The bicycle community mourns together when one of our members is
seriously injured in a collision with a motor vehicle. Our sadness
is mixed with anger when we discover that a motorist who has caused
a serious accident was driving recklessly or while intoxicated.
Frequently, drivers who cause the most serious accidents are driving
with little or no insurance. The realities of litigation are such
that unless the bicyclist has a substantial uninsured (UM) or underinsured
(UIM) motorist coverage policy limit there is little profit incentive
in representing even a seriously injured bicycle rider, and these
cases do not get filed.
Previous articles have covered the importance of obtaining substantial
(over $100,000.00) limits on UM and UIM policies. In a nut shell,
this insurance allows an injured bicyclist to make a claim directly
against his or her insurance for injuries caused by a motorist who
has insufficient insurance coverage to fully compensate the bicyclist
for his or her injuries. The legal minimum in Oregon for a UM and
UIM policy is $25,000.00, a sum completely inadequate for covering
any serious injury; however, UM and UIM insurance coverage costs
less to purchase in higher amounts and is a good insurance bargain.
When a dead beat driver causes a serious injury and there is little
or no insurance coverage available, many bicyclists and attorneys
simply give up and let the criminal justice system exact whatever
punishment will be imposed. Letting reckless or intoxicated drivers
get off without civil penalties sends the wrong message. It is important
that bicyclists use the civil justice system to create accountability
for injuries. While it is true that a civil judgment against a deadbeat
driver may not actually result in any payments, there are a number
of good reasons to pursue a case, obtain a judgment, and pursue
a collection effort. While some injured riders feel defeated by
“the system,” an outstanding civil judgment creates an important
record and under certain circumstances will even withstand an attempt
by a judgment debtor to escape liability through bankruptcy.
Uninsured or underinsured drivers who have caused serious injuries
to bicyclists through reckless or intoxicated driving frequently
end up in criminal or traffic court for their conduct. Usually criminal
or traffic cases are resolved within six months or so of arrest.
The statute of limitations in most civil cases, on the other hand,
is two years. This means that in most cases an injured bicyclist
can wait until the conclusion of the underlying criminal or traffic
prosecutions to find out what happens to the driver. A lawsuit can
then be filed in civil court against the driver. Frequently, reckless
or intoxicated drivers have no insurance and make no appearance
in response to the case, resulting in an order of default and a
civil judgment can then be obtained in a streamlined manner in court.
Once a judgment is entered and docketed, the judgment creditor can
record it in any county and it remains in force for up to ten years
and then may be renewed. Further, if the judgment is not satisfied
within sixty (60) days of entry, it results in a suspension of the
driver’s license of the reckless or intoxicated driver. Suspension
continues until the person settles the judgment or up to seven years.
If the driver is convicted of assault with a motor vehicle, was
criminally negligent, driving uninsured, or reckless, then the person’s
driver’s license will also be suspended regardless of whether or
not they pay any outstanding money judgment.
Frequently, people mistakenly believe that any judgment against
a dead beat driver will just be discharged in bankruptcy. However,
the federal bankruptcy law creates a number of exceptions to the
general rule allowing forgiveness of debt. For example, in cases
of “willful and malicious injury” (intentional torts) or damages
caused by operation of a motor vehicle while intoxicated the law
protects a judgment from a bankruptcy petition. In other words,
intentional, malicious conduct or intoxicated use of a motor vehicle
when it results in damages to bicyclists are protected from the
bankruptcy laws.
For a number of years Oregon bicyclists have had a zero tolerance
policy for harassment by motorists, utilizing the court system to
prosecute drivers who intimidate or injure bicycle riders. Obtaining
a civil judgment that is enforceable for a decade or more, causing
suspension of drivers’ privileges, and protecting a money judgment
from bankruptcy discharge are all procedural tools available to
injured riders. In accidents caused by drivers who are reckless
or intoxicated, even when there is little or no insurance involved,
it is important to follow through and create accountability. An
injury to one of us is an injury to all.