Ride on for Red Nose Day: east coast recap

Better late than never, I always say ;)  A few weeks after the west coast trip, we embarked on round two: Boston to NYC (the long way).  The days were a bit bigger in terms of mileage on this trip, and we encountered some rain and chilly temps on day 2.  But it was gorgeous out on the east coast, and we had the honor of closing NASDAQ and celebrating with the folks at Red Nose Day/ Comic Relief/ NBC as Red Nose Day was celebrated nationwide on May 25th!  

Read here to learn more about the impact of Red Nose Day ...  it's powerful, and compelling.  

Riding bikes to raise money for these efforts was REALLY meaningful and fulfilling for all of us.  

Once again - I defer to the incredible videos produced during our ride, as well as the images taken by Meg McMahon, to tell the best story: 

NASDAQ featured our appearance on their TWITTER feed-  so awesome! 

The Bike of Belgium

A guest post, by Justin Balog

I arrived in Ghent Belgium with my bike packed in its travel case, and grabbed a taxi at the train station. While making small talk with the driver, I learned that the local government recently voted to keep the interior of the town free of cars, making the historic cobbled streets of Ghent only accessible to pedestrians and bikes.  

It is a town where commuting is a necessary way of life. After chatting with locals and talking to them about their bikes, I found it is not only necessary, but commuting is the preferred way of life.

Most Belgians have had their commuter bikes for years. Heck, Eddy (72) who I met over a beer, said he's been riding the same bike for 43 years.

Needless to say, then, I spent much of my time wandering the ancient streets of this historic city, documenting these fabled machines. 

Driver Caught on Dash Cam Gets Deal, "Because Cyclist Was Riding in CrossWalk"

On Saturday, October 15, 2016, at 5:31pm, K.B. and her fiancé were riding bikes in Littleton, near Bowles on the bike path, when they entered a crosswalk.  K.B.’s fiance's bike had a Burly attached, in which their 2-year old child was riding.  K.B. was just behind, following her fiancé and their child in the crosswalk, on a green light/walking signal, with ample crossing time remaining on the digital signal.  Without warning, K.B. was hit by a car. 

The car was in the left-hand turn lane, with a green light.  When it was clear, it accelerated into the crosswalk and t-boned K.B. on her bike.  Notably in this case, another car that sat in the turn lane had its dash cam running, capturing the entire event.  You can hear that driver anticipate what’s about to happen – yet, for some reason the turning motorist never noticed K.B. or her family on their bikes, until it was too late. 

Dash cam footage (forward to 3min in...warning- it's not easy to warch this): 

The motorist was cited by Littleton P.D. for failure to yield right-of-way to pedestrian under violation code 802(1), which is a Class A Traffic Infraction.  A summons was issued for the driver to appear in Littleton Municipal Court.  We contacted the City Attorney (CA) ahead of time and implored her not to offer a plea deal in this case.   Her proposal was to drop the charge to a defective vehicle charge.  We asked that she not do that, given the factual situation, the video showing clear negligence (and failure to yield) by the motorist, the injuries K.B. suffered, and the very real fact that one or two seconds earlier, the car would’ve hit the Burly with the child instead. 

Communication quickly broke down with the City Attorney, who insisted this is how her office “always handles cases like this.”  I informed her that I would be sure to notify the cycling community that this is Littleton's approach to these cycling crashes.  (i.e., this blog, and honorable mention in my cycling education classes).  The City Attorney then spoke with my client directly and criticized my professionalism.  (Yes, you read that right).  We appeared several times in Court; on one occasion appearing, only to learn the case had been rescheduled and no one had bothered to tell us:

Instagram Venting.   

Instagram Venting. 

 

Keep in mind K.B. is the victim here.  Yet, she began to feel as though she was the accused, by the way she and her case were being handled.  Curiously, the City Attorney wanted nothing to do with the dash cam footage – although this would have made her case very easy to prove to a jury, she minimized its importance.  She brushed it aside.

At the eventual sentencing hearing for the driver (mid-February!), we learned that in fact, yes, the City Attorney HAD offered the driver a lesser charge in exchange for the plea.  K.B. and I were not informed of this, despite our asking the CA repeatedly what her plan was, and despite our requests that she not reduce the charges, and if necessary, take this case to trial.  (While not technically a Victim Rights Case, DAs and CAs typically involve my clients / my office in these decisions given the severity of the injuries).  At the hearing, the Judge asked to see the dash cam footage and did review it several times on K.B.’s phone.  He seemed apologetic in light of its clear showing of failure to yield to pedestrians/cyclists in the crosswalk, but his hands were tied with this minimal charge/plea agreement.  (We were seeking community service as part of the sentence of the driver-the Judge declined to order it based on the plea agreement reached between the driver and the CA).  The CA then began criticizing K.B. for riding in the crosswalk.  Suddenly she, as the City Attorney, who is tasked with pursuing charges written by law enforcement – argued that the victim of this collision was riding illegally in the crosswalk.  It begs the question: Is this how Littleton feels about its cyclists?   

Let's address the CA's statements to the Court, shall we?  Her representation of the law to the Judge is simply incorrect. 

