Bike photos by Steve Magas, a race in Walnut Hills, a bike rack at Ride Cincinnati, A ghost bike dedication ceremony and a beautiful bike bell

Protecting The Rights Of Those Who Ride

Steve Magas is Ohio's Bike Lawyer. He has written about Ohio Bike Laws, bike crashes, bicycle advocacy and court cases for some 30 years. Soon we'll be adding a series of features about your favorite Ohio bike shops.

Cyclist Struck in Key Biscayne, FL – Hit/Run

From the Miami Herald comes this report of a cyclist struck by a hit/run driver in Key Biscayne, Florida.  You can read about it here, or check out the story below…

Let’s Be Careful Out There.

Steve Magas

CYCLIST INJURED IN HIT & RUN – KEY BISCAYNE, FL

A bicyclist was struck and killed by a car in a hit-and-run Sunday morning on the Rickenbacker Causeway near the entrance to Key Biscayne — after which the motorist dragged the crumpled bike four miles down Crandon Boulevard.

As the cyclist fell to the pavement on Bear Cut Bridge, bleeding profusely, the car, a silver Volkswagen Jetta, barely paused, horrified witnesses said.

The car, its windshield smashed by the impact of the cyclist’s body, dragged the bicycle at high speed into the middle of the village of Key Biscayne, where the bike apparently became dislodged.

The motorist, whose name was unavailable, then drove several blocks more on Crandon and turned into Grapetree Drive near the southern end of the island, where Key Biscayne police later seized the car. It could not be determined whether the driver was detained.

Hours after the 8 a.m. incident, the crumpled remains of the blue Cannondale bike lay on the grass in front of the village Winn-Dixie, surrounded by yellow crime-scene tape and guarded by an officer. A few blocks away, the badly damaged Wolfsburg-edition Jetta still sat on Grapetree, also guarded by a patrol car.

A neighbor said the driver lives nearby.

A police spokesman could not be reached Sunday.

After the incident, angry cyclists who tried to assist the victim posted comments on websites, including The Miami Herald’s, complaining that rescue units took about 20 minutes to respond to numerous frantic 911 calls from the scene — even though a Miami-Dade fire station is located a couple of miles away on Crandon Boulevard.

Two cyclists, one a doctor and another a firefighter, tried in vain to help the victim, who lay in a pool of blood in the bicycle lane, one witness told The Herald.

The incident prompted the closure of Bear Cut Bridge’s eastbound lanes for most of the morning. The cyclist was riding towards Key Biscayne in a bike lane when he was struck, witnesses said.

The cyclist was taken to Jackson Memorial Hospital’s Ryder Trauma Center.


ROAD RAGE DOC GETS FIVE YEARS – TEXAS KILLER GETS ONLY TWO

COMPARING SENTENCES – THEY DON’T ALWAYS ADD UP

What a difference a state makes – or so it seems.

CALIFORNIA ROAD RAGE CASE – FIVE YEAR SENTENCE

In California, Dr. Christopher Thompson was convicted in a well reported “road rage” incident.  Testimony in the case included stories from several cyclists who were involved in road rage incidents with Dr. Thompson – the key event was not his only reported transgression!   It took a couple before the prosecution decided to go after him.

The paper trail of prior reports was helpful in getting the prosecutor, and the court, to believe that an Emergency Room physician could actually be so cold-hearted towards human life.  The testimony from those on the scene that Dr. Thompson said he “wanted to teach them a lesson” was chilling.  You can read Bob Mionske’s take on the case here.

As shown in this LA Times pic, Dr. Thompson was crying in court during the sentencing and was led out of the courtroom in handcuffs the other day after learning that the judge gave him a FIVE YEAR sentence for causing the road rage incident. You can read the whole LA Time story here.

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If only justice worked as well in every case.

TEXAS CASE – TWO CYCLISTS KILLED – TWO YEAR SENTENCE

On December 17, 2009, “justice” was handed down in the Kenneth Bain case out of Texas.  Mr. Bain had allegedly been driving home in his Lincoln Navigator from a bachelor party at 8:15 am, after ingesting both alcohol and pot, when he ran into, and killed, two cyclists.

The two cyclists, Meredith Hatch and Mike Alfaro, were members of a local cycling group and were training for an event when they were struck from behind and killed.  The photo of the huge Lincoln Navigator, from a local CBS television station’s website, shows the damage to the front of vehicle.

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Mr. Bain was sentenced on December 17.  His sentence was TWO years in prison with an additional 10 years of probation.

The families of the two cyclists, and local cycling advocates, were shocked and outraged.  You can read about it here.

How do you get such different results?  A guy in a road rage case who hurts, but does not kill, two cyclists gets five years.  A guy who ingested pot and alcohol at a party and then kills two cyclists by striking them from behind gets two years?

I wish I had an answer.  There are usually personal, legal or political factors that come into play in these cases, unfortunately.

In the the Texas case there were reports that the BAC for the driver was not over the limit and that there was some reluctance of the family of one victim to put the children on the witness stand.  There were additional reports speculating that Mr. Bain’s lawyer, a sitting Texas State Senator, or Mr. Bain’s family/money may have played a role.  Perhaps the prosecution was worried about some factual or legal issues and didn’t want to take a chance of this one getting away.  We’ll never know.

In the California case, you had clear evidence that the doc was actually INTENDING to do some harm.  There was testimony that the doc said he wanted to “teach them a lesson.”

In the Texas case, the driver was stupid, careless and maybe feeling the effects of a long night of partying, but there was no evidence of ill intent.  There was no evidence that he intended to hit the riders.  That would have led to murder charges.

That distinction – what the judge or jury believe is inside the MIND of the wrongdoer – is a typical dividing line for sentencing.  Intentional and malicious actions are usually punished more severely than careless or stupid actions.

Indeed, in Indiana a few years ago FIVE motorcyclists were killed [and many suffered life changing injuries] in 3 separate accidents on the same day, all occurring within an hour of so of each other in broad daylight.  In each case a relatively young motorist did something stupid and careless to cause the crash.  None of the motorists were drunk or high – just careless.  None of the motorcycle operators did anything wrong.  The prosecutor, in each case, refused to press criminal charges saying “We don’t prosecute negligence in Indiana.”

When alcohol or drugs are involved, though, many states crank up the sentencing, even for “careless” and non-intentional actions.  In the Texas case, while there was evidence of both, there may not have been enough evidence to show “impairment.”  Compare these two cases to the two Ohio cases discussed below…

TWO RECENT OHIO CASES – TWO VERY DIFFERENT RESULTS

In Ohio, we’ve had similar ups and downs.  In Pike County, Sarah Bender, the lady who ran over and killed Dr. Crowley during TOSRV in 2008, was convicted of a misdemeanor and sentenced to 60 days in jail.  However, in Cincinnati, Anthony Gerike is still serving his 16 year sentence for killing two popular local cyclists – Amy Gehring and Terry Walker.

These two cases also show the contrasts that develop in the legal system.  In Pike County, the defendant was a “nice” lady who was well known in her community and church.  The prosecution charged her with a felony leaving the scene, but the jury convicted on a lesser charge.

I have reviewed the 83 page police report in this case, and the dozens of photos taken by the Ohio State Highway Patrol.  Her story about what happened, of course, made no sense.  She told officers that she never saw Dr. Crowley.  That she struck Dr. Crowley and drove off was shocking, to say the least.  However, she wasn’t drunk or high or driving on a suspended license and did otherwise present as a “bad” person.

From the look of the front windshield of her car, though, her story about thinking that she might have hit “something” is more than a bit suspicious when you consider that Dr. Crowley was a big guy riding a pink Schwinn Paramount… Here’s a quote from the Columbus Dispatch about her testimony..

“…Bender testified that she thought something had hit her windshield in the rain and fog and that water was coming through, so she turned around and drove about 10 miles south back to her Scioto County home, where she parked the SUV in the garage and took another vehicle to drive to work…”  She then drove by the scene of the crash again and stopped when she saw the EMT’s & State Troopers.

Take a look at the front of that SUV and tell me if THAT makes any sense…

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Gerike, on the other hand, was drunk and high and driving on a suspended license when he killed Amy and Terry.  He was driving on the wrong side of the road.  He had taken out a mailbox before running through the group of riders.   He was portrayed, quite correctly, as a “bad guy” by prosecutors.  I helped track the Gerike case through the courts, and published regular updates.  Many cyclists attended the trial.  When he was convicted and the judge asked for input on sentencing, the local cycling community submitted dozens of letters to the court offering up opinions.  Many of us attended the sentencing hearing.

