From The NEW YORK TIMES

May 13, 2009

Group Bicycling Goes to Court

Ashley Gilbertson for the New York Times Alaina Feltenberger was among the cyclists arrested during a Critical Mass ride through Manhattan in August 2005.

Updated, 3:25 p.m. | A trial began Tuesday morning in United States District Court in Manhattan to determine whether New York City may require groups of 50 or more bikers, pedestrians or “other devices moved by human power” to get a parade permit.

Plaintiffs in the lawsuit contend that the rule violates their First Amendment right of assembly and that the New York Police Department, in trying to crack down on Critical Mass rides over the past five years, has selectively enforced traffic laws and engaged in other forms of harassment in violation of the 14th Amendment.

The suit was filed by a diverse collection of riders and groups, including the Five Borough Bike Club, which organizes the annual Montauk Century and other large group rides; Kenneth T. Jackson, the Columbia University historian who organizes a yearly night tour of New York architecture by bike for about 250 students; as well as several individual cyclists who have at times participated in the monthly Critical Mass rides.

As testimony began in federal district court, the mood was dour among the small gathering of cyclists sitting on the left side of the bright wood and marble courtroom. The first witness for the plaintiffs, Madeline L. Nelson, had hardly finished testifying before many began predicting defeat.

“I’m not hopeful,” said one plaintiff, Elly Spangenberg, who in her retirement leads large rides for the Five Borough Bike Club.

Steven F. Faust, 62, another of the club’s ride leaders who described himself as an “unindicted co-conspirator,” blamed the judge, Lewis A. Kaplan, who Mr. Faust accused of prejudice against cyclists.

“First the verdict, then the trial,” Mr. Faust said, holding onto a red pannier as he stood in the courthouse hall. (He rode his bike to the trial.)

In an opening statement, a lawyer for the cyclists connected the amended parade rules and the police treatment of Critical Mass riders, calling the redefinition of a parade “a new tool to make Critical Mass illegal.”

The opening statement went on to describe how the permitting process for parades, which requires a leader and designated route, were not reconcilable with the monthly rides that, participants say, have no leaders and do not follow a predetermined path.

Later, city lawyers representing the Police Department successfully challenged much of Ms. Nelson’s testimony as secondhand knowledge. The city also focused on the parade rules as a serving “legitimate law enforcement objectives.”

By lunch, Barbara Ross saw the trial, which is expected to last several days, as an uphill battle.

Ms. Ross, the communications director for Time’s Up, a bicycling and environmental advocacy group, claimed there were “hints” from the judge that he thought 50 was a reasonable minimum to expect riders to get a parade permit.

“I’m not a lawyer, but it feels that the judge is being rough with the cyclists,” she added.

Though the origins of the lawsuit can be traced back to arrests and other activity during the 2004 Republican National Convention, the case is primarily a challenge to new rules adopted by the police in 2007 for “parades.” The change is seen by critics as an effort by the police department to more tightly regulate the monthly Critical Mass rides in Manhattan.

These rides — described by participants as leaderless — have been the source of escalating confrontations, suits and countersuits in the five years since the convention, when more than 250 cyclists and protesters were arrested.

The plaintiffs seek to overturn the new rules and return to the days when, as the complaint claims, Critical Mass rides were peacefully escorted by police officer and “there were few if any arrests” despite having “on some occasions included 1,000 or more participants.”

The complaint challenges both the “vague” and allegedly unconstitutional language of the parade law, and the behavior of the police with regard to Critical Mass rides in Manhattan. Similar rides in Brooklyn, the complaint said, are not given the same police treatment. The new parade definition reads, in part:

A “parade” is any procession or race which consists of a recognizable group of 50 or more pedestrians, vehicles, bicycles or other devices moved by human power, or ridden or herded animals proceeding together upon any public street or roadway.

The city, in its answer to the complaint, denied the allegations made by the plaintiffs. “In amending the definition of ‘parade’ … the Police Department did not violate any rights, privileges or immunities reserved to the plaintiffs by the Constitution or laws of the United States or the State of New York,” the City’s answer states.

Since the new parade law, riders have been arrested at Critical Mass rides.

The police commissioner, Raymond W. Kelly, said at the time the law went into effect, “We want the people who participate in these demonstrations to adhere to the law.”

Both Time’s Up and the Five Borough Bike Club, which arguably represent different constituencies in city’s cycling scene, are encouraging their members to attend the trial, which is expected to last several days.

The plaintiffs are represented by Debevoise & Plimpton, a large firm, which in pre-trial work deposed the highest ranks of the Police Department, including Commissioner Kelly and James Tuller, the commanding officer for patrol for Manhattan. The legal team takes up “an entire floor of the office,” according to Mr. DiPaola, though naturally the firm itself declined to comment on the case, and referred questions to Ms. Nelson.

Motorcycle Safety Strategies For a New Year

By Steven M. Magas, Ohio’s Bike Lawyer[1]

“Perception/Reaction Time” is a common phrase used by Accident Reconstruction Experts. From years of study and research we know that when you are motoring along and stuff starts to happen a period of time elapses between the start of bad stuff happening and the time your brain recognizes bad stuff is happening. This is your “Perception Time.” Once you perceive the bad stuff, there is another delay while brain tries to figure out what to DO, if anything, about the bad stuff it has now perceived.

One important finding of the Hurt Report is that by the time you recognize the danger, you probably have TWO SECONDS or less until impact. What you DO in those two seconds will lead to one or more of a long continuum of results – from nothing happening to you, to being scared, to minor or major injuries to death! A motorcyclist, no matter how skilled, is more likely to stay safe if she/he learns how to avoid problems before they develop, instead of how to react to dangers on the road once they pop up.

When I talk to motorcyclists about safety and how to stay alive on the road they generally want to brag about how well how they handle the bike or how they’ve had to “lay 'er down” to stay alive. However, relying on emergency braking to get you OUT of trouble is usually a horrible strategy and usually tells me that the rider is about 8-10 seconds behind the curve.

Don't get me wrong—learning how brake effectively is a critical skill every rider must develop and practice. It’s just that relying on emergency braking or swerving to save you is like having a plan to run out and buy a fire extinguisher the moment the house catches on fire. If the situation has deteriorated to the point that you are implementing your emergency plan, it’s probably too late to save you.

The Hurt study and others found that the average time from the event that starts the “collision sequence” (i.e., the start of the bad stuff happening, such as a car beginning a turn across your path) to the actual impact was 1.9 SECONDS. Seventy-five percent [75%] of riders had less than 3.0 SECONDS between the start of the accident sequence and the crash. THREE SECONDS.

Perception of the problem, remember, is only step one. Perception can be delayed if the rider is too busy watching the cute motorist to the left or worrying about a crashing 401K! Once the “perception” is achieved [i.e., the “Oh Crap” moment occurs], reaction time begins.

Most experts will testify that the average reaction time to traffic hazards at about 1.5 to 2.0 seconds, averaging around 1.7 seconds. A defensive back might be 1.0 seconds. A 51 year old lawyer with stuff on his mind, closer to 2.0. A young man trying to gain his balance while standing on the seat…well… let’s just leave THAT topic for another day…

Think about this - if you swerve, add another half-second for the time delay due to counter-steering and developing the correct lean angle before your motorcycle begins to head in the desired direction. These little delays leave almost no time for evasive action to succeed. Interestingly, roughly 30 percent of riders in the Hurt study took no evasive action at all. Perhaps there was too little time… perhaps they just froze. However, once you cross the magic mathematical boundaries of time and space, even highly skilled braking won't get you out of trouble – it may just slightly delay the beginning of your very rapid deceleration.

What does this mean? Let's say you're going down the boulevard at 30-mph – or 44 feet per second. You fail to notice that an SUV is about to turn left in front of you. When the big vehicle turns left across your path it is still 100 feet away. With your delayed reaction time of, say, two seconds, you’ve now covered 88 of those 100 fee and you’ve got exactly 12 feet to react and get the bike stopped! It ain’t gonna happen. The best you can hope for is that your panic braking slows you so the impact with the side of the SUV isn’t quite as severe. Even worse, when faced with death or a world of pain seconds away, the Hurt Report concluded that most riders do a miserable job of braking and swerving.

The Hurt Report found that riders with formal training (mostly California Highway Patrol and LAPD motorcycle officers, who had passed rigorous training course and spent hours per day on huge bikes) were no more likely to use the front brake than you or I when faced with death/life circumstances.

Instead of thinking you're going to save yourself with your lightning-fast reflexes and well-honed skills, you are MUCH better served by taking the advice of Jim Oullett, one of the authors of the Hurt Report, and working on learning and practicing strategies designed to keop you OUT of situations where you have to rely on reflexes and skills. Take a look at Jim’s 11 tips for the wise and use them to make 2009 your Safest Year Ever! Regular readers of this column will note that Jim hammers on many of the same points I try to make here each month!

11 TIPS FROM JIM OULLETT FOR SAFER MOTORCYCLING

1) CONSPICUITY. Do all you can to make it easy for car drivers to see you. Probably 90 to 95 percent of car drivers who screw up say they never saw the motorcycle. Car drivers don't want to hit you. Honest. But some of them need extra help to know you're there. Do all you can to make it easier for them to see you. Use your high beam during the day. High beam is more conspicuous than low beam. Trading that cool-looking black leather jacket for something bright wouldn't hurt, either.

