Car ran over gfriend on legend, pt2 – time to lawyer up?

[Kurt]

Posted on 3/12 that my girl was nailed by a car
http://forums.thepaceline.net/showthread.php?t=1483

We met with the inspector hired my the insurance company on 3/24 and he looked over the bike, many parts are scratched, front ksyrium trashed, Alpha Q broke on one side under the headset, even the bb got trashed, etc. I was crystal clear that she had little interest in riding the frame again, that she is just going to get another one. I followed up last week in an email, asking if he needed anything else – I just wanted to keep the process moving forward.

Today he sent me the following:

Good morning Kurt,
I just spoke with the USAA's adjuster on this file. They have requested that I continue handling this file. They also requested that I verify the bike is not safe to drive. I understand from speaking with you and with Joanne that she WILL NEVER ride this bike again. I however need to verify that for my client (USAA). I will get working on this ASAP. Also, does Joanne have a receipt of when she bought the bike?

My ? is shouldn’t this deal be based on Jo’s comfort level wanting to or not to ride the bike ever again – not if it can or cannot be repaired? Last time she was in a wreck, she got a check from the parties’ insurance company in a week that bought two new bikes, this legend being one of them. These guys must be on crack if they think I won’t get an attorney involved at this point. She tried to be nice, not making a big deal of her injuries and she did get hurt, guess what – this will cost them 3x what she would have settled for because they are being dicks. Sorry for the rant, but what a waste of time that I do not have.

[BumbleBeeDave]

. . . but how exactly does the insurance company want him to “keep handling the file?” What exactly does that mean? Does that mean that he is authorized to pay for the necessary testing to verify the bike frame is damaged? How much would that testing cost? Are they betting that the cost of a new wheel ($400), new fork ($350), Campy shifter ($200), bars ($150), the labor to assemble it ($100?) AND the cost of the testing will be less than the cost of a new bike?

That may be a good bet on their part--assuming, of course, that the frame tests OK. They may also be betting that the dollars involved are just barely low enough that you will decide it’s not worth the extra scratch to lawyer ‘em up.

But when you also consider the money they must have already spent to hire this inspector, then it does not seem to make sense. The longer they let this claim hang, it seems the more money it would cost them in overhead.

Have you investigated any other avenues for applying pressure besides a lawyer? ARE there any other avenues? And do they work this the same as totalling a car--namely that when they pay you they are essentially buying the wrecked bike?

BBDave

[Needs Help]

Go get 'em Kurt! You gave them the chance to settle fast and clean. Now it's time to play hardball. You might want to give them an ultimatum. Tell them that if you don't have a check for $X in one week, then you are getting a lawyer. I would include some pain and suffering in there too, as well as the cost of your time, and then double the total amount. Good luck.

[Kurt]

Working the file, I am guessing, is to continue seeing if the frame can be salvaged and/or put back in operating order.

I have two simple questions – would you want to ride a bike and regularly descend at speeds close to 50mph on a frame that has been in an accident. Second is, who is the deciding party in an accident that was not her fault – meaning she is the victim in this scenario - why should she have to settle for a repair when she started riding that morning with an unblemished frame. She is an individual that actually rides her bike; she always logs 10k+ a year and has for years. She is a top-notch descender and can stay with or beat many cat1/2 men down even the toughest decent. My point is, she is the real deal and her equipment and having trust in it is very important to her. She also had a previous accident and frame issues arose after the case was settled – neither she nor I want her to be stuck again on the short end of things.



. . . but how exactly does the insurance company want him to “keep handling the file?” What exactly does that mean? Does that mean that he is authorized to pay for the necessary testing to verify the bike frame is damaged? How much would that testing cost? Are they betting that the cost of a new wheel ($400), new fork ($350), Campy shifter ($200), bars ($150), the labor to assemble it ($100?) AND the cost of the testing will be less than the cost of a new bike?

That may be a good bet on their part--assuming, of course, that the frame tests OK. They may also be betting that the dollars involved are just barely low enough that you will decide it’s not worth the extra scratch to lawyer ‘em up.