A MODEL FOR CYCLIST INVOLVEMENT

The Gerike case presents a good model for cycling clubs wishing to become involved in a criminal case.  We followed the case from Day 1, attended and reported on the hearings, communicated with the Prosecutor, spoke out in the media, and when the time was ripe for our involvement, we flooded the judge with our letters describing the impact of Gerike’s actions on the cycling community.  The letters clearly had an impact as the judge read from many letters at the sentencing hearing.

According to the Ohio Dept of Rehabilitation and Corrections website, Mr. Gerike remains incarcerated at Noble Correctional Institution.  His stated term expires on June 20, 2022.  While I believe the “ghost bikes” have been removed, the stone memorial to Amy and Terry remains, as far as I know, at the place where he killed them.

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JANUARY 2009 – TOLEDO KILLER SENTENCED TO 10 YEARS

This just in – literally.   Dateline January 15, 2010 at 2:27 pm.  In Toledo, Ohio, Jose Garcia was sentenced to TEN years for killing Flemming Williamson in East Toledo.  Mr. Williamson was riding his bicycle to a convenience store last January when he was struck by Mr. Garcia’s vehicle and left for dead. Mr. Garcia then fled the scene.  Police say, according to news reports, that Mr. Garcia was intoxicated at the time he killed Mr. Williamson.

Mr. Garcia pled no contest to aggravated vehicular homicide.  You can read about it here.

Another sad case… justice was done, but the damage and pain are lifelong….

Steve Magas

The Bike Lawyer


CYCLISTS URGE LONG SENTENCE FOR “ROAD RAGE” DOC

If you have read this blog you know I’ve been watching a California case in which an Emergency Room doctor was accused, and convicted, of a road rage incident in which he caused serious injuries to two cyclists.  The incident, described in the story below, was shocking to the cycling community.  After the conviction the judge, as is typical, accepted comments from the parties, and the community.  As you can see from the L.A. Times article below, a few hundred cyclists from all over the country responded.

Steve Magas
The Bike Lawyer
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http://www.latimes.com/news/local/la-me-cyclists8-2010jan08,0,1120092,print.story

CYCLING COMMUNITY URGES LENGTHY SENTENCE FOR PHYSICIAN CONVICTED IN BICYCLE CRASH

Cyclists from across the country — and as far away as Europe and China — are urging a Los Angeles County judge to order a lengthy prison stretch for a former Brentwood doctor convicted of deliberately injuring two cyclists in an alleged road rage assault.

In more than 270 e-mails and letters filed with the court, cycling enthusiasts condemned the actions of Christopher Thompson and argued that a tough sentence would send a strong message to hostile motorists everywhere.

Though some of the writers described themselves as friends of the victims, many said they had no connection to the case. Several of the letters came from physicians who wrote they were horrified that a medical professional sworn to “do no harm” would set out to injure bike riders.

“The Dr. Thompsons out there frighten me,” wrote Dr. Janna Summerall-Smith of Waresboro, Ga., “because I know that one may be out there on the road with me when I ride my bike.”

The outpouring underscores how Thompson’s case has galvanized a diverse community of cyclists around the world — from athletic road racers to environmentally conscious commuters to recreational riders.

The letters and e-mails were filed in court by prosecutors who have asked that Thompson, 60, be sentenced today to eight years in prison. The veteran emergency room physician was jailed in November immediately after jurors found him guilty of mayhem, assault with a deadly weapon — his car — and other charges.

Deluge of mail

The letters and e-mails are part of a deluge received by the court in the last two months, including more than 160 from friends and supporters of Thompson.

Many of the cyclists who sent messages about the case described how vulnerable they felt on two wheels when motorists get too close. Some recounted serious accidents caused by careless or sometimes vindictive drivers and complained that authorities rarely take such episodes seriously.

“Here in the U.K., the cycling community has a saying that, ‘If you want to harm or kill someone, a motor vehicle is the weapon of choice,’ ” wrote Tony Raven, of Cambridge, England.

Deputy Dist. Atty. Mary Hanlon Stone said the letters show that many cyclists feel like second-class citizens.

“It is time that motorists learn that they must share the road with people on bicycles and that the courts will view assaults on cyclists by motorists as seriously as other assaults with deadly weapons,” she wrote in court papers.

The July 4, 2008, crash highlighted simmering tensions between cyclists and motorists, particularly on Mandeville Canyon Road, the winding five-mile residential street where the crash took place.

Thompson testified that he and other local Mandeville Canyon residents were upset at how some cyclists ignored stop signs or rode alongside each other on the narrow street.

On the day of the crash, Thompson said he was driving to work when several cyclists swore at him and flipped him off as he called on them to ride single file. He said he stopped to take a photo to identify the riders and never intended to hurt anyone.

But a police officer told jurors that shortly after the crash Thompson said he slammed on his brakes in front of the riders to “teach them a lesson.”

One cyclist was flung face-first into the rear window of Thompson’s red Infiniti, breaking his front teeth and nose and cutting his face. The other cyclist slammed into the sidewalk and suffered a separated shoulder.

During the trial, prosecutors cited two prior incidents in which Thompson was accused of confronting cyclists along Mandeville Canyon Road and braking suddenly in front of them. None of those cyclists were hurt.

Thompson’s attorney, Peter Swarth, argued in court papers that his client deserved probation, not prison.

Any sentence, he wrote, should take into account Thompson’s years of dedication to healing the sick, including more than three decades serving the “underprivileged community of Montebello” at Beverly Hospital.

Health issues

Thompson has served two months in jail, is near financial ruin and his medical license will probably be revoked if he’s convicted, Swarth wrote. Thompson’s California medical license was suspended last month.

Swarth said Thompson also suffers from coronary artery disease and that incarceration could prove fatal. Since the crash, he has suffered from chronic post-traumatic stress disorder that includes disturbed dreams and sleep disorder among other symptoms, according to a report by a clinical psychologist hired by the defense.

Thompson, his lawyer wrote, has suffered public humiliation since news of the case broke and received “a deluge of threats and intimidation,” prompting the doctor and his wife to move out of state several months after the incident.

In seeking probation, the defense attorney cited other cases in which defendants avoided prison for more serious crimes.

Among them: Soon Ja Du, a Korean-born grocer, who was given probation in 1991 after she was convicted of manslaughter for the fatal shooting of Latasha Harlins, a 15-year-old African American.

Du’s sentence provoked storms of protest as well as an unsuccessful attempt to unseat the judge who sentenced her. The sentence was also blamed for inflaming already deep tensions between Korean shopkeepers and black residents of South Los Angeles in the months before the 1992 Los Angeles riots.

In his plea for leniency, Thompson’s lawyer attached numerous letters from friends and supporters of the doctor, including physicians and other health workers who spoke glowingly about Thompson’s reputation.

“He is a very wise man and caring physician,” wrote Dr. Robert Padgett, who described himself as an avid cyclist.

Michael Oana, an X-ray technologist at Ronald Reagan UCLA Medical Center, said he has known Thompson for many years.

“Dr. Thompson is not a criminal,” Oana wrote. “He acted without thinking. . . . He has paid dearly for his mistake.”

jack.leonard@latimes.com


BICYCLE INSURANCE – Where Is It?

BICYCLE INSURANCE – WHO’S GOT IT?

Is anyone writing bicycle insurance in the USA right now?  If so, I’m out of the loop.  As far as I can tell, no insurer is writing such a policy in the United States right now.

What do I mean?

If you have a car, you get car insurance.  That policy typically contains a number of different coverages.  If you hit someone in your car, you are covered.  If your car is damaged, your policy can cover it.  If you are hit by an uninsured motorist, or one without enough insurance, this policy may provide a pool of money to pay your claim.  The “Medical Payments” coverage can be used to pay your medical bills.

What if you are a true transportation cyclist and give up your car?  Who pays the claim if you run somebody over?  What if you get hit by an uninsured motorist?  What kind of insurance is available to protect you?

The short answer, in the U.S., is that it is much easier to protect yourself on the bike if you own a car!

If you do NOT own a car, there is no “Uninsured/Underinsured” policy that will protect you if you are hit by an uninsured motorist.  No one is selling this type of “Bicycle Insurance” in the U.S., as far as I am aware.

For some answers to your Bike/Insurance questions, I am reprinting below some of what I wrote in Bicycling and the Law, that epic tome that covers much of the “Bike Law” genre!  Not the sexiest topic for a Blog, I know, but one that is critically important if you ride and want to make sure you and your family are protected, financially, from the idiots out there!

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AN INSURANCE PRIMER FOR CYCLISTS

Introduction and overview

Insurance –  how boring.  How can you dedicate an entire CHAPTER to insurance?  Simple… it’s probably the most important factor in EVERY car/bike collision in the country!  No insurance usually means no recovery, no ability to pay your medical bills, no way to recover your wage loss, no money available to pay your future medical expenses and no funds to compensate you for your pain and suffering.  However, insurance policies and insurance issues frequently become extremely complicated, particularly to those uninitiated in the reading of policies and the laws of insurance.

