A guest blog by Joee Reyes

Handling My Own Claim - Lessons Learned

I thought I was 'doing the right thing' when I attempted to handle an insurance claim on my own after being struck by a car. Call it being socially and ethically responsible. Maybe it was pride. I grew up with the stigma that you only need a lawyer if you go to court and that if something life changing, like a workplace injury, transpired. Truth be told, I should have placed the machismo in the back seat, done the right thing and asked for help.

In the spring of 2016, I was stopped at an intersection, resting on the white painted line. Since drivers tend to miss seeing cyclists, I placed myself in front of the car so the driver would see me. After looking at the driver, I proceeded through the intersection once the light turned green. I was 'greeted' from behind by the same driver with whom I had just made eye contact. The car clipped my rear tire. This caused me to bounce off the right fender and sent me sliding into the curb.

I quickly popped up to get out of the road so I would not get injured any further. Adrenaline works when you need it the most! I walked over to the sidewalk to lie down and figure out what had just happened. The driver of the car that hit me came over to see how I was. He did not seem too concerned about my well being. I asked him to stay while I called police so I could get a report written. That was the extent of my general knowledge about what to do if involved in an accident; call the police and file a report.

After police arrived and EMS conducted a basic physical field assessment, they gave me the go-ahead to go home. Since I was struck two blocks from my apartment, I opted to walk home and drag my broken bike with me. I had gotten it less than a week before the accident.

Thinking that this would be a straightforward claim, since there were no trips to the hospital and I had not been seriously injured, I was hoping for a quick turnaround to this whole ordeal. The faster I could put this behind me, the better. Irony and hindsight are the key takeaways from this whole ordeal. Nothing was quick and the gaps in getting everything resolved were about as painful as being hit.

Here's a 'not so quick' timeline of handling my claim:

April 2016 - Struck by a car:

○ I called the driver's insurance company the same day.

○ Two weeks later the police completed their report citing the driver at fault.

○ Insurance company confirmed receipt of my email regarding the claim on April 25.

May - Some progress on the claim is being made:

o Multiple adjusters working on various parts of the claim. Communication is not ideal.

o Requested to speak to adjuster handling property damage portion of the claim as I felt it was not being handled properly. Submitted documentation in April for damaged property but still had not heard back from adjuster.

o Was advised that the adjuster was actively working on the claim for a resolution.

June – Going on month two now:

o The bike was dropped off at a local shop so the insurance adjuster could make an assessment.

o Sent adjuster a copy of the sales invoice for my bike. Also sent the cost of aftermarket brakes that were purchased and installed. Cost was $99.00 for the parts and $90.00 to install.

o Nothing really out of the norm. All actions seem to be moving at a 'normal' speed.

○ On June 6, I requested to keep the damaged bike or have the ability to buy it back at the totaled cost after the wreck. There were the aftermarket fenders and a handful of parts that were not destroyed, e.g. the seat, that I wanted to keep.

○ The adjuster was not very professional in his response towards me. He informed me that I could not recover the value of the bike and keep it.

○ At this point, I was less than excited about handling my own claim.

○ Still had not heard back from the second adjuster handling the property damage portion of the claim even though I had been assured that it was being worked on. None of my calls were returned.

○ The adjuster changed his mind one day later and offered me the full value of the bike plus I was able to keep it. So all in all, this experience was not the worst, yet.

Mind you this is only month two of the claim. The settlement for the bike went relatively quickly, which was the most expensive part of this accident, but I still needed the issue regarding the damaged personal items to be resolved.

Never give up! That is what I was taught from my parents and from being in the military. Do not be bullied. Ask a lot of questions. But seriously, this is when having a lawyer would have been more ideal.

o On June 13, I sent another follow-up email asking about a settlement.

I would call once a month all summer long and leave a voicemail to the agent handling my claim. I was ignored repeatedly to the point I quit calling. I know, I know. I failed to live up to my own rhetoric about never giving up but screaming into the void was becoming pointless. At this time, I gave myself a break from the constant rejection. I’m human too. This whole insurance act was getting old. The runaround was beyond frustrating to say the least. I sent another email on September 12 with the receipts for the destroyed items as well as my medical bill. I followed up again in December.

Finally, six months later, on December 14, I received an email from the adjuster handling the PD portion and medical bill. Awesome!

○ Resolution………… almost. Finally, the last of my items were getting covered from the event. Taking a step back to analyze this whole scenario. I knew that I undervalued my medical costs but I was quick to settle to try move along the whole process. Sorting through the myriad of time and emotional effort this event took, I should have called a lawyer to handle it.

