Seeking Commute Accident Advice

[tmanley]

This morning I was commuting to work here in San Jose, CA, heading up
North 1st St. towards Old Bayshore (near Hwy 101). I've done this
commute a ton and was happy to see that the local weather was holding
out for more than a week straight. The stretch of North 1st is tight
between Taylor and Old Bayshore...not a ton of room to commute, but
enough that I feel pretty safe/comfortable. This all changed this
morning...

The light was red heading north and the cars were backed up about 20
deep in both lanes. I was riding between the curb and the right lane of
cars. To my left were stopped vehicles; on my right was a long parking
lot for the local Hyatt. Without notice a SBC van decided that it
didn't want to stay stuck in traffic and instead felt that cutting
through the hotel parking lot would save him time. Without notice (not
even a blinker), the driver turned right across my path and into the
driveway.

I was coming up fast enough that I didn't really have time to do
anything. I was riding on the hoods, but given I was doing between
10~15mph, there was no time to pull the brakes. I ended up taking out
the side mirror and then faceplanting onto the curb as I was thrown
this way from the impact of the van.

To say the least I was pretty dazed, but managed to do the usual
inventory check. Hands? ok..feet? ok...teeth? ok. Then I remembered
that I wasn't sweating too hard and that what was warm on my face was
blood. Yup, two nice gashes, one above my left eye and another (much
worse) extending from my chin toward my right ear. I've been cut open
before, so I quickly grabbed my t-shirt from my commuter bag and
applied pressure.

My bike ended up not having a scratch, except for the rear derailer
being a little nicked and the hoods on the handlebars being ground down
a bit. The driver of the van was completely surprised and in shock
(heck, I was too). He pulled over and promptely called 911 and checked
to see if I was ok. I found his mirror about 20 feet away and looked at
the facial damage...not pretty.

Anyway, to shorten this story, the police came & took a report, I ended
up at the ER with 21 stitches (6 forehead, 15 chin), and now I'm
wondering what I should do.

I'll be calling later today to get a copy of the police report, but
what should I do next. I don't feel I was in error with my commuting on
the bike, but I do feel it would be fair for the driver (and his
company...since it was a company van), to pick up the tab for medical
costs and replacements charges for damaged parts.

I'm open to hearing all advice (even those who call me the person in
the wrong...).

-Thanks, Todd

[jwprolo]

That hurts- glad to hear that you were "only" cut up. Personally I would keep this on the DL. I've gotten warnings from police in CA for passing traffic on the right. Now, sometimes police don't really know exactly how laws apply to bicycles, and I am not so up on things, but the company and their big law budget could turn around and tell you to pay for the mirror.

However, either way I would check here first: http://www.sfbike.org/?bikelaw

[Fixed]

bro p.m. tom burns he's a bro

[rob137]

I don't think you should have been riding to the side of the stopped cars. Let's say that the van did not pull into the parking lot, but only moved to the side a bit. You would have still made contact, but would the van have been in the wrong? He would have still been in his lane. I think a car has the obligation to avoid a cyclist when approaching from behind the cyclist in the same lane, but when you are passing him in his lane? At the very least, it is not clear cut.

[tmanley]

That hurts- glad to hear that you were "only" cut up. Personally I would keep this on the DL. I've gotten warnings from police in CA for passing traffic on the right. Now, sometimes police don't really know exactly how laws apply to bicycles, and I am not so up on things, but the company and their big law budget could turn around and tell you to pay for the mirror.

However, either way I would check here first: http://www.sfbike.org/?bikelaw

I checked out the CVC details here, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=21001-22000&file=21200-21212, and found that section 21202 was the most applicable, but no specific mention of right-hand passing...might end up being a judgement call.

[GregL]

... and, as already mentioned, check your state traffic laws before doing anything.

A friend had a similar incident in my locale (upstate NY). While she wasn't ticketed, the investigating officer did remind her that passing on the shoulder was illegal. I would find out what CA law has to say on the subject. While the van driver was likely in the wrong by making a turn without a signal, you too may be in the wrong.

Most importantly, best wishes for a speedy recovery and no long-term ill effects.

Regards,
Greg

[MarinRider]

If the police report states that the driver was at fault, you can get SBC to pay medical and parts replacements without too much trouble. You'll need to get the lawyers involve if you like to get more for pain and sufferring (which you are entitled as well).

