Posted by Jonathan Maus (Publisher/Editor) on January 12th, 2006 at 9:01 am
Last week I posted about bike lawyer Ray Thomas’ new campaign to take the law into our own hands when in a serious injury crash with a motorist. The advice was great, but it wasn’t very clear to non-lawyers.
What follows below is a more straightforward checklist of what do to after you’ve been hit. It was submitted to me by local cyclist Austin Ramsland.
OK. You find yourself in the middle of the street and you are staring down the bumper of a car. You have just been hit, you are alright, although pretty shook up. Unfortunately, now, when you are probably least capable, you need to start thinking:
1) Do a check. And when you know it is safe to move, get up and get safe. Next, make sure that the driver is stopped and staying stopped.
2) Get someone else to call the cops. Everyone has a phone, so get someone else to make the call.
Why this is important: You have some important work to do and if you can get away with not spending 10 minutes on the phone with the emergency dispatch, the better. Also, the stress of the accident might make it impossible for you to actually remember the number. Sounds crazy, but its true.
3) Start some crowd control. Start gathering people and information. (And if you can’t do it, get someone to do it for you.) Tell people not to leave, and tell them what you need. Name, address, phone number of all of the witnesses. Make sure to ask them what they saw, so the story does not change a week later. Take some pictures if you have a cameraphone. Note: It is illegal in Oregon for a witness to bail out without giving you his/her information.
4) Talk to the driver. Get his/her information: Phone, address, insurance information (including policy number), also get his/her license plate and drivers license number. If they are at fault, ask them to admit it.
Why this is important: People change their minds. All the time. Especially when are consequences to their actions and incentives to changing the story.
5) Wait for the cop. This could take a while. Make the driver wait if at all possible. When the cop shows up, he will ask you a couple of very important questions.
“Do you need an ambulance?” This question seems straightforward, but it is not. In Oregon, there are two criteria for a police investigation. One is if there is over $1500 of damage to a vehicle. Two is if there is trauma. Trauma is determined by the ambulance. In other words: No ambulance ride. No investigation. If you are wavering, take the ride.
Why this is important: If the incident is investigated and the driver is a fault, it will be easier to get insurance to pay for any damages. If the accident is not investigated, it is as if it never happened.
“Tell me what happened.” Here is where you lay out the details. If the driver is clearly at fault, say so. If he/she admitted it, say so.
6) Get the officer’s information. Name, badge, everything he/she will give you. Typically, they have cards that they give out.
7) Get the carbon copy of the officer’s exchange of information form. This is a form that the cop has to fill out.
8) Start asking questions:
• Are you going to ticket the driver for [blatant violation]?
• Is this accident going to be investigated? If not, why not?
Understand that some cops don’t fully understand your rights to the road, so if you run into a brick wall, don’t worry, you still have some moves to make.
This next bit is the tricky part, but is also very important.
9) Call 503-823-2103 and report the accident. In Oregon, you can call up traffic division and report the incident. Traffic division will assign a staffer to take a report of the accident. You will need the carbon copy of the officer’s report. Once the staffer takes the report, it will be sent to Oregon traffic court. This will turn into an honest to goodness traffic violation if you follow the next steps.
10) Sign the violation. One week later you must show up to traffic court to sign the violation and make it official. A summons will then be sent to the driver to show up at traffic court.
11) Get ready and go to court. Here is where you lay out your case that the driver violated the law. If you win, the driver will be cited with a traffic violation.
Why this is important: With a violation on the books, any insurance company will have a hard time denying who was at fault. It is also important to get these violations on the books, so that policymakers know that people are getting hit, and have to take this action.
12) Call the driver’s insurance company and file a claim. If it was a bad accident, get a lawyer. If you don’t know if you need a lawyer, get a lawyer. If you think you can handle it on your own proceed with caution.
13) Know what you are dealing with and put on the gloves. The insurance person who calls you is working a crappy job. They have to listen to stories like yours all day long, and chances are that their bosses are giving them a hard time about something. It’s not their fault, but they do not care about you. They care about costs, current and future liability, and their job. When they are on the phone with you, they are probably looking at all three.
14) Start fighting your case. Some people call this negotiation, but the fact is that you need to let them know that you mean business and that you are open to an offer. Cite the violation. Cite the witnesses. Cite the driver. Say how you could have died. If they give you a number, ask for double. If they ask you to release them of any further liability, say no. If they capitulate, be suspicious. Take the hard line.
Why this is important: All bets are off when dealing with insurance companies. They weren’t in the accident, and they didn’t see the accident. All they are looking at is their liability and their bottom line. Remember that this is very emotional for you, but also remember that this is just another day at work for them. Note: Don’t expect this to wrap up with the first, second, or third call. They know that you will likely get frustrated and give up. Don’t. Give. Up.
15) Accept an offer. When you think you have a good offer, accept. But make sure that you review the terms before signing anything.
16) Congratulate yourself. If you got to this step, then you are one of the very few riders that got compensated for an accident. Now, take a couple of deep cleansing breaths, put the ordeal behind you, and go for a ride.
Thanks for sharing this with us Austin. I think the next step is to fit this onto a card that can fit in our wallets…anyone out there want to help with that?