouse, protect their assets, insure that their children are physically and financially cared for, minimize cost & taxes, and “avoid probate.” Other goals may include providing for children of a prior marriage, making sure that business interests are taken care of, providing liquidity to pay bills and taxes and avoiding family conflict and strife! “Advanced directives” are prepared in case you become unconscious or unable to make your own decisions.

Here’s a little “12-Step” program for getting the BLS of Estate Planning done in YOUR life!

1. Have a will prepared.
2. Consider whether a trust is necessary.
3. Have health care directives prepared.
4. Execute a financial power of attorney.
5. Get ALL Financial Stuff In One Folder/Binder – ORGANIZE IT
6. File beneficiary forms.
7. Consider life insurance.
8. Understand estate taxes.
9. Cover funeral expenses.
10. Make final arrangements.
11. Protect your business.
12. Store your documents.
YOUR WILL & TRUST

I think many adults fear “making a will” more than death or dealing with a life insurance agent! The thought of talking about “end of life” issues scares many people and prevents them from getting their will done. However, the legal effect of NOT dealing with these issues should scare you even more!

Everybody Needs a Will

“Intestate Succession” sounds like some sort of goofy bowel obstruction. In reality, it is a law which carefully explains exactly who gets your property if you fail to have a will. Yes, the court will give away your stuff in, quite possibly, a manner which you would not want. You solve that be making a will.

In a simple will, you state who you want to inherit your property. You also name a guardian to care for your young children should something happen to you and the other parent. If you have minor children you should have a will – no question about it – you are committing “Parental Malpractice” if you don’t!

If you and your spouse fail to have a will not only are you bound by the law of “Intestate Succession” but, typically, the Probate Court Judge determines who will take care of your young [under 18 year old] children until they are 18 years old! Without a will, most state laws give your young children possession of your entire estate, including all life insurance proceeds and such, at age18, if you and your spouse die, say, on a bike trip.  If only one dies, your children usually inherit part of your property while the surviving spouse gets the rest. In the case of a 2nd marriage, step-children and the like, it gets more complicated – and the consequences are more severe.

Failure to have a will or trust prepared can cause your estate to incur taxes of expenses which could be avoided. If you fail to follow these rules exactly, your wishes may be ignored by the Court.

Get your Legal Act Together-  and Make A Will!

Trusts: Not Just For Millionaires

A Trust is also a legal document. In one simple form, a trust can hold your assets until your children reach an age at which you feel they can handle the assets with appropriate care. Giving the proceeds of a half-million dollar life insurance policy to a newly turned 18 year old is a scary thought!

Trusts can be very simple or very complex and can be extremely diverse in what they do. Discuss whether a trust is right for your situation with your estate planning professional!

POWERS OF ATTORNEY

What are POA’s?
A Power of Attorney [“POA”] is a legal document that gives someone ELSE the power to make decisions for you when you cannot. POA’s are of CRITICAL importance to the bicyclist

Financial POA

A financial POA, gives the person of your choice the power to access your bank accounts, pay your bills or do anything else financially that YOU could do.
The financial POA must be signed when you are competent. If a crash renders you unable to make financial decisions, it is too late to create a POA – your assets may be frozen, unavailable to your spouse or family, and your bills might go unpaid or your credit could be damaged.

The Schiavo Case & “Advanced Directives” in Estate Planning

The Terry Schiavo case was a real medical and legal wake-up call for many Americans. Terry Schiavo was a young woman in a coma. She was not “terminal” but had never prepared written instructions advising health care providers how she wanted to be treated. The public battle between her husband and her parents caused many states to pass laws permitting or formalizing such “advanced directives.”

A “Power of Attorney for Health Care” is a legal document that authorizes another person of your choosing to make health care decisions for you if you are unable to make informed decisions on your own. A “Living Will” is a document that contains your written wishes and instructions for care at the end of life. You can state your preferences regarding aggressive life-prolonging treatment.

These documents are often codified. In Ohio, the Ohio State Bar Association has made it easy – you can get the entire package here.  The OSBA also helps folks create financial POA’s,w which are defined by statute in Ohio. You can read up on POA’s here.

Your should definitely have these “advanced directives” in your estate planning package BEFORE you leave for your next bike ride!!

SUMMARY
Every touring cyclist needs to consider the BLS right away! Pack your insurance and emergency contact information in your panniers and your phone, as well as copies of your will & advanced directives, for any extended cycling trip. I guarantee that you will sleep better in that hot, sticky tent you set up in rain!

Good Luck & Good Riding!

What’s a “POTHOLE” Worth to the City? About a Million Bucks…

What’s a “POTHOLE” Worth to the City? About a Million Bucks – Crabtree v. City of Columbus By Steven Magas, The Bike Lawyer

Cyclists won a very important battle recently. On November 1, 2011, the Tenth Appellate District decided the case of Crabtree v. City of Columbus – holding that the City of Columbus could be liable for failing to keep streets in good repair… for cycling…

Fixing Potholes in Columbus

From The Columbus Dispatch – Fixing Potholes in Columbus

 

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