First- C.R.S. 42-4-1412, does NOT prohibit sidewalk or crosswalk riding, nor does it require dismounting at crosswalks.  The State Law indicates that these behaviors are prohibited/required only where required by local ordinance (i.e. city ordinance) or traffic device (i.e. signage).  In pertinent part, the statute reads,

(10)(a) A person riding a bicycle or electrical assisted bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian. A person riding a bicycle in a crosswalk shall do so in a manner that is safe for pedestrians.

(b) A person shall not ride a bicycle or electrical assisted bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk where such use of bicycles or electrical assisted bicycles is prohibited by official traffic control devices or local ordinances. A person riding a bicycle or electrical assisted bicycle shall dismount before entering any crosswalk where required by official traffic control devices or local ordinances.

(c) A person riding or walking a bicycle or electrical assisted bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall have all the rights and duties applicable to a pedestrian under the same circumstances, including, but not limited to, the rights and duties granted and required by section 42-4-802.

 So –let’s investigate whether the City of Littleton in fact has an ordinance that requires cyclists to dismount?  (Answer: no). The City has adopted the Model Traffic Code.  You can review this on our website here.  The only new/additional sections added by the Littleton City Council to their ordinances, beyond the Model Traffic Code, are posted here.  Of note, one of the ONLY additions concerning bikes in their code, is the one that addresses BIKEWAYS:

9-1-7: BIKEWAYS:

(A) Bikeways Created: Public streets and rights of way or portions thereof may be designated as bikeways. When marked by paint striping, reflective buttons, no parking signs, bikeway signs, or other traffic devices or signs, the portions so marked shall not be used for driving, parking, stopping, standing or turning of motorized vehicles of any kind; and bicycles operated on said streets shall be operated only within the bikeway portions so designated. The City administration shall determine the location of bikeways and the appropriate type of marking on each street or right of way based upon good traffic engineering practice. (Ord. 13, Series of 1985)

(B) Operation Of Motor Vehicles When Necessary To Cross Bikeways: It is recognized that upon occasion such as making of right turn movements, entering driveways and the like, it will be necessary for operators of motor vehicles to drive across designated bikeways, but in such instances the required movements shall be made by the operator of the motor vehicle remaining in the bikeway for as short a distance as possible, and he shall enter the bikeway only after taking due care to ascertain that his movement will not endanger bicycles being operated therein. (1971 Code, sec. 15.21)

In sum, I’m left scratching my head trying to figure out why this City Attorney believed that my client (a) should not have been riding in a crosswalk (which comes off a bike path and re-enters a bike path), and (b) should have dismounted and walked her bike across the crosswalk. 

And in short, this means those “mitigating factors” the CA argued to the Court, were misrepresentations of both State and City law, to the detriment of my client and her case.

My client stood in that courtroom, mouth agape - having been hit by a car while riding legally - she was now being accused of bringing the collision on herself by riding in a crosswalk in broad daylight with her family.  She was on the defensive, having to explain her behavior that day. 

Result: charge ultimately entered: “unsafe vehicle.”  Fines: $391.75.  Our request for community service was denied, based on the plea agreement reached.  However, the judge did order the driver to attend a defense driving school course. 

K.B. spent the time and energy to attend a handful of court settings in this matter from October through February.  She left this process with a very bad taste in her mouth for how it was handled (as you can probably imagine).  You can review/view the entire sentencing hearing here: 

Drunk Driver Hits Cyclist From Behind, Flees Scene - Insurer Asserts Comparative Negligence Defense

On June 9, 2015, Brandon was out for a bike ride.  Having recently moved to Colorado, this was one of his first few rides in the Littleton area.  It was just before 6pm, and he was on his way back home. 

Without warning, Brandon was hit from behind by a motorist, and thrown off his bike into the street. His head, face, hands and knees were bleeding badly.  Despite his obvious injuries, the motorist fled the scene.  Brandon recalls none of this- as his next/first memory was waking up in the emergency room, where he’d been transported by ambulance.

Luckily, a passerby witnessed the event and caught the license plate number of the fleeing motorist.  Police were called and located the driver in her home about an hour after the collision.  She was drinking Schnapps...  The officers conducted a Blood Alcohol Test (BAC). 

We later learned that the motorist worked for police and fire dispatch.  It is believed she thought that if she began drinking at home, perhaps the BAC could not conclusively prove she had been drinking at the time of the crash.  However, when results came back showing her BAC was .317, her theory fell apart.  This level of intoxication meant that she either drank to near-deathly levels in that one hour, or more realistically, she had been drinking before the crash, was intoxicated at the time she hit Brandon, and then continued drinking once home. 

Hit a human.  Leave.  Run home and start slamming shots?  Say what?

The driver was cited with numerous violations.  During the pendency of her criminal case, we learned that her versions of what happened varied drastically;  from, “I thought I hit a pothole,” to “A cyclist darted in front of my car,” to “The Arby’s fell off my passenger seat onto the floor and I reached down to pick it up.” Suffice it to say, these explanations all fell short of accepting responsibility.

Meanwhile, Brandon had hired our office to represent him, and we had begun the process of pursuing the motorist’s insurance – State Farm (SF)–for his injuries and claims.  As in our last blog post, SF’s initial settlement offer was grossly inadequate in light of his injuries, as well as in light of their insured’s/the motorist’s conduct.  At our urging they increased their offers, minimally, $5000 at a time, though ultimately still way outside the realm of possible settlement value.  This, despite their insured’s guilty plea in the traffic/criminal case...  SF seemed to think that they did not owe my client adequate compensation. So, we filed suit.   