The police report for a minor traffic accident usually takes a week to finalize. Make sure you talk to the police now if you have not had the chance to talk at the scene of the accident. Also make sure you have contact info for witnesses as well.

Hope you heal well.

[lnomalley]

don't talk to insurace... don't make an insurance statement... talk to a personal injury laywer... not to suggest that you have to sue.. but to make sure that you're covered. his insurance has one interest in mind.. paying out as little as possible. any info they seek will serve as ameans to that end.
also, don't minimize your injuries... you don't know yet the full extent or repercussions of your injuries. it takes time.

[PeterW]

I'm a lawyer who has represented lots of cyclists. Check out my site at scbikelaw.com.

My advice is simple = call a cycling lawyer in California. There are a few in SF.

Where I practice (South Carolina), it would be the car's fault (for not exercising "due care" to avoid the accident).

You can still make a claim against the driver's insurance regardless of the police's designation of fault (which is often wrong).

[flydhest]

Here in DC, for point of reference, the statute says you were not at fault. Of course, these things vary by jursidiction, but lots of people assume that the bike is somehow at fault for being in between the line of traffic and the edge of the road, even passing.

This fact is balanced out by the fact that there is no law, let alone enforcement, against cars driving in bike lanes.

Go figure.

I'm glad you're ok . . . chicks dig scars.

[mdeeds71]

One thing that I love about CA, specificaly Nor Cal is that there are bike lanes everywhere. I would see if the local code on that rode allocates a bike lane (they are usually marked but not all the time) and if so then passing cars up to a stop light as long as you stop are acceptable as was explained to me by an officer when he had a car stopped for using the bike lane to expedite their turn.

Glad to see the inventory check was good! Heal quickly!

[shaq-d]

if the injuries will heal and the medical expenses aren't a lot, it seems giong to a lawyer wouldn't be worth it. the damage to your bike is incidental, and there seems to be questions on whether you were doing the right thing; which means mitigating circumstances, which means u'd get less money.

if you're just pissed off and/or the injuries are significant, and the medical expenses are hefty, then by all means go to a lawyer or two. many lawyers have free first consultations. know that giong to a lawyer can potentially take more money out of your own pocket; and that even if you do get money, you would have spent a lot of time and effort and worry on it.

there are also other things involved, often unanticipated, when you take serious action through law. for example if the driver is at a new job, he may very well lose his job. on the one hand this seems liek an innocent accident and losing a job over it seems rather extreme. at the same time if the driver has a bad driving record, it would be a just result. just saying here that many unanticipated thigns can happen when u involve the justice system, that affects many people.

it doesn't do any harm to contact the insurance company and send feelers out either, so long as you don't say anything definitive.

here in canada we have free medical care :banana: . but if u have the time and are properly angered/injured, a lawyer may be good. if not, don't.

sd

[tmanley]

I'm glad you're ok . . . chicks dig scars.

Yeah, this will be a nice scar. Might have to throw up a pic in a few months...but for now I'll let my beard grow back.

[Peter P.]

I've been doinked by cars three times so unfortunately I have some experience with insurance/lawyers, etc.

First, consult with a lawyer. Most offer free initial consultations. Ask at local bike shops for a referral, most likely it will be a lawyer who's also a customer, or is known in the cycling community. You'll want to determine whether you bear some responsibility for passing on the right of a line of stopped cars; it all depends on state law.

Photograph your injuries NOW while they are fresh and ugly. Keep a record of all bills. If you have insurance and the E.R. had you on file or managed to get your policy #, they might bill your provider automatically, which will prevent you from placing the responsibility to pay on the other party. This happened to me-there was no money out of my pocket as my insurance paid for the E.R. visit, but I wanted the bill to go to the other party. I did get the at fault party to pay the ambulance tab, though.

Be cautious about settling/closing the case, or declining to file any claims. Some injuries take a while to appear, such as neck injuries, or they merely linger from the accident and becoming nagging issues requiring long term treatment such as chiropractors or physical therapy. I settled quickly thinking my neck pain would be short lived; in reality it bothered me for over a year and three years hence there's still some aggravation. Insurance companies will put a "value" on any scars you have and can figure into any settlement, if that's your concern.

