Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

Understanding Your Rights

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How to Protect Yourself BEFORE a Bicycle Accident

For cyclists, this week served as yet another painful reminder of the vulnerability that we face every time we roll out onto the roadway and the catastrophic harm that can be caused for ourselves and our families.   While I trust most cyclists are careful, it is the distracted driver, the impatient driver, or the drunk driver that we have to worry about.   Their actions (and reactions) are completely out of our hands.  

I previously posted an article titled “What to do if You’re Involved in a Bicycle Accident” which you should check out first.   What that article does not address is the steps you should take before an accident happens to protect yourself and your family afterwards.   In other words, buy as much insurance as you can reasonably afford.  While this is not a comprehensive discussion on the issue of insurance, or the available types, here are a few types of insurance that you should absolutely have if you’re a cyclist:   

  • Life Insurance:         Kalamazoo, MI.  West Baltimore, MD.  Brooklyn, NY.  Brecksville, OH.   The list can go on.   Purchasing a life insurance policy will provide your family some semblance of financial security in the event tragedy strikes and will compensate, at least for a time, the shortfall of income resulting from your loss.
  • Disability Insurance:             It is not difficult to understand that, even if you are fortunate enough to survive a bicycle accident, your injuries may be catastrophic and leave you disabled.   If you are no longer able to work and earn an income to support your family, disability insurance will help you stay afloat by providing monthly payments during the period as set forth in the policy.   A short-term policy usually is for payments less than one year whereas a long-term policy can vary but may be as long as until you reach a retirement age. 

Life insurance and disability insurance are two types of policies that are wise to have as they provide financial support for injuries that go beyond a bicycle accident (i.e. major health issue or some other type of injury) and, more likely than not, have no relation to fault for the injury.   

For a motorist in Ohio, the law requires that they have at least $25,000/$50,000 in coverage.   This means that the policy limit per individual is $25,000 and the policy limit per occurrence is $50,000.   For example, even if your damages exceed $25,000, the insurance company is only required to pay $25,000 leaving you holding the bag for the rest.   What if a motorist plows into a pack of cyclists?  Splitting up $50,000 among all injured parties would be woefully inadequate to compensate them for their injuries.   Worse yet, what if the motorist has no coverage at all.

One way to protect yourself is to insure that you have uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) on your own auto policy.   DO NOT remove it to save a few dollars on your monthly premium.  Here’s how it works:

  • Uninsured Motorist Coverage (UM):     UM coverage comes into play if the motorist does not have any insurance at all.    Unfortunately, this is all too common.   In this event, you can make a claim against your own insurance policy for your damages.  If you purchased a $100,000 UM/UIM policy, this means you can recover up to $100,000.
  • Underinsured Motorist Coverage (UIM):             UIM coverage comes into play if the motorist does not have enough insurance to compensate you for your injuries.   Let’s assume that a motorist’s policy is $25,000/$50,000.    You have a $100,000 UM/UIM policy.   In this case, you will be able to recover up to the difference between the two policies under your UIM policy (i.e. $25K from driver and $75K from UIM).   If your UIM coverage equals the motorist’s coverage (i.e. both 100K policies) you cannot claim UIM coverage.  A NOTE OF CAUTION:  If the motorist’s carrier tenders the policy limits and you accept without notifying your UIM carrier, you may very well foreclose your claim for UIM coverage.   As such, it is important to read your policy and consult with an attorney before making such decision.   

Finally, if you own a home, consider purchasing an umbrella policy to go along with your home and auto insurance.   Most policies provide a minimum of $1,000,000 in coverage and do not cost more than a replacement tube per month. 

If you have sustained an injury in a bicycle accident, please contact Scott for a no cost, no obligation consultation and case evaluation. 

Suing the State: Political Subdivision Tort Liability

If you were injured by the conduct of an employee or agent of a city, county, or other government entity, bringing a suit for damages can be difficult.   Historically, individuals could not sue the government in tort as it was immune from liability.   In 1985, however, the Ohio General Assembly enacted R.C. § 2744, the Political Subdivision Tort Liability Act, paving the way for political subdivisions of the State of Ohio to be sued in limited circumstances.      

A political subdivision has been defined as “a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state.”

To determine whether or not a political subdivision is liable in tort requires a three-step analysis.  The first step provides a general grant of immunity, stating that “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.”    Governmental functions typically involve functions like police, fire, public education, and maintenance of roads.   Proprietary functions typically involve functions like operating a zoo, public stadium, or utility system.   Once you determine what type of function the political subdivision was engaged, you move on to step two.

