Insurance

Handling My Own Claim - Lessons Learned

A guest blog by Joee Reyes 

Handling My Own Claim - Lessons Learned

I thought I was 'doing the right thing' when I attempted to handle an insurance claim on my own after being struck by a car. Call it being socially and ethically responsible. Maybe it was pride. I grew up with the stigma that you only need a lawyer if you go to court and that if something life changing, like a workplace injury, transpired.  Truth be told, I should have placed the machismo in the back seat, done the right thing and asked for help.

In the spring of 2016, I was stopped at an intersection, resting on the white painted line. Since drivers tend to miss seeing cyclists, I placed myself in front of the car so the driver would see me. After looking at the driver, I proceeded through the intersection once the light turned green. I was 'greeted' from behind by the same driver with whom I had just made eye contact. The car clipped my rear tire. This caused me to bounce off the right fender and sent me sliding into the curb.

I quickly popped up to get out of the road so I would not get injured any further.  Adrenaline works when you need it the most! I walked over to the sidewalk to lie down and figure out what had just happened. The driver of the car that hit me came over to see how I was. He did not seem too concerned about my well being. I asked him to stay while I called police so I could get a report written. That was the extent of my general knowledge about what to do if involved in an accident; call the police and file a report.

After police arrived and EMS conducted a basic physical field assessment, they gave me the go-ahead to go home. Since I was struck two blocks from my apartment, I opted to walk home and drag my broken bike with me. I had gotten it less than a week before the accident.

Thinking that this would be a straightforward claim, since there were no trips to the hospital and I had not been seriously injured, I was hoping for a quick turnaround to this whole ordeal. The faster I could put this behind me, the better. Irony and hindsight are the key takeaways from this whole ordeal. Nothing was quick and the gaps in getting everything resolved were about as painful as being hit.

Here's a 'not so quick' timeline of handling my claim:

April 2016 - Struck by a car:

○      I called the driver's insurance company the same day.

○      Two weeks later the police completed their report citing the driver at fault.

○      Insurance company confirmed receipt of my email regarding the claim on April 25.

May - Some progress on the claim is being made:

o   Multiple adjusters working on various parts of the claim. Communication is not ideal.

o   Requested to speak to adjuster handling property damage portion of the claim as I felt it was not being handled properly. Submitted documentation in April for damaged property but still had not heard back from adjuster.

o   Was advised that the adjuster was actively working on the claim for a resolution.

June – Going on month two now:

o   The bike was dropped off at a local shop so the insurance adjuster could make an assessment.

o   Sent adjuster a copy of the sales invoice for my bike. Also sent the cost of aftermarket brakes that were purchased and installed. Cost was $99.00 for the parts and $90.00 to install.

o    Nothing really out of the norm. All actions seem to be moving at a 'normal' speed.

○      On June 6, I requested to keep the damaged bike or have the ability to buy it back at the totaled cost after the wreck. There were the aftermarket fenders and a handful of parts that were not destroyed, e.g. the seat, that I wanted to keep.

○      The adjuster was not very professional in his response towards me. He informed me that I could not recover the value of the bike and keep it.

○      At this point, I was less than excited about handling my own claim.

○      Still had not heard back from the second adjuster handling the property damage portion of the claim even though I had been assured that it was being worked on. None of my calls were returned.

○      The adjuster changed his mind one day later and offered me the full value of the bike plus I was able to keep it. So all in all, this experience was not the worst, yet.

Mind you this is only month two of the claim. The settlement for the bike went relatively quickly, which was the most expensive part of this accident, but I still needed the issue regarding the damaged personal items to be resolved.

Never give up! That is what I was taught from my parents and from being in the military. Do not be bullied. Ask a lot of questions. But seriously, this is when having a lawyer would have been more ideal.

o   On June 13, I sent another follow-up email asking about a settlement.

I would call once a month all summer long and leave a voicemail to the agent handling my claim. I was ignored repeatedly to the point I quit calling. I know, I know. I failed to live up to my own rhetoric about never giving up but screaming into the void was becoming pointless. At this time, I gave myself a break from the constant rejection. I’m human too. This whole insurance act was getting old. The runaround was beyond frustrating to say the least. I sent another email on September 12 with the receipts for the destroyed items as well as my medical bill. I followed up again in December.

