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.

Would this ND bill give drivers a license to kill?

“This [bill] seems to give room to folks driving cars to hit anyone, pedestrian or cyclist, and likely not be held liable,” Hottman says. “Every insurance company in civil claims in North Dakota would use this as a basis to deny claims by any cyclist injured or killed by a motorist. …The language here is so broad and sweeping, it really does open the door for all claims against a negligent motorist to be denied.”

The Glenda Taylor Case Recap

On June 7, 2015, Glenda Taylor was warming up for the Kansas State Time Trial Championships. An avid cyclist and competitor, she wisely chose to warm up on the very road she would be racing on just a short time later. Glenda had already registered for her race and her race number was pinned on her team jersey as she began the warmup ride.  The highway was newly paved, and the blacktop was fresh and clean.  It likely felt like butter underneath her firmly-pumped bike tires. 

Glenda was riding a Cannondale bicycle retrofitted into a TT bike.  She was racing late 80s vintage ZIPP wheels- a gift from a friend.  Glenda had raced many time trials before this one.  She’d raced in the area before, too.  Walnut, in the heart of Kansas, was a small town that, just like Pittsburg, or Alma, or Bazaar, had often hosted bike events before.

As it was race day, there were many other cyclists also rolling around on bikes in the area. The registration tent was set up in the middle of Walnut –It was apparent there was a bike event going on there that day. 

Before Glenda had begun her warm-up, and several miles away in a neighboring county, a man named Todd Kidwell was driving his truck and trailer, along with a passenger. A bridge was out on the road he’d normally travel, so he chose an alternate route, to get to his intended destination.  A Kansas cyclist who was working the race that day as a USA Cycling official, happened to observe Kidwell as he made his way towards Walnut that day. Sworn testimony elicited later from her reflected that she observed- more than once –Mr. Kidwell moving into the oncoming traffic lane each time he would crest a hill. Let me restate that –he drove into oncoming traffic on uphill bound sections of the road, where he would have no way of seeing what was coming towards him, and for no apparent reason. The witness was about to call local authorities after observing this erratic behavior, but by the time she and Kidwell neared Walnut, he seemed to have corrected his behavior. She began to focus on her roles as official that day and assisted with participant registration and pre-race matters.

Kidwell found himself on the same road as Glenda. (His later testimony would be that he observed a bike event going on, and that he commented aloud to his passenger that they ‘needed to be careful and drive with caution due to all the bicyclists in the area.’). He approached a cyclist from behind, and safely passed that rider.  Next, he approached Glenda as she rode along the right side of the road on that new, buttery blacktop.

What happened next was avoidable.  It was not an accident - it was a collision -one that could easily have been avoided, had Kidwell simply waited to pass Glenda until he had the time and space to do so. Instead, he struck Glenda from behind with his truck. He hit her with such speed, that her body was launched into the ditch, many feet away.  Glenda was killed almost instantly – and although cyclists who came upon the scene attempted to resuscitate her, later autopsy results revealed that her body had sustained such significant trauma that CPR and chest compressions were futile.

Glenda's bike was decimated.  Here are photos taken by law enforcement at the scene:  

Emergency crews pronounced her dead at the scene.  Kidwell claimed that Glenda had swerved into the front of his truck as he attempted to go around her. However the marks her bike left in the new blacktop revealed that she was between 12-14 inches off the very right edge of the blacktop:

Kansas authorities investigated the collision and ultimately charged Kidwell with 4 charges, including reckless 2nd degree murder, and improper passing of a cyclist. Kidwell hired private defense counsel Linus Thuston.  Curiously, Thuston works as the city attorney in the neighboring county

Last January, we had the opportunity to attend the preliminary hearing in this case.  This hearing’s purpose was for the Judge to determine whether the County Attorney Mike Gayoso had probable cause to pursue all 4 charges at trial. In order for her to make this decision, the Judge heard evidence from both sides.  This included testimony from Sherri Hahn, Donavon Hottman (one of the cyclists first on scene post-collision, who tried to assist Glenda and also observed Kidwell’s conduct), the coroner, Kidwell’s passenger, and responding law enforcement. 

