As the temperature continues to rise, motorcyclists around the state are donning their leather, revving their motors and preparing to hit the open road.
Hopefully none of them will literally hit the road, but statistics show that’s unlikely to be the case. The latest numbers from the U.S. Department of Transportation’s National Highway Traffic Safety Administration show that 104,000 motorcycles were involved in crashes in 2006. Of those, 88,000 resulted in injury and 4,810 in fatalities.
Some local personal injury lawyers who represent injured motorcyclists say the injuries are frequently serious and the insurance issues a bit more complex, but liability is often clear and settlement is usually quick.
“If the bike rear-ends a car, you don’t take the case,” said Minneapolis personal injury attorney Paul Godlewski. “Except when there are liability issues, I have no particular problems settling these cases. … [But] most of the ones we accept are pretty clear liability.”
Finding biker clients isn’t too difficult, especially if you’re a biker yourself. Godlewski, who rides a Honda Goldwing, runs some small advertisements in a couple of motorcycle publications, but mostly he gets clients just by virtue of being out and about in the motorcycle community. He rides with other bikers and attends motorcycle events like dealership open-houses and rallies where he meets a lot of other bikers.
“They are a lot of fun too, these social gatherings,” Godlewski said. “I get a lot of questions.”
Similarly, Minneapolis personal injury attorney Steven Terry spends as much time as he can on his Harley-Davidson, riding with friends and attending various biker events. “I go to Sturgis every year,” he said, “but I don’t go and hand out my business cards.”
Instead, many of Terry’s motorcycle injury cases come as referrals from other motorcyclists who know him. “Bikers tend to kind of stay together,” he said. His law firm’s website also specifically identifies motorcycle crashes as an area of practice for the firm, which may attract some injured motorcyclists as well.
Minneapolis personal injury attorney Christopher Johnston can sometimes be found down at a local biker bar like The Joint or Whiskey Junction getting his name out there among the motorcycle community. He’s intentionally made motorcycle accident cases a part of his law practice, marketing himself through advertising in local biker publications and sponsoring and attending biker events.
Representing an injured motorcyclist is a little different from representing other motor vehicle accident victims primarily because of the insurance issues involved.
No-fault insurance is not mandatory for bikes like it is for cars, said Terry. Unfortunately, a lot of injured bikers don’t even realize that it’s not part of their coverage. It’s something you should discuss with your clients right away, he advised.
Without no-fault “you end up knee deep” into health-care coverage issues, dealing with the person’s personal health-insurance carrier and subrogation issues, said Terry. “It makes it more complicated.”
Godlewski explained that some bikers obtain personal-injury-protection coverage in the form of “med-pay” insurance, but insurers are often reluctant to sell it, and the premiums are generally higher. But when they are injured, they don’t have to meet the $4,000 no-fault threshold either, he added.
Because the insurance coverages for motorcycles differ somewhat from those for automobiles, it’s important to carefully read your client’s policy, said Godlewski. “It may provide more coverage than the statute provides.”
The cases are also different from a typical personal injury matter in that motorcyclists are often more seriously injured than automobile occupants. Statistics from the NHTSA show that in 2006 motorcyclists were 35 times more likely than passenger car occupants to die in a crash and eight times more likely to be injured.
“People are more hurt because they don’t have the protection of a vehicle around them,” said Terry.
Despite longstanding negative stereotypes about motorcyclists, lawyers say they rarely encounter any real prejudice against injured riders on the part of insurers, juries or judges.
“So many bikers now are not the traditional ‘Hell’s Angels’ kind of people,” said Johnston. “They are just weekend bikers.”
Godlewski also said he hasn’t seen that kind of prejudice. In fact, he tells a story about doing voir dire in a case involving an injured motorcyclist case where nearly all of the potential jurors raised their hands when asked if they ride a motorcycle, know someone who rides a motorcycle or are thinking about riding a motorcycle.
As it turned out, the jury foreman was an avid motorcyclist who rode his bike to the courthouse every day for the trial. The plaintiff was ultimately awarded an amount in excess of the policy limit at issue, as well as some underinsured benefits. “It turned out pretty well,” Godlewski quipped.
Lawyers say that actually getting to trial in an injured motorcycle case is rare, however, in part because liability is often clear.
Insurance companies are more afraid of motorcycle cases than auto cases, said Terry. Insurers want to settle these cases in part because of the well-known mantra that “you’ve got to keep an eye out for motorcyclists,” he said.
Another factor in the high settlement rate is that motorcyclists can usually accurately articulate the conditions existing before the impact and what they did to try to avoid it, according to Terry. People in cars are not as exact about what happened, he said. “Motorcyclists tend to be a little cautious … [and] tend to have better evidence of what happened.”
While some defendants in motorcycle cases raise questions over whether the biker took evasive action to avoid the collision, but that’s similar to other personal injury cases, Johnson said.
The use or nonuse of a helmet can also be an issue in motorcycle crash cases. Minnesota law does not require riders to wear helmets, and, if a case goes to trial, the defense is prohibited from introducing into evidence the use or nonuse of a helmet.
Nonetheless, practitioners say that in some cases where a motorcyclist suffers a head injury, defense lawyers may bring up non-use of a helmet as an assumption-of-the-risk issue during settlement negotiations. “They do argue it, but it’s not the most relevant of things,” Terry said.
Despite the risks and the rather daunting injury statistics, the number of motorcycles on the road has risen every year for the past decade. Clearly, motorcyclists are a tough lot who love their pastime.
“Almost everyone I’ve represented in these cases has said that when they get over the trauma, psychologically and physically, they are going to get on a motorcycle again,” said Godlewski.
In 2006, of the 104,000 motorcycle crashes, 88,000 resulted in injury, 4,810 in fatalities. The 4,810 motorcycle fatalities occurring in 2006 saw an increase of 5.1% from the year before and the highest level since 1981.
(Source: National Highway Traffic Safety Administration)
As printed in Minnesota Lawyer.