But when you also consider the money they must have already spent to hire this inspector, then it does not seem to make sense. The longer they let this claim hang, it seems the more money it would cost them in overhead.

Have you investigated any other avenues for applying pressure besides a lawyer? ARE there any other avenues? And do they work this the same as totalling a car--namely that when they pay you they are essentially buying the wrecked bike?

BBDave

[Michael Katz]

Legally, you are entitled to receive property damages for a replacement bike only if the bike is too damaged to be safely repaired or if the costs of repair exceed the costs of a new bike. Her "feelings" about whether she ever wants to ride the bike again are immaterial as a matter of law with regard to property damages. In practical terms, however, the insurance company should be bending over backwards to replace the bike out of recognition that from a business perspective the cost of a new bike is well worth a general release that will avoid claims for personal injuries. That's where her "feelings" should be given weight.

It sounds like the insurance company is "playing" you. I suggest you give them a bottom line that avoids falling into their concept of how they are trying to "script" this. Your "script" would go something like this:

"We think the bike is damaged beyond repair and have been told this by an area bike shop. We are prepared to obtain the necessary expert report if necessary to prove this in the appropriate forum. In addition, my wife got pretty banged up when she was hit and required medical treatment and is still suffering the effects of her injuries. Enclosed is an estimate showing what it would cost to replace her bike. At this point, we are willing to settle all of her claims for (insert amount for new bike - plus some aggravation $ if you want - like $1000 or $2000 over the cost of a new bike) provided this gets resolved quickly without any further inconvenience to us or aggravation. If you are willing to settle with us for this amount in return for a general release, get back to me by the end of this week. If we can't reach a settlement on this basis, then I'm just going to turn this over to a lawyer."

If by the end of the week you don't have an agreement, then see a lawyer and take them to the cleaners!

Good Luck!

[Kurt]

Michael, thank you. She is a divorce atty and does not get inv w/ this type of thing. I would love to send the ins company an email, but they don't use email. I will get around to a fax sometime this week.

Legally, you are entitled to receive property damages for a replacement bike only if the bike is too damaged to be safely repaired or if the costs of repair exceed the costs of a new bike. Her "feelings" about whether she ever wants to ride the bike again are immaterial as a matter of law with regard to property damages. In practical terms, however, the insurance company should be bending over backwards to replace the bike out of recognition that from a business perspective the cost of a new bike is well worth a general release that will avoid claims for personal injuries. That's where her "feelings" should be given weight.

It sounds like the insurance company is "playing" you. I suggest you give them a bottom line that avoids falling into their concept of how they are trying to "script" this. Your "script" would go something like this:

"We think the bike is damaged beyond repair and have been told this by an area bike shop. We are prepared to obtain the necessary expert report if necessary to prove this in the appropriate forum. In addition, my wife got pretty banged up when she was hit and required medical treatment and is still suffering the effects of her injuries. Enclosed is an estimate showing what it would cost to replace her bike. At this point, we are willing to settle all of her claims for (insert amount for new bike - plus some aggravation $ if you want - like $1000 or $2000 over the cost of a new bike) provided this gets resolved quickly without any further inconvenience to us or aggravation. If you are willing to settle with us for this amount in return for a general release, get back to me by the end of this week. If we can't reach a settlement on this basis, then I'm just going to turn this over to a lawyer."

If by the end of the week you don't have an agreement, then see a lawyer and take them to the cleaners!

Good Luck!

[vaxn8r]

I would get your shop to look at the bike and declare it a total loss, if indeed it is. Then it's not your word against theirs. I think that carries more weight than just saying I don't want to ride it anymore.

[jpw]

I once cycled straight in to the back of a car that was waiting at traffic lights. He wasn't best pleased. It was my fault. I wasn't paying attention. I think i was in a zen cycling state of mind- transfixed, staring at the top tube. What a dumbo.

[Len J]

A few points:

1.) Her comfort level riding the frame is immaterial to the legal settlement. The only thing important is the actual damage to the bike. Unless you can demonstrate the the Bike is damaged beyond repair, or the repair costs are in excess of the salvage value of the bike, the insurance company is only obligated to settle against real loss, not perceived loss.

