Saturday, February 20, 2010

Motorcyclist Should Consider Uninsured Motorist Coverage

Sometime ago a friend came to me after she had had a motorcycle accident in Washington, DC. In the accident she had broken her leg. Worse yet, the other vehicle that had hit her had fled the scene.

She advised that she was riding down the street when an unknown car made a left turn and turned into her and knocked her off the motorcycle. She was in a great deal of immediate pain. She could not give me the license plate or provide any amount of detail as to the car. Fortunately, first responders promptly arrived and assisted her. She was sober, there was no evidence of drug use and the police noted this. Further, she told the police that a car had struck her and had left.

My friend and soon-to-be client believed that she had no recourse. Fortunately, and as was required by law, she had motorcycle insurance. She believed that the motorcycle insurance would not help her. She thought that it only protected her from claims if she were negligent and struck someone else or their vehicle. This portion of the coverage is known as liability coverage. Liability coverage is only one portion of normal coverage when you have vehicle insurance. Another significant portion of vehicle coverage is uninsured motorist coverage. Uninsured motorist coverage will pay for injuries you receive from another motorist who has no insurance. The normal scenario for such a case is that there is an accident and the other driver remains at the scene but there is no insurance on the other driver. (Although motor vehicle insurance is mandatory in both Washington, DC and Maryland, compliance statistics are rather sobering-there are many motorists who have no vehicle insurance) Then your own insurance will pay for damage to your vehicle and injury to yourself subject to the deductible on your insurance. However, uninsured motorist also covers you if the other vehicle is a "phantom vehicle". In our case, the other vehicle was a phantom vehicle. The difficulty in phantom vehicle claims is that your own insurance company will often not believe your story about how the accident happened. In this case, it was very helpful that the police and ambulance came and were able to establish that my friend was not drunk or high and she immediately provided a credible version of the events.

I was able to present this information to her insurance company and get her fairly compensated for the loss that she had.

As an aside, I have ridden motorcycles for more than 30 years. I live in Maryland. Maryland insurance has something called personal injury protection (PIP) insurance. That generally applies to insurance for automobiles (not taxis or buses generally). It is also not generally provided to motorcycle riders. PIP is paid quickly and paid regardless of fault. Generally it is only up to $2500. And it only pays for medical expenses, income lost as a result of the accident and, God forbid, funeral expenses. Personal injury protection can be raised up to $10,000. I include PIP on my motorcycle policy. The annual premium is minimal and I raised the personal injury protection coverage to $10,000. That covers me quickly if there is an accident on my motorcycle, even if it is my own fault, and this extends to bicycling also. I am an enthusiastic bicyclist and try to commute to work (given the significant snow I have not commuted to work in several months but I still do have my office bicycle and zip to court on that on a regular basis).

Bottom line-even if the other driver is hit and run you probably have uninsured motorist coverage which can protect you. Consider obtaining personal injury protection insurance and raising the limits.

DC cyclist establishes her right to ride on the sidewalk

I recently finished representing a young woman cyclist who was struck by a car and suffered significant injury. The young cyclists came to me after the insurance company rejected her claim. The insurance company was under the belief that the automobile driver had the right-of-way. In this case, the cyclist was on the sidewalk crossing the driveway when the accident occurred. The insurance company believed that their vehicle had the right-of-way.

I wrote the insurance company and advised that in general, cycling on the sidewalk in Washington, DC is permitted unless you are in the central business district. In our case, the cyclist was outside of the central business district In this particular case she was pedaling her bicycle in a reasonable manner, at a reasonable speed, and keeping a reasonable lookout during daylight hours commuting to work. She was on the sidewalk and the sidewalk was crossing a driveway. Suddenly and without warning, an automobile driver made a turn and entered the driveway without regard to the cyclist. My client had no chance to react and avoid the accident. She was struck in the right side knocking her down to her left. The automobile driver had a duty to yield the right-of-way to all other traffic using the sidewalk (District Code of Municipal Regulations 18-2207.2). The driver had a further duty to keep a proper lookout for pedestrians and others using the sidewalk. The automobile driver failed to reasonably exercised her duties as a driver and consequently was negligent.

