About Bicycle Accidents While Riding Rental Or Bike Share Bicycles

Bike Share programs have been set up in many cities in the United States, and around the world. Of course, Portland Oregon has a Bike Share program, but they’re really appearing everywhere—In Oregon, we have them in Eugene, Corvallis, Bend, and other Oregon cities. In California we have them in San Francisco, San Jose, Santa Cruz, Los Angeles, and other California cities. And of course, in many of these cities, there are also companies providing rental bicycles for tourists and other visitors to the city.

Bike share is an idea that has really taken off, and for good reason. As people have been discovering around the world, riding a bike share bicycle is a convenient, inexpensive, and hassle-free way to get from Point A to Point B in a city. It’s also a very safe way to travel.

However, as with any mode of transportation, crashes can and do happen. There are many similarities between a bicycle accident on your own bicycle, and a bicycle accident on a rental or bike share bicycle. But there are also some unique differences that you need to know about if you’ve been involved in a crash on a rental or bike share bicycle.

• Related Article: About Bicycle Accidents
• Related Article: Why We Say “Bicycle Accidents” Are Not Accidents

To understand how crashes on rental and bike share bicycles are different from crashes on your own personal bicycle, let’s first take a look at how they are similar.

If you’ve been involved in a collision with an automobile, you will be negotiating with the driver’s insurance company to compensate you for all of your­­­­ injuries and losses. Negotiations with the driver’s insurance company will always focus on who was negligent (you or the driver), and to what degree. If you and the insurance company can agree on the question of negligence and the amount of damages, the case will be settled. If you cannot reach agreement, it will be necessary for you to prove that the driver was negligent in a court of law in order to recover compensation for the injuries received.

Because a lawsuit is the next step if an agreement on compensation cannot be reached, the vast majority of injury cases are settled out of court. How­ever, because the legal and accident forensics issues can be complex, cyclists who have suffered anything more than very minor injuries should always discuss their case with an attorney experienced at handling bicycle accident cases before talking with the driver or the driver’s insurance company.

Always wait for the police to respond to the accident scene so that an official report will be filed. Some cyclists do not realize that they have been injured until several hours after the accident. Seemingly minor injuries may develop into serious and permanent injuries. By then, it may be too late to identify the at-fault driver.

You should not attempt to negotiate with the at-fault driver. The driver may not give you accurate information about his or her identity, insurance coverage, or vehicle ownership. Many drivers who cause a crash will apologize at the scene and accept blame for the collision, but later, after they have had time to consider the ramifications of their negligence, will deny that they were negligent. They may even deny that they were present at the accident scene! By waiting for the police, you have an independent third party at the scene of the collision who has the authority to demand the driver’s identity, registration, and insurance information.

Similarly, you should never tell the driver or the police that you are “OK.” The truth is, you don’t actually know if you are OK, because you haven’t been evaluated by a doctor, so why would you want to assure the driver and police that you are “OK”? What if you have been injured but don’t realize it yet? You don’t want the driver’s insurance company to have it on record that you said you were OK; a doctor is the only person who should ever give you a clean bill of health.

If the police write an accident report, make sure that it’s accurate. The accident report will include the driver’s statement as well as all other witness statements. The responding officer may decide to ticket the driver, and this can be useful when trying to settle the case with the insurance company.

The accident report should also include the cyclist’s statement; unfortunately, law enforcement 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. Therefore, make sure you give your statement to the officer after the collision, if you are able to do so.

Regardless of whether an accident report is written, make sure that you have the driver’s name and contact info, as well as the names and contact info of any witnesses. If you are physically unable to gather this information, ask a witness to do it for you.

The accident scene should be investigated for information about how the accident occurred. The investigation should include obtaining skid mark measurements, photographing the accident scene, speaking with additional witnesses, and measuring and diagramming the accident scene.

You should also leave the rental or bike share bicycle and other damaged property exactly where it is. If you are able, take photos of the bicycle and any damaged components or equipment, or ask somebody to do it for you. This will be of particular importance if it’s later determined that the crash was caused partially or entirely as a result of a defective bicycle. But even if a defective bicycle is not the cause of the crash, it’s still important to document the damaged bicycle to help establish how the crash occurred.

