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The Explainer: When and if to sign that waiver

  • By Charles Pelkey
  • Published Nov. 3, 2011

Q. Dear Explainer,
My experience is luckily past, but I was hit by a car a year-and-a-half ago. The driver was ticketed by the police, but I can’t quite remember what the ticket was. It did make it clear he was at fault. He was a working Joe that just wasn’t watching out for bikes.

I didn’t want to sue and he had the minimum amount of insurance. I had considerable hospital bills, and even though I had health insurance I wasn’t sure they would cover the bills. I felt like the driver’s insurance, and my health and car insurance were all trying to make sure they spent the least money possible. Since I wasn’t going to sue, lawyers weren’t interested in talking to me. In the end, my health insurance covered the bills and the driver’s insurance and mine did pay out.

I wondered, however, if I was making a mistake by signing the insurance forms releasing them from liability. But it seemed the only recourse if I wasn’t going to sue. If I had come to you, what advice would you have given? Do you have general advice to follow after one has been hit by a car?

Many thanks for any advice. Unfortunately it seems that advice on this subject would benefit a great many cyclists.
― Quinn

A. Dear Quinn,
First off, as you said, I am offering only general advice and even though I am an attorney this in no way should be interpreted as a recommendation from a lawyer handling your case. (Yeah, yeah, it’s a standard disclaimer, but I really do mean it.)

I will assume that by “the minimum amount of insurance” you mean the the mandated liability coverage required by the state. In California, for example, the state requires a only minimum of $15,000 for injury/death to one person; $30,000 for injury/death to more than one person and $5,000 for damage to property. In your state of Texas, the numbers are slightly higher, but still just $30,000, $60,000 and $25,000. It’s a good thing that you have your medical insurance, since a serious injury can most certainly hit those policy limits pretty quickly.

As is often the case, you may have been contacted by a friendly adjuster representing the driver’s insurance company. It’s standard operating procedure for an insurance adjuster to get in touch with someone who may have been injured by the insured to see what sort of claim might arise from that accident. The first thing to remember when you get that call is that even if the voice on the other end of the phone is friendly — or even downright compassionate — the adjuster doesn’t necessarily have your best interests at heart. It’s not his job. His job — and they tend to do it quite well at times — is to minimize the amount of money the company has to pay out to you. Making a relatively small settlement offer and getting the injured party to sign a waiver early in the process serves the insurance company’s needs, but it doesn’t necessarily meet yours.

Accepting an offer and signing a waiver early in the process limits your options. By accepting and signing you agree to waive any future claims you might have against the driver, who in this case was clearly at fault. If you have long-term medical issues, how can you reasonably make a decision to waive your rights before you know what the full cost of the accident will be? Don’t sign it … especially right away.

Even without an attorney, there are a few important steps you can take. First keep accurate records. Get copies of the police report and of any citations issued as a result of the accident. Maintain a careful and detailed record of any and all medical expenses related to the accident. That has to include the co-pays and other portions of your bill not covered by your own medical insurance. You should also get your local bike shop to provide a detailed estimate of the damage to your bike or, in the extreme case, the full replacement cost. Back that up with as much supporting information as you can, especially if the damaged bike was something like a Pinarello Dogma.

You are the one who knows what the damages are, not some insurance adjuster.

Now, I understand that in your case you mention that “lawyers weren’t interested in talking to me,” but I still recommend that you seek some input from an attorney before ever signing a waiver. It might take a little effort on your part, but I assure you that there are attorneys out there who can help you review a settlement offer and the waiver that accompanies it. Even you don’t plan on suing, you have a claim and it’s worth hiring a lawyer on an hourly fee basis to work through some of your questions.

To sue or not to sue

I respect your reluctance to file a lawsuit. Frankly, that should be the last thing on your list of options, but it should remain an option nonetheless. If, for example, the total damages from your accident amount to, say $30,000, and the insurance company won’t budge a penny beyond $10,000, seeking recourse in the courts may be your only choice. It’s also a decision that you may face if your injuries go beyond the driver’s liability insurance. Law suits are certainly not the easiest thing in the world to pursue. They are stressful, time-consuming and expensive and the outcome is far from certain.

Depending on the jurisdiction, it could take years to get the case resolved. You can take solace in the fact that most cases like yours — even if a suit has been filed — tend to be settled well in advance of a court appearance.