Health, auto, homeowner’s and life insurance policies all may come into play if you are involved in an injury-causing crash while operating your bike.  More exotic products like “excess” or “umbrella” coverages can also be triggered in more catastrophic incidents.  However, once you tap into insurance coverage, obscure legal concepts such as “subrogation,” “medical payments coverage,” “uninsured/underinsured motorist” and “no fault” or “PIP” can cause you to pull your hair out!  The purpose of this chapter is to give you a brief lawyer’s eye view into the whacky world of insurance to help you understand how it all fits together!  At the end, I’ll give you a warning about a very disturbing new trend which may dramatically impact cyclists in the future!

Basic Assumptions – You are in a Crash, Hurt & Have a Claim

Let’s assume you are in a crash – a particularly ugly crash – in which you are significantly and permanently injured.  You may miss days, weeks or months of work.  You may not be able to work in the future, be forced to retire early or change the way you work and live. You incur huge medical bills and suffer intolerable pain.  You have disfiguring scars and debilitating permanent medical problems.  And it’s all the other guy’s fault… mostly.  In short, from a lawyer’s warped perspective, you have a GOOD case.  How does insurance come into play?  One more assumption for this part of our discussion – you are NOT in a “No Fault” state.  [More on “No Fault” later].

Actually, again from the lawyer’s perspective, the question really is how do you get paid [and how do I get paid?] because that’s our job.  We obtain compensation for injured victims of another’s negligence.  This compensation almost always comes from an insurance company.

What if the motorist who hit you has no insurance?  Where can you get money to pay your medical bills or living expenses?  What if the motorist that hit you has some insurance but not enough insurance to cover your claim?  What if you have great health insurance and disability insurance through your job, but all of a sudden you start receiving “subrogation” letters which seem to say that you have pay back your insurers all the money they paid to your doctors if you get a settlement!?  Can they do that?  What if you are at least partially at fault for causing the crash?  How does this affect your ability to obtain money or your negotiations with various insurers?  What steps do you have to take to protect the rights of your various insurance companies when you look to settle your claim?

All of these questions illustrate the overlap of insurance law into bicycle crash cases.  As soon as that car hit you a LOT of insurance policies were triggered.  Let’s take a look at some of the issues raised above.

Insurance Policies that come into play during a crash:

Basic Facts: Car Hits Cyclist, Cyclist is severely injured or killed

MOTORIST’S AUTO POLICY

The first, and most obvious, insurance policy that comes into play when you are hit by an errant motorist is the motorist’s insurance policy [assuming you are lucky enough to be hit by someone who HAS insurance].  The typical automobile insurance policy is designed to pay money to those injured by the motorist’s “negligence” or carelessness.  The motorist [or cyclist] must provide timely “notice” to the motorist’s insurer of the crash. Typically, the insurer then assigns an “adjustor” to handle your claim.  The injured cyclist presents a “claim” against motorist to the adjustor by providing documentation to support the claim.  The claim is then considered by the insurer.  The insurer has the right under the policy to “settle” the claim by paying a sum of money to the injured party.  This sum of money is based on the law of the particular jurisdiction relative “tort claims” or “personal injury” claims and usually covers medical bills and wage loss along with other out of pocket and monies to compensate for “pain and suffering.”    The insurer usually has separate coverage to pay any “property damage” claim arising out of the crash.  If the insurer makes an “offer” to settle, negotiations may ensue and the claim may be settled.  If a settlement cannot be reached, a lawsuit may be necessary.  That’s the claims process in a [long] paragraph.  Let’s look at some critical issues.

NOTICE TO EACH INSURER IS CRITICAL

To trigger any insurance coverage, the injured cyclist or her/his lawyer typically notifies the motorist that a claim is being presented.  The smart motorist provides that letter to his insurance agent or reports it directly to the insurer.  This notification to the insurer is critical.  Failure to timely notify the insurer may give the insurer the right to deny the claim, depending on the terms of the particular policy.  As the cyclist’s lawyer, I always notify the motorist, but also contact the motorist’s insurer myself.  Frequently, the name of the insurer is listed on the police report and each insurer has an “800” number for reporting claims.

THE ADJUSTOR – FRIEND OR FOE?

The insurer then assigns the claim to one or two people, known as “adjustors” or “claims representatives.”  Some insurers have separate adjustors for the “property damage” and “personal injury” claims, some insurers use the same adjustor for the entire package.  Some insurers have adjustors who are actually employees of the carrier.  Some insurers retain a separate company to handle the claim.

A few words about insurance adjustors.  For the most part, they are highly trained professionals who are extremely adept at protecting the insurance company’s assets by paying as little money to the injured bicyclist/claimant as possible.  They are professional cynics – that’s their job.  They handle dozens or hundreds of claims at a time.  In every one, someone wants more money than the insurer wants to pay.  They’ve heard every story on the planet.  They demand documentation to support every element of a claim.  They take nothing for granted and nothing at face value.

Adjustors are trained in property damage, accident investigation, witness interviewing, the law of torts, medical issues, insurance law, subrogation and negotiation.  They are professional negotiators.  The adjustor has probably handled hundreds, thousands of claims – you probably have only been involved in ONE.  Please remember, they know more than you and are very good at what they do!

The personalities of adjustors run the gamut from sugary-sweet to mean and ornery.  Some adjustors make life so miserable for claimants that they take less money than the case is worth just to not have to deal with them any more.  Some adjustors befriend the claimants such that the injured victim feels the adjustor has his/her best interests at heart.  For you, the victim of a negligent motorist, the most important thing to remember is that the adjustor’s job is to pay you the smallest amount of money he/she possibly can to resolve your case!  They are not your friend, but your adversary.  Treat them professionally.  If they do not treat you professionally, document it in a letter and send to a supervisor.  If the treatment is bad enough, you can report it directly to the State Insurance Commissioner.

A SECRET ABOUT DEALING WITH ADJUSTORS

Let me tell one HUGE secret about adjustors.  I learned this secret, sometimes the hard way, during negotiations with hundreds of different adjustors over the past 25 years.  I learned this secret, as well, during my days as an employee with an insurance company where with those adjustors were my colleagues and friends.  I learned this secret as the lawyer hired by the adjustor to defend the case.  The secret is this – DO NOT TICK OFF YOUR ADJUSTOR OVER STUPID STUFF.

An adjustor’s caseload is huge.  Hundreds of claim files may be on his/her shelves at any time.  The adjustor usually has no emotional attachment to a particular case.  Do not give the adjustor reason to have a very negative emotional attachment to YOUR case!

You, on the other hand, have ONE claim and may well have a very strong emotional attachment to that claim.  You don’t understand why the motorist never called to check on you in the hospital.  You are angry because the insurer only gave you one-third of what you felt your property damage claim was worth.  However, if you let that anger over small, petty things spill into the negotiations you may sour the claim forever.

The relationship with the adjustor is critical.  I always try to be professional, precise, prepared and thorough in dealing with adjustors.  I try to establish a good rapport, discussing topics other than the case.  I try to be realistic about my cases – I don’t sell a $500 claim as a $50,000 claim!  I document everything and can back up every comment I make about a case with a reference to a piece of paper.  I know how to read the medical records and know how to read between the lines of the medical chart.  I also understand the adjustor’s job, caseload and motivation and try to treat every adjustor professionally and courteously.

If you are working with an adjustor, you should never be condescending, arrogant, abusive or grossly unreasonable – even if you feel the adjustor is acting that way!  Each adjustor has his/her own personality, but if you tick off your adjustor by arguing over stupid stuff, you may have ruined any opportunity for obtaining a reasonable settlement.  I’m not saying “Don’t argue.”  Pick your battles and argue over important things.

Adjustors are tough – sometimes difficult to deal with – they have to be in order to protect the insurer’s assets.  You can argue points, present your views, engage in professional “puffery” as you would in ANY negotiations – for a car, a house or a used tuba!  But once it goes beyond professional and into personal attacks, you lose.  The adjustor controls the purse strings and if your file is “red flagged” it will be difficult to gain an edge in negotiations.  Negotiate fairly, aggressively and professionally to get best results.  Once the purse strings are drawn shut, you are stuck either taking an unreasonably low settlement or filing a lawsuit.

I negotiate hard, trying to get the best possible deal for my client. If I think the adjustor is being unreasonable, I say so – but, I always have data to back me up.  This may consist of my personal experience, a series of reported cases or some jury verdict research I have conducted.  I also use my experience of working inside an insurance company for several years to try to see what’s driving the insurer’s position.  Occasionally, I’ve had to get more experienced claims representatives involved when a particular adjustor was unusually obnoxious, but that is very rare.  .