2) Freeways are good; surface streets are bad. Areas around shopping districts are the worst. Limited-access roadways such as freeways are good because car drivers can't turn across your right-of-way, so use freeways as much as you can.

3) In busy urban traffic, stay in the mix with the cars. Not out ahead of them; not behind. When you go through intersections where cross-traffic wants to use the pavement you own, stay right next to a car's front fender so you're not in the driver's blind spot and use the car as a shield. This is especially true at night because it's even harder for car drivers to distinguish a motorcycle from nearby traffic. Many riders who get picked off are the ones 30 yards ahead of a big clot of cars, or 20 yards behind.

4) Move away from potential hazards.If you're alone when you come up to an intersection where a car is waiting to cross your path, the more lateral distance you put between your path and the other guy's starting point the better. For example, if you're nearing an intersection where a car coming from the opposite direction can turn across your path, move to a lane closer to the curb. It'll make it easier for the car driver to see you, and give you more time to react, which is probably even more important than skilled braking. The key is looking AHEAD 10+ seconds and recognizing potential hazards before they become REAL hazards!

5) Never assume the other guy has seen you. Keep your eye on a vehicle that's positioned where it could violate your right-of-way. When you've decided the other driver has seen you and you start looking farther down the road, that's the moment he'll choose to turn.

6) Take it easy when you're out carving canyons. As you approach a turn, pick out which rocks and trees look good to hit, because you don't want to hit the unfriendly ones (which, actually, are all of them). If you need a little extra time to run through this mental drill, let off the gas. And remember that if you hit a post-and-rail barrier, which is used to decorate the outside of a lot of curves, it will probably break every bone in your body.

7) No booze before riding. None. Ever. Your risk of causing your own crash skyrockets when you drink and ride. Riders with more than one beer in their systems are about 40 times as likely to crash as sober riders. And a drinker's favorite way to crash is by running off the road, which has a higher fatality rate than any motorcycle-car crash except head-ons because there are so many rigid fixed objects waiting to, uh, welcome you. Trees, fire hydrants, parked cars, culverts, the list goes on and on.

8) Avoid riding in the center of lanes on the freeway. It's safer than trusting the guy behind you not to rear-end you. In the Hurt study, more riders on the freeway got nailed from behind while staying in their lane than riders who crashed while lane-splitting. But don't go too much faster than the traffic flow and be really careful when coming up to a car with an open space in the lane next to it, especially if the lane with the space is moving faster than the one with the car.

9) Be patient with lost and distracted drivers.In residential neighborhoods, you should understand that the idiot in the car in front of you, the one who's poking along at 15 mph, is looking for an address. Cool your jets and hold back, because the second you try to pass him, he's gonna turn across your path into a driveway. The five or 10 seconds you lose waiting for this car to get out of your way is a lot less than the time you'll lose waiting for the cast to come off your leg.

10) Don't lay it down. You lose only about 8-10 mph every second you spend sliding on the ground while giving away your perfectly good skin. If you do a good job using both brakes, you can lose 15-20 mph every second you brake and save on band-aids, too. About the only time to put yourself down on the pavement is if you're on an elevated curve (like a freeway interchange) and you're about to hit the low outside wall. The wall is usually high enough to save your motorcycle but not high enough to keep you from flying off into the wild blue yonder. I've never seen a rider survive that fall. The government ought to raise those concrete retaining walls to at least chest-high.

11) A loud exhaust is not safer. By the time you're close enough for a car driver to hear you, he's already in your path. In fact, you run the risk that the driver will be so alarmed he'll stop dead in your path. On the other hand, loud exhausts sure work wonders for pissing off the people behind you and making 'em hate motorcyclists. If you're serious about staying out of an accident, make yourself seen, not heard. If you just gotta have a loud exhaust, find another excuse for it.

GOOD LUCK AND GOOD RIDING!!

[1] Steve Magas, Ohio’s “Bike Lawyer,” is an avid rider and Ohio trial lawyer who has handled more than 150 “Bike Cases.” Steve’s practice focuses on representing riders injured or killed in crashes caused by errant motorists, dogs or faulty products. Steve rides a 2004 BMW R1150RT and is a year round commuter riding tens of thousands of miles each year. Steve offers a FREE CONSULTATION ABOUT YOUR CASE. You can reach him by calling

513-484-BIKE or sending him a note at BIKELAWYER@AOL.COM.

The First Crash & The First Laws:

A History Lesson With A Moral Today

By Steven M. Magas[1]

In 2007 Velo Press released Bicycling and the Law: Your Rights as a Cyclist. The book was the brainchild of former Olympic cyclist-turned-lawyer Bob Mionske.

Bob & I have corresponded via email for several years on numerous “bike law” issues. When he found himself running up against some tight publishing deadlines he asked me to contribute some work on the book. As the result of writing a few chapters, Bob listed me as a co-author.

-Lance Armstrong wrote the Foreward, noting that in the book “…you can find practical advice for any problem you face as a cyclist, from protecting your bike against theft, to fighting a traffic ticket, to prosecuting harassers…” like the one who tried to run Lance over!

Others who have praised the book include Rep. James Oberstar, one of cycling’s “stars” in the House of Representatives, George Hincapie, from the Disovery Channel Cycling Team, the Bicycle Transportation Institute and the National Center for Bicycling and Walking.

The book starts off with an outstanding story – the story of the first recorded automobile accident. It occurred on a bright, sunny Memorial Day – May 30, 1896. On that auspicious day Cosmopolitan magazine [yes, THAT Cosmo… ] had sponsored a race of horseless carriages. In it were four “Duryeas,” a Booth Rogers and, from Paris, an Armstrong. After a parade of the participants, the race began.

Mr. Henry Wells, of Springfield, Massachusetts, was driving a Duryea Motor Wagon near Broadway and West 74^th Street when he apparently lost control of the Duryea and began zigzagging down the roadway. Unfortunately, he collided with another vehicle, injuring Miss Evylyn Thomas. The police, not yet experienced in vehicular crashes, arrested Mr. Wells and held him pending word on Ms. Thomas’s condition. She suffered a fractured leg, but police were told that she was soon recover.

So why on earth is this crash of any interest to cyclists? Well, the key fact left out in the recitation of facts above is that Miss Evylyn Thomas’s vehicle of choice was… a bicycle!

Yes, Ms. Evylyn Thomas was one of the tens of thousands of New Yorkers out riding their BICYCLES that glorious Memorial Day. In fact, Ms.Thomas was riding a Columbia – one of the finest bicycles on the market at the time with a firm price of $100.00. Since the average monthly wage for commonfolk was around $30.00, the $100.00 price tag was quite a stretch for all but the old money, or new money, folks.

New York City, on Memorial Day of1896 reflected a transportation crossroads of sorts. Pedestrians shared the streets with horses, horse drawn vehicles, trolleys, bicycles and the new “automobiles.” Cycling was tremendously popular at the time, but cyclists were often viewed as scofflaws who flew by willy nilly without much concern for the rights of others. Pedestrians were frequently clobbered by cyclists, horses were scared silly and cyclists often crashed into each other. Speeding cyclists were known as “scorchers” and the New York Police Commission, whose chair was none other than future President, Teddy Roosevelt, organized a special squad of the first bike cops solely to apprehend “scorchers!”

Numerous bike crashes were reported for May 30, 1896 and five cyclists were arrested for scorching. Before fining the speeding cyclists the magistrate uttered words that, one could argue, have strong meaning on some group rides today: “Some of you people think that no one has a right in the streets but yourselves. I know I have had to run for my life to get out of the way of reckless bicycle riders…”

One big problem was that the Law had not developed fast enough to keep up with technology. Bicycles and motorized vehicles were not covered by any then current laws. With bicycles, cars, horses, carriages and the like all fighting for space, and trying to get people around as quickly as possible, broader legislation was clearly needed.

The New York legislature adopted a statute declaring that bikes were “carriages” and bicycle operators were entitled to the same rights, and had the same responsibilities, as drivers of horse drawn carriages. Courts brought bicycles into the legal system by granting them the same common law legal rights to use the streets as operators of other vehicles enjoyed, and thereby subjected them to the same legal duties.

The “Good Roads Movement” got its start around this time. In 1880, bicycle enthusiasts, riding clubs and manufacturers met in Newport, Rhode Island, to form the League of American Wheelmen [now known as the League of American Bicyclists]. The League became a national phenomenon and started publishing “Good Roads” magazine. Soon the club had a MILLION members and began pushing legislatures all over the country for road paving and improvements. The League gained considerable political clout as candidate’s positions on Roads was a hot button issue of the day!

The League lost members and power as the automobile became the vehicle of choice for America after the turn of the century, but the impact of the League’s push for good roads and good laws is still seen today. In many states, the Good Road Movement is credited with the first paved roadways and with insuring that the rights of bicycle operators to use the roads were recognized in state law. Today, in almost every state a bicycle is a “vehicle.” A bicycle has been defined as a “vehicle” in Ohio since the very first vehicular code was written.

The next time some idiot passes you and impolitely suggests that you take your riding elsewhere, you may want to retort with a reference to the Good Roads Movement and suggest that he/she thank YOU and your predecessor bicyclists for insuring that ALL vehicles had good, safe, paved roads on which to travel!

GOOD LUCK AND GOOD RIDING

[1] Steven Magas, The Bike Lawyer, is an avid cyclist and Ohio trial lawyer who has handled more than 150 “bicycle cases.” Steve represents cyclists who have been injured or killed due to crashes caused by errant motorists, dogs, faulty products or otherwise. Steve also writes on legal issues relating to cycling, sits on the Board of the Ohio Bicycle Federation, lobbies at the local, state and national level for laws and policies favoring cyclists and provides pro bono services to clubs and cyclists on important issues. Steve can be reached for a FREE CONSULTATION about your matter via email [BikeLawyer@aol.com] or phone [513-484-BIKE].

By Steven M. Magas [1] , Bikelawyer@aol.com - 513-484-BIKE

This year, I've written about goofy court decisions, odd crashes, the odd concept of "conspicuity" and motorcycle accident reconstruction. But, what should you do if you are actually involved in a crash? What kinds of things, which MANY people do, can actually HURT you in any claim arising out of the crash? This month, we'll take a look at the scene of your crash and the time immediately afterward. What should you do, if possible, before you leave the scene? What should you do SOON after any crash? A separate article will discuss the care and feeding of personal injury claims - just what ARE your rights under the law? What can you recover? I'll give you my take on the age-old question: Do You Really Need a Lawyer? For now, though, let's just look at the legal stuff that pops up when you crash!

Let's start with some assumptions. You are riding along and another motorist screws up - they don't see you, they turn left in front of you, they cut you off, they rear-end you, sideswipe you or otherwise negligently enter your right of way causing a crash. One minute you're riding, the next you're sliding!! What do you do?

In my experience, a rider's first words after a crash are often "How's my bike?" However, first, and foremost, understand that in ANY crash you are likely to get an "adrenaline rush." This can cause you to underestimate your injuries and jump up to confront the idiot who just clobbered you. please do try to AVOID this approach. Understand that you may be hurt, hurt badly in fact. Stay still and do a quick self-assessment - can you feel pain? Are you bleeding? Can you feel your extremities - move your fingers/toes - speak? Are you seeing double? Do you have a headache? You may be dazed, confused, scared. You should remember that even if you can move your head, you may have suffered a serious neck or back injury. Traumatic brain injuries, even slight or "mild[2]" ones, can be extremely serious. You may not even realize that you lost consciousness. EMT's are told to NOT remover your helmet until a neck injury is ruled out, unless they need to start an airway. The reason? The risk of a making a neck or back injury worse.

So, what should do FIRST AND FOREMOST after you find yourself in a crash? Go back to Kindergarten and do a "Stop & Think!" Get Your Emotions Under Control. Assuming you are not lying on the interstate with cars zooming by, you should just sit there/lie there and make sure you are SAFE!

Is your cell phone on you? Pull it out and CALL 911 right away. Get the police to the scene. Get an ambulance to the scene. Do NOT let ANYONE convince you that the police don't need to be called!

If at all possible, do NOT move your bike until police arrive. An accident scene should be treated as a crime scene. Objects should be left where they ended up after a crash. Object thrown from the bike may provide clues to how the crash happened. Think "CSI: Your Town" and preserve the integrity of the scene. The "debris pattern" is one of many factors which accident reconstructionists look at when trying to figure out what happened and who was at fault. Once the bike or other vehicle is moved or the debris is picked or swept up, the "crime scene" becomes tainted and useless. As you know from "CSI" critical evidence is lost when the crime scene is messed up, so keep yours pristine as long as possible. If things ARE moved, try to make note of where things were so you can accurately report this later.

If you are able to move around and talk, check on the other individuals involved in the crash. Are they OK? Do they need help? Again, make sure the police and EMT's are on their way.

Did the other motorist stay or flee? In England recently, a group of school children foiled a bank robbery by chanting the license number a witness noted until one of their mates ran into the school for a paper and pencil! If the motorist who clobbered you tries to leave the scene, get all possible information - car year/make/model, license number or any part of it, descriptions of the driver and passengers. Leaving the scene of a crash, even a "minor" one is a crime in every state in the union. Further, it tends to be evidence of liability or, at worst, criminal intent and a total lack of respect for the safety of others!

Get the following information at the scene - WRITE IT DOWN:

IDENTIFY DRIVER/OWNER of VEHICLE & WITNESSES

· Driver Name, address, phone -home/cell/work. Driver's License number. SS# if on the license. All possible contact information.

· Owner Name, address, phone - home/cell/work, if it is different from the driver.

· Vehicle Year, make, model, VIN#, color, registration paperwork

· Driver's Insurance information Name of insurer, policy number & limits. Name of insurance agent [many people think their "agent" is their "insurer". The "agent" sells insurance. Independent agents sell for many different insurance companies. "Captive" agents, such as those for State Farm, only sell one company's insurance.

· Owner's Insurance Information [may be in the glove compartment if the driver does not have it. Call the owner from the scene otherwise]

· Driver's Employer Find out if the driver was "working" at the time of the crash and get the name, address, phone of the employer.

· Passengers Name, address & phone numbers of all

· Witnesses Get the Name, address, phone of all witnesses. If they do not want to get involved, write down car make/model & license number as well as a good description.

NOTE THE CONDITIONS

· Note the time and place of the crash, including the road and nearest address or intersection [or GPS if you got it!]

· Note the topography of the roadway, sketch or photograph if it is important.

· Road conditions - wet, slick, icy, snowy, gravel, condition of pavement

· Visibility - Sunny, cloudy, fog, snow/sleet -- Remember conditions change quickly - get it written down right away. Was the sun in the other driver's face? How hard was it raining? [I tried a case for several days based solely on a "factual dispute" between the two drivers over the amount of rain and level of visibility! ]

· Note any traffic controls - Lane lines, center lines, stop/yield signs, lights, school zone, warning signs, etc.

· Prepare a sketch of the location of the crash, the endpoint of the vehicles, gravel, slick spots, etc.

· Note anything about the other vehicle which may have contributed to the crash as well as crash-related damage

PHOTOGRAPHS

· Photographs are critical to virtually every case. In today's digital world, with 5.0 megapixel cameras available for $100.00 or so, it is ludicrous for people with a claim for property damage or injuries to NOT have excellent photographs as soon as possible!

· Take scene photos from many angles - the rider's perspective, the other guy's perspective. Show skid marks, signs, lights, etc. Take photos at the same time of day.

· Photograph your bike carefully. Again, take a lot of photographs from many angles.

· You can NOT take too many photos!

SOME DO NOTS :

· DoNOT discuss what happened - the facts - with anyone before the police arrive.

· DoNOT exchange anything other than personal and insurance information with the other motorist.

· DoNOT apologize or acknowledge fault in ANY way.

· DoNOT argue with anyone about what happened.

· DoNOT say "I'm OK" or words to that effect. [DO make note of any statement the other motorist makes relative fault, apologizing for causing the crash and the like.]

· DoNOT sign anything from anyone other than the police officer.

· DoNOT talk to ANYONE about your view or recollection of the crash except the police officer - this especially includes EMT's, witnesses, passers by, and the other driver.

· DoNOT discuss your insurance, prior claims, your ongoing worker's comp. claim, your prior back injury, your divorce, your money problems or the fact that this is the third time some idiot has hit you or any other similar "historical" events with anyone.

· If you have a "look" that screams "bad ass biker" [and you KNOW who you are] DO NOT act in a way that corroborates that image - be nice, sweet even, caring and empathic. The perceptions others get of you will effect what they say and "remember" later. Believe me, if their only image of you is of a big, mean-looking, leather clad "biker" screaming at witnesses who disagreed with his/her version of the facts, you can bet they will be influenced against you!

· Do NOT try to ride home if you are hurt, dazed, confused, or looking at a bike with cracked parts and bent wheels!

This is the beginning, and most critical part of preparing for a claim. To get good information at this stage is critical. "GIGO" - or "Garbage In/Garbage Out" is very true when it comes to reconstructing what happened and who was at fault from a police report. Next month I'll discuss what to do with this information, how personal injury claims "typically" work and steps to take to maximize the value of your case!

GOOD LUCK AND GOOD RIDING!

[1] Steve Magas is an avid motorcycle rider and Ohio trial lawyer who has been protecting the rights of those who ride for more than 25 years. He writes regular articles on motorcycle safety and legal issues for various publications. Steve is a year round motorcycle commuter and tourist who is often found on his 2004 BMW R1150Rt on his way to work, to court, or heading to a gig with his classic rock band, Saffire Express, with a trumpet case strapped on the bike!  Steve and his new bride just completed their first bike trip - to the North Coast of Indiana and into Chicago over the 4th! 

[2] A doctor, when asked to confirm on cross-examination by a snarly defense lawyer that the injured plaintiff's back injury was "mild" is said to have smartly replied, "Well, that depends on if it's MY back or YOURS?"

By Steven M. Magas [1] , Bikelawyer@aol.com - 513-484-BIKE

Several recent topics have popped onto my radar recently. This month we'll take a look at a little of THIS and a little of THAT - some serious, some "Entertainment Tonite" stuff and. gasp. some humor!

HIPAA Recreational Injury Technical Correction Act

First the serious.

The American Motorcyclist Association has been tracking a problem in our health insurance system for many years. Certain health insurance companies have written provisions into health insurance policies that actually deny health insurance to motorcycle operators and other legal recreational users. How can they do that? How does it work? Are you at risk?

Insurers in various parts of the country have been discriminating against motorcyclists, ATV riders and others who engage in legal transportation and recreational activities. How it works is like this - the insurance policy says "If you get hurt, we'll pay your medical bills.. Except. If you get hurt while participating in certain recreational activities." Included on the list of "recreational activities" is riding a motorcycle!

How can this happen?

In 2001, Congress passed a bit of legislation that created a new legal acronym which virtually every lawyer, doctor, nurse, therapist and medical professional screams at - "HIPPA." HIPPA protects your privacy. It forbids the release of medical information without your consent. HIPPA actually did many good things to protect the average Joe. One loophole that insurance companies found, unfortunately, permits insurers to discriminate against those hurt while engaging in legal activities, like riding the bike!

If you are covered by such a discriminatory insurance policy, the ramifications are horrific. For example, if you are on your bike and your work buddy, covered by the same insurance, is behind you in his car when a drunk driver clobbers both of you, what do you think will happen? Well, under these discriminatory health insurance policies, the CAR driver will have all of his medical bills paid while he spends months recuperating. The motorcycle operator will get a nice letter from his health insurance company saying, "Sorry to hear about your bad luck. Unfortunately, because you were engaged in a recreational activity on our list, you were not covered at the moment the drunk driver hit you, so we're NOT paying your medical bills!"

What can you do? First, get on the AMA website [American MOTORCYCLIST Association, not the doctor's group] and go to the RIGHTS section. [http://www.amadirectlink.com/index.asp] Click on the 'RAPID RESPONSE CENTER" and read up on how the AMA is trying to protect your rights. If you punch in your zip code or hit the "TAKE ACTION" button, you will be directed to page that will allow you to write an email to your congressional representatives in the House and Senate expressing your support for pending legislation to FIX this loophole. This fix is supported by motorcyclists, snowmobilers, skiers, horseback riders and others who engage in perfectly legal activities.

So TAKE ACTION NOW!

ENTERTAINMENT NEWS

"Stars" who have wrecked on bikes!

Ann Margaret: She's an "accomplished rider" who suffered a broken arm and fractured ribs from a 2000 accident in Montana.

Gary Busey: Suffered head injuries in a 1988 crash after picking his Harley up from the shop.

Billy Idol: Ran a stop sign in 1990 and got clobbered.

Adrien Brody: The actor crashed into a car and skidded feet first through a crosswalk.

Bob Dylan: Did he or didn't he? Some say his "crash" in 1966 was staged to give him some time off. Others believe it was a near-death, life-changing experience..

Eric Estrada: Mr. CHiPs Himself suffered 12 fractured ribs and other injuries in a 1980 crash during production of the show.

Peter Fonda: Mr. Easy Rider lost ½ inch of his height after a 1985 crash. Says he STILL prefers a bike to a horse because he's "never been bitten by a bike."

George Clooney: He and flame-of-the-day were sideswiped in 2007 and made the frontpage on 16 continents both here and on Mars.

Johnny Knoxville: Almost had his testicles torn off trying a back flip with no skills to his credit!

Ben Roethlisberger: Big Ben took his Hayabusa out for a spin with no helmet and no license. He got nailed by a classic "left hook" with an errant motorist.

Arnold Schwatzenegger: In 2001, Ahhnold broke 6 ribs when his chest hit the bike's windshield as he swerved to avoid a car stopping ahead. His second crash occurred in 2006 when a car backed out in front of him.

Kellen Winslow: As a lifelong Browns fan, this one hurt. The kid got the money, bought the Big Bike, and suffered a nasty ACL injury when he HIT A CURB at 35 mph while practicing in a parking lot!

HUMOR

OK, I usually pass these up when they pop onto my computer, but this one is just TOO funny. The "Wave" always intrigues me. Who does it. How they do it. Why they do it, or NOT do it. I can't tell you who wrote these, or even where they came from, but I DO think you'll enjoy them.  Perhaps some of the humor is tooooo close to home, eh...??

In any event, here's the Last Word on The Wave..

Top Ten Reasons Why Gold Wing Riders Riders Don't Wave Back
10. Wasn't sure whether other rider was waving or making an obscene gesture.
9. Afraid might get frostbite if hand is removed from heated grip.
8. Has arthritis and the past 400 miles have made it difficult to raise arm.
7. Reflection from etched windshield momentarily blinded him.
6. The espresso machine just finished.
5. Was actually asleep when other rider waved.
4. Was in a three-way conference call with stockbroker and accessories dealer.
3. Was distracted by odd shaped blip on radar screen.
2. Was simultaneously adjusting the air suspension, seat height, programmable CD player, seat temperature, and satellite navigation system.
1. Couldn't find the "auto wave back" button on dashboard.

Top Ten Reasons Why Sportbikers Riders Riders Don't Wave Back
10. Have not been riding long enough to know they're supposed to.
9. Going too fast to have time enough to register the movement and respond.
8. You weren't wearing bright enough gear for them to acknowledge you.
7. If they stick their arm out going that fast they'll rip it out of the socket.
6. They're too occupied with trying to get rid of their chicken strips.
5. They look way too cool with both hands on the bars or they don't want to unbalance themselves while standing on the tank.
4. Their skin tight-kevlar-ballistic-nylon-kangaroo-leather suits prevent any position other than fetal.
3. Raising an arm allows bugs into the armholes of their tank tops.
2. It's too hard to do one-handed stoppies.
1. They were too busy slipping their flip-flop back on.

Top Ten Reasons Why BMW Riders Riders Don't Wave Back
10. New Aerostich suit too stiff to raise arm.
9. Removing a hand from the bars is considered "bad form."
8. Your bike isn't weird enough looking to justify acknowledgement.
7. Too sore from an 800-mile day on a stock "comfort" seat.
6. Too busy programming the GPS, monitoring radar, listening to ipod, XM, and talking on the cell phone.
5. He's an Iron Butt rider and you're not!
4. Wires from Gerbings is too short.
3. You're not riding the "right kind" of BMW.
2. You haven't been properly introduced.
1. Afraid it will be misinterpreted as a friendly gesture

GOOD LUCK AND GOOD RIDING!

[1] Steve Magas is an avid motorcycle rider and Ohio trial lawyer who has been protecting the rights of those who ride for more than 25 years. He writes regular articles on motorcycle safety and legal issues for various publications. Steve is a motorcycle commuter and tourist who is often found on Big Blue, his 2004 BMW R1150RT riding to work, to court, or to a gig with his classic rock band, Saffire Express, with a trumpet case strapped on the bike!

By Steven M. Magas [BMWMOA Member #121590][1], Bikelawyer@aol.com - 513-484-BIKE

I've never ridden in Europe. it's something I'd love to do someday. Motorcycling in Europe seems to be treated differently than here in the U.S. Gas prices overseas have been much higher than U.S. gas prices for many years. A government study compared premium gas prices, in US dollars, for six European countries, and the U.S. from January 1996 [we paid $1.27/gal .sigh . and they paid ~$4.00/gal] to June 2008 [we paid $4.31/gal, they paid ~ $9.00/gal!]

The use of motorcycles as a primary mode of transportation seems to be more accepted and widespread in Europe. Perhaps $9.00/gal is the "tipping point" where people start riding to save money on gas? Perhaps the fact that many European cities are far less "car friendly" than U.S. cities plays a role. Since all of Europe fits into the state of Texas, maybe the fact that you can climb on a bike, ride a few hours and "see the world" plays a role? Maybe it's those crazy sections of the Aubobahn which have abandoned the "speed limit" concept? Perhaps they just "get it" - >Bikes = FUN!

In addition to bikes being accepted on the roads and taken seriously as a mode transportation, Europeans also take their law enforcement pretty seriously too. In Belgium, for example, a speeding ticket can cost anywhere from 60 to 2500 Euros which, at the current exchange rate, is, like half a million dollars. Well. OK. an exaggeration, perhaps, but at today's exchange rate a 2500 Euro fine is a whopping $3,875.00! Speeding too far over the limit will not only cost you your cash, but also your BIKE, as many European countries give cops the power to impound a vehicle if the speeding violation is too far over the limit!

So what do the joys and risks of riding in Europe have to do with life in the U.S.? And what's this about "MAIDS" keeping you safer?? Lemme tell ya..

"MAIDS" is an acronym, of course - for "Motorcycle Accident In-Depth Study." This study involved taking a look at 921 accidents - and when I say "a look" I mean an incredibly detailed, close-up, microscopic "look." They didn't just read the police report and say, "Oh yea, it was the rider's fault." Instead, more than 2000 accident variables were cataloged and coded. A full reconstruction of each of the 921 crashes was prepared. The vehicles were inspected. Witnesses were interviewed. They frequently obtained medical records for injured riders and passengers. From this data, the researchers attempted to identify as many human, environmental and mechanical factors playing a role in causing the crash as they could find. This is a monumental effort to try to understand what factors contribute to motorcycle crashes!

In ANY "study" it's always good to ask "Who's doing it" and "Why" in order to try to sniff out any bias or predetermined outcomes. For example, studies of drugs by the companies who make them and want you to buy them always seem a bit "iffy" to me. Studies of motorcycle crashes by insurance industry groups bent on passing a helmet law are also questionable. MAIDS was co-funded by the European Commission, and claims to be the "only database entirely devoted to PTW accidents." ["PTW" is the term used in the study for "Powered Two Wheelers" such as motorcycles and mopeds/scooters]. The European Commission is the body created to represent all members of the European Union and is responsible for implementing common EU policies.

So, what did they find out?

Well, here's a starter - the OBJECT MOST FREQUENTLY STRUCK in a motorcycle accident was.. Drum roll please. a passenger car! As Gomer Pyle used to say, "Surprise . Surprise....Surprise!

But what about the Real Results of this study? Well, here's a few.

Ø The primary cause of most of the 921 accidents was "human error" the most frequent being the four-wheeled cager's "failure to see" the motorcycle within the "traffic environment due to lack of driver attention, temporary view obstructions or the low conspicuity of." the motorcycle.

Ø The second most frequently struck object was pavement - either due to a single vehicle crash or a maneuver to avoid impacting another vehicle.

Ø The majority of the crashes occurred in urban settings.

Ø Travel and impact speeds of the motorcycle in most crashes were relatively lower than I would have expected -less than 30 mph in 70% of all crashes!

Ø A KEYfinding, in my mind à 90% of all risks to the motorcycle operator, both vehicular and environmental, were IN FRONT OF THE RIDER prior to the crash.

Ø In 37% of the crashes, motorcycle operator error was the primary contributing factor.

Ø In 50% of the crashes error by the car/truck operator was the primary contributing factor.

Ø 70% of the car/truck driver errors involved the "failure to see or perceive" the motorcycle

Ø Interesting info - car drivers who had motorcycle licenses were FAR less likely to crash into a bike!

Ø Among secondary contributing factors, motorcycle operators failed to see other vehicles and

Ø Motorcycle operators also made a large number of faulty decisions; i.e., they chose a "poor or incorrect collision avoidance strategy" which contributed to the crash

Ø Two self-inflicted factors also increased the motorcyclist's risk of crashing:

o Alcohol use

o Unlicensed operator illegally riding a bike that, under European law, required a license.

Ø Older riders were "under represented" and younger riders were "over represented" - conflicting with data found in other studies, and U.S. crash data released by the NHTSA each year.

Ø 18% of car drivers, and 8% of motorcycle riders were found to have committed traffic control violations.

Ø Less than ONE percent of motorcycle crashes were caused by technical problems on the bike. Almost all of these relate to TIRES! [So Inspect That Rubber, people!]

Ø 73% of motorcycle operators attempted some type of collision avoidance maneuver prior to impact, with 32% experiencing a loss of control as a result.

Ø Helmets - they are mandatory throughout Europe and 90% of riders had them. However, almost 10% of the helmets CAME OFF during the crash. Whether due to improper fastening by the rider or a failure of the fastener mechanism, this is a lousy number.

In many European countries, licenses are required to ride bigger bikes. You also have to be older - you can't get an "unrestricted license" until you are 21. In Germany, the age is 25 and from ages 18-25 you are limited to smaller bikes for at least two years or until you get training and tested.

This study will form the basis of a number of future articles this year. The data collected is absolutely fascinating and is something we need to encourage our government and motorcycle groups and agencies to duplicate in the U.S.

In 1981, the "Hurt Report" was published - this was the last major in-depth study of factors leading to motorcycle crashes in the U.S. Harry Hurt and his staff took an in-depth look at 900 Los Angeles motorcycle crashes and analyzed an additional 3600 reports from around the country. The report and appendices are 800 pages or so.

In a 1999 interview, Harry Hurt said, "We had no idea that study would last so long. We always assumed someone would commission another, bigger study. As it worked out, no one ever came up with a contract. Nobody wants to do any new research projects."

The problem, of course, is that these things tend to get "politicized." Pro-Helmet groups want to skew things in favor of helmet laws. Anti-sport bike groups want to limit horsepower. Insurance companies, bike dealers, prosecutors, helmet makers, tire companies. they all have their reasons for wanting studies to come out a particular way. Plus, in-depth studies like this that go BEYOND simply reading the police report and accepting the officer's analysis, are very time consuming and expensive.

What I like about the MAIDS study is the depth of the investigation. They didn't just look at police reports listing brief conclusory statements - they interviewed witnesses and participants, looked at the roadway and the vehicles and collected some 2000 data points. The "In Depth" portion of the MAIDS acronym is very true!

There is a move afoot to fund another "Hurt-like" study in the U.S. The motorcycle industry committed $2.8 million to the project in 2007 to meet the matching requirements imposed by Congress. The AMA has committed money to the project and has a place online for ANYONE to toss a few bucks into its "FUEL THE FUND" pot! [http://www.amadirectlink.com/study/].

The US Study will use the same methodology as MAIDS - independent investigators are dispatched to accident sites in real time so they can collect in depth accident data. Like MAIDS, the US study will gather data on many crashes. The LA Times quoted Samir Ahmed, the Oklahoma State University engineering professor who is directing the US study as stating, "900 is the least we consider adequate from a statistical point of view." This allows investigators to get 20 times the amount of data than they can obtain from FARS [The US "Fatality Accident Reporting System"].

Future articles will explore the MAIDS study in more detail and compare the MAIDS results with the Hurt Report from 1981. Has anything changed in the past 27 years? Just looking at sales figures and checking out the Bike Nights at Quaker Steak and Lube and other local establishments tells me that motorcycling is more popular than ever - particularly with those of us who are. um. more experienced- yea, that's the ticket. There are more older riders now than there were 27 years ago, and more riders over 40 being killed. There are also a LOT more "bigger" bikes and a lot more urban crashes.

The U.S. study is still climbing through the bureaucratic process. HOPEFULLY, the study will begin in 2009 and by 2013 I'll be writing about the results of the US Study!

GOOD LUCK AND GOOD RIDING!

[1] Steve Magas is an avid motorcycle rider and Ohio trial lawyer with Phillips Law Firm, Inc.  Steve has been protecting the rights of those who ride for more than 25 years. He writes regular articles on motorcycle safety and legal issues for various publications. Steve is a year-round motorcycle commuter and tourist who is often found on Big Blue, his 2004 BMW R1150RT, riding to work, to court, or to a gig with his classic rock band, Saffire Express, with a trumpet case strapped on the bike!

By Steven M. Magas [1] , Bikelawyer@aol.com - 513-484-BIKE

Last month I talked about what to do at the scene of a crash after a motorist turned left in front of you and you crashed. This month, we're assuming you want to pursue a personal injury claim against that motorist. What's involved? What should you do? Do you need a lawyer? What pitfalls are there in handling it yourself?

As soon as a crash occurs many legal concepts, events and contracts kick into play. First, if you were not at fault and someone else was, a "claim" arises. A "claim" is your right to pursue "damages" for someone else's misbehavior. Typically a claim is made against the negligent person's insurance company, but sometimes it has to be made against YOUR insurance company.

In fact, numerous insurance contracts that fire up include your auto/motorcycle policy including its liability provisions, "medical payments" coverage, uninsured/underinsured motorist coverage and more. Your health insurance policy may be triggered as well as insurance policies from your employer such as short or long term disability and benefits such as vacation or sick leave. Each of these can impact your claim, and your ultimate recovery.

The question I hear a lot is "Can't I do this myself and not pay a lawyer a third of the money?" The answer is" .. Well .. Yea, of course you CAN. but why would you want to?" Just what do lawyers DO anyway?

As a personal injury lawyer, what I really "do" is a large number of relatively simple things - followed by some complex analysis and negotiations based on almost 25 years of experience handling hundreds of similar claims. When you hire a lawyer, it's this experience, analysis and negotiating skill you are paying for. You are also paying the lawyer to be a buffer between you and the insurance carrier as well as your advocate, confidante, information organizer, adviser, appraiser and counselor.

To get your claim started hopefully you read last month's article and got all of the information from the other driver, witnesses, your care providers and others and provided that to your lawyer! This certainly makes MY life easier, [.but we're very used to gathering this information too!]

In the beginning of a claim, I am a paper gatherer and a fact gatherer. I talk to the witnesses, get statements, get the police report and photographs, go to the scene and take my own photos or videos, get the physical evidence, gather up records - from the EMT's, the Emergency Room, your family doctor, your specialist, your physical therapist, your surgeon. I make sure I get ALL the records - cover to cover. This is critical in presenting your claim.

I need to nail down the facts of your claim as quickly as possible and analyze any liability issues. In motorcycle claims, the insurance company frequently argues that the motorcycle operator did something wrong, or was "contributorily negligent." Under Ohio law a jury could determine that your actions were part of the cause of the crash. A jury would assess a percentage of fault to each party. If your degree of fault is MORE THAN 50%, you LOSE the case. If your percentage of fault is 50% or less, you still win, but the amount of money you would win is reduced by that percentage. Thus, if you win $100,000, but a jury says you are 40% at fault, you would only get $60,000.

This makes the lawyer's initial factual investigation critical. The insurance adjustor will be tracking down witnesses immediately. We know that witnesses tend to identify with one side or the other and that early discussions are important for preserving their memories. That's why I try to contact any witnesses as soon as a case comes in.

While I am gathering facts and paper, I expect you to go about the business of healing and getting better. I tell clients that there are several important things they need to do. Do what your doctors tell you to do. Keep your appointments. Take the medicines. Do the exercises. Follow up if it keeps hurting. Keep a log - a diary - that catalogs and describes your recovery. Describe your pain vividly. If appropriate, use words like burning, throbbing, radiating, aching, shooting, fire-like.

As you heal, your lawyer remains in contact with the insurance "adjustor." An "adjustor" is professional employee of an insurance carrier who is specially trained to investigate and negotiate claims. She or he has a career which requires the spending as little of the insurer's money as possible to resolve your claim! Sometimes adjustors are nice, sometimes mean but they are always looking for ways to minimize the amount of money the insurer will spend - that's their job, and they do it well.

A claim is a "thing" that has a value in a special marketplace. Just as you might not have a clue as to what makes an old painting, a 1965 Fairlane or a Pete Rose rookie baseball card valuable, I would not expect you to know what makes a "claim" more or less valuable. You would be well advised to get an independent evaluation of your painting, Ford or baseball card and to NOT trust the "value" assigned by someone who wants to buy it! Part of your lawyer's job is knowing how to properly evaluate your claim and to understand what factors make it more or less valuable.

The "value" of your claim is based on the nature and extent of the injuries caused by the crash, the treatment received, how long the recovery took or, if you didn't get better, the extent of any permanency. Your medical bills, lost wages, property damage and other out of pocket financial losses are all recoverable. Under Ohio law, you can also recover money to compensate you for pain and suffering and other "non economic" damages. How do you determine a good "number" or value though? Is your claim worth $5,000.00 or $50,000.00?? What's the value of a scar over your eyelid, a fractured tibia or soft tissue neck and back injuries?

Factors that make claims more valuable include blatantly painful injuries [fractures, scars, burns], obvious permanency [eye damage, hearing loss, mangled arm, leg], intense treatment [brain injury, ICU care, surgery, extensive physical or occupational therapy] and significant financial losses [large medical bills and weeks/months of wage loss].

Factors that may negatively effect value are more subtle and can include: whether you did anything wrong, the "Likeability" of the claimant and the negligent party, the amount of property damage, the location of the crash, the location of a court where the matter would be heard, the extent of broken bones or scars, rural vs. urban counties and chiropractic vs. medical care.

Once I have developed my evaluation of the case [usually a range of values], I meet with the client and discuss my evaluation extensively. The client ALWAYS has the final say - it's his or her case, not mine. However, I will always give my very best opinion as to value and negotiation strategy. Once a strategy is agreed upon, I submit an extensive letter to the insurer which outlines the entire case - liability, treatment, damages, legal analysis - and sets forth the amount of money "demanded" by the client to settle. An organized binder of all supporting documents is also submitted.

Once your demand is out there, you have no control over what the insurer does. Typically, within a week or two I get an "offer" from the insurer - this is ALWAYS considerably lower than the "demand." The high/low negotiation parameters are now set, and the process becomes a bit like buying a used car! Demands and offers usually continue and, hopefully, there is an overlap at some point in the process and case is settled.

In my practice, I usually settle 70-80% of all claims before a lawsuit is required. Even among those cases in which a lawsuit is filed, MOST settle short of trial. Only 1-2% of all claims ever end up in a courtroom. As a "trial" lawyer, I have taken many cases from intake to trial in many counties throughout the state of Ohio.

Always remember that your claim has a "statute of limitations" which varies based on your location and the type of claim. If you fail to file a lawsuit within the limitations period, the claim is lost forever!

So that's it - gather all the data, review, analyze and organize it, prepare a demand and negotiate, or file and prosecute a lawsuit if necessary! That's what lawyers do. Can YOU do this too? Of course, there's no magic in gathering data. What you may lack is the knowledge of law, medicine and engineering/physics needed to analyze the issues and put a case together, the experience of evaluating and handling hundreds of other claims, and the negotiation skills necessary to deal with an aggressive adjustor.

Good Luck & Good Riding!

GOOD LUCK AND GOOD RIDING!

[1] Steve Magas is an avid motorcycle rider and Ohio trial lawyer with Phillips Law Firm, Inc. Steve has been protecting the rights of those who ride for more than 25 years. He writes regular articles on motorcycle safety and legal issues for various publications including Roadwheeler and BMW Owner's News. His unique "Bike Law practice has been featured nationally in Lawyer Weekly USA and locally in the Cincinnati Post, Cincinnati Magazine and Cincy Business. Steve is a year-round motorcycle commuter and tourist who is often found on his 2004 BMW R1150Rt on his way to work, to court, on a ride or heading to a gig with his trumpet strapped to the rack!

By Steven M. Magas, The Bike Lawyer[1]

On September 20, 2007 Lloyd Clarke was killed while taking a bike ride. Lloyd was a good man - a loving husband to his wife, Sherol - a wonderful father to his 10 year old daughter - a solid co-worker - a strong, fit and experienced bicyclist who was well-liked by his fellow rides in Maryland. Lloyd's death struck his family and friends very deeply. What happened in the days following Lloyd's death shook them even harder.

Lloyd was traveling on business to Incline Village, a picturesque little city that sits on the Nevada side of Lake Tahoe. Lloyd always traveled with his pedals & riding clothes in his luggage so he could rent a high end bike and ride on business trips. Lloyd also used a GPS to track his rides in tremendous detail.

Lloyd rented a bike from a shop in Incline Village early in his week-long stay and rode every day. At 6,330 feet up in the Sierra Nevada mountains and roads with 8 or 9% grades, or more, Incline Village provides the bicyclist with some particularly challenging routes. Lloyd was more than up to the task. As a man who had once taken his bike from sea level to a point 10,000 feet UP the mountain in Hawaii that many choose to ride DOWN, Lloyd was known as a powerful rider.

On September 20, 2007, Lloyd was riding a loop of around 8.8 miles. As Lloyd came down Country Club Road into the intersection with Village Blvd., a pick-up truck driven by a 17 year-old local boy was coming up Country Club. The juvenile made a sudden left turn in front of Lloyd as Lloyd pedaled into the intersection. Lloyd was unable to stop before crashing into the side of the pick-up truck and suffering fatal injuries.

Lloyd clearly had the right of way. There were no traffic controls at the intersection. Lloyd was proceeding straight through and the truck turned left in front of him. Seems like an open and shut case, right? A classic "left hook" in bicycle accident reconstruction parlance caused by the juvenile's failure to yield the right of way to oncoming traffic?.

Sadly, the police on the scene didn't see it that way. For reasons known only to them, local police at Incline Village immediately took blame AWAY from the young motorist and placed it on the cyclist! According to comments published in the local paper and attributed to Brooke Keast, a public information officer with the Washoe County Sheriff's Department, "It looked like the cyclist was going too fast. It's so hilly up there that sometimes you might not be able to stop." Capt. Steve Kelly, commander of the Sheriff's Incline Village substation, said, "Tentatively, it looks like the cyclist was exceeding the speed limit,"

Huh? Welllll, certainly such a bold and official statement from the police was based on some actual evidence. right?

Not exactly.According to Keast, ".witnesses at the scene said they saw the truck going up Country Club Drive and turn left onto Village Boulevard. They said the cyclist was going too fast to stop." How fast was the bike going? What was the speed limit? Does "too fast to stop" mean speeding?

According to Capt. Kelly, ".it looks like it was simply a very unfortunate accident..Ifspeed was the main contributing factor the juvenile most likely isn't to blame." Huh? But.didn't the kid turn left in front of the bike??

What about that juvenile, what was he saying? According to Keast, the juvenile was ".real cooperative, and we don't expect to have any issues with him." Keast again, "It's just one of those unfortunate things that happen . From what I hear he [Lloyd] was a experienced rider, but possibly he wasn't in that area."

Lloyd's friends and family read those comments in the local paper and reacted quickly. They added comments to the online version of the newspaper article. They contacted the writer. They contacted the police department. They tried to get some sort of retraction published.

A few days later, more inflammatory comments arose. Capt. Kelly acknowledged that ".his office has received phone calls from upset citizens, asking why the juvenile driver isn't being blamed for the accident." However, Kelly stressed that ".it was an unfortunate accident in which no one should be blamed."

Kelly then strung together an entire paragraph of ridiculous comments for the paper:

"One thing I will say - the fact of the matter is, if we find he was exceeding the speed limit in a low-light situation, how do you expect the driver to see him?" Kelly said. "It was dark. It was probably hard for the driver to see him, he had no lights on the bicycle and he probably was not familiar with the area. Now obviously, I don't think it was a deliberate attempt to disregard the law. We don't have a final finding yet, but those are possible reasons why."

Isn't that special. The police are saying ".we don't have the final finding yet, but." we think the cyclist was speeding and besides it was dark and the rider was unfamiliar with the area and thus the rider caused his own death by slamming into the car that turned left in front of him. [forgive me, I'm paraphrasing here.]

What a load of . well.

The Sheriff's Major Accident Investigation Team [MAIT]was called in and a THOROUGH accident investigation was then undertaken. This included TALKING to witnesses, ANALYZING data, taking measurements, performing a RE-CREATION of Lloyd's ride down Country Club, accessing the GPS data, looking at Sunset/daylight records and more.

I was called into the case by Sherol Clarke, Lloyd's widow, and I traveled to Lake Tahoe in October. Standing at the scene I was shocked - I couldn't imagine how ANYONE could possibly determine that the bike was "not visible." The sunset records I looked at told me it was still daylight at the time of the crash. Even if Lloyd was going 40 mph, the oncoming motorist would have been able to see Lloyd for several seconds before impact. There was just no way I could see this being Lloyd's fault. I took photos and video of the scene, spoke with a witness, met with Sherol and took some measurements. The police, by this time, had decided to back off and refused to speak with me about the case.

The Final MAIT report supported my "seat of the pants" analysis based on standing at the site.

When they looked at Lloyd's GPS they found a treasure trove of data. Turns out Lloyd was tracking his ride - he had made two previous loops before being hit and killed the third time around. According to the GPS data, EACH TIME he entered the intersection of Country Club and Village, he had slowed down. He was riding WITHIN THE SPEED LIMIT, and had slowed down.

The scene photos showed that the path taken by the pick-up truck was improper. The driver clearly tried to "cut the corner" and started making the turn about 15 feet before a spot on the roadway that would have been appropriate to start the turn. The investigation team concluded that had the juvenile "gone another 15 feet up to make a proper turn, the collision would not have taken place and. [the juvenile]. would have had a better opportunity to see the cyclist."

Bottom line - the police report debunked each and every comment made by Capt. Kelly in the days immediately following the crash.

-- Too dark to see? Sunset was at 7:01 and the accident occurred at 6:55 . Weather was "partly cloudy."

-- Too Fast? Re-creation by police cyclist estimated speeds between 35-40.

--Didn't know the area? GPS data confirmed that Lloyd made 3 loops over the same route and

that Lloyd "slows at major intersections.This shows that Clarke had knowledge of the area and his route."

Why would local police make such WRONG statements to the press before the investigation was over? Why would they seem to aggressively protect the local juvenile against any claim that the boy might have caused the crash? Why were the police so quick to blame the cyclist, an out-of-town African-American businessman?

We will never know the true answer to these questions. Bob Mionske, former Olympic cyclists turned lawyer, wrote a column in Velo News recently detailed several recent cases in which either the cyclists were improperly blamed for causing crashes with motor vehicles or the motor vehicle drivers got off with no ticket or a "slap on the wrist." This is becoming widespread.

The verdict is still out on the Lloyd Clarke case. The police report was only recently completed [January 2008]. Sherol Clarke had to file a motion in court to get a copy, despite the fact that it is a public record.

Did the fact that Lloyd was an African-American visitor from Maryland into a virtually all-white very affluent Lake Tahoe city play a role in the police department's immediate and vehement defense of the negligent motorist? Were the police protecting the boy for some reason? Did they really feel they had conducted a complete and thorough investigation before they began issuing statements to the press about the bicycling who was going "so fast" that he "couldn't stop" before crashing into a car that turned left in front of him?

Sherol Clarke stood up and fought for her husband's legacy and good name. Her young daughter understood completely what the police were saying and what that meant. She knew her daddy to be a good and cautious man. Sherol and her daughter kept pushing police for more information, a better investigation, a better public statement. Finally, in the MAIT report, it appears they are getting it.

Too little, too late? That remains to be seen. On March 7, 2008 there is a hearing at which the juvenile is expected to be charged with more serious crimes based on the MAIT report. The Sheriff's Department may have more to say at that time. For now, we sit and wait.

Capt. Kelly DID have something to say about the MAIT report before it came out: According to an October 7, 2007 article, ". while Kelly said he still is waiting on the official investigation, he said it could come to a "convoluted conclusion, which may not include the entire logistics of the accident." Forgive me if I continue shouting expletives here.%&&$**(#

For now, we continue to sit and wait and see what happens. The simple facts are still true: Lloyd Clarke had the right of way and Lloyd Clarke is dead. Keep Sherol and her daughter in your thoughts!

Good Luck and Good Riding

Steve Magas

[1] Steve Magas is an avid Ohio cyclist and trial lawyer whose law practice focuses on protecting the rights of riders. Steve has handled more than 150 "bike cases" for cyclists involving crashes caused by cars, busses, trucks, dogs, faulty products and more. Steve's unique "Bike Law" practice has been featured nationally in Lawyer's Weekly USA, and in several local publications. Steve is a co-author of a new book, "Bicycling and the Law," with Olympic cyclist-turned-lawyer, Bob Mionske. Steve was also a contributing author to that epic tome, "Bicycle Accident Reconstruction & Litigation and sits on the Board of the Ohio Bike Federation. You can contact Steve for a FREE CONSULTATION about your legal matter at 513-484-2453 or at BikeLawyer@aol.com.  He can be reached Toll Free at 888-883-2600.

Part One - INSURANCE

By Steven M. Magas, The Bike Lawyer[1]

Can't you just picture it - maps laid out, clothes folded and ready to be loaded into waiting panniers, bike all tuned up, the smell of Teflon oil floating about the room. The last thing on the touring cyclist's mind as she/he goes through the Pre-Trip Checklist is the "BLS." Unfortunately, failure to consider the BLS can end up costing the touring cyclist time, money and the safety and peace of mind of his/her family! The BLS includes: insurance issues, estate planning and traffic/bicycling laws. We'll take a look at all three, starting with the always exciting topic of INSURANCE today!

INSURANCE ISSUES for the TOURING CYCLIST

Insurance? You don't need to worry about no stinkin' insurance, right? You're driving a BIKE not a car . what can POSSIBLY happen? [For this part of the article, let's assume you are staying inside the United States - things REALLY get crazy in the insurance world when you cross sovereign borders!]

Health Insurance

First, and foremost, before you leave the house make sure you are carrying all of your health insurance information. Keep it close at hand - better yet, pack your insurance card, or a copy, in a small [2"x3"] baggie with your ID, emergency contact information and list of medical allergies and store it visibly on your person - or in your helmet! If you are hurt on the road, unable to communicate and need emergency care or serious medical intervention you do NOT want healthcare professionals wondering who you are, who to contact and whether or not you've got health insurance! "Road ID" is a company that makes an excellent wristband product holding a plate with your emergency information or whatever you tell them to type on the plate!

WARNING: While I have not seen this in my "bicycle law" practice, I have learned from my "motorcycle law" practice that some health insurers are experimenting with limiting the benefits they provide if an insured is injured while riding a motorcycle or engaging in certain other "hazardous sports." As you might expect, motorcycle groups, such as the American Motorcyclist Association, are up in arms and preparing to do battle. However, under policies out there right now a motorcyclist can hit by a DRUNK driver and have NO health insurance coverage! If insurers find this effective, you can BET they will apply the concept to bicycling very soon! A bill is currently pending in Congress to stop this practice.

Homeowner's Insurance

Keeping your homeowner's insurance information with you is also important. Many people do not realize that their homeowner's insurance will provide coverage if they negligently run over someone or something! If you are going on an extended trip, take your agent's phone number and your policy number. If someone claims YOU did something wrong, causing them loss, damage or injury, you will need to contact you homeowner's insurance carrier right away!

Auto Insurance

- Medical Payments Coverage

Why would you need to take information about your automobile insurance policy on a 3 week bike ride? If you are injured in a crash with a motor vehicle you may find some financial assistance buried within your automobile insurance policy!

Most auto insurance policies provide, or offer, "medical payments" coverage. This coverage pays YOUR medical bills if you are in a crash with another car. Historically, if you were hit by a car while riding your bike your "medical payments" coverage could be used to pay some of your medical bills even though the coverage is found in your automobile policy and you were not driving your car when you got hurt.

WARNING: Recently, I came across the first automobile insurance policy I have seen, from Nationwide Insurance, which LIMITS "medical payments" coverage and EXCLUDES paying your medical bills if you are hit by a car while riding your bike! Read your policy closely before you leave. The language may be difficult to decipher, or ambiguous.

You may want to ask your agent if you are covered in such a scenario. If the agent says "Yes," then IMMEDIATELY fax a letter to the agent [and keep a copy] restating your question and his answer and thanking him/her for the advice. State in your letter that you are relying on this important advice because you often ride your bicycle in situations where you are in close proximity to motor vehicles. Even if the agent is wrong, your letter may serve to extend coverage anyway, depending on the case law of your state, as an agent's statements of coverage may bind the carrier.

Auto Insurance

Uninsured/Underinsured Motorist Coverage

One all too common scenario many road riders regularly face is the cowardly motorist who zooms by and runs you off the road, throws something at you or otherwise causes a crash in which the cyclist is injured. These "phantom motorist" cases are tough, but the law of many states provides for a recovery under the "uninsured/underinsured motorist" ["UM/UIM"] provisions of your auto insurance policy.

I advise my clients to buy as much "UM/UIM" coverage as they can afford because it is coverage that pays YOU when you need it the most! The "uninsured" part of this is obvious. If you are struck by motorist who simply has no insurance, your "UM" coverage should pay your injury claim just as if it was the motorist's coverage.

The "underinsured" may not be so obvious. Let's say the motorist who runs you over actually has pretty good coverage - $100,000.00 policy limits. However, because of the severity of your injuries, wage loss, medical bills, pain, permanent injuries and the like, your claim is worth a lot more than that - say, $500,000.00. The motorist, despite his excellent coverage, is considered "underinsured" and your policy's "UIM" coverage may be used to pay more towards your claim depending on your policy limits. Again, the law varies dramatically from state to state on this one!

Are you carrying an Umbrella?

Do you carry any type of excess or umbrella insurance? These types of policies are designed to go over the top of all other policies and only come into play in extraordinary occurrences in which all other available insurance is used up and you still have losses. An umbrella policy is usually written with large policy limits - $500,000.00 or more. You are required to carry certain minimum policy limits for underlying coverage. I advise ALL bike riding clients to consider an umbrella policy. They are typically very inexpensive, provide very high policy limits and, in that once in a lifetime situation, can save your financial life or prevent a bankruptcy! Consult your insurance professional for details.

Real Life Insurance Example

So here's a real-life example of insurance coverage in action. My client suffered a dangerous fractured neck when a motorist backed out of a driveway directly in front of him as he rode down a hill. He needed surgery to fuse his neck. The motorist, unfortunately, had Ohio's pitiful state minimum auto coverage - $12,500.00 [you know. the "keep you legal for less" limits they cheerfully sing about on TV]. The client's medical bills were in excess of $80,000.00. His wage loss exceeded $40,000.00.

Had he not taken steps to protect himself, this cyclist would have been stuck with the $12,500.00 policy limits. Of course, he could have sued the motorist and possibly won a big judgment. However, getting to a "big judgment" takes time and money. The plain truth is that most people who carry the state minimum $12,500.00 policy limits simply don't have the assets to PAY a big judgment. If they did, they would carry more insurance!

Fortunately, my client had purchased excellent auto coverage. This included $300,000.00 in UM/UIM coverage and $10,000.00 in "medical payments" coverage. He used the medical payments coverage to pay his "co-pay" for the surgery and other treatment.

In addition, my client maintained an excellent disability insurance policy through his practice that kept him afloat financially while he was off work completely for more than two months. Finally, my client purchased an umbrella policy with $1.0 million limits. Since his claim had a value in excess of his $300,000 "UM/UIM" limits, we were able to tap into the umbrella to resolve the case.

My client, like most of us, hoped he would never need this range of coverage. However, the "once-in-a-lifetime event" that triggers such coverage happened to him between the end of his workday and dinner one night!

Part TWO - ESTATE PLANNING

Last month I ventured away from safety, accidents and riding the bike to consider the BLS - Boring Legal Stuff - related to insurance and bicycling. This month the second [and last] BLS installment: Estate Planning.

Why does the bicyclist need to worry about "Estate Planning?" What the heck IS "Estate Planning" anyway? Sounds rather vague and morbid! Why should a BICYCLIST worry about Estate Planning for a few minutes instead of cleaning her/his trusted steed?

"Estate Planning" for most of us [us NON-millionaires, that is] consists of getting a will prepared, as well as possibly a trust and, even more important for the bicyclist, a couple of "Powers of Attorney." For most people, their estate planning goals are to provide financially for their surviving spouse, protect their assets, insure that their children are physically and financially cared for, minimize cost, taxes and delay and insure that their plan for the distribution of their life's work is done the way they want it. Other goals may include providing for children of a prior marriage, making sure that business interests are taken care of, providing liquidity to pay bills and taxes and avoiding family conflict and strife!

Here's a little "12-Step" program for getting the BLS done in YOUR life!

1. Make a will.

2. Consider a trust.

3. Make health care directives.

4. Make a financial power of attorney.

5. Protect your children's property.

6. File beneficiary forms.

7. Consider life insurance.

8. Understand estate taxes.

9. Cover funeral expenses.

10. Make final arrangements.

11. Protect your business.

12. Store your documents.

YOUR WILL & TRUST

We all would like to live forever, or at least long into our "golden years." It seems that many adults fear "making a will" more than death or dealing with a life insurance agent! The thought of talking about "end of life" issues scares many people and prevents them from getting their will done. However, the legal effect of NOT dealing with these issues should scare you even more!

Everybody Needs a Will

In a will, you state who you want to inherit your property and name a guardian to care for your young children should something happen to you and the other parent.  If you have small children you should have a will - no question about it - you are committing "Parental Malpractice" if you don't! Under Ohio law, if you have no will, then the Probate Court Judge determines who will take care of your children until they are 18 years old. Without a will advising the court about who you want to inherit your property, Ohio law tells you exactly who gets it. Without a will or trust in place, your young children take possession of your entire estate, including all life insurance proceeds and such, at the tender age of 18. Failure to have a will or trust prepared can cause your estate to incur taxes of expenses which could be avoided.

What is a Will?

A Will is a legal document in which you:

· Name the Guardians of your children, as well as alternative Guardians if your first choice is unavailable.

· Describe who you want to inherit your property.

· Name the "Executor" or "Executrix" of your estate - the person responsible for gathering up your assets, paying your debts, and seeing your estate through the Probate process such that your property passes to the appropriate people.

· Provide for passing assets to a Trust.

Not just any writing listing your wishes can be a legal will. Ohio law is very specific about how the will must be signed and witnessed. Failure to follow these rules exactly can cause your wishes to be ignored by the Court.

Trusts: Not Just For Millionaires

A Trust is also a legal document. However, trusts can be extremely diverse in what they do. Today, though, we're going to limit our discussion to a very basic form of trust - one that holds your assets for your children and distributes when they are a little older - say 22 or 25 or 30! During the estate planning process we ask people to look at the life insurance they have purchased, or have available through work, their retirement holdings and all other assets, and determine how much money could be available to their children in the event of their death, or should both spouses die. Often, this ends up being a rather considerable sum of money - more than most people feel like dropping into the laps of their children at age 18!

This is where the Trust comes into play. In your will, you can leave the majority of your estate to a Trust or Trustee, should your spouse be unavailable. In the Trust, you designate when you want your children to have these funds and how you want the Trustee to handle those funds. This distribution can be written in just about any manner that makes sense to you. Want to encourage or pay for college? Your trust can provide for that. Want to give the children a specific sum each year until they reach 25 or 30? Your trust can provide for that. Want to give your Trustee discretion to distribute money to meet each child's specific needs? Your trust can provide for that. In essence, you figure out what works for you and your lawyer can write a Trust to make it work!

POWERS OF ATTORNEY

What are POA's?

A Power of Attorney ["POA"] is a legal document that gives someone ELSE the power to make decisions for you. POA's are of CRITICAL importance to the bicyclist. If you are in a crash and are unconscious or unable to make decisions, a POA gives another person the legal right to make those decisions. The "catch?" A POA must be signed by you BEFORE you are unconscious or incompetent and must contain particular language to be valid after you become incompetent. More importantly, if you do not have health care POA's in place before you are hurt, your family could be in a "Terry Schiavo" situation, where no one has authority to make medical or end-of-life decisions for you.

Financial POA

In Ohio, a "durable" power of attorney is one containing particular language set forth in the Ohio Revised Code such that the POA will continue in force in the event of the incompetency or death of the person signing the POA. "Incompetence" here means that the mental status of the person signing the POA has changed due to illness or medical condition, injury or otherwise, such that the person is incapable of handling his own affairs. For the bicyclist this usually means an accident-caused head injury which renders the rider unconscious, comatose or in an altered state of consciousness.

In a financial POA, the person you choose will have the power to pay your bills or do anything else financially that YOU could do. A POA can be very broad - the power to everything you could do. Most people are more familiar with a very narrow and limited POA- the pink forms at the BMV which permit you to give somebody else the power to get your license plates or sell your car.

The financial POA must be signed when you are competent. If a motorcycle crash renders you unable to make financial decisions, it is too late to create a POA - your assets may be frozen, unavailable to your spouse or family, and your bills might go unpaid or your credit could be damaged.

The Schiavo Case & "Advanced Directives" in Estate Planning

The Terry Schiavo case was a real medical and legal wake-up call for many Americans. The case provided a public window into an Estate Planning "Worst Case Scenario" - a person who was unconscious, but not "terminal," who had never prepared any written instructions advising health care providers as to how she wanted to be treated. Today, so-called "advanced directives," such as a special POA for Health Care and a Living Will, can take care of those issues.

A "Durable Power of Attorney for Health Care" is a legal document that authorizes another person of your choosing to make health care decisions for you if you are unable to make informed decisions on your own.

A "Living Will" is a document that contains your written wishes and instructions for care at the end of life. You can state your preferences regarding aggressive life-prolonging treatment.

Ohio law now specifically provides for "Living Wills" and "Health Care Powers of Attorney". In fact, a simple Google search reveals numerous websites on which forms for both, approved by the Ohio State Bar Association, The Ohio Hospice & Palliative Care Organization and others, can be found. While you can prepare these forms without counsel, you must read them extremely carefully, fill in the blanks appropriately and insure that the witness and notary requirements are followed exactly. Failure to do so can render the forms worthless at a time when you need them the most!

SUMMARY

For most people, these five documents: Will, Trust, POA, Living Will, Health Care POA - make up their "Estate Planning" package. In addition, I would strongly urge bicyclists to use the Estate Planning process as a time to organize your papers and get them in one place, to consider a safe deposit box for important papers, to review and update their life, health and disability insurance and consider any estate tax issues in their situation. Further, this is a great time to discuss your Estate Planning decisions, particularly your end of life decisions, with others. Morbid, perhaps, but for the casual or serious rider, this could be one of your most important conversations!

GOOD LUCK AND GOOD RIDING!

Steve Magas - The Bike Lawyer!

[1] Steve Magas is an avid Ohio cyclist and trial lawyer with Phillips Law Firm, Inc., whose law practice focuses on protecting the rights of riders. Steve has handled more than 150 "bike cases" for cyclists involving crashes caused by cars, busses, trucks, dogs, faulty products and more. Steve's unique "Bike Law" practice has been featured nationally in Lawyer's Weekly USA, and in several local publications. Steve is a co-author of a new book, "Bicycling and the Law," with Olympic cyclist-turned-lawyer, Bob Mionske. Steve was also a contributing author to that epic tome, "Bicycle Accident Reconstruction & Litigation and sits on the Board of the Ohio Bike Federation. You can contact Steve for a FREE CONSULTATION about your legal matter at 513-484-2453 or at BikeLawyer@aol.com.  He can be reached Toll Free at 888-883-2600.