If you ride a motorcycle, you already know that you don’t get the respect that you deserve on the road. When you are involved in an accident, this doesn’t change. It is sad, but true, that many people will automatically assume that the accident was your fault. (Because all motorcyclists are hell raising speed demons, right??) Some people will automatically assume that you are a reckless criminal. Why? That’s how Hollywood portrays the motorcycle community. People believe what they see on the big screen. Thanks to this depiction, we all know that motorcyclists belong to gangs and enjoy burning down roadside bars in their spare time. As a motorcyclist, you are facing an uphill battle when you are involved in an accident. Bradley Law Group works hard to get results driven by facts, not fiction.
If you have been injured while riding a motorcycle, there are MANY reasons why you should consult a lawyer. Over my 26 years of handling motorcycle accidents, here are the top six reasons.
If the accident was not your fault, then you need to be treated fairly. You need to recover a settlement that pays you what you deserve. An insurance industry study showed that injured people represented by attorneys recover, on average, 3.5 times more than people without attorneys. The average attorney fee in a motorcycle injury case is 33.33%. Do the math. In a normal case, even when you subtract the attorney fee, you recover more money. Of course, an attorney can also help you keep more money at the end of your case as well. Bradley Law Group routinely negotiates down medical balances for our clients. Our goal is simple: maximize a client’s settlement and then reduce the bills as much as we can.
The insurance company is already aware of the statistics, and they are hoping that you don’t seek help from an attorney. If the insurance company is allowed to work directly with you (rather than an attorney) they will do their little happy dance. When the insurance company deals directly with you, they know that they can win the battle before the first shot is fired. It might seem tempting to speak with the insurance company after an accident, but don’t do it before speaking with a qualified attorney.
Some of my former clients tried dealing directly with the insurance company before they hired Bradley Law Group. The first conversation that I have with these folks is often not very pleasant. I have to explain that by working directly with the insurance company, they have likely already damaged their case in several ways. The typical client response is often “I just wanted to see what the insurance company would pay me before I hired a lawyer.” While this might seem like a reasonable course of action, it is not.
When you are involved in a motorcycle accident, the insurance company has a trained team of professionals that gets to work building their case against you. Most people don’t even realize that this is happening because the insurance adjusters are trained to be kind, polite and sympathetic. Even when they admit that their driver was at fault, they are still working to minimize your claim and your settlement. Often times, the adjuster will call the motorcycle rider, trying to sound as sympathetic as they can and will explain that they are here to “help” and that they need some forms signed. They will also ask you for a recorded statement. Regardless of why they claim they need these things, the real reason is that they want you to assist them in denying or minimizing your claim. What?? This can’t be true!! The adjuster was so nice when he called!! Remember, insurance companies are in the business of making money. If they can find a way to deny or minimize your claim, they save money. That being said, you can understand why the insurance company is NOT looking out for you. It doesn’t matter how nice the adjuster seems over the phone, he is looking out for his company, not you. This is sad, but true.
North Carolina has some difficult liability laws and the insurance company will try to use them to deny your claim whenever they can. North Carolina recognizes Contributory Negligence. This rule holds that if you contribute to causing the accident by even 1%, the insurance company can deny your claim. Most states have done away with this unfair rule, but not North Carolina. Therefore, when you report a motorcycle injury claim to the insurance company, they get to work right away trying to figure out how to argue that you contributed to the collision by at least 1%. Common favorites of the insurance adjusters include:
- You were driving too fast;
- You were not watching where you were going;
- You could have avoided this accident had you been paying attention;
- You changed lanes too quickly;
- You stopped too quickly.
What evidence does the insurance company need to make one of these arguments? Not much. They can hang their denial on anything that you say in your recorded statement. They can hang their denial on something their own driver told them. They can hang their denial on the way the police accident report is worded. They only need to find something to suggest at least 1% contributory negligence. If they can find this, they can deny your claim.
2. Complex Damages:
It doesn’t take a genius to figure out that motorcyclists are often injured much more seriously than other motorists. After all, there is nothing between you, the other vehicle and the road. Some of the injuries that we frequently see include:
- Broken bones;
- Traumatic brain injury (TBI);
- Lacerations and road rash;
- Permanent scarring / permanent disfigurement;
- Partial or full amputations;
- Soft tissue sprains and strains.