It’s also important to remember that lawyers don’t work for nuthin’ and most personal injury suits are handled on a contingency basis. In other words, your lawyer will get a cut of any settlement. Carefully review your attorney’s representation agreement before you hire him to sue the driver’s insurance company. Depending on the point at which a settlement is reached, the attorney’s cut could represent 25- to 40-percent of the final check, with the lawyer’s percentage increasing as the process works its way through the system. Of course, the attorney is taking a risk here, too, and if you don’t get a penny from the suit, the lawyer doesn’t get paid either. But then the whole effort was a waste of time for both you.

In summary, your best bet is to avoid signing anything presented to you by an insurance adjuster without knowing what your total costs will be. Any settlement the insurance company offers will invariably be accompanied by a waiver, but don’t sign it unless you’re totally comfortable with the offer and you’re certain that there won’t be any additional costs popping up in the future. Even then, spend a few hundred bucks to go over the settlement offer and the waiver with an attorney. It’s likely to be money well spent.
―Charles

A follow-up to “Crowded streets can lead to dangerous sidewalks

Dear Readers,
As is the case when I venture into questions of urban planning, bike paths and the segregation of automobiles, cyclists and pedestrians, I received a good deal of mail following my most recent Explainer column.

Jakob Helmboldt, the Pedestrian and Trails Coordinator of the City of Richmond, Virginia, took issue with my choice of Copenhagen as some sort of ideal model of urban planning, pointing out that a recent study conducted by that city showed significant increases in accident rates, including “a 1951% increase in crashes involving bus passengers boarding and alighting and a 1762% increase in injuries in those crashes; An 88% increase in crashes with pedestrians with a 63% increase in injuries in those crashes (and) pedestrians and cyclists hit by turning vehicles also increased substantially.”

Jakob also supplied a link to the complete study. It’s a fascinating report and one that should be read with great interest by anyone involved in the effort to integrate cycling and walking options into an overall traffic plan.

And speaking of those directly involved in traffic planning, reader John Hodge appropriately took issue with my comment that attributed an increase in bike/pedestrian accidents to a “lack of insight on the part of generally myopic — and often underfunded — traffic planners.”

While John didn’t necessarily disagree with the “underfunded” part of that comment, he did have a problem with my characterization of traffic planners as being “generally myopic.” John writes that he did an engineering internship with Colorado’s “Mesa County Road and Bridge department, and met a few of the traffic engineers on staff here. They all were sympathetic to the needs of cyclists, in fact one is an avid road cyclist, but their hands are tied when it comes to accommodating cyclists. The Mesa County Commissioners have set a policy which requires the roads to be designed and maintained solely for the use of motorized traffic, which means that the engineers are prevented from designing roads to have bike lanes or similar accommodations. In fact, even calls to the county roads department reporting road maintenance issues that pose a hazard to cyclists receive the reply that ‘the roads are made for cars, not bicycles.’”

John concludes by suggesting that “when you recommend that we all contact our senators and representatives, might I suggest being careful when electing your county commissioners too.”

It’s a good point. Indeed, I might go a bit further and suggest that we cyclists ought to consider running for those elected positions when there is an opportunity. While federal funds do make up a significant portion of road and planning budgets, the decisions on how to spend those dollars at the local level often comes down to a small group of local officials whose names appear way down on a long ballot most of us see for the first time on election day. At minimum, try to find out who your candidates are and where they stand on questions of cycling and cyclists’ rights.

Now, at the national level, we recently had another opportunity to see how our elected representatives feel about the subject. Last time I wrote about Sen. Tom Coburn’s (R-OK) efforts to strip federal funding for non-motorized transportation projects by placing a hold on an unrelated bill reauthorizing the Federal Aviation Administration.

We recently saw another, more direct, effort to do the same thing. This time, it was Coburn’s Senate colleague Rand Paul (R-KY) who sought to amend another unrelated measure, the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2012, to redirect Transportation Enhancements funding from projects like bike paths and pedestrian safety to bridge repair.

Those funds — $927 million for fiscal year 2011 — represent the largest source of federal funds for bicycle and pedestrian projects. While that sounds like a lot of money, it represents only about 2 percent of this country’s overall highway spending.

Anyway, supporters of the allocation of highway funds to non-motorized transportation projects — including Bikes Belong and the League of American Bicyclists — were quick to respond and the Senate voted to reject the Paul amendment by a significant margin.

I suggested earlier that you might want to get to know the positions of your local officials regarding road planning and allocation of funds for non-motorized projects. The Paul amendment provided us with a glimpse of how members of the United States Senate might view the value of such funding at the federal level, too.

Have a look at the roll call on Senator Paul’s amendment if you want to see how your senators cast their votes. Yeah, I know. I live in Wyoming and I really need to talk to those two.
― Charles

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