PRESENTING YOUR CLAIM – THE PAPER TRAIL

So what do you need to present your insurance claim?  The one word answer is “paper!”  You need to obtain every single piece of paper related to your case.  The police report, witness statements, photographs of the scene and property damage documentation along with any additional analysis of the crash to show you were not at fault.  You need every single piece of paper in your medical care provider’s files relative to your injuries – every office note, test result, x-ray report – and the record should be “certified” such that the insurer knows you are providing all the records.  If your x-rays or other films show the injury, then you should order copies of the actual films.  Professional photographs of scars, bones, disfiguring bony protrusions or other deformities related to the crash as well as the scene of the crash, the vehicles and all property damage should also be obtained.

I never present the complete package of documentation of a claim until the injured person is fully healed – or healed up as well as possible.  Once that occurs I make sure I have all the documents.  I then organize the paper in a package and prepare a “demand” letter.  This lengthy letter reviews and analyzes all aspects of the case – the liability or legal issues, nature and extent of the injuries, summary of all medical care, and a spreadsheet showing all medical bills and wage loss.  At the end of the demand letter, I set forth the opening “demand”  – the amount of money which my client will accept to settle.  This is always at the very highest end of “reasonable.”

The first “offer” from the insurer is always at the very lowest end of reasonable [or downright UNreasonable], and from there the negotiations proceed much like the dickering over a used car – both sides walking around, poking at the weak spots of the other’s positions, kicking the tires, and trading offers and counteroffers until the case is either resolved or an impasse is reached.

If the motorist’s insurance policy has sufficient policy limits, the case may then resolve.  If the value of your case is greater than the policy limits the insurer should, but probably will not, tell you this and offer the policy limits.  Where do you go if the motorist’s policy is not enough?  How do you know what the policy limits are if the insurer won’t tell you?

In some jurisdictions, the insurer is required to tell you the policy limits.  In many jurisdictions, lawyers who handle personal injury claims know which companies are most likely to sell policies with lower limits.  If you have any type of “big” case involving significant injuries, fractures, burns, scars, surgery and the like, you need to consult with a lawyer.   You should NOT be trying to recover from those injuries and stay on top of a complex personal injury claim!

MOTORIST’S EMPLOYER’S AUTO POLICY

One thing to determine in every case is whether the negligent motorist was “at work” at the time of the crash.  If so, the motorist’s employer may very well have insurance coverage you can tap into to pay your claim.

How do you find out whether the motorist was working for someone else at the time of the crash?   Sometimes it appears on the police report.  Sometimes, when the insurance adjustor contacts you the “Insured” listed on the letterhead may tip you off if it says “Smith Trucking, Inc” or some other business name.  Sometimes you can infer from the circumstances of the crash.  Sometimes you can just call the driver and ASK!

The nice thing about commercial automobile policies is that they almost always have large policy limits – $500,000 or $1,000,000 are typical policy limits.  Due to the “notice” requirements mentioned above, though, you need to do this detective work quickly and put the carrier on notice right away!

A motorist who negligently injures you while acting in the course and scope of his employment generally also causes his employer to liable as well.  There has been a LOT of litigation over the limits of this rule, however, and you are well advised to consult with an attorney if any issues arise.  For example, if the driver was supposed to working but was actually on what early cases referred to as a “frolic” [i.e., stopping off at a bar for a drink], then the insurance company could avoid coverage.

CYCLIST’S AUTO POLICY

In Ohio at the moment, there are many insurers advertising on the television and offering to provide “minimum coverage.”  Ohio has one of the lowest “minimum” coverage requirements in the nation at $12,500.00.  This means that a motorist who hits you only has to have “Twelve Five” coverage to be “legal.”  Almost any significant injury requiring more than minimal medical care will have a value in excess of $12,500.00 however and I frequently find myself dealing with the cyclist’s personal automobile insurance carriers.  What coverages in YOUR automobile policy may come into play?  Well, you can get your medical bills paid or even your entire claim paid through the coverage you have purchased!

MEDICAL PAYMENTS COVERAGE – “Med Pay”

“Medical payments” coverage is usually the first coverage I look at.  This coverage pays YOUR medical bills if the policy terms are met.  The limits are usually relatively low, $10,000.00 or less, sometimes only $1,000.00.  I often use the “med pay” coverage to pay my client’s out of pocket expenses, “co-pays” and such.

What are the requirements for presenting a “med pay” claim?  Reading insurance policies is like reading one 35 page sentence, so I’ll just give you the highlights!

In my automobile policy with Progressive Insurance, it states that Progressive “…will pay the reasonable expenses incurred for necessary medical services received within three years from the date of an motor vehicle accident because of bodily injury…”  so long as the injuries were:

– Sustained by an insured person and

–  Caused by that motor vehicle accident.

Following this broad “we’re happy to pay your medical bills” language is a list of 15 “exclusions.”  Exclusions are an insurers way of saying “We’re NOT paying you” for certain types of claims.

What does this mean?  Well, clearly if you are riding bike and are actually STRUCK by the car, the coverage applies.  What if the car never hits you – the motorist cuts you off, you hit the brakes and go head over handlebars.  A very strong argument can be made that this accident is covered.

A “phantom motorist” claim may also be covered.  In this case, an unknown motorist causes a wreck and leaves the scene.  Some states have a “physical contact” requirement, meaning the car must actually hit the bike.  Some states require proof of some sort other than the victim, some “corroborating” evidence of the presence of a phantom motorist.  Here, you must not only read the policy, but know the case law and statutory law of your particular jurisdiction… sounds like a trip to the lawyer’s office is in order!

HOMEOWNER’S COVERAGE?  ARE YOU KIDDING?

What if a can of soda is thrown from a passing car causing injury?  Courts have gone both ways on this type of assault.  Some courts have found that your automobile insurance coverage applies, some have said no.

If a passenger tosses an object out the window which causes you to crash, then the passenger’s HOMEOWNER’S insurance can come into play!  [I told you this stuff gets complicated!]  However, NO insurance policy in the world covers intentional or “criminal” acts and if the act of throwing an object at a cyclist is deemed a criminal act, then there may be no coverage available.

What if you, the cyclist, are at fault?  You run a stop sign, broadside a Porsche and cause a $10,000 dent?  Here, your HOMEOWNER’S policy comes into play to cover your negligence!  Assuming you have coverage, you can tell Mr Porsche Owner to relax!

WHAT IF YOUR CLAIM IS DENIED BY THE INSURER?

The fact that your claim is “denied” by an insurer is not the end of the story.  If you have handled the claim yourself, you should consult with competent insurance/personal injury counsel to determine your rights.   Many cyclists just go away and forget about presenting a claim when they are told by an insurer that their claim is meritless.  However, a denial is not the end.

Sometimes you can go above the current adjustor’s head to a different adjustor, or a committee of adjustors.  Sometimes you can find new facts, witnesses or information and present that to the insurer to try to re-open negotiations.  Sometimes, the only way find out if the insurer was right in denying the claim is to challenge the decision in court!  If the court determines that the insurer unreasonably denied the claim and acted in “bad faith” you may be entitled to additional damages!  Sometimes all of these issues can be stacked into one lawsuit against both the motorist and your insurer.  Sometimes two separate actions are required.  Again, the particular laws and court rules of your jurisdiction would need to be consulted.  I would strongly urge you to find a good lawyer!

UNINSURED/UNDERINSURED MOTORIST COVERAGE

The main automobile insurance coverage that cyclists turn to in “big” cases is their own “uninsured/underinsured motorist” [or “UM/UIM”] coverage.  If the motorist who ran into you has NO coverage, then “uninsured” coverage comes into play.  If the motorist has some coverage, but not enough to pay the full value of your claim then the motorist is deemed to be “underinsured.”  Either way, the claim is handled the same way.

When I discuss insurance issues with cyclists I always add a piece of advice – Buy as much UM/UIM coverage as you can afford.  Do not let an insurance agent cut the cost of your insurance bill by deleting your UM/UIM coverage.  This coverage protects YOU in the event of an encounter with someone who lacks sufficient insurance or assets to pay you.

If you thought “med pay” issues were complicated, you’re going to LOVE UM/UIM issues.  In Ohio, for example, in the past 10 years or so, there have been hundreds of court of appeals decisions on UM/UIM issues.  Pro-insurance company forces try to change laws to limit recoveries.  Pro-plaintiff groups argue for expanding the law.  Let’s look at what you should do if you find yourself turning to your UM/UIM coverage.

BEWARE OF THE “UM/UIM” TRAP

First, read the policy.  Yes, parse that 35 page sentence until you know exactly what you have to do to protect your claim and your carrier’s rights.  You must also be able to spot a critical trap that can destroy your UM/UIM claim and deal with it appropriately.