In the minutes and hours immediately after a crash, DO NOT assume anything about your injuries. It’s very common for people to assume that they haven’t been seriously injured following a collision, only to have the true extent of their injuries become apparent later. If you’ve been involved in a crash, it’s vitally important for you to see a doctor immediately afterwards. You should not decide anything about the seriousness of your injuries; let the doctor decide if your injuries are not serious. By seeking prompt medical evaluation and treatment, you are giving yourself the chance to catch a serious injury in the early stages—and if you haven’t been seriously injured, you are giving yourself the chance to get a clean bill of health from a doctor.

And because you will be dealing with the driver’s insurance company, a prompt medical evaluation and treatment for your injuries will establish that you were in fact injured, while the medical records generated by the medical provider will help establish the extent of your injuries. Have several photos taken, from different angles and under different lighting, as soon as possible after your accident. Keep a journal (an “injury diary”) of your physical symptoms starting immediately after the accident, and make entries every couple of days.

Do not communicate with the driver’s insurance company before consulting with an attorney. Most cyclists want to be fair and reasonable with the insurance company. Unfortunately, when you communicate with the insurance company, they are gathering information to be used against you later. What you see as an effort on your part to communicate a fair and honest account of the accident will be seen by the insurance company as an opportunity to gather evidence in support of their argument that your negligence caused the accident.

As with crashes involving your own personal bicycle, one of the issues that arises on a rental or bike share bicycle is what insurance policies cover you if you are injured in a crash. There are a lot of similarities here between crashes while riding your own personal bicycle, and crashes while riding a rental or bike share bicycle, but there are also some notable differences that you should be aware of.

• • Related Article: Insurance Advice

The Driver’s Insurance

In a car-on-bike crash in which the driver is found to be negligent, the driver’s insurance company will be responsible for compensating you for your injuries and losses caused by the driver. This is the case whether you are riding your own personal bicycle or riding a rental or bike share bicycle.

Your Insurance: UM/UIM

However, one problem that bicyclists can encounter in a car-on-bike crash is a driver who is “underinsured.” This means that the driver is insured as required by law, but for less than the amount of damages that have resulted from your injuries and losses. The reason we have underinsured drivers on the road is because the minimum insurance amounts required by states are often very low.

For example, in California, the minimum insurance required is $15,000 per crash for bodily injury or death. This is an extremely low minimum insurance requirement and can easily be exceeded in a car-on-bike crash involving injuries to the cyclist. Even in Oregon, where the minimum insurance required is $50,000 per crash for bodily injury, the minimum can quickly be exhausted if a cyclist sustains serious injuries in a crash.

In cases involving an underinsured driver, your UM/UIM (“Uninsured Motorist/Underinsured Motorist”) coverage on your own auto insurance policy (and now available in comprehensive bicycle insurance policies) can step in once the driver’s insurance policy is exhausted. You would also use your own UM/UIM coverage if you are hit by an uninsured driver, or if you are the victim of a hit-and-run driver. For these reasons, cyclists who do have an insured automobile should purchase the maximum amount of UM/UIM coverage available.

A word of warning, however—DO NOT accept a settlement from an underinsured driver’s insurance company without first getting approval from your own insurance company. If you do accept a settlement without the approval of your insurance company, your insurance company may decline to pay on your UM/UIM claim.

The reason is that when you file a UM/UIM claim, you are authorizing your insurance company to “stand in your shoes” in pursuing a claim against the underinsured driver. If you accept a settlement offer from the underinsured driver’s insurance company, you are preventing your insurance company from pursuing their legal right to file a claim against the underinsured driver, and as a result, if you do not have permission to settle, your insurance company may legally refuse to pay your UM/UIM claim.