In Colorado, when someone commits negligence, but also does so with exacerbating factors, (or what we like to call, willful and wanton conduct), a Plaintiff is permitted to seek leave from the Court to add an additional claim for punitive damages (C.R.S. 13-1-102).  Punitive damages are not based on any damages or claims that the Plaintiff incurred – they are solely intended to punish someone for their misconduct.  A jury may award any amount it chooses for punitive damages – it is solely intended to punish someone with a large monetary verdict.  In Colorado, insurers don’t eventually pay a punitive jury award – the actual wrongdoer does.  Here, our plan was to amend our Complaint to add a claim for punitives, to allow the jury to punish the driver for her conduct with – we hoped – a large monetary sanction. 

However, before we got to this juncture, we noted the content of the Answer filed by State Farm’s defense counsel.  In it, State Farm, on behalf of its insured/at-fault driver, asserted some curious affirmative defenses, including one that claimed Brandon contributed to the collision:

"The proximate cause of Plaintiff's claimed damages and/or injuries, if any, may have been Plaintiff's comparative negligence, which conduct either bars or reduces Plaintiff's recovery, if any, in accordance with Colorado's Comparative Negligence Statute.  C.R.S. 13-21-111 (2015)." 

SF also claimed that it must’ve been someone else that caused Brandon's injuries and damages:

The proximate cause of Plaintiff’s claimed damages and/or injuries, if any, may have been the act or omissions of a third party or parties whom Defendant has no control, to whom Defendant has no relationship, and for whom Defendant is not legally responsible.”

Interesting.  

Now in the practice of defending law suits, it is fairly common for the Defendant’s Answer to contain some boilerplate language, as well as boilerplate affirmative defenses.  However, under the Colorado Rules of Civil Procedure, "The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."  (C.R.C.P. Rule 11(a)).

Keep in mind that by the time the Answer was filed, the motorist had pled guilty in the criminal case to charges resulting from her careless driving causing injury, her fleeing the scene, and her driving while intoxicated.  While the burdens of proof are different in the criminal and the civil cases, and her plea of guilty in the criminal case would not per se be admissible in Brandon's civil case, her attorneys knew that she had confessed to her actions.  They knew, because we’d provided them the transcript of her sentencing hearing... Where I was present, as was Brandon and his wife and their young son. 

Imagine our surprise then, to see SF take this approach in litigation.  We could not wait to see what they claimed Brandon did, to contribute to him being hit from behind by their drunk driver!  We found this conduct very curious – that the defendant and her counsel would deny her responsibility and negligence, in this pleading filed with the Court.  We wanted very much for the jury in this case to hear about her denials and to compare that to the testimony of the bystander who witnessed the collision, and the testimony of the law enforcement officers who visited her home shortly after.  We wanted the jury to compare her denials of fault with her legally-documented intoxication.  What a trial this would be! 

SF counsel by filing such an Answer, had placed its insured in a very precarious position: punitive damages would not be paid by SF, nor could their insured discharge them in bankruptcy.  If we went to trial and got a large punitive award, this Judgment would follow (and likely financially cripple) the driver for life.  And Jeffco juries are known to punish people who do things like this with large punitive verdicts.  Imagine the jurors' response to hearing that the Answer and legal position adopted by the driver and her counsel, was that Brandon had done something to contribute to this collision!  SF had exposed its insured to this very real possibility, with the Answer it filed.  It made statements in the Answer that arguably violated Colorado Rules regarding pleadings and implicated sanctions. 

We pointed out this interesting scenario to the lawyers at SF.  The case settled shortly thereafter, for the amount we demanded pre-suit.

Boilerplate language in a Defendant’s Answer given these facts, was a game changer.  Moral of the story: while multi-billion dollar insurance companies may have large, well-staffed law firms and attorneys at their disposal, failure to pay attention to the actual issues can be devastating.  This is why our firm controls (carefully!) our caseload, and this is why we read Answers and affirmative defenses carefully, and show up at sentencing hearings.  Bottom line: we won’t allow our injured clients to be bullied.  To have a driver drink, hit a cyclist from behind and flee the scene, and then to have the audacity to respond in an Answer that he was in ANY WAY at fault or a contributing factor, is offensive. Sometimes a case resembles a really hard bike ride: It's a slog to the top of the climb, but hanging in there, and continuing to work hard, does pay off.  Once again we had a tenacious client, who was not desperate to settle, and who was game to take this case all the way to trial. It takes courage and fortitude- as I've discussed in previous blog posts.  

Now, what about that driver?  What happened to her?  The day of her sentencing hearing in Judge Enquist’s courtroom (Jeffco) was the Monday following a Friday hearing, in which a young man who’d been drinking, drove up Lookout Mountain on the wrong side of the road and caused cyclist Tom Flanigan’s death.  There, Judge Enquist had sentenced the driver to the max allowed under the terms of his plea: 10 years in the Department of Corrections (DOC).  Now, 3 days later, Judge Enquist was again hearing facts of a drunk driver hitting a cyclist.  She was beyond furious.  Under the terms of the plea reached with the District Attorney’s office, the Judge sentenced this driver to six years - the max she could order under the plea.  Counsel for the Defendant asked for a stay of execution (a few days’ time) so that the driver could get her affairs in order.  The Judge said no – she was remanded immediately and began serving her sentence that day.  Of the 6 year sentence, she will likely only serve 12-15 months total. 

