Unfortunately, statistics show there are two kinds of bicyclists: Those who have had an accident and those who are going to have one. But, what should a bicyclist do if involved in a collision with a motorist? What are your legal rights and remedies?
Your health and well-being should be your primary concern. So, tend to any injuries and summon immediate medical attention if necessary by calling 911. Some injuries may not be readily apparent and only manifest themselves over time and so you may not realize you have been injured until several hours after the incident. Then, wait for the police to respond and file a police report. Above all, keep your wits about you and try to avoid any angry or violent confrontations with the driver even if they are at fault or you feel provoked by a driver’s reckless behavior.
Filing A Police or Accident Report:
You may be required to file an accident report. The accident report will include the identities of persons involved in the collision along with the names and addresses of any witnesses. Drivers are required to also provide registration and insurance information. The report will also include your statement of how the collision occurred as well as the driver’s. The police may decide to ticket the driver, and this can be useful later when establishing who was at fault. Unfortunately, police officers don’t always take a statement from the cyclist before completing their report. In these instances, the officer may have already decided that the cyclist is at fault, without even talking to the cyclist. If possible, make sure you give your statement to the officer. Regardless of whether an accident report is written, make sure that you have the driver’s name and contact information, as well as the names and contact information of any witnesses. If you are physically unable to gather this information, ask a witness to do it for you. Sometimes, a driver will attempt to leave the scene before police respond. In such instances a license plate and description of the car or driver may be crucial.
Investigation and Documentation:
The scene should be investigated for evidence about how the collision occurred. The investigation should include a diagram of the scene or intersection making note of the street address or other landmarks. You should make note and photograph the position of the vehicle involved and your bicycle immediately after the collision preferably before they are moved. Make note of and photograph any dents, scratches, paint scrapes or other damage that might indicate the points of contact or speed and force of the collision. Make note of, measure and photograph any skid marks, physical injuries or anything else you might wish to document later on.
Seek Immediate Medical Treatment:
Seek prompt medical treatment for your injuries. This is proof that you were in fact injured, and the medical records generated by your healthcare provider will be necessary to establish the extent and nature of your injuries. Have close-up photographs taken of your injuries from different angles and under different lighting as soon as possible. In the days following the collision, keep a journal of your physical symptoms. This will be useful months or years later when and if you are called upon to recall these events in detail long after the memory of them has begun to fade. Remember, as far as insurers are concerned – if it isn’t photographed or documented in some way it didn’t happen.
What About Insurance Coverage?
Liability Coverage: Because most crashes are usually the result of somebody’s negligence– the driver’s negligence, the cyclist’s negligence or both the driver and the cyclist, you may have a right to be legally compensated for your injuries. It is advisable to not communicate with the driver’s insurance company before consulting with an attorney and you fully understand your legal rights. Many cyclists naively believe they can adjust their claim informally and that the insurer will be fair and reasonable. But, it is important top keep in mind that the insurer’s claim representative is not there to advocate on your behalf and will use the opportunity to gather information to be used against you later. What may be a genuine effort on your part to communicate a fair and honest account of the collision will be seen by the insurance company as an opportunity to gather evidence in support of its effort to deny liability – even when its insured is at fault.
If you are injured as the result of the negligence of the driver, and as long as you were not more than 50 percent at fault yourself, you have a right to recover for your personal injuries. Under Massachusetts law, you must have at least $2,000 in medical expenses or you must have a broken bone, scarring or some other permanent injury. The $2,000 threshold is usually reached very quickly but you have 3 years to incur the necessary medical expenses.
Assuming the operator of the motor vehicle was negligent, the driver’s insurance company is responsible for covering the loss up to the limits of the driver’s bodily injury coverage. Every motor vehicle in Massachusetts must have at least $20,000 in coverage per injured person, and $40,000 per accident. Unfortunately, such minimum coverage is usually grossly inadequate to indemnify an operator for the serious personal injuries that are often the result of collisions. Most insurers will write affordable policies up to a million dollars. Insurers also offer excess or umbrella policies which kick in when the proceeds of the primary policy have been exhausted. Unfortunately, many drivers fail to obtain adequate insurance coverage and face the possibility of being held personally liable for damages exceeding their insurance coverage.