The insurance company was persuaded by my presentation of the law in Washington, DC and accepted liability. We were able to settle the case for the policy limits of the automobile.

If It's Not in the Police Officers Report It Did Not Happen

I was recently in Cecil County Maryland. I was representing a professional driver who drives over 100,000 miles per year. This was his second charge for driving while under the influence of alcohol in the past five years. If he suffered a conviction he would lose his job as a professional driver. My client had done a great deal in terms of dealing with his alcohol issues-he received an alcohol evaluation, followed up diligently with the classes which were recommended, went to Alcoholics Anonymous and completely abstained from further drinking.

In a drunk driving case, generally there is a police report written by the arresting officer. That is not usually supplied to the defendant automatically. Most defendants do not know about this report. It is a simple matter of requesting that report from the prosecution and it must be provided. In this case the police report stated that the officer watched my client at approximately 2:30 a.m. begin to make a left turn and then continue straight and thereafter change lanes from lane number one to lane number two without a turn signal. Thereafter, the officer stopped my client, smelled the odor of alcohol, my client did poorly on the field sobriety tests, and my client had a breath test in excess of the legal limit.

The fourth amendment of the United States Constitution provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This amendment applies to people driving automobiles. Based on the police report I did not believe that the officer had the right to stop the motorist. There was no evidence, in my mind, that my client had violated any traffic laws and consequently the officer could not make the stop.

The case was called to trial. The officer testified that he saw my client begin to make a left turn and then abruptly go to the right almost striking the officer and causing the officer to brake hard and veer away to avoid a collision. You can imagine my surprise. This was not in the police report. The officer further testified that when my client changed lanes he crossed a double yellow line. More surprise to me.

One of the fundamental aspects of American criminal jurisprudence is the right to cross-examine witnesses. It is normal for a witness for the state to want to tell a story which supports the state's case. That story when it is finished sounds complete and convincing. Cross examination is key to really making the story complete. It allows the examiner to explore parts of the story that the witness did not want to reveal. It allows the examiner to point out contradictions in the witness's story.

In this particular case I examined the police officer about his report. In cross examination the officer admitted that the police academy taught him to write reports and that those reports must be truthful and accurate and complete. Further, he acknowledged that the reports were very important so that he could remember the events accurately, the prosecution could look at the report and develop a theory of the case and the defense could rely on the report that there would be no surprises. The officer further admitted that his memory was freshest when he wrote the report because he wrote the report perhaps one hour after the arrest and a trial we were approximately 8 months postarrest. The officer further admitted that my client cutting him off was a very significant factor and that he had omitted that from the report. When I asked the officer had he ever seen double yellow lines on the road where the lanes headed in the same direction he stated he had not and perhaps he was mistaken. He then said it was a single yellow line. Again, when asked if he had ever seen a road with a single yellow line with two lanes heading in the same direction he agreed he had not. He finally admitted he had no idea what the lines were.

At this point in the case I argued to the judge that the officer's report should be the evidence that the judge considers and not the officer's testimony. The report was much more recent to the time of the arrest and should be an accurate reflection of what happened. The judge agreed and found that my client had not made any legally recognizable driving violations which allowed the stop. The judge ruled that the stop was illegal. At that point, there was no evidence of drunk driving and my client was acquitted of all charges.

I was pleased and somewhat surprised with this result. Frequently, I am used to the 80% rule. The 80% rule is that the officer has 80% of his information in the report and then at trial adds 20% which is a complete surprise. Most judges seem to allow this. This judge in Cecil County did not and I believe that the right result followed.

My client was also pleased. No conviction, no jail, no points, no fine, no probation. Perhaps I am naïve but I believe this experience had enough of an impact so that he no longer drinks and drives.