The good news: where liability in a car vs. bike accident is “pretty clear, insurance companies
do want to settle.”
It’s late in the afternoon, not quite dusk. I’m driving a Dodge pickup truck along a residential street I’ve driven over for 15 years. Up ahead is a stop light. I’ll make a left there, drive another block, make a right and turn into my driveway.
I pull up to the stop light, look for traffic, begin my left turn with speed; the yellow light has just clicked on and there is traffic approaching from my left and right. Faster than I can think, my right foot slams onto the brake pedal.
It was a kid on a bicycle. Skinny, mid-teen kid, T-shirt, shorts, no helmet. I never saw him.
It was my fault; he had the right of way. I came as close as you can get without actually touching kid or bike. Kid was less than an inch away from 5500 pounds of metal colliding into his unprotected body. And since there was oncoming traffic in both directions, it’s likely he would have been hit by at least one other car.
Life changes irretrievably in one moment. Cops. Insurance companies. Lawsuits. Courtrooms. Those nightmares would eventually end, but I’d carry the weight of that moment for the rest of my life.
Introducing San Diego bicycle accident attorney Harlan Zaback, doing his 9-to-5 at Berman & Riedel, LLP. Zaback, 32, married, no kids. Grew up in New Jersey, then Rutgers University, then San Diego, then California Western School of Law, now office park on El Camino Real.
I reached him with one phone call, a growing rarity. First question, “I know bicyclists have the same rights on the road as an automobile, but how does that work in court?”
Zaback says, “If the bicyclist is in the designated bike lane and they’re hit by a motor vehicle, it’s usually the driver’s fault. If we can establish that our client was in the bike lane, not doing anything erratic or negligent, and a careless driver hits him, then, usually, liability is pretty clear.”
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Very clear. In fact, sounds like the ideal case. “How about backroads, roads with no bike lanes?”
Zaback says, “In that situation, the bicyclist has to use his good judgment.”
“Suppose you’re injured. How long does it take to get into a courtroom?”
Zaback says, “Usually, it takes a year and a half and that time frame is going up. But, the good news is, where liability is pretty clear, insurance companies do want to settle sooner rather than later.”
Breaking my own chain of thought, I zig, “What got you to San Diego?”
“Growing up in New Jersey with the crappy weather, you always hear about sunny California as this magical place where it’s always sunny and palm trees. I decided I’d give it a chance.”
“Seems like it worked out.”
“I’m happy,” Zaback says. “My wife is also a lawyer. We met in law school, got married, and bought a place. It was fortunate both of us got jobs in San Diego.”
Now a zag, “What type of case do you most hate to see walk through your door?”
“A motor-vehicle accident where there is clear liability, serious injuries, but the person at fault doesn’t have enough insurance, and our client doesn’t have underinsured insurance. In California we’re all required to carry liability insurance when we operate a motor vehicle, but you only need $15,000 in liability.”
“That’s a night in the hospital.”
“Yes,” Zaback says. “That’s just doing CT scans and x-rays and stuff. I would increase every underinsured motorist policy to, say, $300,000.”
I ask, “If I have under-insurance on my auto policy am I also covered when riding a bike?”
“You are as long as the accident is caused by a motor vehicle.”
What’s left out are bicyclists who don’t own a car (too poor, too young, too undocumented). What happens to them when they’re in a car vs. bike accident, and the automobile driver has zero or little insurance, or is driving on a suspended/revoked license?
Back on the phone with Zaback. He suggests stand-alone bicycle insurance (Google Velosurance and/or Markel).
I say, “When I was 15, buying bike insurance would be below ‘learn Latin’ on my to-do list. I was wondering if there was any kind of loophole.”
There are contingency-fee attorneys like at our firm. Consultations are free. I think it’s very important, regardless if the facts are favorable or not, to at least reach out to an attorney, even if you think you’re out of luck. There might be some sort of loophole in this area.
“Get a cop, get a police report so you have some sort of official documentation that sets forth the facts, even if there are no witnesses.”