By Bob Mionske
The bad news is, you were hit by a car. The good news is, you survived. But you were injured. You’ve got medical bills. You’ve got a totaled bike. And you want to know who’s going to pay for all of this. You? Or the driver? Should you hire an attorney? Or can you handle this yourself?
Who is at fault?
This article addresses the traditional tort liability system of justice that is found in most states. In tort liability states, determining who is at fault is central to determining who will be responsible for paying if you are injured in a collision.
Twelve states use some form of a no-fault insurance system, which places strict limits on your ability to be fully compensated for your injuries. For more information on no-fault insurance, see my book,Bicycling & the Law.
Hire an attorney, or do it yourself?
The first thing you need to do is decide whether this is something you want to handle yourself, or something you should hire an attorney to handle.
Handling your own case:
- Pros: Handling your own case will save you the cost of hiring an attorney.
- Cons: You will be negotiating with professionals who know the pitfalls that put you at a disadvantage and who are very, very good at saving the insurance company money, so you may not actually end up netting more money in your pocket. Even more damaging, you may unwittingly make an error that is fatal to your claim.
Hiring an attorney:
- Pros: You will have an insured professional on your side who knows what the pitfalls are, and who will navigate through that potentially treacherous terrain for you.
- Cons: You will be paying the attorney a percentage—usually 33%—of whatever the attorney collects from the insurance company on your behalf.
- The question of fault: If there is even the slightest question about who is at fault, the claims adjuster will probably decide to assign some arbitrarily decided amount of blame to you, in which case you will only be offered a percentage of your claim. Alternatively, the claims adjuster may decide that you are 100% to blame and deny you any compensation at all. In either case, you will likely be presented with a demand for payment for the damage to the driver’s car.
- Serious injuries: If your injuries are serious (and perhaps permanent) and involve extensive—and expensive—medical care, future medical care, and other losses, including future pain and suffering, you may be offered far less in compensation than you are entitled to receive, even though everybody otherwise agrees that the driver is at fault.
How to decide
- Handle it yourself: Your case is relatively simple and involves a relatively small amount of money. If everybody agrees that the driver is at fault and your injuries are not serious, receiving fair compensation will probably be a quick and simple process.
- Hire an attorney: Your case involves difficult factual or legal issues or serious injuries.
- Consultation: You should consult with an attorney before you decide whether to handle your own case or hire an attorney. Consultations are typically free, and you are under no obligation to hire the attorney. You will receive that attorney’s preliminary analysis of your case, including the legal issues involved, potential pitfalls, your chances of successfully settling your claim, the amount you can expect to be compensated, and whether you should handle your case yourself or hire an attorney to represent you.
- But won’t the attorney always advise me to hire an attorney? Some might, but after reading this article you will have the information you need to make an informed decision. Remember, if do you hire an attorney, that attorney will be working for you, and you should think of the consultation as your opportunity to interview that attorney for the job. Consult with several attorneys. Get recommendations from other cyclists.
The First Step
The first step in a claim is to find out if the driver is covered by insurance and in what amount. Was the driver operating a personal vehicle? If so, look for the driver’s insurance policy. Was the driver operating a company vehicle? If so, the company’s insurance policy may cover the collision.
If the driver is insured, you will need to file a claim with the insurance company. Be careful—the insurer will request that you make a recorded or written statement. If you are handling your claim yourself, you will be required to make this statement, or the insurer will be unwilling to settle the case with you. If you are represented by an attorney, your attorney will likely not have you provide a statement and will discuss the collision with the insurance company on your behalf.
But what if the driver is uninsured? Or what of the driver is insured for a very low amount (an “underinsured driver”)? Drivers operating vehicles with little or no insurance coverage typically have no significant assets, so you can end up with a mountain of bills and a driver who can’t pay for them.