This trap arises when the motorist’s insurer admits to you that your claim exceeds the motorist’s policy limits.  The insurer then offers you the policy limits and all of a sudden there’s this pile of money sitting there for you – all you have to do is sign a release and the money is yours!  What harm can possibly come from this?

RELEASES, UM/UIM AND “SUBROGATION” – A Very Sticky Thicket of Problems

Do NOT sign that release. Let me say that again.  Do NOT sign that release – not until you have consulted with counsel.

You must comply with every possible requirement under your UM/UIM policy and the statutory and case law of your particular jurisdiction relative to these claims.  Your failure to do so may close off your ability to collect any additional money under your auto policy.  Signing a release without obtaining the approval of your UM/UIM carrier is one of those events that can lead to the loss of your UM/UIM coverage!

There is a concept in the law known as “subrogation” that arises in virtually every bike/car crash claim.  “Subrogation” is the right of an insurance company to “stand in the shoes” of its insured once it pays money to the insured.  This means two things. First, if you receive money from the person that ran into you, you may have to pay back the insurer that paid your medical bills or your UM/UIM claim or your disability claim or wage loss claim.  [This is discussed later.]  Second, “subrogation” permits an insurer that paid money to you to file a lawsuit against the motorist that ran into you to try to collect back that money.

OK, but how does your signing a release screw all that up?

Once you sign a release, you claim is dead – a lawsuit can never be filed against the motorist relative to the accident by you or anyone who “stands in your shoes.”  Signing that release effectively destroys the ability of any other interested party to go after the motorist including your health insurer, UM/UIM carrier or disability insurance provider.  Because your claim against the motorist dies when you sign the release, the claims of these “subrogated” insurers also die.

By signing a release without the knowledge or consent of the subrogated insurers, you have prevented those carriers from getting their money back.  In our example, if you sign the release, and take the money, you may not be permitted to present a UM/UIM claim against your own insurer, thereby robbing you of an additional significant recovery.

Each jurisdiction has a manner for dealing with this problem.  In many jurisdictions, and under the terms of many auto policies, you are required to notify all subrogated parties when you receive an offer of money from the motorist’s insurer.  The subrogated parties then have a “reasonable” time to tell you either that it is “OK” for you accept the money and sign the release or not.

The subrogated parties are supposed to investigate the assets of the motorist during this “reasonable” time.  If they think they can sue the motorist and obtain some of their money back, the subrogated party might offer to pay you the same amount of money offered by the motorist’s insurer.  That way, you get the money, but you do not have to sign a release thereby keeping the claim against the motorist alive so the insurer can sue the motorist later should it so choose.

Complicated?  You betcha!  That’s why this “trap” snares many unsuspecting injured victims, as well as many LAWYERS who do not regularly deal with personal injury or insurance claims!

UNDERSTANDING UM/UIM POLICY LIMITS

So, just how does this insurance stuff work?  Let’s assume you took my advice and purchased automobile insurance coverage with $250,000.00 UM/UIM policy limits.  The person that ran into you also has policy limits of $250,000.00.  Let’s say your claim is worth in excess of $500,000.00.  So you get $250,000 from the guy that hit you and $250,000 from your UM/UIM carrier, right?  Wrong!

In many states, you can only use “underinsured” motorist coverage if the other guy’s coverage is LESS than yours.  Further, you can only recover the difference between your policy limits and the other policy limits.  Thus, if the motorist has $100,000.00 in coverage and you have $250,000.00, you can recover $150,000.00 from your own UM/UIM carrier – assuming your case has significant value.  In our example, though, because your coverage [$250,000.00] was EQUAL to the motorist’s coverage, you would get zero from your own policy, even though you paid for $250,000.00 of coverage and even though the $250,000.00 from the motorist is only one-half of the value of your claim!

Again, complicated stuff.  You are well advised to consult with attorneys well versed in insurance law in any such case.

Do You Carry an UMBRELLA When You Ride? – Excess or Umbrella coverage

The vast majority of bicycle insurance claims do not involve catastrophic losses.  However, every once in a while there is a bicycle/car crash that paralyzes or kills the rider or causes a loss of a limb or other injuries that can devastate the rider’s ability to live a normal life or require a lifetime of medical care.  What kind of insurance protection can you purchase to protect you in the event of such an event?

“Excess” or “Umbrella” coverage is available from many insurers.  This is a highly specialized type of insurance coverage with very large policy limits that only comes into play when all other available coverages are exhausted.  You must carry a particular level of “underlying” coverage, perhaps $250,000 or more, before you can purchase an “excess” or “umbrella” policy.  The cost of umbrella coverage is relatively low in comparison with other coverages – primarily because it is only rarely used.  When you need it though, it is invaluable.

As I write this, I have a relatively new case sitting on my desk.  A cyclist, a professional man in the prime of his earning potential, suffered a broken neck when a pick-up truck backed out of a driveway directly in front of him.  His unstable fractured neck was treated by fusing his neck at two levels – a very complex operation that leaves him at risk for future problems. Fortunately, he was not paralyzed.  His medical bills are approaching $100,000.00 and his wage loss will likely reach a similar figure, assuming he is able to return to work effectively at some point.

The pick-up truck driver only carried Ohio’s “minimum” coverage – $12,500.00.  My client carried “UM/UIM” coverage of $300,000.00 – pretty good coverage.  Using the math from the explanation above, we should be able to obtain $287,500.00 [$300,000.00 – $12,500.00] from my client’s UM/UIM carrier.  Where does he go for compensation for the rest of his claim, assuming the value is in excess of $300000.00?

Fortunately, my client carried an “umbrella” policy with policy limits of $1,000,000.00.  As I explained to him, this incident illustrates exactly and precisely why I encourage people to buy an “umbrella” policy.  Instead of looking at a lifetime poverty or bankruptcy due to six-figure medical bills, the client’s insurance choice will provide him the money to keep his life relatively “normal” in the face of his current level of disability.

Does he just “get” a million bucks?  No, not unless his claim is “worth” a million bucks.  At the appropriate time, we presented to the UM carrier a thoroughly documented claim. After some difficult negotiations we were able to resolve the claim  to the client’s satisfaction.  We negotiated an appropriate settlement based on the injuries, recovery, losses and other relevant factors and we did not need to resort to litigation.

CYCLIST’S HEALTH INSURANCE

Health insurance seems like it should not present any complicated legal issues.  You got hurt.  You submit a claim for your medical bills.  The bills get paid.  Life goes on.  However, the “subrogation” concept we discussed earlier comes into play to muck up almost every injury case!

Health insurers have become extremely adept at figuring out which of their insureds have been involved in accidents and then sending out “subrogation notices” demanding repayment of the bills it paid out of any settlement.  Many insurers have entire “Subrogation Departments” whose job it is to ferret out such potential claims.  Other insurers retain the services of companies devoted to pursuing such claims.

The problem for cyclists arises when they handle their own claims.  It seems like the subrogation notices get stuffed in the back of the drawer or not understood.  Injured cyclists negotiate what seems like a decent settlement with the motorist’s insurer and are shocked to discover they have to pay back their own insurer!  If they have negotiated a deal which did not take the “subrogation” claim into account, they may have to give up all or most of their settlement to the health insurer.

CYCLIST’S EMPLOYMENT BENEFITS

I know this will come as a shock to some, but many cyclists not only have JOBS, but actually have good jobs, with benefits like short term or long term disability insurance, accident insurance or “PTO” [paid time off].  However, as you can probably guess by now, while these benefits can help you when you are injured by a negligent motorist, the insurance companies underwriting these benefits have “subrogation” rights.  When negotiating with the motorist’s insurer, the cyclist must keep these subrogation rights in mind.

One area of potential recovery that many people overlook when they negotiate their own claims is the ability to recoup employee benefits used due to injury.  If you accumulate “leave” or time off as you work and have to use that leave as a result of your injuries, you should include this in your negotiations.  You worked for it.  You earned it.  Now, you’ve had to use it due to someone else’s  negligence and the time off is no longer available if you get pneumonia, have a heart attack or otherwise need time away from work.

CYCLIST’S STATE OR FEDERAL BENEFITS

Many people today do not have health insurance.  They are forced to rely on benefits provided by state or federal governments.  Benefits such as Medicare [federal] or Medicaid [state] provide health insurance for millions of Americans today.

Like private health insurance, the federal government has provided a special mechanism for Medicare to recoup money in situations where a motorist runs over a cyclist and the cyclist utilizes Medicare to cover medical expenses.

The “Medicare lien” has been referred to as a Super Lien by some lawyers.  The code provisions which define the lien, how it is calculated and defining the responsibilities and potential liabilities of the parties are incredibly complicated.  Long seminars for lawyers covering only Medicare lien issues are not uncommon!

What YOU need to know is that the Super Lien is dangerous.  The government can come after you for payment of its “subrogation” at any time.  You MUST notify the government within 60 days of settlement.  It can take weeks, months or YEARS for the government to get back to you.  If you ignore this lien and choose to not pay the lien, there can be civil or even criminal penalties!