Did we want to see this mother and wife sit in a jail cell?  Did it make Brandon and his wife happy, or feel any better?  Did it feel like justice?  Of course not.  We all wish this had never happened and that this woman had not chosen to drink, drive, hit a cyclist and then intentionally flee the scene.  It impacted everyone's life in a negative way.  Situations like this are exactly the reason why Colorado bike advocates worked with the legislature to make the hit-and-run statute penalties stiffer: because if someone "accidentally hits a cyclist," that’s bad enough, but if they intentionally leave the scene and EMS is not immediately summoned to care for the cyclist, they may (and often do) die from their injuries.   Leaving the scene of a bike crash is an act that deserves to be punished harshly. 

If you’d like to read the sentencing hearing transcript: 

Trial Victory: Denver District Court

On April 4, 2013, D.K. was out riding his bike…straight ahead, in broad daylight, in a bike lane, at well below the speed limit (uphill, in fact).  He had no traffic control device ahead, just the wide open road, as he made his way back towards home following a hospital visit to a friend. 

At a road perpendicular to the one D.K was on, a man sat in his pickup truck, stopped at a stop sign.  D.K., a very experienced cyclist, and law enforcement official as well, glanced at the truck, noted it was stopped, and continued riding. 

Suddenly and without warning, the truck left the stop sign, and t-boned D.K., striking him on his side, causing him to land on the ground.  Immediately, the driver apologized, said he did not see D.K., and that he was at fault for leaving the stop sign and hitting D.K. with his truck.  In fact, the driver, Mr. H., was kind enough to load up D.K.’s bike (damaged and not capable of riding) into his truck bed, and he gave D.K. a ride home.  The driver was so remorseful and felt terribly.  The two stayed in touch, with the driver calling now and then to check on D.K.

D.K. experienced shoulder pain, knee pain and foot pain right away.  He did not feel it warranted a visit to the E.R.  Instead, he made an appointment with his ortho doc (a doc who’d treated him previously for knee issues) at Panorama Orthopedics.  He also saw this doctor for his shoulder injuries, and he visited his Podiatrist for his foot injuries.  Over the course of the next three years, D.K. tried PT, injections, and conservative treatment to heal his injuries.  The two primary ones that persisted were in his foot and shoulder.  Eventually, he required foot surgery and shoulder surgery.  He faces surgery to the other shoulder in the near future. 

Now, D.K. believed, as many people do, that the driver’s insurance company, State Farm (SF), would be reasonable and would work with him on the resolution of his claims.  He negotiated a settlement with them for his damaged bike (which they retrieved from him), and he kept them informed as his medical treatment progressed.  Finally as the end of his three-year Statute of Limitations (SOL) neared, he tried to resolve his bodily injury claims with SF and realized that they had absolutely no interest in being reasonable. 

He contacted our office approximately 6 months before his SOL ran.  In order to preserve his claims, we sent an offer of settlement to SF, to try and resolve the case outside of litigation.  Imagine our joint surprise when they offered a paltry $8,000.  This, when their own driver admitted 100% fault, and where D.K.’s medical expenses at that time exceeded $30,000.  We filed suit. 

During the discovery phase of litigation, depositions were taken.  Again, the driver admitted 100% fault and said there was absolutely nothing D.K. did to contribute to the collision, nor was there anything he could have done to avoid it.  During litigation, D.K.’s shoulder injury and pain deteriorated to such a point that he had to undergo shoulder surgery, which added to his medical bills, and also resulted in several weeks of lost income.  Despite these actual economic damages, SF advanced an offer that was less than 1/3 of his bills and wages.  The case was set for trial. 

Insurance companies will usually file what’s called a “statutory offer of settlement” in situations like this, which means they make a formal offer, which is good for 2 weeks, and if not accepted, it automatically expires.  The bigger effect of this action is that the burden is now on the Plaintiff (and his counsel) to obtain a jury verdict above that amount.  As such, if the jury comes back with a verdict at that offer amount or below, the Plaintiff can be held accountable to pay the defense trial costs.  This can include defense expert fees, such as doctor’s time and deposition costs, and more.  On average, these costs range from $20,000- $25,000.  As you might expect, it has the (intended) effect of placing immense financial pressure on a Plaintiff who is gearing up for trial; as not only is a jury hard to predict, but if the jury comes back at a low number, the Plaintiff can technically “win” the trial, but still end up paying through the nose for defense trial costs. 

Needless to say, the weeks before trial as a Plaintiff, and as a Plaintiff’s attorney, are incredibly stressful.  As trial approaches, the risks of an unknown jury verdict become very real.  It is truly an “all hands on deck” approach to being as prepared as possible. 

Sadly in this case, in the two weeks prior to trial, D.K.’s elderly and ailing mother passed away.  He had difficulty processing all of the emotions, feelings and stressors in his life – while still recovering from his shoulder surgery and being out of work.  It was truly a testament to his moxy and fortitude that he was able to focus and stay in the game as we went to trial. 

