I. Introduction
Sometimes it’s tough to get fair treatment when a collision results in property damage but no personal injury. While it’s always better not to have to deal with a physical injury, there is not enough money involved from the contingent fee (1/3) on a property damage case for most lawyers to even justify opening a file, so most riders end up representing themselves. If you are going to go it alone it helps to know the lay of the land before you start. This article contains an overview of the law of property damage and some tips on how to get a fair amount for your damaged ride.
Fortunately, most bicycle collisions do not result in personal injuries. Instead, wheels get bent, helmets scraped and, if the accident is the motorist’s fault, a “property damage” claim is made against an insurance company. For bicyclists, property damage claims can be frustrating because they typically have little or no experience in legal matters and find themselves advocating for damages with experienced claims adjusters. Since the amount involved is usually small, the bicyclist ends up appealing to the claims adjuster’s sense of fairness. Most claims adjusters are not experienced riders and they are frequently shocked by the costs of bicycle repair and parts.
Property Damage Claims – The Basics |
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II. Comparative Fault
Since property damages are not recoverable unless the motorist is more than 50 percent at fault, Oregon’s law requires a potential defendant pay their percentage of fault only if it is greater than the bicyclist. This means that if the bicyclist is 51 percent at fault and a motorist is 49 percent at fault, the motorist completely escapes financial responsibility. But if, for example, the motorist is 80 percent at fault, and the bike rider is 20 percent at fault, the motorist must pay 80 percent of the damage under Oregon’s “Comparative Fault” law. This means that bicycle riders need to be prepared to show the legal basis for their damage claim, and adjust their damages down by their own percent of contribution to the wreck.
Typical shared fault scenarios include collisions that result from multiple factors, like when a rider fails to exercise “due care” after a motorist makes a driving mistake, such as when a rider panics and crashes after being cut off by a motorist when if the rider had done nothing there would have been no contact or impact.
Since the claims adjuster’s job is to pay as little as possible on a claim, any fault arguably attributable to the bicyclist will be pointed out as a reason to reduce the amount paid. It is essential during these discussions that a bicyclist know the basic Rules of the Road. If possible, be prepared to cite actual Oregon Revised Statute (ORS) numbers.
III. Diminution in Value – The Law of Property Damage
The law relating to property damage claims is technical. Many people believe that they should receive the amount of money they will need to replace their damaged property. Unfortunately, that is not the law. Instead, the bicyclist is entitled to the amount of money equal to the difference between the fair market value of the property immediately before, and immediately after, the occurrence. This is called the “diminution in property value.” Bicycles depreciate rapidly and often the market value of a used bicycle is considerably less than its original purchase price. In order to establish market value, it is best to take your bicycle to a bike shop and get the following estimates:
- Value of the bicycle in the condition it was in immediately before the accident. In other words, the appraisal should be of the same year and model as your bicycle in the same condition. Most bike shops only sell new bikes. If you are having trouble, call around and find the name of a bike shop that sells used bicycles or will help you with your brand.
- Cost of repair of the bicycle. Do this even if you are certain the bicycle is beyond repair.
- Value of the bicycle in the condition it was in immediately after the accident. This amount is usually very low; what market value is there for a bent bike? The claims adjuster will almost certainly call the shop to verify your figures. If your bike is “totaled” the adjuster will want to pay the value of your bicycle before the accident minus its salvage value.
Frequently, bicycles have little or no salvage value. If you have a particular attachment to some of the components, such as that Terry saddle or that wonderful old Campagnolo crankset, let the adjuster know and they will frequently be willing to let you have these parts. It has been my experience that the adjuster will usually recognize that a bike has no salvage value and allow you to keep the damaged bike if it is indeed totaled. On the other hand, if the bicycle can be fixed, it is up to you whether you want to fix the bike or not. You are not entitled to receive more money because your bicycle had a particularly high sentimental value. However, if your bicycle was a rare bicycle, and had an unusually high monetary value, you are entitled to receive that greater value if it is damaged or destroyed.