This is where your UM/UIM (“Uninsured Motorist/Underinsured Motorist”) coverage on your own auto insurance will become very important. Because this coverage is so important to cyclists, I routinely advise that cyclists purchase the maximum available UM/UIM coverage on their auto policy. It costs very little to purchase extra coverage but can make all the difference for you. If you are injured by an uninsured driver, you will need to file a claim with your own insurance company and file a claim under your own UM/UIM coverage; you will probably be subject to mandatory arbitration if you are unable to reach a satisfactory agreement with your own insurance company.
Valuing Your Claim
If you want to be fairly compensated for your injuries, you need to know what your losses are. Depending on your injuries, this may mean much more than simply adding up your medical bills. Here’s what you need to consider when valuing your claim:
- Medical: This is the documented cost of your medical treatment, including ambulance transport, emergency medical care, and follow-up medical treatment, including surgeries and doctor appointments, medication, medical supplies, and physical therapy.
- Future Medical: This is the estimated cost of the medical treatment that doctors determine you will need in the future, after your case has settled.
- Property damage: This is the documented value of your property that was damaged in the collision, including your bike, and accessories. If your property is not new, the insurance company will deduct for depreciation. This portion of your claim can be settled separately from the rest of your claim.
- Lost Wages: This is the documented amount of wages that you have lost as a result of the collision.
- Future Lost Wages: This is the estimated amount of wages that you will lose in the future as a result of your collision.
- Pain and Suffering: Pain and suffering is compensation for your non-monetary losses. Pain and suffering can include compensation for the pain you suffered as a result of the collision, loss of bodily parts, loss of bodily function, disfigurement, mental suffering, and loss of your ability to continue doing things that were important to your enjoyment of your life. An experienced attorney will know what your losses are, what juries have ordered to be paid in similar cases, and whether the driver’s insurance company is making you a fair offer or is low-balling you.
- Future pain and suffering: This is the loss for pain and suffering that you can expect to continue into the future.
Lawsuits and Settlements
Your goal is to be fairly compensated for your losses, but to make that happen, you sometimes need to motivate the other side to agree to fair compensation; that motivation to negotiate a fair settlement is the threat of a lawsuit. Most lawsuits never actually proceed to trial. But without that threat of a lawsuit, there is no incentive on the part of the insurance company to offer you fair compensation for your injuries.
Pitfalls to watch for
- The deadlines for filing a lawsuit in the state in which you were injured are critical. If you miss the deadline for filing a lawsuit, the insurance company no longer has any reason to negotiate with you, and you will not be compensated.
- A lawsuit is not a one-way battle: The insurance company can defend itself with its own team of lawyers. You may be forced to answer written and oral questions under oath. It is highly advisable that when answering these questions, you have an experienced attorney with you because you will need expert advice about which questions you must answer, and which questions you can object to.
If you and the insurer cannot come to an agreement after reviewing the evidence and after some back and forth dickering, you must decide whether to accept the best offer (if there is an offer) or file a lawsuit. If you do receive a settlement offer, here’s what you can expect:
- The settlement offer may be for the full amount you are asking (or at least for the policy limits).
- If the settlement offer is for less than you are asking, you will need to decide if they are offering you fair compensation, or if they are low-balling you, and a jury would order a more fair compensation. Be realistic in your decision. You might be entitled to every penny you are asking for, but what will a jury actually be willing to give you?
Full and Final Settlement
If you decide to accept the settlement offer, you will be entering into a Full and Final Settlement of your case with the insurance company.
Whatever you are agreeing to now is all that you will ever receive. Your signature on the settlement will release the negligent driver from any further liability for your injuries. This is why it’s extremely important to know the full extent of your injuries, including your future medical care needs, before you negotiate a settlement for your injuries. Once both parties have signed, neither side can have a change of mind.
Collisions with cars are relatively rare events, but if you are involved in a collision, it helps if you already understand what you can do to protect yourself after the collision. Finally, if you have some understanding of how the legal process works following a collision, you will be better prepared to make sound decisions about seeking medical care, talking with the insurance company, obtaining legal advice, and ultimately, deciding whether you should hire an attorney to represent you.
By Bob Mionske
Research and assistance by Rick Bernardi, J.D.