Valuing an injury is not as easy as valuing the damage to your motorcycle. After all, you can have a mechanic tell you how much it will cost to fix your bike. That’s a sum certain. If the bike is a total loss, then there are databases like Kelly Blue Book and N.A.D.A. to show what the bike was worth before it was wrecked. Injuries, especially permanent injuries, are much harder to prove.
Many motorcycle injuries are permanent in nature. For example, let’s consider a biker who is thrown from his bike when he is hit from behind. The biker sustains a closed head injury and scarring to various parts of his body. He can’t work as a result of his injuries, and he will require medical treatment for a prolonged period. You can’t look at a database to figure out what these injuries are worth. There is no “Blue Book” for your injuries. The value of these injuries is determined by advocacy. The law needs to be used to its full extent to maximize your settlement.
Here are a few issues that often surprise my clients:
Medical Expenses: The amount of medical expenses that will be considered in your case is not always the retail amount of your medical bills. Medical expenses in a motorcycle accident case are governed by Rule 414. Rule 414 adjusts retail bills to subtract for contractual adjustments, write-offs, etc.
Health Insurance: Health Insurance has its own set of complex laws. Sometimes your health insurance has the right to demand repayment at the end of your case. What? But that’s my insurance! How can they demand repayment? It’s true, some types of health insurance have the right to demand repayment from your settlement. A skilled lawyer can examine your health insurance and plan language to determine whether you need to repay health insurance or not.
Lost Wages: As the plaintiff in the case, you have the burden of proof. That means that the insurance company will not just take your word for how much you lost in wages. Lost wages are proven through written evidence from your employer accompanied by medical opinion letters from your doctor. Future lost wages are often an issue in motorcycle cases, and these are very difficult to establish without proper evidence gathered by an attorney.
Permanent Disability / Permanent Disfigurement: What if you end up with a broken leg that doesn’t heal back to 100%? How about a scar on your forehead that is visible to everybody that meets you? How can these damages be valued? Permanent damages, if handled correctly, should be calculated based on medical opinions, future medical expense projections and mortality tables. It’s not as simple as saying “I want a lot of money because my broken leg still hurts sometimes.” A skilled lawyer can maximize the value of permanent injuries by gathering proper evidence so that the law can be used in your favor.
3. Physical Evidence:
Motorcycle injury cases often involve disputes over time, speed and distance. What do I mean by this? Insurance companies are looking for a way to prove that a motorcycle rider was at least 1% at fault for causing an accident. It is not uncommon for insurance companies to deny your claim for injuries by stating that you were speeding, you could have avoided the collision had you paid attention, etc. Once the insurance company takes this position, how do you prove them wrong? When we get into arguments about how an accident happened, we often have to rely on physical evidence to prove a case. We work with accident reconstruction experts to determine what REALLY happened. It is important to make certain that the accident scene is well documented with photos and that all physical evidence is preserved. We have the ability to send a Spoliation Letter to adverse parties and to the insurance company to make sure that critical physical evidence is preserved.
4. All Applicable Insurance Policies Need to be Identified:
Don’t we just look at the other driver’s policy? Nope. That might be the first place that we look, but it is certainly not the last. As I mentioned earlier, motorcycle injuries are often severe. Medical bills are typically very high. North Carolina only requires vehicle owners to carry $30,000/$60,000 in liability coverage for bodily injury. This means that if you are injured by someone with a North Carolina minimum limits policy, the insurance company can’t be compelled to pay more than $30,000 on your claim, regardless of how bad your injuries might be. We see this all the time. A client has $50,000 in medical expenses with bad injuries and the at-fault vehicle only has $30,000 in available coverage.
A skilled lawyer knows where to look to find additional insurance coverage. Sometimes the at-fault vehicle owner and driver are two different people. When this happens, sometimes there will be two (2) liability policies that we can get at. It is also important to look for Underinsured Motorist Coverage (UIM). This is a coverage that might be on the policy of the motorcycle owner, the motorcycle driver or any blood relative living in your household at the time of the collision. If we can find multiple UIM policies, we can “stack” their coverage limits allowing for a greater recovery.
These days it is not uncommon that people are driving without insurance. It’s against the law, but it happens all the time. When you are injured by someone without insurance, we will be looking for Uninsured Motorist Coverage (UM). This type of coverage will pay for your damages when the at-fault owner and driver do not have insurance. This type of coverage is mandatory on all insurance policies issued in North Carolina. There are some additional steps required to open a UM claim. In addition, you have additional options available to you when pursuing a UM claim. The biggest option that UM gives you is the ability to arbitrate your case before a panel of arbitrators rather than presenting your case to a Judeg and jury. There are many reasons why this can be a valuable option depending on the facts of your case.