Your Insurance: Personal Injury Protection or “Med-Pay”

In Oregon (and 36 other states), your automobile insurance policy is required to provide coverage for “Personal Injury Protection” (“PIP”), also known as “Med-Pay.” If you are injured in a car-on-bike collision, your own PIP coverage on your auto policy will pay on your injuries during the first year after the collision, up to the amount of PIP coverage on your policy. Because Oregon is a “hybrid” state that has some features of “no fault” states, and some features of tort liability states, if your PIP coverage is exhausted by your injuries (which is easy to happen with a $15,000 minimum policy coverage), you can file a claim against the negligent driver’s insurance policy. Filing a claim will mean negotiating with the insurance company about who was at fault, and ultimately, may mean filing a lawsuit against the negligent driver if you cannot reach a settlement agreement with the driver’s insurance company.

In California (and 12 other states), “PIP” coverage is available as an option on your automobile insurance policy, but is not required.

There are several benefits to having PIP coverage on your auto policy:

• • • • Most PIP coverage will cover the cost of your medical treatment (this is the “Med-Pay” portion of your PIP coverage), your lost wages, and in a fatal collision, funeral expenses.
      • PIP will cover you regardless of who is at fault in the collision.
      • PIP will pay your medical bills much faster than they will get paid by the driver’s insurance policy.
      • PIP will pay regardless of whether you win or lose your claim against the driver’s insurance company.
      • PIP will pay when you have been injured by underinsured, uninsured, and hit-and-run drivers.

The disadvantages of PIP coverage are:

• • • • PIP coverage is more expensive than other types of coverage on your policy, so people tend to select as little coverage as possible.
      • In states where PIP is required, the minimum required coverage can be quite low (for example, $15,000 in Oregon), and that low minimum means your PIP coverage can be exhausted within the first few minutes of a serious crash.
      • PIP coverage is likely to be many times less than the damages available in a claim against the driver’s insurance company, because damages for your pain and suffering are not covered by PIP. For example, if you are seriously injured and will live in pain for the rest of your life, your PIP coverage will not compensate you for that.

Your Insurance: Health Insurance

If you have health insurance, your policy will cover your medical costs for injuries sustained in a crash, even if the driver has insurance. This will relieve you of your immediate worries about your medical bills as you wait for your claim against the driver to be settled. However, be aware that if your medical costs have been covered by your health insurance, and you later recover damages for medical costs against the driver who injured you, you will be required to reimburse your health insurance carrier for medical costs it has paid. Therefore, you must take care when negotiating a settlement to be compensated for ALL of your medical bills.

Your Insurance: Homeowner’s or Renter’s Insurance

If you have homeowner’s or renter’s insurance, you have coverage for your negligent acts that cause personal injury or damage to property.

The Bicycle Company’s Insurance

But what if there’s a crash, and it isn’t caused by you, or by a driver? What if it’s caused by a defective product—the bicycle itself? A defective bicycle, or a poorly maintained, unmaintained, or previously damaged bicycle may be the cause of a crash. In that case, the bicycle manufacturer, or the rental company or bike share company, or both may be liable for your injuries.

• • • • Related Article: Defective Cycling Products

However, there is an important caveat here that you must be aware of. Your bicycle rental or bike share contract may contain language claiming that you have waived all of your legal rights in the event that you are injured due to the company’s negligence in providing you with a defective product. Additionally, there are important clauses in the contract that will place you in breach of contract if you do not observe the terms of the contract. For these reasons, if you have been injured while riding a renal or bike share bicycle, it is vitally important for you to consult with an experienced bicycle attorney before you talk with the rental or bike share company.

In a bicycle crash involving a rental or bike share bicycle, time is of the essence, because your contract will likely require you to report the crash and return the bicycle within a specified time period. If you fail to do so, you may be in breach of your contract.

Therefore, because you’re riding on a contract, you need to know what the terms of your contract state. You must familiarize yourself with them before riding, because failing to observe the terms of the contract may have serious adverse effects on your legal rights. For example, if you do any of the things prohibited in the contract, you may be in breach of your contract and may be jeopardizing some important legal rights if you are subsequently injured. You may also be required by your contract to perform a pre-ride safety inspection, and your failure to do so may place you in breach of your contract.