2.) Why do people always believe that they are entitled to replacement value (i.e. a new bike) because they were in an accident. Let me take an extreme as an example, if you had a 20 year old bike that you have put 80,000 miles on that can be bought used on e-bay for $300.00, (market value for equal USED replacement) then why should anyone expect to get a brand new bike?

Your wife's legend is used, it's not new, it can be replaced, with another used frame, for probably 50% the cost of a new frame, why do you think she is entitled to a new frame? If you are in an accident where your car is totaled, the insurance company will give you the replacement value of the USED car not a brand new car of the same model........why do we think that bikes are different?

Property replacement is about replacement at an equivilant value to what was lost......you lose a used bike....you shouldn't expect a new bike.

Yea, but........I can hear it now........it wasn't my wife's fault that she was hit, why should it cost her money?......well, it really hasn't. If she does get a new bike out of it then in effect the 3 or more years (I'm exageratting for effect) of wear and tear that she has put on the bike is being paid for by the insurance company, the 3 years of market value reduction is being paid for by an insurance co. Think of it this way, if the day before the accident, your wife decided to sell the bike, whould she have gotten an amount that would allow her to replace it with another new legend? no? then why is it worth more the next day just because it was in an accident?

I know it sucks, but it is the way it is.

Len

[jpw]

My insurance policy is 'new for old', so if my 'old' bike gets stolen i get a new one. :D

[Michael Katz]

At the risk of getting involved in a protracted discussion on theories of damages, there's a difference between "value" in the context of selling a bike and "loss" due to someone's negligence. Add to the mix that the bike is a custom frame - unique to your wife's measurements etc. It's not the same as replacing a 2001 Grand Prix with 34000 miles on it. With the car scenario, a similarly aged and equipped car could be found used.A car can be obtained and replaced in the aftermarket, the frame can not be. The only source to replace the frame is new. You are entitled to be made whole. The measure of damages is what it would cost to replace the bike and since there is no aftermarket source for the "same" custom frame, you are entitled to replace it from the only available source - the factory. (All of this assumes that the bike could not be sent back to Serotta and repaired like new. If it can be, then legally that would be your measure of damages.)

However, regardless of any theory of property damage, your wife was injured. Her injuries have value. The insurance company should be taking their total liability exposure into account indeciding what to pay.

[BumbleBeeDave]

. . . of seeming unsympathetic, the insurance company doesn't give a hoot in hell about your wife's feelings. They are looking at making a profit, period.

I think Michael Katz has given some good advice about being firm but reasonable. It would seem that your best bet here would be to gather what information you can to verify that the bike IS 'damaged beyond repair" from a variety of sources, as well as documentation from Serotta or other sources to verify how their bikes hold their value over time AND the very real fact that this is a custom bike--you may be able to buy the same brand and model used IF you can find one, but even then it will not be the same bike, since Serotta's are, by definition, custom.

BBDave

[zap]

Kurt,

Hang in there.

The insurance company is looking out for their interests. You and your girl need to look out for yours. This is normal and you will have to take the time to make sure you get what you want. That's life. All of use who have been in accidents had to deal with it :butt:

Take the damaged bike to your fav lbs to have an "independent" written assesment done to the bike. Your going to be purchasing the "new" bike from them right :rolleyes: Submit the document to the inspector.

The insurance company does not want to have any future liability once the case is settled. Work with your lbs on this basis. Create doubt.

Getting a lawyer will just take more time and expense which you may not recoup, so be careful.

Keep us posted as these cases may help others in the future.

[Len J]

You still shouldn't expect to "Make Money" on the settlement. In my mind this means that you should take a hit for the pre-accident use of the bike. I don't agree with your custom argument BTW. The bike destroyed still has less "value" than a new bike because of use.

That being said, I agree with your firm but reasoned approach. Having real medical claims gives you the flexibility to accept less on the property & more than cover the difference with "Pain & Suffering".

I was more addressing the situitation where there was only bike damage.

In the end, it's all a negotiation.....his expectations against what the ins Co valus the release for.

Good advice BTW.