Trial was held in Denver District Court at the end of March.  The pro-cyclist jurors were stricken from the panel, as were the anti-cyclist jurors.  We were left – as is usually the case – with a neutral and somewhat unknown jury.  As the trial unfolded, we felt our case gaining momentum.  This became particularly so, when the defense called its client (its State Farm insured) to the stand.  Once again, the driver said he was 100% at fault, and really the only way for D.K. to have avoided the collision would have been to not ride his bike that day or to have taken another route.  Incredibly, defense counsel seemed to argue with his own client/insured, as he insisted that, “well, shouldn’t the cyclist have made eye contact with you?  Don’t you think he was foolish for assuming you’d seen him?  Don’t you think cyclists have a duty to be careful, too?”  To which, the driver repeatedly insisted that he was the sole cause of the collision.  (Keep in mind, State Farm’s answer and position the entire time, was that D.K. had contributed/caused the collision, and they wanted the judge to ask the jury to apportion fault on this issue). 

At this point the jury was clearly frustrated that the issue of fault was being beaten to death.  (We were too).  Sadly outside of the jury’s presence, the judge did ask defense counsel for any proof whatsoever that D.K. had contributed in any way to the collision, and defense counsel again asserted the issue of “Failure to make eye contact.”  The judge correctly pointed out that this was not a legal requirement and finally – for the first time in the 4 years since the crash - put the issue of fault to rest.  The Jury would be tasked only with determining damages. 

As part of their case in chief, defense also called their hired doctor, a physiatrist, to testify that none of our client’s injuries were related to the crash, and that neither surgery was necessitated by the crash.  His position was that our client – a man in his early 60s, who is an active cyclist, swimmer and law enforcement officer – led an active life that caused degeneration in his feet and shoulders.  The jury told us afterwards his testimony was totally disregarded because his positions were so outlandish.  Meanwhile, we called D.K.’s shoulder and foot surgeons to explain the injuries, their causation, and the need for the surgeries. 

In the end, the jury returned a verdict for a large portion of our client’s medical bills and lost wages.  They discounted some of them given the large lapses in time and medical care, which we knew going in was one of our biggest hurdles.  Then again, don’t patients trust their doctors?   If our doctors say, “rest, give it time, give the injections a chance to work, stop swimming, stop riding, stop doing pushups, ice, rest and give it more time,” don’t we typically trust our doctors?  D.K. certainly did. 

Ultimately, D.K. and his wife had several very hard decisions to make, going into litigation and going into trial.  Insured by State Farm themselves, they could not believe an insurance company with a driver/insured claiming total fault, would take such a defensive, denial stance.  D.K. and his wife kept hoping State Farm would do the right thing.  These are honest, hard working people who have saved to eventually retire.  They did not want to gamble their savings on having to possibly pay defense trial costs!  Yet this is the leverage disparity that injured parties find themselves facing when they decide to fight back.  It truly does feel more like a David and Goliath situation than it does a fair judicial fight. 

The final numbers were that D.K.’s verdict was approximately $100,000 above the best offer advanced before trial by State Farm.  Even more so, the defense doctor was exposed for what he is – hired testimony.  He earns millions each year providing “medical opinions” for the insurance industry.  One can only cringe and imagine how many deserving Plaintiffs his testimony has caused to be short-changed or even left hung out to dry with no recovery.  We hope that future juries will disregard him as ours did.

My hat is off to my client D.K. and his wife.  It takes an immense amount of courage to take on the system and a giant like State Farm, as they did.  We asked them to “Trust us” and of course we did all that was in our power to ensure a victory, but every lawyer will tell you that juries are loose cannons and one never knows what they will do during deliberations.  We certainly cannot ever promise a client a “sure victory.”  There is no such thing.  In this case though, our client was served well by the jury and by the process.  We are thankful and grateful for this outcome, and for the opportunity to serve him and his wife – two amazing, incredible humans. 

From L: Co-Counsel Rich Kaudy, Megan Hottman, D.K., and co-counsel Cajardo Lindsey. #TeamWorkMakesTheDreamWork 

From L: Co-Counsel Rich Kaudy, Megan Hottman, D.K., and co-counsel Cajardo Lindsey. #TeamWorkMakesTheDreamWork 

Ride on for Red Nose Day: west coast recap

There are bike trips ... and then there are BIKE TRIPS. This adventure was not only scenic, fun, mentally and physically challenging, and awesome, BUT it was also meaningful, impactful, and fulfilling!! How many of us wish for opportunities where we can put our love of bikes and bike riding to use for a greater good?! This trip was exactly that. 

In conjunction with Walgreens and its Red Nose 🔴 fundraising efforts, as well as People for Bikes and their mission to make riding better for everyone, we embarked on a four day journey from Santa Barbara to Vegas. I could put my thoughts and feelings into words but I'd rather share with you the incredible images taken by Meg McMahon as well as the videos created by Walgreens media crews (see videos below).  A few of my not-so-pro iPhone 6 photos are also included ;) 

I hope you enjoy reliving this experience as much as I do each time I see these images. Red Noses are raising millions $$ to impact and cure child poverty. Each Nose sold and dollar donated, means children can eat over the weekend when they aren't in school and they can receive life saving vaccines their parents normally could not afford. 

