It is a big shock when you get hit and hurt on your bike by a driver. AND it is a big disappointment to find out when you call 911 that even when the driver has clearly violated the traffic law that unless you go to the hospital in an ambulance the only thing the police will do (unless the driver is DUI) is facilitate the exchange of information for an accident report.
This is because Portland Police Directive 0640.50 “Traffic Crash Investigations” provides that unless a vulnerable road user is transported by ambulance from the scene there will be no traffic crash investigation. BUT wait, it gets worse. Even where the crash and your injury are clearly the fault of the car driver there is little personal accountability for your injury for the driver.
What You Can Do
- Make sure you know your legal rights. Learn about how you have the right to demand identification and insurance information at the scene of a collision so you know what to do if it happens to you. See What To Do If You Are in a Collision.
- If the police can’t or won’t prosecute the driver who hit and hurt you consider doing it yourself through a Citizen Initiated Violation Prosecution.
- Learn about your rights to fair treatment by the insurance company for the negligent driver.
- Learn about how it is that our roads are made more dangerous for Vulnerable Users because the U.S. does not make dangerous drivers pay for the true costs of the damage they create for others. Join other bicycle riders in organizations like the following to make your voice heard:
Insurance is Little Help
Most drivers are insured by insurance companies who warn their customers “Do Not Admit Fault”. Once you get hit and hurt instead of having the driver’s help in getting help for you and your damaged bike an adversarial process is triggered that is designed to protect the driver from any contact with you and the mess the driver has made. Drivers are routinely advised by insurance companies not to reach out to apologize, offer help or even send you a get well card or letter of apology. Instead if the driver is insured you will likely receive a call from a claim adjuster who will record your account what happened so that it can be used against you later. After reading many transcripts of these “interviews” over the last three decades I have never seen the adjuster offer any advice on how you can get your bike fixed, pay for your medical bills or obtain damages. Instead the adjuster thanks you for the information, and rings off the line, leaving you to figure out where to go next.
Your Car or Bike Insurance
If you have auto or bike insurance you can make a Personal Injury Protection (PIP) claim on your own policy for wage loss if you miss 14 days of work and for medical bills. But you need to know that you can make this claim. Since PIP is “no fault” it does not matter that you may be partially, or wholly at fault for the wreck, so long as it involves a motor vehicle. While it is somewhat counterintuitive that your insurance provides coverage for a bike wreck that is a car driver’s fault, the premium dollars you have been paying for insurance have been going partly toward this coverage for you. AND if the driver is uninsured or has too little insurance then if you have car or bike insurance you can also make a claim for your injuries under Uninsured (UM) or Underinsured (UIM) motorist coverage. Of course this is assuming you actually know that you can do this. Many people go through the entire process without realizing that for many years they have been buying an insurance product that they do not know they own. AND if you ever want to conduct an experiment try looking for a non-technical non-legalese explanation of this coverage in your insurance policy.
What Happens to the Dangerous Driver?
Let’s say you call the police, insurance info is exchanged, you file a DMV accident report (required within 72 hours if physical injury or over $1500 damage) and then call your insurance, make a PIP claim, and make a claim against the driver’s liability insurance, what happens to the driver?
Well first of all the entire process is designed to insulate them from you and your injuries. Even if they receive a ticket, unless it is for a serious violation like Careless Driving for Injury to a Vulnerable User (VRU) (See Pedalpower, p. 49 article about VRU) the driver does not even have to appear in court unless they contest the ticket. AND even a conviction is not admissible evidence of fault if you have to sue the driver to collect your damages! ORS 153.108(2). Instead the driver can just mail in a check and sign the ticket.
Perhaps you will console yourself that at least the driver’s insurance will raise their rates for an at fault injury collision. But even so the average Oregon increase for a single at fault injury collision is only 27%, which is about $300 for the average Oregon insurance policy according to a state by state study by Insurance.com. And unless you file a lawsuit against the driver (most injury claims settle without a lawsuit being filed) and your lawyer takes the deposition of the driver, they will never have to even face you and your injury. The insurance company in a clear cut case will settle the claim and the driver never has any further contact with you or the suffering they have caused to you.
What is Wrong Here?
In the old days if you ran someone down with your wagon community norms dictated that you would take them to your home or a hospital if available and you and your family would attempt to help nurse them back to health. Somehow by creating a traffic court and insurance law system in the USA we have lost track of our responsibility to those we hurt on the roadway. Instead of opening our arms to the people we hurt instead we circle our legal wagons and view the injured as potential threats to our own livelihood. Insurance companies justify their own existence by handling everything for the negligent driver. BUT there is considerable loss to all where the system takes over and individual responsibility disappears. The process of taking ownership of the responsibility for cleaning up your own messes cannot be overestimated. The process of reconciliation for both parties is a healing process that has been left in the dustbin of history in favor of a system that depersonalizes the participants and turns humans into claim numbers.
My injured clients tell me it really bothers them that the driver never attempted to reach out to them after they were hurt. So I have begun asking the insurance adjuster or defense attorney to ask the driver to please write a letter of apology and concern for the injured rider. When I am told that would be an admission of fault I reply that in most collision cases it is very clear who was at fault. Perhaps it would be a good idea for the Oregon law to provide negligent parties with the same protections it gives medical professionals. ORS 677.082 (enacted in 2003) allows a licensed medical professional to extend an expression of regret or apology without it being used against them later in a civil case. Of course this is different from acknowledging that a driver ran a red light or right hooked a bike rider, this law just recognizes that expressions of compassion and regret over an injury should be encouraged without penalty.
Why Don’t We Hold Dangerous Drivers Accountable?
The answer here is pure and simple: cultural priorities. While it is all too easy to hurt or kill a vulnerable road user with a small mistake at the wheel of a motor vehicle, the societal resources devoted to preventing these injuries in the first place are very small. For example, while traffic deaths in Oregon average around 400 persons per year, only 6.9% of the 2016 Portland Police Budget is directed toward traffic safety.
It is difficult to assign “responsibility” for traffic violence to law enforcement when one considers how little they are given to work with to make the streets safer. Traffic law enforcement is particularly important for vulnerable users since a minor fender bender for a bike rider usually results in physical injury. BUT unless we decide that taking dangerous drivers off the road is an important societal priority only the worst of the worst will be removed from the driver rolls. AND so long as American culture views driving a car or truck as a right and not an expensive and dangerous privilege we will be stuck with a dangerous traffic mix.
A further problem is that most traffic crashes are viewed as “accidents” by law enforcement and the court system. Accidents happen. Vision Zero aside, when a police officer responds to an intersection collision 911 call and the bicycle rider does not leave the scene in an ambulance it is left to the insurance companies and the civil courts to sort out who is at fault and has to pay for any damage.
Does the Civil Justice System Really Serve the Injured?
Once the scene of a traffic collision is cleared and reopened very little really happens to the person who caused the crash. Perhaps there is a traffic ticket, insurance rates go up, a claim for damages may be made by the injured person. The claim settles. Life goes on. BUT for the injured person payment of damages provides little recompense for the experience of being hit by a car.
In my 37 years of law practice I have never once had a client tell me that after everything was said and done they felt like whatever financial award they received was adequate to pay them for what they had endured and lost due to the crash. Of course we cannot undo events. It is my view that the insurance industry is the cause of much of the problem of devaluing the experience of being at the receiving end of a traffic crash. In Oregon our minimum insurance limit for liability to pay for a driving disaster is $25,000. If a crash causes a serious injury that $25,000 evaporates after a day or two in the hospital for the victim. When citizen reformers attempt to raise the minimum limits for auto insurance the insurance companies fight back and argue that people will be unable to afford to drive their cars. So what we have done is to create an insurance system where most people are not paying for the true cost of driving because they are woefully underinsured. And the vulnerable users who choose to go carless and ride or walk or use public transit end up paying the price when hit by a car because the driver does not take financial responsibility for the costs of the damages. If Oregonians were forced to pay for the true costs associated with driving motor vehicles most folks would choose to get out of their cars and choose some other cheaper way to get around. Subsidized gas costs compared to European countries combined with unrealistically low insurance requirements and lax enforcement of traffic laws to make the United States a very dangerous place to be a road user. According to the Center for Disease Control in 2013 the United States had more than twice the fatality rate from traffic violence as other high income countries.
So long as we view traffic crashes as “accidents that are bound to happen” then we are going to have to accept the present unacceptable situation on the nation’s roadways. For victims of traffic violence it becomes very clear how inadequate our traffic law enforcement and civil justice system is in taking care of the dead and wounded. Now is the time join with victims of traffic violence to pursue real reform in creating accountability after a crash.