Finally, six months later, on December 14, I received an email from the adjuster handling the PD portion and medical bill. Awesome!

○      Resolution………… almost. Finally, the last of my items were getting covered from the event. Taking a step back to analyze this whole scenario. I knew that I undervalued my medical costs but I was quick to settle to try move along the whole process. Sorting through the myriad of time and emotional effort this event took, I should have called a lawyer to handle it.

If you are ever in a similar situation, I highly recommend getting professional legal help. In my case, I met Megan a year later and wish that I had gotten to know her earlier to help me tackle the headaches that come with such a process. 

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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 

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.  

 

 

A Quick Review of Important Auto Insurance Coverage For Cyclists

Right now, go get your auto policy “DEC” page(s).  Seriously.  I’ll wait.  Go get it.  This is the page that comes on the front of your policy; it line items your coverage and premiums page per item.  Grab the DEC page for each vehicle/scooter/motorcycle you own, as well as those for any “resident-relatives” with whom you share your residence (typically defined as related by blood or marriage).

            We are looking for two specific types of coverage that come up in almost every case involving a cyclist injured by a motorist (i.e. there is at least one motor vehicle involved).  We are looking for MPC (med pay coverage) and UM/UIM (uninsured/underinsured coverage). 

            I hope you find that on each policy, you do in fact have MPC and UM/UIM coverage.  If you do not, please call your agent to discuss your options.  Here’s why: 

            MEDPAY coverage –provides medical benefits coverage in any accident involving a motor vehicle, regardless of fault.  It usually costs $2-4 per month, and it provides you $5,000 (typically, though it can be more) in medical benefits.  This can cover copays or health insurance deductibles, as well as medical bills from the ambulance or emergency room.  Your massage, chiropractor, acupuncture, dry needling bills can all be covered too.  Any medical expense you incur from the accident is covered, so long as it is medically necessary and reasonable, up to the policy limits. 

            UM/UIM coverage – if you are hit by a car while riding your bike and the car drives off (aka, a hit-and-run), your Uninsured motorist coverage kicks in.  If you are hit by a motorist with minimal insurance coverage (i.e. $25,000, the minimum coverage required in Colorado) and your damages far exceed those limits, you would first recover policy limits from the driver’s insurance company and then you would pursue a UIM (under-insured) claim with your own auto insurer.  This can be critical, as often in cyclist-motorist collisions, the cyclist suffers extensive bodily injury and incurs very high medical bills.  As a result of their injuries they may also miss a lot of work.  UM/UIM coverage will pay for things like medical bills, lost wages, pain and suffering, and more. 

            In addition, if you want to increase possible coverage, for these or any other claims you may be filing, you can add an “umbrella” policy to all of your existing policies.  To add an additional $1 million in insurance protection will run around $300 per year.  This will stack on top of any automobile or homeowner coverage you have on your existing policies.  In the event of a catastrophic accident involving a cyclist who incurs permanent and life-altering injuries, these umbrellas can be the difference between getting back on one’s feet financially, and filing bankruptcy resulting from the medical bills. 

            Call your agent to review your policies and discuss options.  Keep in mind it is up to the cyclist (or policyholder) to initiate the above claims with the auto insurer.  These claims should be opened as soon after the accident as possible, to prevent any possible denial from the insurer due to delay or failure to provide adequate notice of the accident.  If you plan to hire an attorney, let them initiate these claims on your behalf.

            One final note: If each vehicle is listed on a separate policy and you pay a separate premium, your policies can be “stacked” pursuant to Colorado law.  This means that if you have 3 cars, each with a separate policy and premium, your $5000 MPC coverage may triple to $15,000, for example.  Often, insurance companies will include anti-stacking language in their policy.  It may or may not valid under Colorado law.   A thorough review of your entire policy is often needed to determine coverage applicable to the circumstances.

 

For more insurance coverage information, please refer back to an earlier article I posted: http://303cycling.com/what-cyclists-should-know-about-insurance

Liability concerns of a bike shop...

I recently met with a local bike shop owner to discuss his concerns regarding liability.  