If you are moved by our mission I would be SO grateful for your $1 or $5 donation to MY PAGE! We are each trying to raise $5000. Thanks for reading and thanks for your support!!   

 

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Girl power on the front. Photo by Meg McMahon.  

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Miles of smiles ! Photo by Meg Mahon.  

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Teamwork makes the dream work. Photo by Meg Mahon.  

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All smiles as we embark on day 4! Photo by Meg Mahon.  

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Tim shows off while we grab ice cream.  

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Noses ON!! 🔴🔴🔴 

Juggling is not my strong suit ...but it did earn me a donation from P & G and I'm so thankful for their contribution to my fundraising efforts! 

Juggling is not my strong suit ...but it did earn me a donation from P & G and I'm so thankful for their contribution to my fundraising efforts! 

Meg McMahon's awesome shots of Days 1 & 2: 

"Bicycles Ride Single File" signs: law or suggestion?

We got a great question in our inbox from a Boulder-area cyclist:

"Hi Megan, I appreciated your recent blog post on riding two-abreast in Colorado (https://www.hottmanlawoffice.com/blog/2019/12/19/riding-2-abreast-when-and-where-it-is-permitted). it solidified my understanding of how this state law applies to cyclists in practice. 

This week I had an encounter on Four Mile Canyon Dr west of Boulder with an extremely aggressive driver. He was enraged that our group did not single up quickly enough (or more accurately, that we were riding two abreast at all). While out of his vehicle threatening to assault us, he claimed that the presence of yellow "Bicycles Single File in Four Mile Canyon" signs required us to ride single file at all times. My understanding is that these yellow signs are advisory in nature, much like the yellow reduced speed limit signs that precede a corner. They do not trump posted speed limits or state law. Is this an accurate assessment? Or, do these signs overrule the state law on two abreast cycling that you discuss in your blog post?

These signs are common in other Boulder County canyons, so it's a question that is widely applicable to local cyclists. The residents of Four Mile Canyon Dr. however seem to be particularly hostile towards cyclists with regard to two-abreast riding." 

The short answer is: those signs are not laws, they are suggestions.  

I also consulted one of our best contacts in Boulder County law enforcement and he concurred: "The signs came about after a working group comprised of county transportation, fire, law, mountain area citizens, cyclists, etcetera, met to address issues.  I was part of the group that met soon after the 2013 floods.  You may remember Four Mile, Lefthand, Jamestown and St. Vrain canyon roads were severely damaged.  Most have been repaired as of this year.  

Even after the rebuilding there are many sections of our canyons that are narrow and, while legal to ride two abreast, it’s hazardous for the cyclists on the blind curves.  These signs were installed to encourage safe cycling. 

I don’t see any mention that she reported the incident but if she didn’t I would encourage her to do so in the future." (Sidenote: Remember, cyclists, you can call *277 to report menacing drivers to the CSP aggressive driver hotline, or you can call the local authorities to report this kind of conduct!). 

In short: those signs are placed in areas where it is really best and safest to ride single file - the signs were placed with intention and not randomly.  While they are not law, they are suggestive of best practices given the curves, road conditions and so on.  

Colorado Law Prohibits Insurers From Contacting Injured Parties Right Away (yet they still do it)...

Did you know?  C.R.S. 13-21-301 specifically prohibits insurers from contacting someone who has been injured in a crash for at least 15 days...  Yet, many of our clients report to us that within days (and sometimes even hours!) of their bike crash, they have been contacted by the insurance company for the at-fault motorist and they've been pressured into giving a statement (which is almost always recorded).  Not cool, insurance companies...not cool.

There is good reason for this policy.  Consider that in one of our cases, our client was hospitalized having sustained massive injuries and trauma during his bike-car collision.  He was under the influence of heavy pain medication and sedation -in light of the serious procedure he had to undergo to repair the injuries he sustained.  He is not in a good state of mind to talk about anything -let alone his future claims.  Imagine- being contacted by an insurance company when you or a loved one or friend are in this situation!  Imagine the stress and duress of that scenario, compounded by the fact that an adjuster is hounding you for your statement.  

Having read this far- you now know - YOU DO NOT HAVE TO TALK TO THEM, and further -WHAT THEY ARE DOING IS contrary to state statute and case law! 

The Statute specifically states:

(1) If a person is injured as a result of an occurrence which might give rise to liability and said person is a patient under the care of a practitioner of the healing arts or is hospitalized, no person or agent of any person whose interest is adverse to the injured person shall:

(a) Within thirty days after the date of the occurrence causing the injury, negotiate or attempt to negotiate a settlement with the injured patient;

(b) Within thirty days after the date of the occurrence causing the injury, obtain or attempt to obtain a general release of liability from the injured patient;  or

(c) Within fifteen days after the date of the occurrence causing the injury, obtain or attempt to obtain any statement, either written, oral, recorded, or otherwise, from the injured patient for use in negotiating a settlement or obtaining a release except as provided by the Colorado rules of civil procedure.

Colorado case law also supports this position - specifically, the case of Smith v Safeway Stores, Inc., 636 P.2d 1310 (1981).