This is extremely important: Your rental or Bike Share contract may also state that you release the bicycle rental or bike share company from any liability for their own negligence. This part of the contract should be considered “wishful thinking” on the part of the bicycle rental or bike share company. Nevertheless, because the contract you signed may assert that the company is not liable for their own negligence, it is vitally important that you talk with an experienced bicycle crash attorney before you talk with the bicycle rental or bike share company about the collision.

While you should generally follow the accident reporting requirements of your contract, if you have been injured while riding a rental or bike share bicycle, and you suspect that your injury was caused by a defective bicycle, or a poorly maintained, unmaintained, or previously damaged bicycle, DO NOT communicate with the bicycle rental or bike share company about the crash, and DO NOT make arrangements to return the rental bicycle or bike share bicycle before consulting with an experienced bicycle accident attorney. Therefore, because you should follow the accident reporting requirements of your contract, time is of the essence in consulting with an experienced bicycle accident attorney.

Remember, if you have been injured due to the bicycle company’s negligence, the bicycle company and their insurance company are not your friends. Once you have been injured, and their negligence is an issue, no matter how much they may assert that they are not negligent, they are not on your side, no matter how friendly and sympathetic they may seem at first. At that point, you are adversaries.

And it’s the same with their insurance company. No matter how strenuously the bicycle company denies any liability, they are insured for liability, and their insurance company is not on your side. The insurance company is not there to compensate you for the injuries caused by the defective product. Rather, they are there to minimize payouts on liability for defective products, and they do that by stonewalling you—they may deny that the bicycle company can be held liable, and they may also attempt to shift the blame for the injury to someone else—probably you.

While most cyclists only want to be fairly compensated for the injuries and losses they suffered, and try to be fair and reasonable with the insurance company, when you talk with the bicycle company or their insurance company, they have a different objective: they are gathering information to be used against you later. For this reason, if you suspect that a defective or poorly-maintained, unmaintained, or previously damaged bicycle was the cause of your injuries, always consult with an experienced bicycle accident attorney first, before you talk with the bicycle company or their insurance carrier about the cause of the crash and the injuries you sustained.

Your contract may also require you to settle any claims in arbitration. There’s a simple reason companies prefer to go to arbitration—they tend to get much better results in arbitration than they do in court, before a jury of your peers. If your contract allows you to opt out of arbitration and class action suits, you should do so. If you have been injured by a defective product or other negligence on the part of the company, and you have not opted out of arbitration, it is vitally important for you to consult with an experienced bicycle attorney to see what your options are before agreeing to arbitration.

• Sample Contract: Portland, Oregon Bikeshare

For these reasons, if you have been injured because a rental or bike share company provided you with a defective product, you should consult with an experienced bicycle attorney who can advise you about your legal rights, regardless of whatever terms the contract says you are agreeing to.

If you have been injured in a crash involving a rental bicycle or a bike share bicycle, whatever the cause of the crash, contact bicyclelaw.com or another personal injury attorney who understands bicycling. While many attorneys are competent to handle general injury cases, make sure your attorney has experience and is familiar with:

• Bicycle traffic laws
• Negotiating bicycle accident cases with insurance companies
• Trying bicycle accident cases in court
• The prevailing prejudice against cyclists by motorists and juries
• The names and functions of all bicycle components
• The speed bikes travel as well as braking and cornering
• Bicycle handling skills, techniques, and customs
• How to get the full replacement value property damage estimates for your bicycle
• Establishing the value of lost riding time
• Leading bicycle accident reconstruction experts
• Licensed forensic bicycle engineers
• Establishing the value of permanent diminished riding ability

For More Information About Insurance, see About Insurance
For More Information About Defective Cycling Products, see Defective Cycling Products
For More Information About Avoiding Bicycle Accidents, see How To Avoid Car-On-Bike Accidents

Related Article: Why We Say “Bicycle Accidents” Are Not Accidents