When you get multiple insurance policies involved, there are often issues about whether one insurance company gets credit for what another insurance company has already paid on your case. There are also issues involving whether policies can be stacked (allowing a larger recovery). The success or failure of your case is not always based on making arguments about the facts. Sometimes it comes down to complex arguments involving insurance coverage. This is one area where a skilled attorney is priceless.
5. Technical Requirements of an Underinsured Motorist Claim:
I have had clients come to me with a potential case and they explain that they handled their own claim against the other guy’s insurance, but now they want help with their claim for Underinsured Motorist Coverage. I always cringe when I hear this. Why? There are several reasons. First, if a client has handled their own case for any period of time, they have normally damaged their case. They have given statements, signed medical authorizations, failed to preserve evidence, etc. However, the most painful discussion that I have with these folks is when I have to tell them that they did have available UIM coverage available to them, but they have forfeited their ability to pursue a UIM settlement. Ouch. At this point, the client will normally get upset and say something like “There’s no way I could have hurt my UIM case, I haven’t even spoken with my UIM insurance company!” Sadly, that often does not matter.
North Carolina General Statute 279.21 talks about Uninsured and Underinsured motorist claims. In order to preserve a claim for Underinsured Motorist benefits, you can’t sign a General Release in favor of the at-fault insurance company. However, the at-fault insurance company will normally ask you to sign a Release before they will pay out. Hmmmm…seems like a trap, doesn’t it? It is!
A skilled lawyer can help a client get past this trap. NCGS 279.21 talks about a way to settle with an at-fault insurance company while still preserving the right to pursue an Underinsured Motorist claim. This is done through the use of a Covenant Not to Enforce Judgment (CNTEJ) rather than a Release. The CNTEJ should contain language to specifically preserve the injured person’s ability to pursue available UIM coverage.
I have also had clients ruin their chances of seeking a UIM recovery by accepting money from the at-fault insurance company before giving the UIM carrier statutorily required notice. The UIM carrier must have notice of intent to accept money from an at-fault carrier. They are given thirty (30) days to determine whether they should allow the at-fault carrier to pay this money or not. The UIM carrier can choose to advance these funds to the injured person in place of the at-fault carrier. The advantage of doing this for the UIM carrier is that they preserve the right to pursue the at-fault driver for repayment. If the UIM carrier allows the at-fault insurance company to pay you, the UIM carrier forfeits the right to pursue the at-fault driver for repayment. If you accept money from the at-fault insurance company before the UIM carrier receives proper notice and has 30 days to decide whether to advance payment or not, your claim for UIM benefits will be forfeited.
Although a complete discussion of the requirements to preserve a UIM claim is beyond the scope of this blog, the takeaway here should be that it is extremely easy to hurt your claim for UIM benefits without even knowing it. I have had to break bad news to many clients who have tried to “play lawyer” before coming to me. Don’t be one of these people!
6. Proving Future Damages – Expert Witnesses:
With motorcycle injuries often being very serious, we are typically arguing about the value of future damages. You are entitled to recover for damages to date, but what about the damages after you settle your case? What about the fact that you might never walk without a limp? What about the cost of medical treatment that you will need for the rest of your life? These are issues involving future damages. Proving future damages comes down to evidence and credibility. That’s why we work with expert physicians, economists, lifecare planners and others. Each expert has a field of expertise and they can back up their opinion for your future damages. Remember, we want evidence to have credibility. As the plaintiff in the case, you are automatically biased (understandably) and your opinion regarding future damages means little to an insurance company or a jury. When it comes to future damages, this is an area of damages that needs to be handled by an experienced attorney.
Okay, so that’s a lot for one blog. Hopefully I haven’t scared you too much. If you have been injured in a motorcycle accident, the worst part is already behind you. Now it’s time to focus on getting better. While you are focusing on your medical treatments, let your lawyer protect your legal case. By doing this, you increase the odds of a favorable outcome, and you don’t have to worry about the technical requirements that will make or break your case. If you have any questions, call Bradley Law Group and we will be glad to speak with you for free.
**This blog is a general discussion concerning motorcycle accidents. This blog is not intended as legal advice and it should not be taken as such. Please consult with one of our attorneys concerning the particular facts of your case. The law can apply differently to different fact patterns.