Insurers love to apply pressure early-on before an injured cyclist fully knows or realizes the extent of their damages and injuries.  Insurers would love to pressure you into a fast settlement right away- so they can avoid paying for all of the damage their insured caused.  In Colorado, a bike crash case involving a motor vehicle has a 3 year statute of limitations. Therefore, we always encourage our clients to take their time in getting treatment and fully recovering, before moving forward.  Once you sign a release and settle a claim, you cannot go back later and ask for more.

And... now you know! 

 

State Farm Works Hard to Reduce Plaintiffs' Rights to Recovery in CO

No-So-Good-Neighborly State Farm has adopted various approaches to delay the resolution of claims, to wear down its insureds, and to force claims into litigation. This is a business model, and it's not unique among insurers, (and also- here), but considered in context with bills proposed to the CO legislature, felt worthy of a blog post. 

A recent case of ours serves as a perfect example:  "J" was hit by a car while riding her bike, nearly 2 years ago.  Sadly the at-fault driver had very modest BI limits.  We obtained those for her, and then pursued the remainder of her damages from her auto insurer, State Farm, under her UIM (under-insured motorist) policy.  We tendered our offer of settlement to them back in July of 2016.  As part of these negotiations, State Farm demanded that we provide them "all of her prior unredacted medical records."

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Imagine -a lifetime of medical documentation -which would include wholly unrelated/irrelevant items! They also demanded an IME (independent medical exam = where they send their insured to a "doctor" of their choosing to be "examined").  

When we pushed back, they lawyered up! Against their own insured!  This is what you get when you faithfully pay your SF premiums for years, and then have the unfortunate occasion to pursue a UIM Claim for the injuries and damages you suffered from someone else's negligence!   

I wish I could say J's case is an isolated incident, but it is not.  

In addition, State Farm has been busy drafting bills for the Colorado legislature to consider, which -if passed - would substantially reduce Plaintiffs' rights to recovery and would reduce the settlement or verdict amounts that injured parties may pursue and/or ultimately receive.  Below are 3 of the 4 they have proposed.  We are sharing this information on our blog for a few reasons:

1) So that our current clients, whose cases involve either 1st party or 3rd party claims or lawsuits with State Farm, will understand "it's not personal."  All too often clients like J -who have faithfully paid their premiums to SF for years and years, ask me "why are they treating me this way? ... I've never even filed a claim before- why are they being so unreasonable/mean?"  I wish an insured's loyalty and years of premium payments were factors, but they are simply not.

2) So that State Farm insureds- and in our speciality, cyclists especially- will consider whether you want to keep your auto and home insurance with SF, knowing that if you need that UM/UIM claim someday, you know up front what their M.O. is. 

3) So that in the current political climate, you are informed, and if you so desire, you can make calls on the bills below.  

SB17-181 - Collateral-Source Rule Evidence Of Insurance

The bill modifies the collateral-source rule, which generally states that in a civil action for damages the jury should not be told about insurance coverage or other sources from which the plaintiff has received or may receive compensation (collateral sources). The bill allows evidence of collateral sources unless the plaintiff agrees to have the jury's award reduced by the lesser of: The amount paid or available to the plaintiff from collateral sources; or The amount of premiums or other contributions the plaintiff paid to those collateral sources.  The bill establishes the procedure for determining these amounts and the conditions under which the plaintiff may elect to invoke the collateral-source rule.
Sponsors: Senator Bob Gardner (R-Colorado Springs) and Representative Yeulin Willett (R-Grand Junction)

SB17-181 would change the law and allow wrong-doers to profit from the insurance for which injured parties have paid.  

SB17-182 - Uninsured Motor Vehicle And Medical Coverage

Current law forbids uninsured and underinsured medical coverage to take a setoff when medical insurance pays a part of the damages caused by a crash. The bill clarifies that this does not require the insurers to pay more than the actual damages caused by the crash.  An insurer is authorized to prohibit stacking the limits of more than one uninsured motorist coverage policy if the provisions are included in a single policy covering multiple vehicles or in multiple policies issued by one insurer or by insurers under common ownership or management. But this provision must not prohibit stacking of the uninsured or underinsured policies issued to an insured by different companies or to an unrelated person. The maximum liability under the uninsured motorist coverage is the lesser of the policy limits and amounts paid by a legally liable person or the amount of damages sustained but not recovered.

Sponsors: Senator Bob Gardner (R-Colorado Springs), Representative Patrick Neville (R-Castle Rock) and Representative Yeulin Willett (R-Grand Junction)

SB17-191 – Market-based Interest Rates On Judgments

The current rate of postjudgment interest is 2% over the Kansas City discount rate with a floor of 8%. The bill eliminates the floor. The current interest rate for judgments for personal injury damages caused by a tort is 9%. The bill ties this interest rate to the current rate of postjudgment interest.

Sponsors: Senator Jack Tate (R-Centennial), Representative Cole Wist (R-Centennial) and Representative Yeulin Willett (R-Grand Junction)

SB17-191 reduces the amount of interest insurance companies owe to injured people and takes away their incentive to make timely payments. 