As for the bike: do NOT disassemble or repair the bike. Get a couple of WRITTEN estimates for repairs and include labor even if you'll perform the repairs yourself. Here's what I've experienced-some insurance companies will depreciate the cost of the bike and thus the cost of replacing parts. You'll get LESS than what is required to make the bike whole again. You've got two choices- you can refute the claim and try to argue for full repair/replacment value though some companies won't budge depending on how good an arbiter you are or, you can recover the difference through the "pain and suffering" portion of the settlement.

Here's what the insurance company did with my last accident-they split the claim in two parts, 1) the bicycle damage, and 2) the medical bills and the pain and suffering. Each portion was administered by a different claims specialist. The bike claim was depreciated and I was sent a check without being consulted. As long as I didn't cash the check I could dispute the amount, but I didn't and I regret it. I was fuming.

The medical bills etc., were covered by the second specialist who also doled out the p/s money. She merely wanted to make it a "round number" and I told her I wasn't interested in making a windfall out of this. This round number was enough to offset the depreciated cost of the bike repairs, so I was happy.

The moral of the story is, if the bike is depreciated, explain the to claims specialist that you're not interested in financing your yacht; you just want the bike repaired to spec., and if the bike is depreciated can you get the remainder through the p/s portion. If you don't like this type of negotiating, or the insurance company decides to play hardball, then tell them you'll have to consult with a lawyer and see if that doesn't get them to bend. But don't bluff on this, either. Just don't cash ANY checks until you're sure you're satisfied with your settlement.

[Chad Engle]

I'm an adjuster (don't flame me yet) and I ride.

The driver has a duty to make sure it is safe before changing lanes, no question, so they do have a degree of negligence. However, how many times have we all heard that bikes are vehicles, that being said if you chose to not take your place in line with the cars, as a vehicle should, and pass all the stopped traffic in the space between the cars and the curb you are not without fault either.

It is never safe to assume you can change lanes, but you should not have been where you were. IMHO.

Definitely check your states statutes regarding passing on the right, that is what is going to be used against you.

Depending on the comparative negligence laws in your state you may or may not be entitled to some sort of settlement.

All of the advice oh how to document your claim is good. Don't settle until YOU are ready to, not when the Ins. Co. is ready to. Keep in mind the statute of limitations in your state.

And yes, third party liability claims are settled on an Actual Cash Value basis (ACV). That is replacement cost less depreciation. If you total your car, you don't get the cost of a brand new one, you get the value of your property at the time of the loss.

My last bit of advice is to try and settle the claim yourself first. There is no reason to retain an attorney until you cannot get the results you want by yourself. They don't work for free, nor should they, but see what you can do yourself before giving up any cash. If you cannot reach an amicable settlement with the Ins. Co. then go find an attorney.

Good luck and get well soon, that looks very mp.

[bshell]

dude, you were injured-get compensated.

if the guy had signaled and checked that sideview mirror you got acquainted with and then proceeded carefully you would have completed your trip w/o FACIAL INJURY!

unless you know an attorney or are well versed in settlement dynamics don't try this on your own. get an attorney, otherwise you will have no idea what you are entitled to.

the sbc guy made a mistake, simple as that. it's why we carry insurance.

waiting behind a line of cars at every controlled intersection is neither required by law or realistic.

[zap]

sniped.

here in canada we have free medical care :banana: .
sd

Really, how do you figure that.

I grew up in Canada, worked there and paid taxes. Plenty of taxes. Additionally, taxes have gone up in Canada since I left.

Quebec has now started a private, fee based parallel system since the social system is overwhelmed.

Costs are capped in Canada. Docs can only earn so much. Docs leave Canada to earn more. At least they used too. My Doc did.

Moved to the US. Taxes are much lower. Sure we pay for health insurance but the total tax/insurance burden is less. At least for me and many that I know.

I don't want to debate here which is better or worse. Come on down for Notrott to discuss it further while enjoying some decent brews. Bring some Creemore :D

Just wanted to highlight that you are not getting free medical care.

[pbbob]

on a more optimistic note, I had a lac just like that one over the eye from a low speed motorcycle accident. the scar quickly became invisible after normal tanning of the skin.

hopefully you will heal as well.

