Broken hub photo courtesy of Flickr user DrockSays
What to Do After a Bike/Car Crash
by Christopher Burns, Esq.
Most of the time, riding a bike brings beauty, independence, joy, and healthy living. Rarely, bicycling can turn into disappointment or worse, tragedy. People riding bicycles are frequently in the midst of traffic which is massively bigger and heavier than the cyclists and their equipment. Trucks, cars, SUVs – they are sometimes operated by drivers who have little awareness or concern for us. We cyclists are largely unprotected, except for our helmets and the thinnest layer of clothing, and with hope that motorists will operate their vehicles safely with us in mind.
When you, as a cyclist, are involved in a collision with a vehicle, it is important you be prepared to protect your rights. Here are some extremely important steps to follow:
Report the Incident to Authorities.
Always report the crash to the police, even if you don’t think you are hurt and your bike appears largely undamaged. Florida law says: If you are in a crash with a vehicle where 1) you are hurt, or 2) there is damage to anybody’s property which exceeds $500, you MUST report the crash, but even seemingly minor bumps or bike damage can add up quickly. Furthermore, having a police report made often goes a long, long way to gaining credibility with the opposing party’s insurance company. If you don’t report the accident, insurance companies often disbelieve the accident really happened. Or even worse – the at-fault party to the accident may change his/her story later, shifting the blame to you, making it a “he said”/“she said” situation. Now, the insurance companies may believe the cyclist caused the crash.
I have represented many clients who felt they were not injured at the scene of the crash, but then realized they were injured in the next day or two. When you have been in a crash, you may feel an adrenaline surge or be in shock. You may not realize the extent of your injuries until later.
Similarly, it is not easy to tell how much damage is done to bikes at the scene. Some bicycles are made of carbon fiber. It is nearly impossible to determine the extent of their damage just by a visual inspection. Sometimes bike damage is not obvious until the bike shop inspects. An experienced mechanic may find damage that jeopardizes the integrity of the frame or wheels. Report the crash if there is any possibility of damage to your bicycle.
Report your crash even if it involves you and a dog, or was caused by a hole in the road or metal grating. If your crash was caused by a dog or other animal, report the incident to Animal Control.
Even when not required by law, reporting the crash is critical to preserving your rights. The crash report will document important facts about your crash, such as the road conditions, the weather, the eyewitnesses to the crash, and will usually contain a diagram of the crash scene. If the other party to the crash acted improperly, reporting the crash will likely result in the other party receiving a traffic citation. If you can, try to find out the identity of eyewitnesses to your crash. Obtain the names, addresses and telephone numbers of witnesses. Police officers frequently do only superficial investigations, and don’t bother to take the names of all the witnesses. Don’t rely on the police officer to do this! After the witnesses leave the scene, you may never see them again.
Listen to what the other party says about the incident. But don’t say anything yourself – until you must speak to the police officer.
Don’t say anything to the other party about how the crash happened. Anything you say may be used against you later on. Never make a statement apologizing for the crash or accepting part of the blame. It is not fair for an assessment of fault to be made right then, before the whole sequence of events has been analyzed. If another party to the crash makes a statement about his/her fault, remember this statement and write it down as soon as you can.
Preserve the condition of your bike, helmet, clothing, lighting, bags, and other property.
We cyclists love to ride our bikes! If you aren’t too badly injured, you might want to go straight to the bike shop, and have your bike fixed on the spot. Don’t do it! Damage to your bike is evidence. Altering the evidence via cleaning or repair could compromise your rights. The bike damage may prove how the crash took place. Also, before the at-fault party’s insurance pays for your bike damage, it may insist on inspecting your bike…or helmet, clothes, etc. You must give that insurance party the chance to see the damage – the insurance company won’t just trust what you told them happened.
Carefully photograph your bike in its exact condition after the accident. Make sure you don’t leave your damaged bike outside, or in some storage place where its condition deteriorates. Keep it in your garage, or at the bike shop, with strict instructions that the condition not be disturbed. Keep your sweaty, torn, or bloody clothes, your helmet, a scraped wristwatch, scuffed shoes, your gloves, your sunglasses or prescription eyewear—everything, just the way it was after the crash.
Report the crash to YOUR car insurance company as soon as possible, but don’t communicate with the other party’s insurance company!
If your bicycle crash involved a truck or car, you may be entitled to receive certain benefits from your own car insurance. It sounds strange—why would your own auto insurance owe you benefits if you weren’t in your car? Even though you weren’t driving a car, under Florida law your car insurance will be obligated to pay you “PIP” (no-fault) benefits, to the extent you incur medical bills or lose wages by being unable to work. Your car insurance may also have to provide you with “uninsured motorist” benefits. Your insurance agent is obligated to explain to you all of the potential benefits to which you may be entitled. But it’s better for this explanation to be given to your lawyer. Furthermore, the lawyer will request and receive an entire copy of your policy to make sure you are being offered all of the potential benefits available to you. Then have your lawyer help you fill out the necessary insurance forms to begin receiving Florida “PIP” benefits.