The second step of the immunity analysis focuses on the exceptions to immunity located in R.C. 2744.02(B) which are:

1.       Negligent operation of a motor vehicle, unless the police officer, firefighter, or ambulance personnel operating the vehicle was responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct;

2.       Negligent conduct of employees while carrying out a proprietary function;

3.       A municipality’s failure to keep roads and sidewalks free from nuisance;

4.       Injury or loss that occurs on or within buildings used for governmental functions and is caused by the negligence of the municipality’s employees; and

5.       Any other situation in which liability is expressly imposed by the Revised Code.

In order to establish liability, a plaintiff must establish one of the five exceptions exist, otherwise the political subdivision will be immune.   However, even if a plaintiff establishes one of the five exceptions exist, it does not mean that the political subdivision will be liable.  

The third and final step of the immunity analysis provides that immunity may be reinstated if a political subdivision can successfully assert one of the defenses to liability listed in R.C. 2744.03 which are summarized as:

1.       Immune if the employee involved was engaged in judicial, quasi-judicial, prosecutorial, legislative, or quasi-legislative function;

2.       Immune if the employee conduct was required or authorized by law or was necessary or essential to the exercise of powers of the political subdivision or employee;

3.       Immune if the employee conduct was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee;

4.       Immune from liability if the injury was to a person who was convicted of a criminal offense and, at the time of injury, was performing community work service;

5.       Immune from liability if the injury resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.

In addition to the defenses listed in R.C. 2744.03, an employee of a political subdivision is also immune, personally, unless it can be shown that the employee's acts or omissions were:

1.       Manifestly outside the scope of the employee's employment or official responsibilities; or

2.       With malicious purpose, in bad faith, or in a wanton or reckless manner.

If you were injured by the conduct of an employee or agent of a city, county, or other government entity, please contact Scott for a no cost, no obligation consultation and case evaluation.

How Protect Yourself in the Event of a Motor Vehicle Accident

According recent statistics produced by the Ohio State Highway Patrol, there has been over 41,000 accidents investigated in 2015 (just through August 9th).    This is an increase from the 2014 statistics during the same time period.   Despite this high number of accidents, most individuals do not know what to do at the scene of an accident or what information to obtain.  

Here are some simple steps to protect yourself in the event you’re involved in an accident:

  1. Have Proper Insurance and Adequate Coverage.   First, R.C. 4509.101, requires all drivers and/or owners of a vehicle driven within the state to mainatain insruance in an amount equal to $25,000.  However, given the sometimes catastrophic nature of injuries, this state minimum amount may not protect your personal assets in the event you caused an accident.  Moreover, for this same reason, it is equally important to have proper uninsured motorist coverage and underinsured motorist coverage. (UM/UIM).   The UM/UIM policies protect you from drivers who cause you injuries but either (1) have no insurance or (2) do not have enough insurance to cover all of your injuries.    Without UM/UIM coverage, you may be left holding the bag for your injuries.
     
  2. Know What To Do At The Accident SceneIf you are invovled in an accident, here are some simple do's and don'ts:
    1. DO: Assess your injuries and that of the other driver
    2. DO: Contact the police and, if necessary, EMS
    3. DO: Exchange the following information with the other driver: name, address, phone number, driver's license, license plate, car make/model, and insurance information
    4. DO:  Get the names, addresses and home and work phone numbers of all witnesses
    5. DO: Diagram the accident scene, write notes of what happened, and use your phone to take photographs and video
    6. DO NOT: Discuss the a ccident with the other driver, take blame for it, or apologize
       
  3. Know What To Do Afterward.  It is important to seek prompt medical attention; even if you don’t think you have significant injuries.  Often,  injuries are not known for several days after the accident and it is better to get check out than risk further injury.  Moreover, now is the time to contact Scott as he will help collect evidence, interview witnesses, prepare your claim, and explain your rights.

Even if you are an excellent and cautious driver, the risk of being in an accident is present as you cannont control the actions and abilities of every other driver on the road.   Knowing what to do in the event of an accident, as well as having proper insurance and coverage, will minimize your personal exposure and maximize your potential recovery and compensation.  

If you have been injured in an automobile accident, please contact Scott for a no cost, no obligation consultation and case evaluation.