[SamIAm]

dude, you were injured-get compensated.


This statement makes me queasy.

How bout you got a few scrapes, cowboy up and move on.

[shaq-d]

I don't want to debate here which is better or worse. Come on down for Notrott to discuss it further while enjoying some decent brews. Bring some Creemore :D

Just wanted to highlight that you are not getting free medical care.

lol. middle of exams.. i have to say no notrott... :p but i seriously considered it nonetheless. :banana:

by "free" i mean we don't have to worry about most medical costs. that's a nice thing not to worry about. while it's true that docs/etc. leave canada, it is not true that medical is better in the states. it's only better if you can afford it or have a job with the proper benefits. again, not something u need to worry about in most of canada.
:butt:

in the situation the original poster had here, for example.. if it happened in canada, i wouldn't do anything. going to emergency room and getting patched up is free. damage to bike is negilgible. i'd just go on with life without worrying about lawyers and insurance claims.

sd

[93legendti]

...while it's true that docs/etc. leave canada, it is not true that medical is better in the states. it's only better if you can afford it or have a job with the proper benefits. again, not something u need to worry about in most of canada...sd

It is also true in Windsor, where everyone of our neighbors that needed critical care, i.e. cancer treatment, heart treatment, surgery and/or elective surgery chose to go "to the states" (as our neighbors called the USA) for treatment which they paid for out of pocket, rather than be treated by doctors from OHIP (the socialized medicine plan) who had not opted out.


(Sorry for the side comment sg)

[bshell]

Hey Cowboy Samiam,

If you consider 21 stitches in the face "a few scrapes" you truly are a tough guy and I applaud you. A bit naive in my humble opinion.

[Chad Engle]

in a nutshell, you have to have an open unobstructed lane to legally pass on the right. Further, "In no event shall the driver of a vehicle (which includes bicycles in this state)overtake and pass another vehicle upon the right unless such movement may be made safely upon the roadway."

If folks want cars to respect us as other vehicles we need to obey the same rules of the road. Obviously, a cyclist traveling in the line of cars would not have had this problem.

You have a pretty big hurdle to clear regarding your own liability, it's clear that your actions contributed to the cause of the accident, possibly enough to bar you from recovery.

I sincerely wish you the best of luck in your recovery and claim. :beer:

[SamIAm]

Hey Cowboy Samiam,

If you consider 21 stitches in the face "a few scrapes" you truly are a tough guy and I applaud you. A bit naive in my humble opinion.

My point is not are you tough enough? My point is at some point Americans need to stop litigating everything. Accidents happen, no need to sue if you have a reasonable expectation to recover in fairly short order. Especially if you bear some responsibility and in my opinion passing cars on the right is downright foolish if not illegal. Pull that bike behind the last car in line and deal with it.

[mfb1001]

Good luck on your recovery. I used to live in San Jose, down near Santa Teresa area, and commuted up thru SJ to Milpitas. I found using 5th street and others up that way was safer then N. 1st street. Anyway, doesn't the law in CA allow Motor bikes to pass inbetween cars. I believe so, I've seen it done many of times by both cops and civs. So if that applies, wouldn't it apply to cycles passing between cars? Good luck

[Orin]

The light was red heading north and the cars were backed up about 20
deep in both lanes. I was riding between the curb and the right lane of
cars. To my left were stopped vehicles; on my right was a long parking
lot for the local Hyatt. Without notice a SBC van decided that it
didn't want to stay stuck in traffic and instead felt that cutting
through the hotel parking lot would save him time. Without notice (not
even a blinker), the driver turned right across my path and into the
driveway.


So you have him failing to signal the turn at least. Some states/jurisdictions have laws prohibiting cutting through parking lots etc to avoid traffic signals too. Don't know about CA.

As for the comment about motorcycles lane splitting in CA, from what I've read, you aren't likely to get a ticket for it, but it's at your own risk...

This is one of those things where you might be in the right, but it's risky and it's gonna hurt if you get nailed. You assess the risk... go up the inside and risk someone turning across you or wait.

Orin.