It was determined that drugs, alcohol, and phone use were not an issue, and that Kidwell had made a poor choice when he attempted to pass Glenda – both in failing to be sure it was clear of oncoming traffic, and in failing to provide the Kansas Mandatory 3-feet passing distance.  It was a sunny day, and Kidwell admitted seeing Glenda from ½ mile and then ¼ mile away. The forensic evidence showed that Kidwell hit Glenda with excessive speed and force, such that law enforcement opined that Glenda was carried on the grill of the truck for some distance before her body was launched into the ditch. 

Judge found probable cause existed and allowed all filed charges to proceed.  Trial was set for December, 2016. 

A few weeks before the December trial was set to start, plea discussions resumed.  Kidwell agreed to plead guilty to the involuntary manslaughter felony (along with improper passing of a bicyclist).  The possible sentence range on this plea ranged from 34 months of probation, to prison, and everything, including jail, in between. 

Allow me to explain why people enter into plea agreements: 

-Concerns about a jury decision and jury bias.  Juries = rolling the dice. One just never knows. The feeling here, was that a jury in this particular venue (and no change of venue options were possible) might relate more to Kidwell, and would not understand (or try to understand) why Glenda (or anyone) would ride a bike on that road, and given typical anti-cycling bias in the area, would be likely to find Kidwell not-guilty.

-Concerns that even if the jury came back with a verdict finding Kidwell guilty, they may accidentally convict him on a lesser-included charge which could likely be a misdemeanor (juries are not told which charges are felonies and which are not). 

-Concerns that the trial itself would re-victimize Glenda’s family and friends.  The defense position would logically have been that Glenda was at fault, in order to reduce blame on Kidwell.  The trial would likely have consisted of testimony disparaging Glenda, her riding behavior, and so on.

-Concerns (as in every case) of a potential mistrial, or appeal…. thereby dragging the process out even longer, and delaying the time for closure for Joe and Glenda’s family.

Settlement means you get less than you want, but you trade certainty for uncertainty, and you take less in exchange for closure.  This is the case in any case, whether it’s civil or criminal.  A plea deal is a settlement agreement.  Neither side is happy – but both sides have avoided the “what-ifs” associated with a wild jury who might do something crazy.  And both sides get certainty.  And both sides get closure.  This is why so many cases filed in our Courts end in settlement and such a rare few make it to trial. 

**I want to point out that the plea agreement here was reached with direct involvement of Joe and Glenda’s family.  County Attorney Gayoso went above and beyond to involve my office and Joe, in all case decisions, and I cannot tell you how much that matters – and means – to crime victims.  (If you'd like to shoot him a note of thanks or gratitude, his info is here.)  To be kept in the dark, as many prosecutors and DAs we deal with, do, re-victimizes cyclists who are hit and injured, or whose family member was hit and killed.  (Side note: we realize fully that DAs/prosecutors have incredibly large caseloads and are overwhelmed so the time and attention they can spend on each case is incredibly limited…. However that does not eliminate their duty to serve crime victims by keeping them informed about the case).

 Gayoso informed Joe that only family members would be allowed to speak on behalf of Glenda, and Joe undertook this task with fervor and clearly, intent to see that Kidwell was imprisoned to keep the community safe from his driving behavior. The statement he would eventually make to the court began many weeks in advance and underwent multiple revisions.  It was thoughful and purposeful.  Imagine for a moment -the gravity of this task.  And then do me a favor, and send Joe a virtual hug from afar. 

The sentencing hearing was ultimately held on January 9, 2017, in Girard, Kansas, at the Crawford County Courthouse.  Glenda’s family, friends, cycling teammates, coworkers from Washburn University, former students (including one from California), and other cyclists and supporters, packed Gayoso’s side of the courtroom.  Kidwell’s side was similarly packed.  Needless to say, in a small rural community, this type of turnout is extremely rare. It spoke volumes to the Court about the importance of this matter. 