Len




At the risk of getting involved in a protracted discussion on theories of damages, there's a difference between "value" in the context of selling a bike and "loss" due to someone's negligence. Add to the mix that the bike is a custom frame - unique to your wife's measurements etc. It's not the same as replacing a 2001 Grand Prix with 34000 miles on it. With the car scenario, a similarly aged and equipped car could be found used.A car can be obtained and replaced in the aftermarket, the frame can not be. The only source to replace the frame is new. You are entitled to be made whole. The measure of damages is what it would cost to replace the bike and since there is no aftermarket source for the "same" custom frame, you are entitled to replace it from the only available source - the factory. (All of this assumes that the bike could not be sent back to Serotta and repaired like new. If it can be, then legally that would be your measure of damages.)

However, regardless of any theory of property damage, your wife was injured. Her injuries have value. The insurance company should be taking their total liability exposure into account indeciding what to pay.

[bostondrunk]

I think you would be crazy to ever use the frame again. No way to predict if it will now fail because of damage that may not be visible.
I say the -minimum- you should be getting out of this is a complete new bicycle. Whichever shop you plan to buy/order it through will likely be more than happy to write up an estimate for it, and say that the old one is not safe anymore (which it probably isn;t).

[Roy E. Munson]

I'm no lawyer, and I would rather be a bum on the street than be one (no offence to anyone), but I don't see how one's "feeling's" have any play in this matter. Take the frame to a shop or builder and have them determine whether it's rideable or not. If they say it is, you are SOL. If it's not, it's your lucky day.

[Richard]

Tell the insurance company that you will not be satisfied without a non-destructive test on each weld. The cost of xrays or die penetrant testing will cost more than the frame, fork and components.

[BumbleBeeDave]

. . . mentioned by bostondrunk (burp!) is exactly the reason I think you should get assessments from several different bike shops. Any other research that YOU can do , sans lawyer, would probably also be useful. Do you have any resources for locating similar cases to use as compariuson? Would anyone at Serotta be able to offer any info? I am sure they have dealt with damaged frames assessing whether they are repairable.

To me, as soon as you get a lawyer involved, you define the adversarial relationship and start playing a potentially very expensive game of "chicken."

BBDave

[bostondrunk]

Roy,
I got a flat tire last night. And it was a tubular too, not a cheap clincher. There was some dirt on the road. Would you recommend I consult a lawyer about trying to get compensation from the city?
Its not only the tire......I had to walk home too. And I was wearing the pink tights and Oakley Factory Pilots (green) my mom bought me off ebay, so you can imagine the emotional trauma I have suffered during the walk home. What would you suggest??

[Roy E. Munson]

What's important here, bostondrunk, is not that your tire was damaged, but whether you feel that the tire should not be used again. I would recomend suing the city for everything they are worth. As far as your painful walk home, again, did you feel traumatized, or were you actually traumatized? It doesn't matter, it's all about feelings.

[bostondrunk]

I...walked....home....in....pink...tights...and... .oakley....factory....pilots....and I was wearing a pair of cycling shoes that cost less than 300.......
Of course I feel that I was traumatized!!!! I had to down 12 silver bullets and a shot 'o jim beam to calm my nerves!!!

[zap]

BostonDrunk,

Funny that you should mention getting that flat tire........

A long, long time ago......

I had just installed a tubular tire and did a local training ride. On my way back home, the county had just shaled a road and posted no warning sign (important). As it was on a slight downhill and it was twilight, I didn't see the shale until it was too late. I was going about 30 mph when I hit the shale and quickly the rear tire went pooof psssst. Walked home.

The next day I called the county, submitted my bill and a week later a check was in the mail for the cost of my replacement tubular + some....

[jpw]

Well said.

[BumbleBeeDave]

Not funny.

Kurt is trying to get some serious advice and we are trying to give it to him.

There's a fine line between humor and ridicule. I know, I know--that may sound a bit sanctimonious coming from me of all people. But we are seriously trying to help the guy.

BBDave

[Ahneida Ride]

If it were your Bike wrecked. this thread would not be so humorous.