“COMPARATIVE NEGLIGENCE?” – What Do You Mean It’s MY Fault?

One issue that comes up in virtually every “bike” case I handle is an argument by the adjustor that the bike rider did something wrong.  They argue the cyclist was not riding “as far right as practicable,” failed to signal a turn or committed some other infraction rendering the cyclist “negligent” or “comparatively negligent.”

“Comparative negligence” is a relatively new legal concept, coming into full flower only in the past 25-30 years.  The guts of the “comparative negligence” concept is that where both parties were negligent, a judge or jury would “weigh” the negligence of each and assign a percentage of fault to each side.  [Obviously, the percentages need to equal 100%!]  The behavior of the parties is thus “compared” and the injured party’s recovery effected in some manner.  Under the “old” law, ANY negligence by the victim meant the victim could not win the case.

In Ohio, for example, if the cyclist’s negligence is found to be 50% or less, the cyclist still wins.  However, the money awarded by the jury is reduced by the percentage of fault assigned to the cyclist.  But… and here’s the key point… if the cyclist’s negligence EXCEEDS the motorists, the cyclist LOSES completely in Ohio.  Thus a 50% negligent cyclist who is awarded $100,000 in damages, only gets $50,000.  But a 51% negligent cyclist gets NOTHING.

In a “pure” comparative negligence state, the victim always wins unless the jury assigns 100% of the blame on the victim.  Under such a rule, a cyclist who was 99% liable, but was awarded $1,000,000 in damages, would still win 1%, or $10,000!  As always, check the law of your particular state to see what rules apply.

One key point – the alleged negligence by the cyclist must actually play SOME role in causing the crash.  For example, if a car/bike accident occurs at night, the motorist may argue the cyclist had no front headlight and was thus in violation of state law and negligent.  However, if the accident was a “rear-ender” the cyclist might argue the absence of a FRONT headlight played no role in causing the motorist to strike the cyclist from behind!  Thus, the cyclist argues, there can be no reduction for comparative negligence.

WHAT THE HECK IS “NO FAULT?”

Many states have adopted “no fault” insurance in the past 30+ years.  “No fault” is a bit different than the traditional “tort” system we have discussed in this chapter, and is applied differently in each jurisdiction.  Under “no fault” rules, there is no need for a cyclist to prove a motorist was “negligent.”  In a car/bike crash, the cyclist would generally be entitled to receive payment of any medical bills and economic losses automatically.  The trade off is that the “pain and suffering” awards are done away with.

This can have the effect of dramatically limiting recoveries, particularly if the injuries are incredibly painful and debilitating, but where there is little that can be done – i.e., fractured ribs, disfiguring injuries, etc.

Most no fault states have some mechanism which permits the injured party to escape the no fault provisions.  Sometimes a particular level of medical bills must be met, or a particular type of injury diagnosed.  Again, the law is different everywhere.   Find your friendly neighborhood “bike lawyer” and enlist her/his services!

BEWARE OF A NEW INSURANCE PRACTICE THAT COULD CAUSE YOU TO STOP RIDING YOUR BIKE!!

Some health insurance companies are looking very carefully at the risks they underwrite.  In the past few years, there have been several reported cases where health insurance policies have included exclusions for certain activities, including riding a MOTORCYCLE.

The motorcycle industry and lobby has taken notice of this and challenges it whenever possible.  The American Motorcycle Association is particularly aggressive in cataloging and publicizing the horrific impact of this practice.  In one case, the health insurer refused to pay the significant medical bills of a motorcyclist who was injured by a drunk driver.  Had the motorcyclist been the operator of a car, even a drunk operator, the insurance would have paid 100%.  Despite being the victim of another motorist’s gross negligence, no payment of medical bills was forthcoming because the victim was riding a motorcycle.

I bring this up because if permitted to continue, I could easily see this concept being extended to bicycle operators.  There are those who consider bicycle riding to be “dangerous,” especially in light of the annual data published by the government indicating some 500,000 emergency room runs occur each year from “bicycling accidents” and a large number of “head injuries.”  Insurance companies must be challenged to stop these types of discriminatory policies – at the grass roots level and in the halls of government.  Today, this is just a warning – be on the look-out for those who would limit your insurance coverage because you choose to ride a bike!


NEW LIMITS ON TASER USE

If you’ve been reading this blog, you know I’ve been tracking “Taser” cases.  “Taser” is, of course, a brand, like Kleenex, which has become a noun [he used his Taser] and a verb [he tasered the robber].  These Electronic Control Devices [ECD’s] represent a tool for police to try to disarm or disable the bad guys without smacking them with a stick or shooting them.

There are “rules” of course – Use of Force rules that all law enforcement agencies are supposed to create, teach and follow.  Some cops,though, seem to use Tasers instead of other, less intrusive approaches.  It seems like we’re reading stories every day about “Tasers Gone Wild” – the use of Tasers in situations in which a 50,000 volt jolt may not be called for.

On December 28, 2009, the United States Court of Appeals for the 9th Circuit released an opinion which might change some of that.

The case, Bryan v. McPherson,  arose out of a traffic stop for a seatbelt violation.  Bryan was stopped by McPherson for not wearing a seatbelt.  While standing outside of the car, Bryan was upset.  There is a dispute over whether Bryan took a step towards McPherson, who was some 20 feet away.  McPherson, without warning, pulled out his TASER and shot Bryan.  Bryan fell, hit his face and suffered facial and other injuries.

Bryan sued the officer and the city.  The trial court dismissed some of the counts and ruled that claims against the officer could proceed.  On appeal, the 9th Circuit chose this case to make some strong statements about the use of the Taser.

First, the court very correctly recognized an important point.  Tasers are “non-lethal” weapons, but they are not “non intrusive” weapons.  The use of ANY force by an officer against a citizen MUST be justified.  [“Less than deadly force … may not be used without sufficient reason…”].

In looking at a “Taser” shot the court recognized that the shot delivers an electrical impulse that “… instantly overrides the victim’s central nervous system,paralyzing the muscles throughout the body, rendering the target limp and helpless…”  The court also recognized that “…the tasered person also experiences excruciating paint that radiates throughout the entire body…

In weighing a Taser against other non-lethal force techniques, the court found that tasers are “…a greater intrusion than other non-lethal methods of force ” the court has reviewed.  The “psychological effects, high level of pain and foreseeable risk of personal injury” support this conclusion.  The court held that unlike pepper sprays and less intrusive methods of force, “Tasers” intermediate, significant level of force that must be justified by a “strong government interest that compels the employment of such force.”

The court found that Bryan was not a threat to the officer, that he had no weapons, that he was standing 20-25 feet away from the officer, and that he was not even facing the officer when he was shot as the taser barbs hit Bryan in the side and he fell away from the officer.

The court found no justification for the use of force by the officer.  The “crime” was a minor misdemeanor – a seatbelt violation punishable by a fine.  The court found there was  no substantial governmental interest in using significant force to arrest Bryan for a minor misdemeanor.

The Court held that “…The objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public…”

On appeal, the officer came up with a new twist – the motorist was possibly mentally troubled and might be subject to detention.  Nice try, Officer McPherson, but the 9th Circuit shot that down nicely by noting that it had held in the past the use of force against suspected MENTAL patients must be less than the use of force used to subdue suspected criminals!

Another point the court noted was that there was no warning given by the officer.  He just pulled out the weapon and fired.  The court also noted that officers were required to give some thought to other, less intrusive means.  Here, Officer McPherson apparently gave no thought to the fact that other officers were on the way or that other tactics may have been effective.

The court held that the use of the Taser was excessive in light of the government interests at stake.  While Bryan’s behavior was bizarre, it was not threatening.  He was unarmed, was not fleeing and was not a felon. There was simply no need to subdue Bryan immediately.  As a result, the court concluded that Bryan’s rights under the Fourth Amendment to the U.S. Constitution.

Under the law, even if excessive force was used, the officer will be protected if the use of force was premised on a reasonable belief that the use of force was necessary.    Frequently, there must be a “case” or other incident similar to the one complained of which has already been found to be troublesome.  Here, the court found that where an officer’s conduct SO CLEARLY OFFENDS AN INDIVIDUAL’S CONSTITUTIONAL RIGHTS no prior case need be located.  The court found that “no reasonable officer confronting a situation where the need force is at its lowest —  where the target is a non-violent, stationary misdemeanant twenty feet away — would have concluded that deploying intermediate force without warning was justified.

Great case… we’ll see how that plays out in other circuits!

Steve Magas

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TASING IN THE NEWS

We continue to follow TASER cases.  This one was easy – here in Cincinnati in August a police officer tased a city councilman’s daughter.  The facts are laid out below in an article from the Enquirer.  You can read about it here or down below.

