Successful Defense of a Cyclist -Plaintiff Pays Us to Wrap Up Lawsuit

We successfully defended a cyclist who was sued personally, when a woman stepped off an RTD bus into the bike lane, causing a collision between herself and the cyclist riding there.

The RTD bus stopped well back from the designated bus station (230 feet to be exact) in Boulder and began letting passengers off the bus, causing them to disembark out into the bike lane. The bus was stopped to the left of the bike lane and there were no other indications that the bus was doing anything besides stopping behind a line of cars at a red light. Caught completely off guard, our client was riding his bike in the bike lane on his way to work and suddenly had a woman stepping off the bus directly in front of him; there was no time or chance to avoid impact. Both the passenger and our cyclist client sustained injuries.

The passenger was cited by Boulder PD: “Pedestrian improperly entered roadway,” pursuant to 7-5-14:

7-5-14. - Pedestrian, Bicyclist, Human Powered Vehicle and Electric Powered Vehicle Entering Roadway: No pedestrian or driver of a bicycle, human powered vehicle, or lightweight electric vehicle shall suddenly leave a curb or other place of safety and walk, run, or drive into the path of a moving vehicle that is so close as to constitute an immediate hazard.

She (the bus passenger) went on to sue RTD and negotiated a settlement for her medical expenses and other claims. Nearly 3 years after the collision, she then served a lawsuit on our client, alleging all of the same injuries, damages and losses against him.

With no applicable insurance coverage to defend him, he sought our help in defending him in this frivolous lawsuit.

We initially believed the case would be thrown out on a statute of limitations issue: the lawsuit was brought over 2 years after the incident occurred. The 3-year Colorado SOL applicable to cases involving a motor vehicle, we argued, did not apply here, since the lawsuit was brought against our client- a cyclist -for acts arising out of his riding a bicycle. The incident involved an RTD bus, but this lawsuit against our client didn’t involve the Bus operation- it involved the cyclist and the pedestrian/bus passenger.

Shockingly, the Court denied our motion to dismiss. The lawsuit was allowed to proceed.

When Megan deposed the Plaintiff-passenger, she admitted she was looking to recover money from our client for the same claims and expenses she had recovered from RTD. She admitted she was seeking double recovery. She alleged she was embarrassed by the disfigurements to her face from the collision, specifically to her nose, yet finding her online we discovered she is a fire dancer in her spare time -- she dresses in small outfits, performing in front of crowds while waving fire sticks and hoola hoops around. Close ups of her face were plentiful- she did not look like a woman ashamed of her appearance online.

As her frivolous lawsuit proceeded, we had to seek sanctions not once but numerous times for her and her lawyer's failure to disclose the social media posts and content we sought in our discovery requests. We were successful in winning these sanctions motions, resulting in the Plaintiff's lawyer paying us for our time and expense in fighting to get those documents and posts.

As the case drew near to trial (having been postponed during 2020 due to COVID, it was set for trial this August 2021 in Boulder County), the Plaintiff's lawyers indicated they wanted to dismiss the lawsuit and asked for our agreement.

But by this point --well over 2 years into this odyssey, our client had incurred attorneys’ fees and we’d incurred thousands in case costs. We agreed to the dismissal of the lawsuit ONLY IF the Plaintiff would pay for our client's costs.

That's right. Our client -subjected to this frivolous lawsuit -recovered money from this plaintiff and her lawyers. The Plaintiff and her lawyers wrote US checks- for sanctions -and for settlement, in order to get their lawsuit dismissed.

This is what it means to zealously advocate for cyclists.

Most of the time we sit in the Plaintiffs' chairs... but now and then we wear the defense hat, as we did here.

And we do not take frivolous lawsuits against cyclists riding lawfully in bike lanes, lightly.

Is it Legal for a Cyclist to Cross the Center Yellow Line to Pass a Car?

