[SDCBC] Bicycles and insurance

[Richard Duquette]

Gary

Sorry to hear about the crash.I hope you recover soon.

As for your exclusion for bicyclists, there is case law that says 
bicyclists are considered pedestrians.Unless there is a newer case, 
then I believe Wawanesa would be hard pressed to attempt to 
contradict the relevant case law.I believe the case Im referring to 
is called "Chong".I also wrote an article on the subject which should 
be on my web page.www.911law.com

Normally your policy is secondary to the tortfeasors policy, as 
another member correctly pointed out.So, make your claim first with 
the tortfesor, then to your company as an under/uninsured claim.The 
bad guy gets a discount for any contribution his policy made per 
Insurance Code 11580.2  For example If the bad guy has only 15k in 
liability insurance, and you have a 100k UM policy limit, there is 
85k left to recover.

As was accurately noted in the other posts, Its best to have a back 
up Umbrella policy for excess as  a safety net.This would be if your 
Um coverage is exhausted.I trumpet this point regularly.In fact, at 
the recent Carlsbad Triathon in which I sponsored, I included an 
article on the subject in the goddy bag.
(ps ..I also did the race & will do the Solana beach Triathlon this 
weekend..Im not dead yet).

As for med pay, I don't believe a declaration page controls what your 
insurance pays, its the contact & the law.Maybe there was some 
confusion in the terminology/translation.Id be glad to review your 
policy & investigate this coverage issue with you at no cost as a 
service to he community & yourself.This is the first time I have 
heard of this problem.Nevertheless, Insurers are getting very tight 
fisted with claims, so I wouldn't be surprised..(I will forward a 
summary of a few bad companies after this post.)Back to med pay, 
should your carrier pay out under your med pay, they will attempt to 
recoup payments after you recover from the bad guy.However, there are 
cases that say no, no, not so fast.One is called Lee. V State Farm 
that reduces their right to recovery.In a nut shell, it relies on the 
common fund doctrine.There is also newer case law called the Make 
Whole rule that may apply as well to stop their attempts to latch on 
to your recovery.I recently saved a bicyclist 250k from such a 
recouping attempt by an insurance company.

Anyway, this is a quick primer on the subject.Don't lay down.Call me 
and I will review your policy for free.Bring your booklet.& dec page.

Further there are  bicycling specific articles on my web site to 
protect you .Pls review them.ie, no statements to the insurance co, 
no signed release of medical & employment info.

Best to you & all at the sdcbc...a wonderful group.

Richard Duquette
Carlsbad
760-730-0500
www.911law.com


   tAt 08:04 AM 7/24/2008, you wrote:
>I was involved in a car/bike accident two weeks ago ( driver made a 
>left turn in front of me- didn't see me) and made a trip to Pomerado 
>hospital in an ambulance. fortunately the driver has insurance, but 
>when contacting my own insurance company about the accident, I was 
>informed that my medical payments coverage specifically excludes bicylists.
>
>The company - Wawanesa- sent me a copy of the declarations and they 
>provide med pay if you are in a car or a pedestrian, but they 
>specifically define a pedestrian as someone under human power 
>excluding bicycles. If I had been on a skateboard, I would be 
>covered, but not on a bike.
>
>This fact has resulted in my changing my auto insurance to AAA, 
>which does cover bicycles under medical payments.
>
>Just a heads up- you may want to check your policy.
>
>Gary Kent
>_______________________________________________
>
>You are subscribed to the SDCBC mailing list as rduquete at 911law.com
>To unsubscribe or change mailing options, go to 
>http://www.bikesandiego.org/mailman/listinfo/sdcbc
>List privacy information is located at http://www.stickman-computing.org/aup
>Opinions expressed here are those of the individual poster and do 
>not necessarily reflect the positions of the SDCBC or it's Board.
>For help or to talk with someone other than the mail robot, send 
>e-mail to postmaster at stickman-computing.org

Richard L. Duquette
Criminal Defense &
Bicycle Injury Lawyer since 1983
Carlsbad, CA
760-730-0500
www.911law.com  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://www.bikesandiego.org/pipermail/sdcbc/attachments/20080724/827d567c/attachment-0001.html