beowulf7

Thanks for the update. I hope your spirits are up. Too bad you're still in pain, but hopefully with each passing week, the pain is slowly subsiding. It looks like you have all your ducks lined up in a row and will have preponderance of evidence to nail that SOB.

kokomo61

UPDATE: PT continues to be hard, but they're having me do more, which is a good sign. Did 20 lengths in the pool yesterday (500 meters), but at an easy pace, with rest at each end. My calf cramped up a bit, but I don't see that as serious (means that I need to be swimming more).

Insurance company update:

I got a letter from the guy's insurance company agreeing with my damage estimates, which included the full retail value of the bike, the damaged accessories, and the cost of moving them from one bike to a new one. The letter offered to settle the property damage for the full amount I asked for. (I wasn't generous to them, nor did I pad it, but anything that was damaged, was claimed at full retail value).

The letter states:

"It is expressly understood that this release applies only to liability for the property damage which arose from the above stated event....this release does not affect any other rights, causes of action, or demands that the releasor may have for other damages, including but not limited to personal injury claims or other claims...."

So, I read that as I'm completely releasing them from any other property damage that could be claimed, but I'm NOT giving up my rights for any personal injury/pain and suffering claims. This is just for the bike, right?

The final paragraph also says - "This settlement is a compromise of a disputed claim and this payment is not to be construed as an admission on the part of the party or parties hereby released of any liability whatever in consequence of said accident."

I read this as that they're doing CYA for any other stuff (e.g., personal injury claim) so that what's done here isn't construed as accepting 'fault.'. That's done as part of any offer to settle PI/P&S, either before or after a lawsuit is filed.

Here's the question - is this standard language, and OK to settle the property claim, or do I need to have an attorney review this?

ItoDoeblin

My tinfoil hat opinion: Have a lawyer take a look at it. Have a lawyer take a look at ANY correspondence/communication between yourself and the gentleman that hit you, his insurance company, or his lawyer.

thebarerider

Ask an attorney.

huhenio

Lawyer up.

HardyWeinberg

I think you're right on the first point, would want to talk to a lawyer on the 2nd point.

kbblodorn

+10 get a lawyer. The ins. companies love when they can write a check and eliminate having to pay out a lot more, and you don't know what else might arise in the future. As slimy as PI lawyers are, that's nothing compared to the insurance companies.

brooklyncyclist

I agree; you should have a lawyer if you don't already. If you go to your hearing without one they will try to walk all over you. A lawyer on your side will help you get remuneration for damaged equipment, hospital & medical costs (including PT), maybe even punitive damages.

kokomo61

I've already asked the town attorney (that's who's prosecuting the traffic citation) if I need an attorney for this hearing....since I'm only a witness (as far as the court is concerned), and not a defendant, I should not engage an attorney.

Again, the hearing on the 18th is for the guy's traffic citation, which is for the Failure to Yield ticket. I've got evidence that rebuts his version of events (whatever it turns out to be).

I'll be talking to an attorney about the PD settlement offer - which takes care of my damaged equipment - and even though it states it clearly in the settlement offer, make sure that I'm not signing away my right to PI damages.

I have 24 months from the date of the accident to file a PI suit, so I've got time. My car insurance is paying my medical bills, so I'm not out of pocket for that (just for the replacement bike, until the PD claim is settled.) As far as the PI claim is concerned, Once my doc 'releases me from treatment' which means that I'm either completely recovered, or I'm as recovered as I'm going to get, then it's likely that his insurance company will make an offer to settle. At that point, I'll talk more extensively with the PI attorney candidates to see if the offer is fair. If it's not, and if I'm confident they'll recover more than I can on my own (minus their contingency fees), I'll file a suit.

beowulf7

That's good that they seem to be willing to pay for your bike + mods. I also recommend to hire a lawyer. However, can you include your lawyer's fees in your compensation request (bike + medical bills + pain and suffering)? I realize your car insurance is paying your medical bills, but I'd imagine you'd want them to be reimbursed so that your rate doesn't increase. And congrats on your new bike.

kokomo61

Most PI lawyers work on a contingency basis - for automobile injuries, it's 33% of any recovery prior to trial, and 40% if it actually goes to a trial. You don't pay anything if you don't collect.

So, while I COULD hire a lawyer for the PD part of this, they'd take 1/3 of any settlement (including what I've already negotiated). I had very good documentation for everything that's damaged, so the property damage settlement is fair and reasonable.

The PI part of this (which is completely separate) is a very different matter. The things that I can claim include actual doctor bills, transportation to and from medical appointments, lost work time, lost wages (e.g., if I have to take PTO or time off work to recover from/take care of the injuries), inconvenience of not being able to bike, 'pain and suffering' (which includes how many sleepless nights I've had, my - continuing- pain in my ribs, inconvenience to my wife and kids, pain of rehab and PT, etc. - PLUS - my wife and kids are up in Canada for 2 1/2 weeks, and I have to hang around here to do PT).

My car insurance pays my medical bills up front, but they will subrogate that to his insurance company. Same thing goes for things that hit my health insurance - they'll send it to my ins. co, then they'll send it to his. They'll end up paying for the medical bills, but my car insurance does it up front as part of the policy. From what I've heard, once my doctor 'clears' me, his ins. co. will make an offer to settle, which will be a multiple of the medical bills. I'll compare that with what I'm likely to get from a suit, * the likelihood of winning - the attorney's contingency fee......and also take into account how much hassle it is.

Unless their PI offer is generous and I feel that I've been 'made whole', I'll file suit. Even if he doesn't get the ticket, I've got a very good case.


,,,,,and I can't wait until the new bike comes in. I'm very frustrated with not being able to commute, and it's definitely showing on the stress levels around the house.

dscheidt

I'd get a lawyer to look at it, not on contingency, but actually paying for it; many state bar associations have a referral system that will get you an initial consultation at a reasonable rate. The property damage part of the settlement isn't necessarily strictly limited to the actual property damages. It can extend to consequential damages. (For instance, how are you getting to work? Not on a bike, clearly, so expenses for that are a result of the property damage. How much work have you missed getting the replacement bike sorted? ) It's quite possible (almost certain, in fact) that the damage settlement precludes recovering those. That may not matter to you, but a lawyer can tell you for sure, and may suggest a course of action (It might make sense to wait to see the result of the hearing, for instance.)

kokomo61

Good points - I've been told by one attorney that the traffic case isn't admissible in a PI suit, but it's worth having the initial consultation with everything I've got so far to see if the PD part is OK and that everything else can go into 'pain and suffering' (e.g., consequential damages).

Although, in most auto collision cases, the ins. company will spring for a rental car (a bike wouldn't solve the problem, because I can't ride just yet). I have a car, so I have to find out if my increased expenses are part of PD or PI.

I've probably had to miss 2-3 days of work for appointments, and the days I've gone into the office have had to be compressed (arrive late and/or leave early) to take care of things. I have 2 PT appts per week, so I have to work my schedule around those.

It also costs me around $25 a day to drive back and forth to work if you use the federal mileage reimbursement rate. More in you include tolls, and more for parking. (I had a monthly pass before this, so I don't pay extra for parking, but I do pay to park - because I don't commute every day). On a daily rate, it would be $12 per day. So, if you take the days I've had to drive that I would have normally ridden, it's a few hundred dollars already. It'll probably be 9/1 before I can ride to work again, and likely mid-month to October before I'm up to my previous frequency.

So, I'll call an attorney to figure out what to do about the PD part of this.

kokomo61

UPDATE: 08/13/08 -

Physical - rode the trainer 2X this week, and did a very relaxed 30 miles on Saturday. I was stiff and my left leg was a little tingly afterwards...but that went away after 2 minutes. PT is a bit easier, but I still have limited flexibility in my hips and legs. Ribs hurt less, but still hurt.

Bike - new bike comes in this week. I'm going to have the LBS install the new tires, fenders and rack (shouldn't cost much, and will save me some time. I'll move the lights and GPS mounts over.

Legal - Talked to the town prosecutor today....
Bad points: They are not going to upgrade any charges. They generally don't stack charges in an accident if there is a specific primary charge that will take care of it. e.g., they won't add passing on the right or moving his car away from the impact point.

Good points: He doesn't have a lawyer, and is likely just to ask for a downgrade of the charges because of his 'perfect' driving record. This town doesn't downgrade charges. The judge is likely to accept the GPS evidence, and if he doesn't have a lawyer present, we'll go first thing in the morning, instead of waiting all day. He's pleading not guilty in the hope of keeping it off of his insurance and avoiding any civil liability (but, he won't be able to avoid either).

Still have to talk to a PI attorney about the PD settlement - as to whether 'consequential' damages fall under PI or PD (my gut feel is that they go under PI, since I couldn't ride as a result of the injury, not the loss of the bike).

Should be another update after court on Monday.....

HardyWeinberg

Good luck and thanks for the update

beowulf7

I appreciate the update, too. Are you off the drugs now to sleep well at night?

kokomo61

I'm down to 1 Motrin horse pill at night, 1 muscle relaxant (right before bed). So, still not completely off the meds, but making progress. PT folks are scheduling me to go 2x a week through September. I've got an MRI to do next week to see if the PT has helped my alignment issues.

Nerdanel 

Very glad you are doing so well. Maybe you should have someone from your own insurance company take a look at the PD settlement. Since they are paying your meds and plan to recover the money from the cager's insurance, they should be interested in making sure nothing you sign compromises your PI claim (unless it has a separate deal with the cager's insurance co, your insurance co's rights derive from yours--they "stand in your shoes"). Maybe you can get them to look it over without you having to pay an attorney. If you've made up your mind to get an attorney for the PI claim, then definitely put off signing anything on the PD damages until the PI attorney can look at it.

zeppinger

Weak dude.... I dont know if anyone else was wondering about this but what kind of car was he driving? How bad was it messed up? What was your general impression of the guy? Age? Student? Sleezbag? ect... Out of intellectual curiosity is all

kokomo61

I've talked with my insurance co about the case ---- because I have MedPay coverage, they're paying all my bills at this point. They eventually subrogate it back to his company, because they've accepted 'financial responsibility' (but the PD offer letter specifically says that they don't admit "fault".) My health insurance covers anything else - although I'm seeing both of them paying some places - I've notified both companies just in case there's a subrogation claim between my health and auto insurance carriers further down the road. According to the car insurance company (and my PT provider) in my state you can get paid by both, if they're private carriers. If it's Medicare or Medicaid, there are very specific subrogation rules....In any case, I'm doing everything by the numbers and documenting all correspondence with anyone involved. After Monday's court appearance, I'll discuss the PD settlement with an attorney to make sure it's OK.

Driver was mid-40's, ex-military, working for a defense contractor (easy to recognize in this area because of the ID badges). Drove a small foreign sedan. Car had damage to the hood and fender (As I described to my wife - an "ass shaped dent" in the fender, and scratches on the hood from my sliding down it. His driver's side mirror was also broken off.

He was pretty nervous after the hit - he kept saying that his middle name was his last name (I saw his name on his badge, and he couldn't answer it correctly). I found out later what his full name was when I got the police report. He also moved his car into a nearby parking lot, although VA law says that you're not supposed to move vehicles when injuries are involved. Again, prosecutor says that while the law says that, they don't usually prosecute moving a vehicle unless they actually try to flee the scene.

I didn't take the guy as a ****** until I saw that he was contesting the ticket. It was pretty clear what happened, and I didn't like the idea of him trying to get off or have the charges reduced (which is what I expect on Monday).

EmersonHart13

Good luck Monday.

kokomo61

UPDATE! Guilty as charged. The guy showed up without an attorney, and my guess is that he expected the officer not to show up, because after seeing the first three cases get some stern language from the judge (and the first guy led out in cuffs), He just stood up and pled Guilty. The judge asked him if he had anything to say, and he went on about how he was just arriving at his destination and trying to park and visit a local musem.......which was complete BS. The guy was on his way to work, and had a work badge on.

He also said that he didn't know why the traffic was stopped....but somehow didn't know why he couldn't see the the BIG YELLOW BIKE SIGN....

Anyway. Guilty as charged...fine and court costs. More later.

thebarerider

Good for you. Hopefully this will all end well for you.

shepdave

All right! Glad (and very relieved) to hear that the law is properly administered in my little old Town of Vienna.

Now on to your civil actions? PI? PD?

cc_rider

Museum??? Was he talking about the Freeman House? That's only open on weekends.
What a fool.

Based on his behavior, I hope you wring a good settlement out of him. Make him hurt a bit.