The officer was fired recently, after his “arrest” was thrown out.  The same officer was sued as the result of a 2006 Taser incident – the city paid $65,000 when he tased a woman who had called police because she had locked herself out of her own apartment!

THE ENQUIRER ARTICLE

Officer fired for Tasing incident

For the second time in three years, police officer Anthony Plummer has been fired for excessive use of force while on the job.

The firing comes after top brass in the Cincinnati Police Department said Plummer, 32, was wrong when he took out his Taser and shocked a city councilman’s daughter as she was on her knees with her hands in the air after a traffic stop in August.

Celeste Thomas, the daughter of Cecil Thomas, a former city police officer, was struck by the barbs in the back.

The termination was affective Dec. 7, The Enquirer learned on Monday.

Celeste Thomas was a passenger in her own car which her friend Demetri Washington was driving when he struck a garbage truck early in the morning on Aug. 23 in Mount Auburn.

When Plummer arrived on the scene he was told to keep Thomas in the car. Instead he drew his gun and ordered her to lie on the ground. Thomas complied only partially and was on her knees with her hands in the air asking what she had done wrong when Plummer put his service revolver back in its holster and drew his Taser and deployed it.

Officers are permitted to use Tasers if the person being arrested is deemed a threat or if it is necessary to subdue the alleged offender. In this case, officials with the police department found that Thomas was none of the above.

Thomas was subsequently arrested for having an open container in the car and for obstructing justice. A judge found her not guilty of the obstruction charge and threw out the alleged alcohol violation recently. In October, Washington was found guilty of driving under the influence and resisting arrest.

Plummer, who earned $66,506 in 2008, had his police powers suspended by Chief Thomas Streicher following the August incident.

Plummer is appealing his termination, said Kathy Harrell, the president of the police union.

An arbitrator is required to hear the case.

If history repeats, that could be a windfall for Plummer and a thorn for Streicher who had previously fired Plummer only to have him reinstated 13 months later in 2007.

A 2008 analysis of cases involving police officers and emergency dispatch workers who have lost their jobs over the past decade showed that in 16 of the 18 cases, the officers and workers were hired back after their cases went to arbitration.

Plummer was fired in 2006 after shocking then 35-year-old Daphne Godfrey. Godfrey had called police for assistance after being locked out of her Westwood apartment in May 2006. The otherwise simple police call ended with Godfrey getting shocked by Plummer’s Taser. Plummer was subsequently fired by the chief and Godfrey sued Plummer. The city settled the case and she was awarded $65,000.

An arbitrator sided with Plummer and the city was forced to give the officer his job back

Plummer was also reprimanded in 2004 for pointing his service revolver at a juvenile as he ordered him to move from the street to the sidewalk. Five months later in 2004 he was reprimanded for using foul language with two senior citizens. He was also reprimanded for that.

Thomas’ attorney Carl Lewis said Monday he will be filing a civil suit in federal court by week’s end. Lewis did not want to disclose the amount he will be seeking in damages but had this to say about the 2006 case that ended with a $65,000 settlement:

“This (the 2006 case) is minor league.” He described his possible case as major league.

“She is really humiliated by this,” Lewis said of his client. “She feels like she embarrassed her family and humiliated her community.

“But the bottom line is she never should have been Tased, she never should have been arrested and she never should have been prosecuted.”

During a hearing with police supervisors and witnesses, Harrell, the president of the police union, argued that up until the incident involving Thomas, Plummer has not had any problems with excessive force since he was reinstated in 2007.

Police investigators weren’t sympathetic.

“Officer Plummer apparently does not handle conflict effectively,” wrote Capt. Paul Broxterman in a memo to the chief of police calling for Plummer’s dismissal.

“…Officer Plummer made a conscious decision to act outside of the scope of the Cincinnati Police Department policy, procedure and training when he deployed his Taser at Ms. Thomas. Officer Plummer is resistant to training. He does not apply what he learns in the classroom to real life situations in the field. How can the department put him back on the street with a Taser, baton and firearm when he refuses to acknowledge that his thought process related to using force is flawed? To do so is a huge liability risk to the department, the city and its citizenry.”


BIKE & MOTORCYCLE HELMET LAWS

BICYCLE AND MOTORCYCLE HELMET LAWS IN THE U.S.

While I don’t always see eye-to-eye with the political views and legislative agenda of the Insurance Institute of Highway Safety, I do love their research.  According to the front page of its website IIHS is an “…independent, non-profit scientific and educational organization dedicated to reducing the losses…on the nation’s highways…”

Of course, when you read the fine print you see that the “Insurance” part of the IIHS name means that the money supporting the IIHS comes from the biggest auto insurers in the world.  While this slant may indicate that “reducing losses” means paying less on claims to those who get hurt [you don’t see the IIHS supporting bills to INCREASE pain and suffering awards], it doesn’t change the numbers – only the “spin” when the numbers are whacked around in public!

In the arena of bicycles and motorcycle, the IIHS does strong research on death/injury statistics. It then tinges those numbers with a “Pro Helmet Law” flavoring which I, personally, tend to ignore.  I simply do not feel that the government should be telling us what kind of hat to wear when we go ride our bikes and motorcycles.  The numbers don’t support it – rather, the numbers would indicate that if Kevlar suits and helmets were required for CAR drivers and passengers, they would be a LOT safer… when they pass THAT law, they can tackle the really small problem of bicycle/motorcycle injuries.

The IIHS published an excellent summary of bicycle and motorcycle laws, which is shown below.  You can also go here to read about it up close and personal.

Currently in OHIO there is NO bicycle helmet law.  However, there is one percolating in the Legislature at this very moment.  More on that later.  For now, here’s the IIHS summary of Bicycle and Motorcycle Helmet Laws in the US.

FROM THE IIHS WEBPAGE

Twenty states and the District of Columbia have motorcycle helmet laws that require all riders to wear a helmet. Twenty-seven states have a motorcycle helmet law that only require some riders to wear a helmet. Three states (Illinois, Iowa, and New Hampshire) do not have a motorcycle helmet law.

Low-power cycle (LPC) is a generic term used by IIHS to cover motor-driven cycles, mopeds, scooters, and various other 2-wheeled cycles excluded from the motorcycle definition. While state laws vary, a cycle with an engine displacement of 50 cubic centimeters or less, brake horsepower of 2 or less, and top speeds of 30 mph or less typically is considered an LPC. Twenty-two states have motorcycle helmet laws that cover all low-power cycles. Twenty-five states and the District of Columbia have laws that cover some low-power cycles.

Twenty-one states and the District of Columbia have bicycle helmet laws that require some young bicyclists to wear a helmet. Local law may require helmet use for some or all bicyclists.

State Motorcycle helmets Does the motorcycle helmet law cover all low-power cycles? Bicycle helmets
Alabama all riders yes 15 and younger
Alaska 17 and younger1 yes no law
Arizona 17 and younger some no law
Arkansas 20 and younger yes no law
California all riders yes 17 and younger
Colorado 17 and younger and passengers 17 and younger yes no law
Connecticut 17 and younger yes 15 and younger
Delaware 18 and younger some 17 and younger
District of Columbia all riders some 15 and younger
Florida 20 and younger2 some 15 and younger
Georgia all riders some 15 and younger
Hawaii 17 and younger some 15 and younger
Idaho 17 and younger some no law
Illinois no law no law no law
Indiana 17 and younger yes no law
Iowa no law no law no law
Kansas 17 and younger some no law
Kentucky 20 and younger3 some no law
Louisiana all riders yes 11 and younger
Maine 17 and younger4 some 15 and younger
Maryland all riders some 15 and younger
Massachusetts all riders yes 1–16 (riding with children younger than 1 prohibited)
Michigan all riders some no law
Minnesota 17 and younger5 yes no law
Mississippi all riders yes no law
Missouri all riders some no law
Montana 17 and younger some no law
Nebraska all riders yes no law
Nevada all riders some no law
New Hampshire no law no law 15 and younger
New Jersey all riders yes 16 and younger
New Mexico 17 and younger some 17 and younger
New York all riders some 1–13 (riding with children younger than 1 prohibited)
North Carolina all riders yes 15 and younger
North Dakota 17 and younger6 yes no law
Ohio 17 and younger7 yes no law
Oklahoma 17 and younger some no law
Oregon all riders yes 15 and younger
Pennsylvania 20 and younger8 some 11 and younger
Rhode Island 20 and younger9 some 15 and younger
South Carolina 20 and younger yes no law
South Dakota 17 and younger yes no law
Tennessee all riders yes 15 and younger
Texas 20 and younger10 some no law
Utah 17 and younger yes no law
Vermont all riders some no law
Virginia all riders some no law
Washington all riders yes no law
West Virginia all riders some 14 and younger
Wisconsin 17 and younger11 some no law
Wyoming 17 and younger some no law

We’re living in MAC-ville Now!