Kidwell’s attorney called 9 witnesses to speak on his behalf- they ranged from local law enforcement, associates, a young man who called Kidwell his father figure, Kidwell’s younger brother, and finally Kidwell’s wife.  All of who indicated to the Court that the community would be at a disservice if Kidwell were imprisoned.  With no criminal record, Kidwell’s “risk assessment score” had also come back at 10 -a very low score. (Keep in mind here-the issue was not whether he was a criminal likely to reoffend, but whether his driving was likely to pose a threat to others).  

Since hitting and killing Glenda, Kidwell had received two subsequent speeding violations in Wichita and Neosho County.  One was for going 84 in a 55mph zone –the other, for going 55 in a 40 zone. (Again –curiously, Thuston as county attorney, had handled one of these tickets and reduced it down to a non-moving violation). One of Joe's main goals would be to inform the court of these violations during his statement.  To that end, we obtained certified copies of both violations –to hand to the Court for her consideration.  One of the factors we felt she needed to consider MOST strongly, was whether Kidwell was likely to become a safe driver, or whether he was likely to continue to be a hazard and threat to other Kansas road users. 

Strangely, the Court would not hear this evidence from Joe – and the Judge actually admonished Gayoso for what she believed was his attempt to get in State's evidence at the hearing through Joe, despite his agreement to stand mute.  This was not the case at all, and in fact our office was the one that obtained these documents and instructed Joe to make mention of them in his statement. (Odd that the court would not allow these tickets to be submitted for her consideration, since at Kidwell’s probation hearing months before, these tickets were entered into the record). And of course, Kidwell’s driving behavior went to the heart of the issue here.

At the conclusion of the hearing, the Judge rendered a shockingly light sentence.  She decided that serving the sentence term on probation, as opposed to prison, was sufficient, though she did remand Kidwell to 60 days in jail. She also ordered him to write a letter of apology and to serve community service.  Minor fines were assessed.  She indicated that, should Mr. Kidwell violate the terms of this probation, he would likely be remanded to prison – and if this occurs, the 60 days served in jail would be given as a credit against that time.

Kidwell’s family was clearly emotional about the decision to remand him to jail, however it was Glenda’s side of the courtroom that was most in-shock.  60 days of jail time for hitting and killing a cyclist as a result of driving recklessly?  Needless to say Glenda’s family, friends, and the entire cycling community felt short-changed. But what I want to emphasize is, this light sentence was not a reflection of the work County Attorney Gayoso did in this case. It was purely a reflection of the judge’s decision to go easy on Kidwell based on the range of punishment she could impose on the plea deal.   And unfortunately in her findings, she indicated that she interpreted Gayoso standing mute as a persuasive factor – and we believe she incorrectly interpreted it as though the state did not feel strongly about Kidwell’s sentence. 

Articles detailing the case from start to finish can be found on CJonline.com – many thanks to reporter Steve Frye (and later, Lucas Ranker) for their rigorous coverage of the case.

 1/9/17: Man Convicted ... 

11/21/16: Chanute Man pleads guilty... 

6/7/15: Glenda Taylor killed... 

And you'll find many more by visiting CJonline.com  

My personal involvement in this case –unbeknownst to me – began with my own racing experience alongside Glenda when I lived in the Midwest as a new and aspirational cyclist (see, e.g., this article with Glenda at top and my photo at bottom left!).  My father, Donavon, was also one of the first cyclists who came upon Glenda right after the collision.  You can imagine the impact and effect that experience had on him, and on his good friend/fellow cyclist Frank, also a witness to the aftermath.  And finally, perhaps the most uncanny connection of them all for me – just a few days before Glenda’s death, she asked her husband Joe to ask a female cyclist we’d both raced with, Catherine W., about me (we believe it was prompted by seeing my name in the Outside Magazine article last summer) –something along the lines of if the other female knew me, had we raced together, etc.  Joe was supposed to ask Catherine at their next group ride together. Joe forgot once and Glenda reminded him a second time to ask Catherine about me.  Two days later, she was killed.  These connections led to Joe’s eventual hiring of our law firm to represent him in the civil matter against Kidwell’s insurer, as well as Joe’s insurer, and also the insurer for USA Cycling’s race event that day. The article detailing my role can be found here