Call to action: 

If you feel so inclined, please consider contacting your senators and representatives to tell them to VOTE NO on these bills.  To find your legislator, use this link - http://leg.colorado.gov/find-my-legislator - and enter your HOME address in the white search bar on the map.  

 

 

Breckenridge Road Rage Nets Driver Mere 24 Hours of Comm Svc

On September 26, 2015, around 1:00pm, Adam was riding his bike in Breckenridge, headed west on Boreas Pass towards Highway 9, when a white Ford Pickup truck drove up right behind him and then passed him on the left, coming within 2 inches of Adam.  The truck then stopped at the next intersection.  Adam approached the intersection, stopped next to the truck, and asked the driver why he passed so close to him.  The driver – a Mr. Clifton – yelled, “go F*** yourself and your cycling kit.”  He then got out of the vehicle and yelled at Adam, “why don’t you do something about it, I’ll kill you, you F***ing pussy.” 

The passenger in the truck yelled at Clifton to get back in the truck.  Clifton got into the truck and drove it forward.  Adam had the bike in front of him, and when he realized Clifton was going to drive the truck towards him without stopping, he put the bike out front of his body to protect himself.  Clifton’s truck ran over the rear wheel, chain stay area and down tube, luckily just missing Adam’s legs by inches.  Adam says he is lucky his legs were bent and tucked in, otherwise they too would have been run over.  The impact from the truck broke the rear wheel, bent the bike frame, and also injured Adam’s wrist.  Adam believed that Mr. Clifton was absolutely trying to run him over. 

Clifton drove his truck away.  Luckily, there was a witness who recorded Clifton’s truck license plates as Adam was lying on the ground.  They called police immediately.

The police ran the license plate of the truck and tracked down Clifton.  They issued him a citation for criminal mischief, harassment, and accident involving Damage. 

On August 11, 2016, the traffic case was heard in Grand County before Judge Casias.  The DA – Dominic Perrino, presented the facts of this incident, and Mr. Clifton appeared with his defense counsel, J.B.Katz.  

I want to point out the defense counsel’s statements, starting on the bottom of page 9.  She starts by saying, “Breckenridge has won a bunch of awards for being a bicycle-friendly town.  But Breckenridge is unusual in that they have past (sic) an ordinance that allows cyclists to use the entire lane, as opposed to, you know, you even see the license plates “Share the road.”

Huh?

Counsel goes on to say, “That doesn’t excuse what happened, but it does sometimes lead –you know, Mr. Clifton did not live here at the time in Breckenridge.  There is paintings (sic) on the road that say you can take up the – a bicyclist can take up the entire road.  And there is signs (sic) at different points, but there is not signs (sic) on a regular basis along a road.” 

Again –say what? 

Counsel continued, stating, “I’m not saying that excuses what happens (sic), but it does lead to some tempers flaring at some point, especially with people - -well, even for a lot of people that I know that live here.”   … “I want to put it into context that Breckenridge is unusual.”  

Wait, so... the city that wins awards and paints its roads with bicycle symbols in a state with “share the road” plates, somehow invites tempers to flare?  And how is Breckenridge unusual again?  I must’ve missed something… ? 

Judge then says, “I think there are times, even if you are a cyclist, with a cyclist’s behavior may get on your nerves.”  He goes on to say, “But you know, letting him push your buttons puts you into a dynamic that sort of has had you paying, you know, for awhile.”  … “Bicyclists are going to be here.  They do come up here to ride” … “The stronger, better one (sic), and even some of the not so strong, ride the road.  And whether they should be doing that or not, they have the right to.” 

Ultimate outcome:  Mr. Clifton charged a vulnerable cyclist with his pickup, enough to bend the frame of Adam’s bike, and received just 24 hours of community service, some driving points and fines.  24 hours!  That is 3 days of service.  That’s it.  When a suggestion was made that perhaps the service could be done in a cycling-specific context, the Judge said to Clifton, “if you do it with a cycling group and they find out (about this incident), it makes it unproductive for everybody.  You don’t need to listen to them jawing, and you don’t need your buttons pushed.” 

On the civil side of the case, it took from August 2016 when we tendered our demand, until March 2017, to get Clifton’s insurer, State Farm, to evaluate this claim fairly.  They started with a lowball offer and it took months -and finally our statement that we would be serving Clifton with a lawsuit (in Colorado, insurance companies don't get named as the defendant, their insured does)  – before they arrived at a reasonable number.  That is 6 months that we spent attempting to get State Farm to evaluate this file fairly.  Their initial offer was about ¼ of the final settlement number.  One-fourth! 

Then, once the settlement was reached on the amount, State Farm attempted to withhold settlement funds until we would give them Adam and his wife’s SSN#s and DOBs.  (This is not done for any other reason than to record their information in the insurance databanks, which insurance companies use to research future claims).  I pressed back, asking SF for their legal reason why they were entitled to this information and even stated that, if they made it a pre-condition to sending the settlement funds, we did not have a deal.  Funny –they went ahead and mailed the check without responding to my request.

This is the reality of dealing with insurance companies and this is why, when people ask us if they should handle a claim on their own, or hire a lawyer, we recommend involving counsel.  Insurance companies can be bullies, and it should be evident here that Clifton was a bully.  Adam did not deserve the treatment he received at the hands of either one.  We are glad he can finally close this chapter of his life and move on.