[bostondrunk]

Yo Bumblebee.......theres like two pages of the same recommendations over and over again, I think he knows what his options are. Nothing wrong with lightening the mood a little...

[Roy E. Munson]

My bike did get wrecked. Schit happens, I got a new one for a discount from my lbs.

[BumbleBeeDave]

. . . the Forum User Agreement still applies.

<<#4 Respect toward fellow members is expected. You agree not to harass, flame, insult, taunt, or otherwise disrespect any member of this forum. In other words, if you can't say something nice, don't say anything at all.>>

BBDave

[Roy E. Munson]

Right, and we'll all just sit around telling each other how great and smart we are. As has been said before, if you don't like it, don't read it! Not everyone agree's with everyone else.

[va rider]

No offense taken to your comment about being a bum rather than a lawyer.

Everybody hates lawyers till you need one. Hopefully, you won't need one anytime soon.

Of course, not all lawyers are greedy, bad people. I like to think I am doing something good for our society and country. Of course, it is always nice to be appreciated! I will go and see if there are any bum openings now.

[BumbleBeeDave]

. . . between disagreement and ridicule. I just happen to think you crossed the line. I see nothing about anything said in this thread that deserves to be made fun of. If you can't say something in the spirit of that effort to help, perhaps you might find other threads more entertaining.

BBDave

[va rider]

Turning back to the subject at hand.

Many insurance companies simply do not just settle quickly. It has become the practice for some companies, to really examine the costs of an accident in order to determine an appropriate settlement in their opinion. Insurance companies, like most companies, want to keep their costs down, for their shareholders or owners.

I do not think it is unreasonable for the adjuster to question whether the bike is repairable or was totaled. I understand your wife's feelings, but the insurance company is trying to evaluate what they are willing to pay.

If the bike is repairable, take it to a very good shop and find out the repair costs. Whatever tests need to be performed to evaluate the frame should be done. Once you know that answer, you are in a better position to make a settlement demand upon the insurance company. Then, as Mike Katz pointed out, you can ask for replacement costs of a new custom frame.

I would find a lawyer to help. Ask around for somebody who has a friend or family member that can provide some advice. Otherwise, it is hard for a bunch of people on a forum to give you good advice. We did not see the bike, what happened or your wife after the accident.

Lastly, often soft tissue injuries from accidents may take weeks or months to appear. Many lawyers would advise you not to settle to quick, your wife may have some injuries later and she would be out of luck. Certainly her health is more important than settling quick to get a new bike.

[BumbleBeeDave]

<<Certainly her health is more important than settling quick to get a new bike.>>

I'm still mystified, though, as to how the insurance company thinks they are going to come out ahead on this. Figure a new Legend at $6k . . . They are already consuming over head to hire the inspector. He can't be cheap. It seems the longer they keep this unresolved, the greater chance there is for those "soft tissue injuries" to show up and ding them for some more.

Hmmmm . . . . BBDave

[Kurt]

left dropout is bent in a least 1cm. An exhaustive test was not done, so I don't know if this is the only problem area. I would not be satisfied unless non-destructive tests are done on each weld, don't know about you. The carrier wants a lbs to inspect the frame, static tests are telling and maybe they could bend it back, but this does not leave me with a secure feeling concerning the future integrity and safety of the frame. We will see. K

[BumbleBeeDave]

The dropout deflection shows very clearly. But I’m a bit confused. The two pictures appear to be two different bikes?

BBDave

[slowgoing]

Kurt - I hope she heals well and feels better.

At least your not like some people who would have run over the thing with their SUV to make sure it was totalled.

Good luck.

[Kurt]

come on bbd, do those look like legend's? :banana:

The dropout deflection shows very clearly. But I’m a bit confused. The two pictures appear to be two different bikes?

BBDave

[Needs Help]

. . the Forum User Agreement still applies.

Yet, you didn't choose to adhere to it in a recent thread. A bit hypocritical I'd say.

[BumbleBeeDave]

So I’m correct in assuming these photos are for illustration only, and are not your bike?

A thorough exam with pics like these to back it up would probably be very useful. Do the guys who took a look at your bike have this same equipment so the deflection can be made this obvious?