Specifically, he wanted to know how was he exposing himself and/or his business by:

-sponsoring a bike team and managing a bike club

-offering bike/trainer classes inside the shop, taught by a bike shop employee (off the clock)

-leading and offering led rides, departing from the shop

-offering rental and/or demo bikes and helmets

These are really good questions/concerns for a business owner to have, especially when the question of "which insurance policy covers what" is so hard to understand.  Many agents will not provide straightforward "yes it's covered" or "not it's not covered by your policy" answers.  It is easy to over-insure with club insurance, studio insurance, business liability insurance, instructor insurance and more ... Waivers are of course at the heart of the issue, but the questions there are many: is this waiver going to be upheld by a Court if I am sued; who has to sign a waiver and how often -every class, every ride, once a year, once a season?  And what if someone suffers a heart attack during a cycling class at the bike shop or is hit by a car on a shop ride -is the instructor going to be held liable, is the shop going to be sued, and which insurance covers which issue?  

I enjoy meeting with bike shops and bike clubs to discuss these issues.  It is not possible for me to provide generic suggestions or answers here, because each situation is factually-specific. What does your policy say?  Is your ride led by a shop employee or is the ride simply departing from the shop's front doors ... and so on.  Call or email me (megan@hottmanlawoffice.com) if you'd like to schedule a meeting to discuss these, and other, liability issues on your mind.

What is Medpay (MPC)?

As the attached American Family Insurance Brochure states, Medpay ("medical expense coverage") 

"protects you and others in the vehicle. It pays for reasonable and necessary medical expenses due to accident-related bodily injury, regardless of who is at fault.

Medical Expense covers:

• You and the passengers in your insured vehicle.

• You and your passengers when you’re driving another vehicle with permission.

• You and covered persons in your household while riding in other vehicles.

• You and covered persons in your household if you are struck by another vehicle as a pedestrian.

Funeral expenses (up to a maximum of $2,500) are also covered under Medical Expenses.

Medical and funeral services must be performed within one year of an accident to be covered.This is extended to three years if you have more than $10,000 of Medical Expense coverage."

(For an example of actual policy language, click SF certified policy -medpay portion only.pdf).

How does this coverage apply to cyclists -and more importantly, why should you as a cyclist have this coverage on your auto insurance policy?

BECAUSE: "You and covered persons in your household if you are struck by another vehicle as a pedestrian" = you are covered if you are hit by a car while riding your bike (for this purpose cyclist = pedestrian).

... most of the time, these policies require only that a vehicle be involved in the accident.  It need not be YOUR vehicle.  If you are struck by a car while riding your bike, your MPC coverage applies!  This coverage is no-fault coverage, meaning the cyclist should strike a car and be entirely at-fault for causing the accident and ...MPC still applies!

Why does this matter?  As more and more cyclists opt out of having health insurance, or have health insurance but with a huge deductible, they need help paying medical bills that result from a car-bike accident.  MPC limits are typically $5,000 and the premium for this benefit is very low -usually around $3-4/month.  You can also upgrade to $10,000 or even $25,000 with certain auto insurers.  For a minor premium, a cyclist can purchase coverage that will help them pay medical bills right after the accident, with or without health insurance.  

*Medpay is usually required to pay first responders first, within the first 30 days of the accident (Ambulance and ER).  Typically the provider will bill MPC at "retail prices" - not the prices your health insurer would pay.  This means a $1200 ambulance ride will be billed to MPC at the full price -not at the substantially reduced price your health insurer would pay.  

MPC can also be used to reimburse the cyclist for out of pocket medical expenses -bandages, wraps, slings, creams, prescription and OTC drugs, massage therapy, chiropractic care and more.  

An insurer providing MPC benefits will require itemized billing statements with billing codes and they are quite picky about the information they require before they will pay the benefits.  A cyclist must be diligent in either compiling this documentation on their own or ensuring their providers are suppying it to their MPC insurer.  A cyclist's failure to ensure bills are timely paid by MPC may result in the cyclist being sent to collections for non-payment of a medical bill. 

MPC usually will pay medical expenses for up to 1 year following the accident.  

For these reasons, we recommend every cyclist get MPC coverage on their car and that they initiate a MPC claim with their auto insurer right after an accident!