[bshell]

Sorry, my intention was not to agitate.
(I think I'm just frustrated with the local road conditions and lack of awareness. I think it should be a requirement for everyone to ride a bicycle for a month just to see what there is to deal with)

Keep in mind that seeking legal counsel in order to be fully informed of your rights/responsibilities is not the same as suing for the moon. I know many attorneys and fully believe that a good, honest one is worth every penny.

As much as I agree that we have become too litigious there are too many people with real damages that have been or will be taken advantage of by insurance companies. The hyper litigious tend to be undeserving scammers while the genuinely wronged often feel bad for the victimizer and do nothing to recover. It's kinda screwy.

IT IS NOT ILLEGAL TO ADVANCE ON THE RIGHT SIDE OF TRAFFIC IN CA! Let's stop with the 'blame the victim' bit already.

[Bradford]

IT IS NOT ILLEGAL TO ADVANCE ON THE RIGHT SIDE OF TRAFFIC IN CA! Let's stop with the 'blame the victim' bit already.


I was hit by a car seven years ago. My accident was witnessed by a police officer who wrote the accident report that clearly laid all the blame on the driver of the car. Although that was the correct conclusion legally, it certainly was not all her fault. I was going almost 30 miles an hour with too many cars around. If anybody made just a slight mistake or failed to look in my direction, I was going to be in trouble, and that is what happened.

There is a difference between legally at fault and doing something stupid. I was doing something legal but stupid then and tmanly was doing something stupid by riding 10-15 mph inside of a line of stopped cars. It is irrelevant if the driver was also doing something stupid or even breaking the law.

This issue reminds me of a guy I knew who parked in a bad city neighborhood and left a new basketball in plain view in the back seat. When he got back, he had a broken window and no basketball. What he did was legal, but very stupid, and he has to take blame for not taking reasonable precautions.

I chose not to sue when I was hit. Although I was severely bruised and wasn’t able to ride for a couple of weeks, I did walk away. I think it is bad karma to try to make money from an incident when there is not real monetary harm done. I had health insurance, so there were no medical costs and I did not lose money due to missed work. All I asked for was for them to cover my lost frame, which went under the wheels as I was bouncing off the windshield, and the insurance company was happy to do that. If I had medical costs, I would have felt comfortable asking for the insurance company to reimburse me. Frankly, I felt fortunate that I wasn’t dead after doing something stupid.

From what I've seen on all the group rides I’ve been on, there are a lot of cyclists who don’t think they are responsible for their own actions. From comments I’ve read on this board, there are plenty of them here as well. Perhaps we can all earn from tmanly’s mistake and realize that when car meets bike, car wins; anything we can do to avoid that is our responsibility and anything we do to allow that to happen is our fault. The rest is all irrelevant.

I say dust off the bike, let the scars heal, thank god you are still alive, and use a little more common sense when riding. If the bike is broken, have them pay to fix it; if you have medical expenses, have them reimburse you for them. Beyond that, let it go.

When it happened to me, I learned a lesson that has made my cycling better and my life safer. Perhaps that is the compensation I received.

[tmanley]

tmanly was doing something stupid by riding 10-15 mph inside of a line of stopped cars.

Just to be clear, and maybe I wasn't in my original post, I was riding between the curb and the cars in the far right lane (i.e. curb was on my right, cars on my left); I was not between lanes.

Hopefully this is clear.

[72gmc]

tmanley, I'm sorry you were hit.

I was the victim of a hit and run on June 10 of last year, and far from your situation I watched the driver smile and wave to me in his side view mirror as he drove away. Luckily I suffered no physical injury, but I did have a frame go by the wayside--with no witnesses willing to provide info, and thus no action from my local police. Rather than dip into my own insurance or go on an iffy legal pursuit with no witnesses to call on, I chose to swallow my anger and move on.

You have far better circumstances (from a documentation perspective). If I were you, I would sit down with a local attorney who handles these cases and talk. If it turns out you are equally at fault, you may just want to move on.

[Chad Engle]

Bshell

'Let's stop with the blame the victim' You're killing me smalls. That is the biggest problem in the world, people not taking any responsibility. I'm not calling out Tmanley here, he hasn't argued with any of the responses, for or against. But to say we're blaming the victim is a little much.

BTW, victim, very overused, let's use it for those that truly deserve it.