A few days ago we got this inquiry from a law enforcement friend who wanted our take on this issue:

“Hey Megan - quick ? if I may on something we were debating: If a motorist can cross a double-yellow (when safe) to pass a slower bicyclist, can a bicyclist cross a double-yellow to pass (when safe) a slower motorist? Example, Going down Lookout Mountain, and a car slows at the speedbump, and the bicyclist behind the car takes the opportunity to pass the car but crosses the double-yellow to do so.”

That’s a negative, ghost-rider.

A motorist is given the right to cross the center yellow line to overtake a cyclist in the context of the 3-foot law. C.R.S. 42-4-1005 describes limitations on overtaking on the left, and states that its mandates do NOT apply:

(d) To the driver of a vehicle passing a bicyclist moving the same direction and in the same lane when such movement can be made in safety and without interfering with, impeding, or endangering other traffic lawfully using the highway.

In other words… when read together with Colorado’s 3-foot law (C.R.S. 42-4-1003 , see more here or here), the law allows a driver to give a cyclist three feet when overtaking them to their left, which means they MAY cross the center yellow line - WHEN SAFE TO DO SO- in order to provide the cyclist a minimum of three feet.

This is not a speed issue, it is a safe-passing-buffer issue.

Compare that to a cyclist crossing a center yellow line to pass a vehicle on the left …. here, we do not have a 3-foot buffer concern…. and the rider is simply passing a motor vehicle as a result of speed, overtaking a slower-moving car, such as in the example cited above when a driver slows the vehicle down for a speed bump (or any other slowing reason, such as heavy traffic, wildlife, you name it).

In addition —the law reads that if your motor vehicle speed is such that it is impeding traffic, you are required to pull to the shoulder (or right lane) and let others pass you -C.R.S. 42-4-1103(3)(a)(b). However, we don’t see that a motor vehicle momentarily slowing down for a speed bump coming down the mountain constitutes "impeding traffic.”

As such, we conclude that cyclists are not legally permitted to overtake vehicles by crossing over the center yellow line.

It is also notable that on places like Lookout Mountain Road, Golden Gate Canyon road, or any other number of canyon or mountain roads where a cyclist can easily reach or exceed the posted speed limit, riders may be tempted to overtake vehicles doing the speed limit. This is a NO-GO. It is not only incredibly dangerous, it is illegal. At the speed limit, cyclists may take the lane and descend in the middle of the traffic lane. But if they come up on the back of a vehicle doing a slower speed, they need to wait behind the vehicle. This is safest, and it’s the legal maneuver. **Also-remember that you can be cited for speeding, and be subject to the same fines and penalties on your bike as in your car (except for driving points -you cannot be docked driving points when you’re operating a bicycle).

Please — don’t ever cross a center yellow line while you’re descending down a canyon or mountain road and don’t overtake motorists on their left by crossing the center line. Be safe. Ride in your traffic lane, at the speed limit, and arrive home safely.

A Battle Every Step of the Way

Ben Boncella has been a State Farm customer for years. When he was hit by a driver whose insurance company was also State Farm, he thought the insurance company would be more willing to “take care of their own.” He realized how off-base his thinking was a week or two into the process of trying to handle his own claim.

Additionally, Ben feels that the insurance company/claims adjuster will give you zero respect if you are trying to resolve a claim on your own. “Although they try to come across as being nice and friendly, they are trying to take advantage of you by getting you to admit fault or partial responsibility for the crash.”  

Ben thought his case was clear cut, and that he would be successful in handling the claim himself; a police officer had witnessed the crash and the driver, who admitted that she was in the wrong, was cited at the scene. Yet State Farm denied responsibility to pay out his claim for bike repairs, property damage, and medical bills. “I was extremely surprised by how unwilling the insurance company was to pay my claim. I thought it would be very straightforward – they would pay for the damage to my bike and kit and cover the medical expenses I incurred as a result of the collision,” he says. “I wish I would’ve known how much of a pain the entire process of battling the driver’s auto insurance was going to be.”

When State Farm outright denied liability after months of working at it himself, Ben decided to contact and hire our firm. “As soon as Megan got involved, their tone changed immediately, they became more responsive, more cooperative, and the process of getting this resolved was expedited,” he says. 

The big takeaway from the whole process for Ben? It doesn’t matter how obvious the case/incident, the cyclist will always have to fight every step of the way. He was in a bike lane, riding below the posted speed limit, wearing brightly colored clothing, at a safe time of day, traveling on a route commonly used by local cyclists, had lights on his bike, a police officer witnessed the crash, the driver was cited on the scene, etc. “It doesn’t matter that you do everything right, and it’s extremely obvious. Insurance companies are out to make money, so they make you fight for everything. Do not give up!”

It was the morning of June 8, 2018, around 6:30 am when Ben was riding his bike to work heading north in the bike lane on Garrison Street in Lakewood, CO, and was coming up along vehicles that were stopped at a red light. Ben was wearing a cycling kit, a helmet, and sunglasses along with a backpack full of work clothes.

As he was riding through the intersection at Garrison and West 1st Avenue, the driver of a Ford Ranger pick-up truck failed to yield to Ben while making a right-hand turn, causing a front to side collision. Officer Arellano, who witnessed the crash, stated that Ben was not speeding and was riding properly in the bike lane with safety attire/equipment. Ben was not able to stop quickly enough to avoid the collision since the vehicle turned right in front of him.  He crashed into the front right side of the vehicle. 

The driver stopped immediately after hitting Ben and told the officer that she saw Ben but did not think he would be at the point of the turn. Officer Arellano stated that the driver was clearly at fault and that she needed to be better aware of the road and her surroundings to include checking the bike lane before turning. There were no obstructions, weather, or road conditions that would have affected her view of Ben or her ability to wait for him before turning according to Officer Arellano.

Ben was treated at the West Metro Fire Station, which is located directly across the street, where his injuries were cleaned up and bandaged. Ben finished his ride into work, but he went to St. Anthony's Hospital to get treated when his symptoms worsened after a few hours.  He had road rash on the left side of his body and had a CT of his head and spine done as well as x-rays of his chest and wrist.

Citation:  Careless driving, pleaded down to an unsafe vehicle charge.

Fines/Penalties: Two points assessed to the driver’s license and $134 in fines.The driver has two past convictions in 2004 in Lakewood and Denver, where she was also charged for driving an unsafe or defective vehicle.

Ben feels like it is way too easy for drivers to get charges reduced.

“She should have pleaded guilty to the charge the police officer cited her with because that’s what actually happened. If we keep letting people off easy, they’re never going to get any better and cyclists aren’t going to be any safer.”

— Ben Boncella

Eventually, Ben was back on his bike, but it was painful and he obviously wasn’t 100% healed physically. It took awhile before the swelling, bruising, road rash, and soreness went away, but he was eventually back to his normal riding and workouts. 

He was nervous to get back on the roads after the crash and rode a lot more bike paths afterwards.  Gradually, Ben transitioned back to more and more road riding, but even to this day (a year and a half later), he is still nervous riding through intersections. “Drivers don’t use their turn signals enough or check their passenger side mirrors before making right hand turns,” he says. 

If he could wave a magic wand, Ben would make the punishment for drivers who hit cyclists much more severe.  “All it takes is a quick Google search and you can read hundreds of stories and articles about drivers hitting and killing cyclists yet only having to pay a small fine or do some community service. It’s sad to see how little the life of a cyclist is valued in these situations.”

Ben recommends that every cyclist get educated about local cycling laws/regulations and follow them when riding. Ride defensively when you need to, but also be courteous and respectful to drivers as much as possible.

Although Ben initially tried to deal with State Farm on his own, he was glad that he handed over the case to our team. “When I spoke with Megan about having her take over my case, she was extremely up front and honest about what would be involved, the timeline, the outcome, the financial side of things, etc. In the end, things worked out almost exactly as she had initially described them to me. The whole team was incredibly well organized and thorough. I’m not happy to have gone through this, but I’m glad that I had such a great team of people on my side fighting for me.”