This case reinforces the need for states to adopt Vulnerable Road User laws


A HUGE THANK YOU to all of the local cyclists, friends, community members, former students of Glenda's, the Washburn University Art Department, and more -who took the time to attend the hearing!  We cannot say thanks enough for your presence and support.  Oftentimes, just showing up is half the battle.  THANK YOU!  

Denver City Attny: 'Our Policy is to Plead 4pt Careless Charge to a 2Point Violation in bike cases'

On November 11, 2016, our client Brian Starling was riding his bike near S. Ulster Street and E. Technology Way in Denver, when a motorist hit him from behind (the police report described it as a “rear-end” impact).  The motorist told Denver PD, “the sun was in my eyes, I had no idea what I hit.  I thought it was a traffic cone. I pulled over to look at my car and that’s when I noticed the cyclist on the ground.”

The motorist was cited (appropriately, I might add –thanks to Denver PD) for careless driving – a four point violation which typically carries fines, the chance for restitution for the victim, (and in some cases we’ve handled, judges have used this charge and ensuing guilty plea to order community service, ranging from 24 hours to 125 hours).  Did I mention it’s JUST 4-points? 

 Denver Traffic Court handled the driver’s ticket.  Prior to the Court date, both my office and my client contacted the City Attorney handling the matter, Linda Lincoln.  She advised us that Denver City Attorney office policy is to always plead these 4-point careless bicycling cases to a 2-point violation and that Brian was welcome to attend the hearing so he could give his victim impact statement to the court before the court determined sentence. She also indicated, strangely, that she would not be present at night court.  Hmm.

In Brian’s words,

When I spoke to Linda, she started off by saying, "I know you are probably upset, but this is the standard plea that we offer in these situations and any judge will accept this. I will not be in court tomorrow night, but you may show up and request that the court not accept the plea."

So – at 6pm, Brian went to Denver Traffic Court with his statement in hand, anxious to speak to the Court and to make his record about the way this collision affected him mentally, emotionally, and physically, as well as the ramifications it had on his family. 

Sadly – at court, Brian was prevented from speaking.  The court clerk told him he would not be heard, and Brian was left with no choice but to sit and observe as the case was called, pled down to a meaningless 2 point fine, and closed out.  The ultimate charge was a “failure to signal for turns,” a 2 point violation which resulted in a fine of just $176.

Brian recalls the conversation with the court clerk as follows:

 “Last night when I showed up and spoke to the clerk, he looked at my like he had no clue what I was talking about and said "I don't know if they'll let you speak, but wait until they call his name and I will see what I can do." I then waited for about 30-45 minutes to speak. Once the judge called his name, I walked to the front and stood by the clerk waiting for him to act. As the clerk continued to ignore me, this is our exchange:

Me: "Hey, shouldn't I be talking right now?"

Court Clerk: "I told you I can't guarantee that you will be able to speak."

Me: "I spoke to the city attorney about this yesterday and she advised me to show up and request that the court not accept the plea."

Clerk: "The city attorney doesn't come to night court."

Me: "I understand that, but she told me that I can request that the court not accept the plea."

Clerk: "This is an arraignment, we can not tell a person that they can not enter a plea."

 

Needless to say, Brian and I were stunned with the way the City of Denver City Attorney’s office handled this case, and of course outraged that the Court disallowed Brian from speaking.  That a victim would be invited to attend the hearing and then prevented from speaking, is unconscionable.  Talk about re-victimizing someone.

... Had he been given the chance, here is the statement Brian would have made to the Court:

In Mid-November I was hit by a car while riding my bicycle to work. The driver, Ben ____, hit me just 200 feet after the intersection where he turned onto the road I had been travelling and managed to reach a speed of 25 miles per hour despite the fact that he said the sun was blinding him to where he could not see the road in front of him. I was rushed to the ER in an ambulance and the dents on my helmet from hitting a tree stump are signs that this was a time when wearing my helmet could have saved my life. This man who acted so carelessly could not even be bothered to help me off the ground, and instead used our unfortunate time together to blurt out a myriad of excuses for his terrible decision-making.

When my wife, who is 25 weeks pregnant, and I hired our attorney to represent us in this legal matter, we made the assumption that as a citizen protected by a right to share the road peacefully with cars, that justice would be served for my endurance of doctors, appointments, time missed from work, and physical pain from this careless driver’s actions. Until I got word that a 4 point infraction was being lowered to a pathetic 2 point infraction in a plea deal against this driver’s license by the city attorney, who seems both unwilling and uncaring in doing her duty in protecting victims, I was steadfast in my confidence in my city to protect my right to be a citizen cyclist by taking a stance against careless driving. Shockingly, I was wrong.

From the outside looking in, it would appear this city is doing a lot to further cycling rights by adding bike lane mileage, and ensuring that most roads have shared road markers. However, it is in these secretive, almost fly-by-night proceedings that the city makes its true feelings known towards cyclists: that if you are a victim, you cannot depend on justice. That if you are injured by a careless driver, you cannot even count on the faintest hint of punitive action taken. The two point infraction you are levying against this driver is on par with the punishment for failing to use a turn signal. According to the city attorney, my well-being and safety is second rate to a careless driver’s. My suffering means less than his freedom to drive recklessly.

I strongly feel that the city attorney should be ashamed for lowering an already paltry infraction, when she should instead be furthering victim’s rights, making sure their voice is heard and that punitive action is taken against those who deserve it. From the outset, my attorney and I have not sought jail time, we have not sought any penalty that is egregious in any way. However, this driver deserves community service – a time to give back to his community and reflect on his actions when he has taken my safety and sense of peace when biking from me and others who will see this paltry infraction and fear for their own well-being on the road with cars.

I will spend my last words reminding this court and this careless driver that his failure to use common sense when driving almost cost my wife her husband, and our baby its father. Mere inches saved my life. I hope both the city attorney, the judge, and the driver in this case will spend quality time thinking about what I have just stated. As a forgiving person, I certainly hope you never have to encounter the extreme injustice served for me, my wife and our baby today.

Additionally maddening, Brian was prevented from requesting that the Judge hold the case open for restitution pending the outcome of the civil matter/settlement. If the driver’s insurer refuses to pay all of Brian’s damages, he would legally be entitled to seek the remaining out-of-pocket expenses from the driver directly as part of a restitution order in the criminal/traffic case.

If you are a cyclist who lives in Denver and you find this disappointing, please consider the following information:

The City Attorney who handled this matter:

Linda Lincoln

linda.lincoln@denvergov.org

720-913-8081

CA Code Enforcement

Fax: 720-913-8010

The Judge who oversees the traffic court judges is Presiding Judge Marcucci -his info is here: https://www.denvercountycourt.org/honorable-john-marcucci/

We believe it was Judge Callum who heard the case, however it seems to have been the court clerk who made the error in disallowing Brian to speak.

Their contact ph # is here : https://www.denvercountycourt.org/judicial-information/

Or see also: https://www.denvercountycourt.org/judicial-discipline/  ::: 

"Contact the Denver County Court Judicial Discipline Commission, 1437 Bannock Street, Room 108, Denver, CO 80202 (Telephone 720-865-7870) regarding the conduct of Denver County Court Judges or Magistrates.  Complaints regarding the conduct of other County or District Court Judges are handled by the Colorado Commission on Judicial Discipline."