If you are ever in a similar situation, I highly recommend getting professional legal help. In my case, I met Megan a year later and wish that I had gotten to know her earlier to help me tackle the headaches that come with such a process.

A recent cycling organization newsletter featured a“Bike Law Q&A,” wherein the author addressed the legality of wearing earphones while riding your bike:

I personally agree with the author’s statement that, “while Colorado Law prohibits the operator of a motor vehicle from wearing earphones while driving, the law does not apply to bicyclists. That’s because the statute specifically refers to ‘motor vehicle’ rather than ‘vehicle.’”

However based on an experience I had in Denver Traffic Court last summer, I want to share with Colorado cyclists the reality that some City Attorneys and Judges may see it differently…

Colorado law prohibits the operator of a motor vehicle from wearing earphones while driving:

§ 42-4-1411. Use of earphones while driving

Write here...

(1)(a) No person shall operate a motor vehicle while wearing earphones.

(b) For purposes of this subsection (1), “earphones” includes any headset, radio, tape player, or other similar device which provides the listener with radio programs, music, or other recorded information through a device attached to the head and which covers all of or a portion of the ears. “Earphones” does not include speakers or other listening devices which are built into protective headgear.

…

Well what exactly is a “motor vehicle,” and is a cyclist within that definition?

42-1-102. Definitions

As used in articles 1 to 4 of this title, unless the context otherwise requires:

(58) “Motor vehicle” means any self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways or a low-speed electric vehicle; except that the term does not include low-power scooters, wheelchairs, or vehicles moved solely by human power.

…

Cyclists should therefore be considered vehicles, moved solely by human power, but not “motor vehicles.”[1]

It would seem to follow then, that a cyclist could not be cited or charged pursuant to section CRS 42-4-1411 for wearing earphones under Colorado statute, because a cyclist is not a motor vehicle and the statute only addresses motor vehicles ….

Right?

Last summer I had the opportunity to make this very argument in Denver Traffic Court. The City Attorney filed a motion to add additional charges, one of which was a charge for wearing earphones.

At our motions hearing, I argued that this citation could not apply to a cyclist because he is not a “motor vehicle.” If the Colorado Legislature had intended CRS 42-4-1411 to encompass cyclists, low-power scooters or similar, it would have used “vehicle” instead of “motor vehicle.”

The Denver City Attorney’s position was that CRS 42-4-1412(1) trumped the definition of “motor vehicle” in CRS 41-1-102, making it illegal for cyclists to wear earphones.

CRS 42-4-1412(1) states:

Every person riding a bicycle or electrical assisted bicycle shall have all of the rights and duties applicable to the driver of any other vehicle under this article, except as to special regulations in this article and except as to those provisions which by their nature can have no application.

To illustrate, I include excerpts from the transcript of our hearing:

MS. HOTTMAN: With regard to the charges that the City proposes, I’d like to start with the headphones charge. As Your Honor pointed out earlier, that statute applies to motor vehicles. Pursuant to the statute, it says, “No person shall operate a motor vehicle while wearing headphones”. When you look at the definition section, 42-1-102, it specifically defines motor vehicles. And it specifically excludes low-powered scooters, wheelchairs, or vehicles move solely by human power, which by definition includes bicycles. On its face, that statute cannot apply to a bicyclist.

THE COURT: Okay. Thank you. Any response?

CITY ATTORNEY: Your Honor, if I may respond. As to the headphones charge, Your Honor, I understand the Defense’s argument that it only applies to motor vehicles. That argument, same argument can be made for all the statutes under the motor vehicle code. The Legislature has seen fit to add 42-4-1412 for that specific purpose of saying bicycles are to be treated exactly as cars for this section. That is the purpose of adding those. And although it states motor vehicles under the use of earphones while driving, 42-4-1411, it still applies. It is still under the sub-—under the section of bicycles being applied to cars.

The Traffic Court Judge subsequently allowed the addition of the earphone charge.

Based on these inconsistencies in interpretation among city attorneys, private attorneys, and judges, Colorado cyclists should be prepared to face legal repercussions if they choose to wear earphones while riding. This issue is most likely to arise in an accident between a cyclist and a motorist, when the police investigate the facts surrounding the accident and discover that the cyclist may have been wearing earphones. Then it becomes an issue of apportioning fault among the parties, i.e. was the cyclist contributorily negligent by wearing them because he/she could not hear the car approaching from behind, for example.

This article also appeared on 303cycling.com on January 22, 2014