Remember, the diminution in value of the bicycle may be much less than it would actually take to fix the bike. The law states that the person responsible for the damage need only pay the loss in value, not the cost of repair.
IV. The Statute of Limitations
The Oregon statute of limitations for property damage claims caused by negligence is two years unless the defendant is an agent for a public entity, in which case written notice of a claim must be provided to the appropriate authority within 180 days after the accident. In serious injury cases, it can be a year or more before the person has recovered enough to know what if any permanent physical impairments may have resulted; however, property damage claims can be resolved immediately after the collision. There is no tactical reason to wait to resolve the property damage claim, and if a bicyclist also suffered physical injuries any release of claims signed by the rider can be limited to property damage only so that the personal injuries may be pursued at a later time within the statute of limitations.
V. Gear and Rental List
Sometimes riders are discouraged because the responsible driver’s insurance company fails to promptly pay on the property damage claim. In auto v. auto cases, property damage claims get settled promptly because claims adjusters are accustomed to providing a rental car while the damaged vehicle is in the shop getting fixed. The same law applies to bicycles – the bicycle rider is entitled to a rental vehicle or bus fare, ride-share costs or other reasonable expenses for the time it takes to get the damaged bicycle fixed and serviceable again. One tip for adding speed to the property damage disposition is to have the quote at the bicycle shop include the cost of a comparable rental bicycle by the day, week, and month so that the rider can let the adjuster know how the cost of delay is going to be transferred to the insurance company.
The same rules apply for other personal items such as helmet, panniers, clothing, and other personal property. If the clothing is new and you still have a receipt, it will be helpful for the bike shop in making an appraisal. If the property is older, the shop will need to know when you purchased it and the condition it was in prior to the collision. Finally, it is important that you save all property damaged so that you can show it to the adjuster if asked.
VI. ORS 20.080 – When the Offer is Unfair
We frequently hear from angry bicyclists who feel they are not being dealt with fairly in determining who was at fault in the accident, or the value of damaged property. Few bicyclists are willing to go to small claims court to advocate for themselves. Unfortunately, this means that riders frequently grudgingly accept “low ball” offers to settle property damage claims. One tool that does exist for bicyclists is a law that gives a victim a negotiating edge. ORS 20.080 provides that in claims for less than $10,000 if a thirty-day demand letter is sent to the responsible party and is not paid, and the victim gets a lawyer and files a successful lawsuit, the responsible party has to pay the amount originally owed, plus attorney fees and costs. In a simple property damage claim the attorney fees and costs could total several thousand dollars. If a bicycle rider is in negotiations and is being treated unfairly, it will probably be of assistance to mention this law because if the bicyclist has to go out and hire a lawyer to file a lawsuit and wins the case then the amount awarded as costs and fees may very well exceed the amount owed in the first place. The statutory provision is contained in its entirety below:
ORS 20.080 Attorney fees in actions for damages for personal or property injury.
- In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant, and on the defendants insurer, if known to the plaintiff, not less than 30 days before the commencement of the action or the filing of a formal complaint under ORS 46.465 (Time and place of hearing), or not more than 30 days after the transfer of the action under ORS 46.461 (Counterclaims). However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action or the filing of a formal complaint under ORS 46.465 (Time and place of hearing), or not more than 30 days after the transfer of the action under ORS 46.461 (Counterclaims), an amount not less than the damages awarded to the plaintiff.
- If the defendant pleads a counterclaim, not to exceed $10,00, and the defendant prevails in the action, there shall be taxed and allowed to the defendant, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the counterclaim.
VII. Conclusion
Property damage claims can be very frustrating for riders who are trying to represent themselves to get a fair recovery for their damaged equipment. Knowledge of the law helps to make the process a little easier, but, in the final analysis, fair payment on damaged property claims requires a willingness to spend the time necessary to present the proof of loss, and persevere through negotiations to obtain fair payment.