Well friends, clients, followers… I was out shopping on Black Friday… my trusty Dell laptop, the one that runs the office, had “blipped” for the second time this year.  Everything was backed up, of course, and the blip was “minor” – according to the Geek Squad, it was “…either a hardware problem or a software problem…”  um… Can you spell “Duh?”

Soooooo… after debating for a few days I took the plunge on Black Friday, with a MAC sale going on.

The Magas Firm has joined the many law firms around the country running on, living in, MAC-ville!  Yes, a 13″ MacBook Pro now holds everything.  What a great machine – it’s actually smaller than the CALENDAR I used to carry around to keep all court appearances logged in correctly.

We’ve spent the past weeks getting the MacBook up and running with all files, documents, photos and the like… and getting the user… me… up to speed on the hardware/software.  Fun stuff!

So, posts here have been off a while, but will start coming fast and furious now!  So Stay Tuned!

The Magas Firm would like to THANK all of our clients, friends, family and colleagues for their patience and cooperation during our very successful start up!  The first six months have been a BLAST and we’re looking to take off in 2010!

Today, I got the BIG BIKE out – the BMW R1150RT – for a brisk run around town.  Thankfully, all heated gear worked perfectly because I haven’t had time to do the math on the 80 mph windchill yet!

Enjoy the holiday season!

Steve Magas

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Bicycle Accidents & Crashes in Ohio – What To Do!!

WHAT TO DO IF YOU ARE IN A BIKE/CAR CRASH

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

Is Cycling “Safe?”

Statistically, we know that riding a bike on the roadway is a VERY safe thing.  While there are 30-40,000 motorists who die on our roadways each year, the number of cyclist fatalities has dropped considerably from a high of 1000 or so in the mid-1970s to around 700 in 2008.  While motorcycle and pedestrian deaths are UP, cycling deaths are DOWN despite millions of new riders.

One reason for this decrease in cyclist deaths nationwide, I’m sure, is that the demographics of the “typical” cyclist involved in a fatal crash have totally flip-flopped since 1975.  Back in the 1970’s, MOST cycling fatalities involved kids – people under the age of 16 – which meant that riders were somewhat unpredictable.  There were a lot of “Dart Out” cases where children on bikes would suddenly appear on the roadway after darting out from a driveway.

Today, virtually all cycling deaths involved adults.   In 2008, 86% of all cycling fatalities nationwide involved people OVER the age of 16. Today’s adult riders are more likely to treat operating a bicycle on the roadway the same as driving a car.  They stay in their lane, know the rules of the road and don’t act in stupid or unpredictable ways – most of the time, anyway.

Think about it – how many kids do you see riding their bikes all over town today?  When I was a kid in the early 1970’s that’s what we did.  We left the house in the morning on our bikes and maybe came home for lunch.  We rode our bikes everywhere.  Today, there are many more people in the world and many, MANY more cars.  However, there aren’t all that many new roads.  So, all those new people and new cars are sharing pretty much the same road space that was available to us 30+ years ago.  Traffic DENSITY is way up – there are simply more cars packed in per mile than ever before.  Today, safety concerns, increased traffic and the busy schedules of today’s youth demand that mom and dad DRIVE them around to their appointments.

In addition to this phenomenon, there is an increased interest in fitness in adults today.  In the mid-1970’s the only “older” [i.e., adult] folks you saw riding bikes on a regular basis were the hard-core cyclists.  Today, more and more adults are re-discovering the joy and fun of cycling and adding a fast ride to their fitness regimen.  Trails are well-used and many adult cyclists are taking it to the streets to go fast and stay fit.  You almost NEVER see a bike trail die from lack of use!

So, What Should You Do If You Are In A Crash??

Here are a few tips that can help BEFORE you’ve been in accident.

  • Carry a cell phone. The cell phone can easily be a life saver. All cell phones will make 911 calls even if it doesn’t have active service.   You can also use today’s cell phones to document the scene by taking a LOT of pictures of the scene, the dog or car/bus/truck that got you, your injuries, the address, the dog’s owner, witnesses, etc.
  • Carry Identification & Insurance Information. It’s a good idea to copy your drivers license and then write or type your emergency contact information, health, auto and homeowner’s insurance information, blood type and any medical conditions or allergies that you have on the back. Laminate the copy and keep it on your person when you ride. Also, remember to keep it up to date if there are any changes.   Carrying your health insurance information may seem obvious, but why do you need your auto and homeowner’s info?  Well, your AUTO policy may pay some of your medical bills or even your entire claim if the motorist that hit you is underinsured or you have a lot of out of pocket medical expenses.  Your HOMEOWNER’s policy will protect you if someone says that YOU did something wrong, or negligent, and damaged their person or property!
  • Carry a pen and paper. You may need to exchange information with other people at the accident. Get names and numbers of as many witnesses as possible in case they leave the area before the police arrive.

IF YOU ARE IN A BIKE CRASH…

  • Don’t Move. Many of my clients want to jump up and check on their bikes right away.  Don’t do it.  Just lie there and do a self-assessment.  Have you lost consciousness?  Can you feel/move your arms and legs?  Are you bleeding?  Do you have pain?  Sharp pain? Shooting pain? Be able to describe how you are feeling to paramedics and EMT’s who will arrive.
  • Call 911. Always wait for the police to respond to the accident scene so that an official report will be filed. Do not let anyone talk you out of calling the police.  Many times cyclists do not realize that they have been injured until several hours after the accident. By then, it may be too late to identify the at-fault driver or properly document the crash if you let him/her drive away.  Many drivers who cause accidents will initially apologize and accept blame for the accident at the scene, but later, after they have time to consider the ramifications, will deny that they were negligent. This is particularly true in bicycle crashes.  The police accident report will include the driver’s statements as well as all other witness statements.
  • Seek medical attention. Cyclists tend to be very self sufficient and tough.  Many will try to turn down offers of medical attention.  DON’T DO IT.  Accept help this time.  Let the EMT’s treat you.  This is proof that you were, in fact, injured and the medical records generated by the medical provider will help establish the extent of your injuries.
  • Take Photos.  Take several photos from different angles and lighting of your injuries as soon as possible after the accident.  You can’t have too many photos.  Photograph the scene, the bike, the other vehicle or dog, your wounds.  The grosser and yuckier the better!  If there is a camera at the scene, have someone start taking photos right away, before things get moved around.
  • Keep a Journal. Keep a journal (injury diary) of your physical symptoms starting immediately after the accident and make entries every day.
  • Don’t fix your bike right away. Riders tend to be tinkers and self sufficient.  They want to get back to RIDING and get the bike fixed quickly.  You need to keep your bike and clothing in the condition that it was in after the accident.  Get the property damage assessed by an expert.  Get a report of the damage AND of the “value” of the bike.  Under the law of many states, your property damage recovery cannot be greater than the value of the bike.  Thus, if an insurer says your “used” bike [four year old Paramount] was only “worth” $100.00, they will try to cap your property damage claim at $100.00!  Have a competent professional shop make an independent assessment of your bicycle and gear.
  • Stay Organized. Keep every single piece of paper relating to the crash, your injuries and your recovery organized.  You will need them either in handling the claim or when you meet with an attorney.
  • Call an Experienced BIKE Lawyer. As an avid cyclist and a trial lawyer with 27+ years of experience handling serious injury and death claims, I know the risks cyclists face and understand the complexity of these claims.  A crash can turn your life upside down as you try to get your bike fixed, get your medical bills paid and keep the collectors at bay.  Once hired, a good personal injury lawyer will take care of EVERYTHING related to your claim.  I handle all communications with the obnoxious insurance company, fully investigate the crash and obtain all documents needed to maximize your recovery.  I know what types of arguments insurers usually make in bike crashes and I know how to deal with them.

I hope you never need to implement any of these tips, but it always helps to be prepared. Good Luck and Good Riding!

Steve Magas

The Bike Lawyer

3feetplease


[1] Steven Magas is an avid cyclist and “bike lawyer” with more than 27 years of experience handling personal injury and wrongful death claims.  He has handled more than 200 “bike cases” ranging from $50 traffic tickets to complex cases involving brain injury and death.  Steve’s website [ www.OhioBikeLawyer.com ] contains much “Bicycle Law” information and Steve can be reached for a FREE CONSULTATION about your case at 513-484-BIKE [2453] or at BikeLawyer@aol.com.


Bicycle Christmas Music

A group calling itself The Cycoloists has a pretty unique thing going on.  They make music… using instruments made from their bikes… yea… their bikes… It’s very cool.  You can check them out here doing a jazzed out arrangement of Good King Wenceslas.

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