BBDave

Needs Help . . . I always try to attach smilies to indicate the true spirit of my posts. I wish everyone did--it would eliminate a lot of confusion on the forum. But anytime I may have crossed the line it was totally inadvertant. The comments above, on the other hand, seemed to me to have clear intention. If this conversation about Kurt’s bike troubles were being held in a local bar, and two acquaintances walked up and made the comments above, I think an even stronger reply would have been in order. Kurt is having some serious problems with his bike and we are trying to give him some serious help. . . . BBD

[Kurt]

These are examples only; I was just illustrating one of the tools used for checking alignment. I don’t have time to fool with this much – I will drop the bike by the shop, but they are more of an ally for us than anything – I don’t know what the insurance company is thinking, I mean they want to sell a new bike and they don’t want to say something is going to be fine when they might get sued if it fails in the future. I just think it would be easier to cut a check in some cases, but what do I know. If this starts to drag on or go south I call an esq, that’s all. There is a guy locally that is the best known cycling atty around http://www.bicyclelawyer.com/ that has a terrific track record protecting the interest of cyclist. One would think folks in the insurance biz would know of this guy and just try and get claims settled quickly before victims get him involved or soft damage starts surfacing, like it is for Jo. Whatever.

So I’m correct in assuming these photos are for illustration only, and are not your bike?

A thorough exam with pics like these to back it up would probably be very useful. Do the guys who took a look at your bike have this same equipment so the deflection can be made this obvious?

BBDave

Needs Help . . . I always try to attach smilies to indicate the true spirit of my posts. I wish everyone did--it would eliminate a lot of confusion on the forum. But anytime I may have crossed the line it was totally inadvertant. The comments above, on the other hand, seemed to me to have clear intention. If this conversation about Kurt’s bike troubles were being held in a local bar, and two acquaintances walked up and made the comments above, I think an even stronger reply would have been in order. Kurt is having some serious problems with his bike and we are trying to give him some serious help. . . . BBD

[BumbleBeeDave]

Well, if they are not going to trust an LBS you go to because of possible conflict-of-interest, then they should hire somone reputable to check it independently and get on with it.

In any event, it's a shame you have to go through this bull**** that takes so much time and aggravation. But I think you should try to get it settled without lawyers getting involved if you can. The bill tends to run up rather quickly as soon as you do.

Does your g-friend have something else she can ride in the interim, or is she still smarting from the crash?

BBDave

[Kurt]

The carrier said to go to a specific lbs, so it is their idea - I think there will be a conflict with any lbs because they want to sell things and not get sued. I have not invested much into it yet, I am going to have a messenger drop off the bike because its a 50m r/t. She is really tough so she has been getting out, pain and all - man, I would still be in bed. She has a pretty decent custom steel frame that she has been using.

Well, if they are not going to trust an LBS you go to because of possible conflict-of-interest, then they should hire somone reputable to check it independently and get on with it.

In any event, it's a shame you have to go through this bull**** that takes so much time and aggravation. But I think you should try to get it settled without lawyers getting involved if you can. The bill tends to run up rather quickly as soon as you do.

Does your g-friend have something else she can ride in the interim, or is she still smarting from the crash?

BBDave

[bostondrunk]

Is this only dragging on because you can't decide what to do??
Give that bicycle lawyer a call. I bet you'd have a check for a new bike in no time. Like Isaid before, I think you'd be crazy to keep a bike you paid muchos $$$$$ for that for all you know is already broken. BTW, my commission is 15% of whatever you get. :butt: :bike:

[Kurt]

not dragging @ all, SO waited a week to see if the lady that pinched her wanted to pay w/o insurance. They did an initial inspection, and got back to the carrier, now they want a bike shops imput - this is pretty standard. I will see what the offer is and base the hiring of a lawyer on that. Burp. :D

Is this only dragging on because you can't decide what to do??
Give that bicycle lawyer a call. I bet you'd have a check for a new bike in no time. Like Isaid before, I think you'd be crazy to keep a bike you paid muchos $$$$$ for that for all you know is already broken. BTW, my commission is 15% of whatever you get. :butt: :bike: