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Bicycle Law
Definitions Make a Difference
by Ray Thomas, Bike Lawyer
One of the more satisfying parts of being a bike lawyer is helping
bicyclists who are their own advocates. Frequently, riders who are
bumped by a car receive minor injuries or just sustain property
damage. Liability is clear cut against the motorist but the size
of the claim is so small that most lawyers would not see sufficient
profit to justify opening a file. Our office works with many of
these folks through our periodic legal clinics and on the telephone.
Usually these claims are routine matters and the patient bicyclist
can prepare all of the necessary paperwork and complete the claims
process on their own, calling us on the phone if they get stumped.
However, sometimes insurance companies deny deserved insurance benefits
in an arbitrary manner.
System Breakdown
The insurance system provides three types of coverage relating
to bicycle accidents: liability, personal injury protection (PIP),
and uninsured/underinsured motorist coverage (UM/UIM). Personal
injury protection is "no fault," meaning that it is available
regardless of who is primarily at fault in an accident. PIP provides
basic coverage for medical, wage loss, and other out-of-pocket expenses
like essential services and child care. It is part of every motor
vehicle policy issued in the State of Oregon and covers bicycles,
skateboards, rollerblades, and pedestrian accidents as well as motor
vehicle accidents. Few people know about the broad scope of PIP
coverage but we all pay for it and it is available for the asking;
well sometimes . . .
When bicyclist Carl Holland called our office after his accident
this Spring, we told him that he could probably handle the paperwork
himself, make a property damage and PIP claim, and then after his
injuries were completely healed, make a liability claim against
the negligent motorist for his pain and suffering. Because his injuries
were minor, we did not feel that he necessarily needed a lawyer.
However, when he presented a PIP claim against his automobile policy
with AIG Insurance Co. he was surprised to discover that they were
denying his claim because in their opinion he did not qualify under
the Oregon PIP law. The claims adjuster, located in Pennsylvania,
told him that Oregon PIP law did not cover his injuries because
in her opinion a bicycle was a "self-propelled vehicle"
and he was, therefore, not a "pedestrian" when he was
hit by a car thereby, taking him out of the area of coverage of
his policy. Carl called our office with the bad news and we referred
him to the Oregon Insurance Commissioner's Office to report AIG's
denial. In the meantime, Carl conducted his own informal survey
of insurance companies. He discovered that of all the mainstream
auto insurance companies he called AIG and one other company were
the only carriers taking the position that bicyclists were excluded
from PIP coverage--every other company provided the needed and deserved
benefits to bicyclists.
A Complaint to the Oregon Insurance Commissioner
When Carl reported all of this to the Oregon Department of Consumer
and Business Services he was assigned to Greg Ledbetter, Senior
Compliance Officer. Fortunately for Carl, Insurance Compliance Officer
Ledbetter is a bicyclist himself and an Oregon Cycling reader. Ledbetter
asked Carl to fill out a written report of the claim, which Carl
then dutifully provided. Interestingly, by this time, Carl had made
contact with the liability carrier for the car that bumped him and
this insurer (Progressive Insurance) told him that they would consider
him a "pedestrian" and provide PIP coverage if he were
their insured, disagreeing with AIG's decision.
While most people would probably just give up at this point, Carl
felt that he had been treated unfairly, so he canceled his homeowner's
and auto insurance policies with AIG and pushed forward with his
complaint. It was clear to him that a bicycle was not a "self-propelled"
vehicle; unlike an ATV or a go-cart a bicycle is not "self-propelled."
A bike is "human-powered" and, likeskateboards, rollerblades,
rollerskates, or a scooter, it relies upon human muscles to make
it work. Without its human, a bicycle could go no where and would
fall over onto its side. However, the logic of these arguments did
not convince the claims adjuster to change her mind, until Insurance
Compliance Officer Ledbetter began reviewing the potential penalties
for unreasonable claim denial, including up to a $10,000 fine. Suddenly,
AIG decided to reverse its position and provide PIP coverage.
However, Carl was troubled because there was no assurance that
the same thing would not happen to another bicyclist who may be
less determined to stand up for his or her rights. Our thanks go
to Mr. Ledbetter and Carl for taking the time to pursue a small
point that has considerable legal significance for Oregon's cyclists.
As Ledbetter observed, "The last time I climbed a steep hill
on my own bike, I was very aware that it was definitely not self-propelled"
- it's nice to have someone who understands bicycles in the Insurance
Commissioner's Office. Carl's activism serves as a good example-know
and stand up for your legal rights; otherwise, bicycle riders may
get "defined" into legal oblivion.
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