However, DO NOT talk to the other party’s insurance company about the accident or your injuries. Particular, do not let them record your statement! Your comments can be used against you.
When you go to the hospital or doctor, ask them to submit your medical bills to your auto insurance, and if you have it, your health insurance – on every claim.
Under Florida law, your car insurance is “primary,” meaning it must pay for your medical bills first, and then your private health insurance must pay. Believe it or not, the at-fault party to the accident (the other driver) does not have to pay these medical bills at first – nor does his/her auto insurance.
There is a saving grace to this: your auto insurance cannot cancel you or raise your rates because you were in an accident that was not your fault. Your insurance company must pay these benefits. It’s only fair, since you have paid expensive premiums to the auto insurance company to have these benefits.
Keep the accident documentation given to you by the police officer, and give it to your attorney
In a bike-car crash, the investigating police officer will usually take information from the other party identifying that party’s car insurance company. This information will then be placed in the written crash report. If the crash involved a dog, you should learn who owned the dog, and information about the owner’s homeowners insurance. If the crash was caused by a dangerous condition, such as a bridge grating or loose drainage cover, find out who is responsible for this property, and report it to your attorney.
Document your physical condition and injuries
Take photographs of your bumps, bruises, road rash and scabs. Make sure they can be given to your attorney. Some of my prior clients have taken photos on their phone, but then lost them or were unable to move them, or they were really terrible quality. If you must have a cast, use crutches, or wear a splint, keep these items, and have photographs made of you using these things. Consider writing a diary of any activities you can’t perform, and the aches and pains you feel. Months down the road you’ll forget about all this.
Photograph the location of the crash
Take photographs or video of the place where the crash happened, even if there are no markings on the road to indicate the crash occurred. Roads are resurfaced, widened, and new signs put up all the time. The conditions of the road when you had your crash may be changed by road construction soon thereafter. Get photographs before the crash scene changes. If there are marks or debris left by the accident, photograph it. After the first rain storm, most of the marks may be gone forever. Police reports don’t usually do a good job of identifying marks, unless the crash involves a death or very, very serious injuries.
Don’t ignore traffic citations
If you were issued a traffic citation while riding your bicycle, you have more choices than just paying the ticket. Under Florida law, if you pay a ticket without contesting it, your record will indicate you were “guilty” of the offense. Alternatively, you have the right to contest the ticket or try to work out a plea of “without adjudication.” If you contest your ticket and win, no fine or costs will be assessed. If you reach an agreement of “withhold adjudication,” you will be required to pay court costs, but there will be no record of “guilty.” Contact a lawyer to help you with your ticket right away. There is always a deadline in preserving your rights to contest the ticket. The deadline can be as short as 30 days or less.
Don’t discuss the accident or your injuries on Facebook or any social network
Don’t talk about the crash on your Facebook account – this can never help your claim and may hurt it. Talk to your attorney for more advice on this subject. A resourceful insurance claims adjuster or defense attorney may use these sites to obtain information regarding you or your claim which is very potentially harmful. For example, your page might be scoured for photos posted after your accident, to evaluate how active you can be. These photos could be misinterpreted. Or you might write to a friend that you are recovering nicely from your injuries. But in fact, this may be you giving an optimistic portrayal of your injuries and not a realistic portrayal. The private contents of an individual’s social networking website may be subject to the subpoena power of the courts, and the courts may insist that you disclose this information to the opposing party to your claim. Understand that everything you post on such a site is probably going to be seen by the insurers or attorneys fighting your claim.
Consult with a reputable attorney – ASAP
Crashes may have ramifications in traffic court, criminal court or civil court. There are time deadlines on most claims with which you must comply or your rights could be terminated. You should at least meet with an attorney to discuss your rights in all three courts. This attorney should have significant expertise in not just personal injury cases, but bicycle crash cases, and should have handled bicycle crash claims in the past. Most reputable attorneys will meet with you free of charge. After an initial consultation, you can decide better whether you have any need for an attorney.
Chris Burns, Cycling Attorney
233 East Bay Street – 8th Floor
Jacksonville, Florida 32202
Chris Burns is the chairman of the Jacksonville Bicycle Pedestrian Advisory Committee as well as a consultant to the Florida Bicycle Association and a past officer and board member. He has been an attorney specializing in helping bicycle and pedestrian accident victims for over thirty years. Initial consultations are always free of charge.