Underinsured Motorist Benefits: So, what happens when the driver’s insurance coverage is inadequate? Most bicycle riders do not know that the insurance coverage they purchase on their own automobile can provide coverage if they are injured by another vehicle while riding their bicycle. This is called “uninsured” or “underinsured motorist coverage”. This kind of insurance coverage applies where the driver who is at fault is uninsured or underinsured. Again, such coverage is mandatory in Massachusetts but it is important that you carry more than the required minimum limits. Coverage of $500,000 or even $1,000,000 is relatively cheap and since most drivers fail to carry adequate coverage the best protection a bicyclist can have is carrying plenty of underinsured motorist coverage. So, one of the things a bicyclist should do if they own an automobile is to make sure they have plenty of uninsured or underinsured motorist insurance coverage on their own auto policy. If you don’t own a car, but live in a household with a family member who owns a car, you may be covered under the household member’s policy. Several insurers in Massachusetts also offer such coverage as part of a general liability policy for those who do not own a car.
Property Damage: The insurance company for the vehicle that caused the collision will be responsible for the value of the bicycle. Depending on the age and condition of the bike, there may be depreciation. Your homeowner’s insurance may also cover the bicycle, depending on its value. Therefore, it is important to carefully document the damage to your bicycle both with photographs and an itemization of any damage along with the cost of repairs from your bike shop. Since a bike can be expensive, it can also be a good idea to list your bicycle with your homeowner’s insurer. Insurers are often shocked to learn how expensive bicycles can be. Finally, you might want to consider bike insurance. If your bike is worth more than $5,000 you can probably afford bike insurance and because of deductibles, exclusions and depreciation under other policies, it may be worth having.
Personal Injury Protection or “No-Fault” Benefits: Every driver in Massachusetts is required to carry Personal Injury Protection (PIP) coverage. PIP benefits provide up to $8,000 in “no-fault” insurance. As the name implies, these benefits are available regardless of who is at fault. So, if you are involved in a collision with a vehicle in Massachusetts, then the PIP coverage on that vehicle will apply. PIP coverage usually pays the first $2,000 in medical bills. Medical co-pays, deductibles, and treatment excluded by health plans will be covered up to $8,000. PIP also pays for a portion of any lost wages. Finally, PIP will pay for replacement services. If you find yourself unable to perform housework, yard work or to drive your car, PIP will cover the costs for these replacement services.
Medical Payments Coverage: Another type of coverage that cyclists should consider purchasing on their personal automobile policies is “Medical Payments” benefits or “Med Pay”. Med Pay is an optional coverage on the car you own or on the cars in your household. This is great coverage to have if you are a cyclist for a few reasons. First, the coverage is relatively inexpensive and you can buy up to $100,000 in coverage for less than $100. Med Pay is used to pay co-pays and deductibles not covered by Personal Injury Protection as well as medical services not covered by your health plan. Med Pay will also reimburse liens from health insurance companies.
Third-Party Liens: Nowadays, something every person injured in an accident needs to be concerned about are third-party liens. Under the terms of most health insurance contracts, if you are injured in an accident, the health insurance company which pays for your medical treatment has a contractual right to be reimbursed for the benefits you receive out of the proceeds of any settlement or judgment which is obtained by you or on your behalf. The same applies if your medical bills are paid under any government sponsored plan such as MassHealth, Medicare or Medicaid. Typically, the insurer places a lien against your settlement. In fact, they are entitled to be paid before you.
A Road ID or Medical Alert Wristband: These wristbands are available from a range of suppliers and can cost as little as $20. You can have them inscribed with vital information such as your name, address, blood type, any allergies you might have, medical conditions and the phone numbers of people to contact if you’ve been involved in a serious accident. Such information can save your life especially if you are somehow incapacitated.
At the end of the day, nobody wants to be involved in an accident, whether you’re a driver or a cyclist and regardless of whether you’re the one at fault or not. But because they are the most vulnerable, cyclists need to take extra care to protect themselves and be prepared if involved in an accident and this include knowing your legal rights.
We have over 30 years of experience representing injured persons. Call us if you need to know your legal rights: (617) 443-1000.