[xcandrew]

Two comments. I grew up in San Jose and made sure as a kid that I knew the traffic laws well, especially those pertaining to bicycles. (I also read stuff about defensive riding, "Effective Cycling", etc.) I remember very clearly that it is legal for a car and bike to share the same lane, and legal for any vehicle to pass on the right. Of course you need to be careful when doing this, but it is assumed that you want to live. ;) You're not supposed to pass on the shoulder, but there was a curb in this situation so he wasn't on the shoulder. Curbs on the right on narrow crowded roads can be a dangerous position, and I probably would have gone slow enough to anticipate hazards (and recognize how tempting it would be for a car to cut across a shoulder or parking lot in SJ because I saw it all the time), but maybe not.

Someone mentioned that they never heard of laws much less enforcement against cars driving in bike lanes. Actually, there is a traffic law against this in CA, or at least in San Jose. I remember it being strictly enforced in the south SJ area where I grew up.

[jwprolo]

Someone mentioned that they never heard of laws much less enforcement against cars driving in bike lanes. Actually, there is a traffic law against this in CA, or at least in San Jose. I remember it being strictly enforced in the south SJ area where I grew up.

This is true: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=21001-22000&file=21200-21212 (See 21209) Jury is still out on the passing on the right. I can't find anything in the CA vehicle code that specifically allows or forbids the act. All passing is either assumed, or explicitly stated as occuring on the left of the slower moving vehicle. I don't plan on reading the whole code. So it does seem that passing on the right is legal.

[shaq-d]

When it happened to me, I learned a lesson that has made my cycling better and my life safer. Perhaps that is the compensation I received.

hey brad, nice post. agreed on all points.

sd

[bshell]

I'm surprised by some of the statements made here but it is an interesting world...

And yes, blaming the victim is exactly what some of the responses sound like to me. "It's foolish even if it is legal" or "you shouldn't have been there" etc. If everything happened as described in the first post Tmanley seems to have a SOLID case and could recover between $10-15K (possibly more--deep pockets) for the injury and disfigurement IF HE CHOSE TO. I would bet that left alone, the insurance company will offer him under a thousand after his bills are paid if he is lucky. I hope I am wrong.

It's his choice. He's a rugged looking guy and may not care about a couple of big scars. What if it was a young woman instead that couldn't hide it in stubble? Would anyone feel differently? Shake it off sister, enjoy your scars, hope you learned a lesson. Maybe a kid? Traffic laws (any law) are designed to protect and to be applied evenly. They eliminate B.S. like "you were right but you should have known better".

Imagine that there are 2 lanes of traffic travelling in each direction. In the inside lane ("fast lane" if you will) an automobile is holding up traffic by waiting to make a left turn across oncoming traffic while cars in the outside lane pass this bottleneck ON THE RIGHT. An impatient motorist waiting behind the turning auto yanks his car into the slow lane w/o signaling or looking for a safe opportunity and hits an unsuspecting motorist. Would you say "they shouldn't be there" or that "they should wait at the back and deal with it"? The bike lane OR the right side of the road is where bikes have been relegated. If there were no obstacles impeding T's path making it hazardous to ride, it is his place to ride. Motorists need to respect that.

Chad-
Holy cow, you are an insurance adjuster...
You wouldn't agree that this guy was the victim of a reckless motorist??? And what does "You're killing me smalls" mean? You lost me.

Good luck Tmanley! Take a bunch of photos to document the pretty shades your bruises will turn.

[Chad Engle]

bshell-
Movie quote on the smalls thing, poor attempt at humor, The Sandlot.

No question the driver has some fault here, but so does the cyclist. That's all I'm trying to say. People hate to admit that their actions contributed to the cause of an accident. I don't know the laws where the accident occurred, buy in my neck of the woods, his actions would bar him from recovery, imho.

Again, I wish our injured pal the best of luck in his recovery and claim, if he chooses to pursue one. I'm certain we agree on those two points. :beer:

[flydhest]

Someone mentioned that they never heard of laws much less enforcement against cars driving in bike lanes. Actually, there is a traffic law against this in CA, or at least in San Jose. I remember it being strictly enforced in the south SJ area where I grew up.

Here in DC, there is no such law. This from a member of DC DOT while speaking on the radio trying to promote bicycle riding.