December 1, 2015 § 27 Comments
Although I generally disdain using this space for anything useful, here’s something useful: Using MedPay insurance to defray your medical bills.
If you get hit by car, you now know (because you religiously read this blog–and by “religiously” I mean “daily,” not “becoming an angry white Christian man and shooting up an abortion clinic”) that it’s a great and inexpensive idea to have uninsured or underinsured motorist coverage.
However, whether you have such coverage or not, once the driver’s insurer admits liability and issues you a check, you have the problem of healthcare insurance liens (and so does your lawyer, and frankly, whose problems are more important–yours or his?). In short, when your healthcare insurer pays for your medical bills after fighting tooth, claw, nail, fang, whip, hammer, icepick, baseball bat, and slingshot, the terms of their agreement with you allow them to assert a lien against the bodily injury settlement money you get from the insurance company of the driver who hit you.
In other words, you finally got them to cover your accident, and your humble lawyer finally dragged a few dollars out of the offending driver’s insurer, and lo! The health care insurance company wants its cut. “After all,” they piously intone, “we paid your hospital bills.”
Now you’re probably thinking, “Like fuck you did. I paid them–it’s called a fuggin’ insurance premium. Why should you have any claim to the money I get from the baddie who mowed me down?”
Answer: Because they have the gold and they write the rules, and California rules say that they can. Don’t like it? Become a major insurance company. I hear it’s a growth business.
If this seems like it sucks, that’s because it does, and as time goes by health care providers are getting harder and harder to negotiate with regarding these liens. Used to be, your savvy lawyer could phone them up and say, “Look here, Mr. Dikbag, I worked my butt off to get this settlement. If it weren’t for me you’d be getting zero, so cut me some slack and reduce your lien.”
They’d hem and haw and do it. Now they still hem and haw, but the reductions aren’t as high, and in many cases they don’t reduce them at all.
It’s often the case, especially when you get hit and your injuries are moderate or minor, that the ambulance ride and the follow up treatment greatly reduce your eventual recovery. In essence, by filing a claim and hiring a lawyer, it can seem like all you’re doing is working for free for the healthcare provider: Getting the driver’s insurer to cut you a check which then gets (mostly) handed over to the healthcare provider. They think it’s great. You (and your humble lawyer) think otherwise.
Since the healthcare insurer has first priority over the settlement check, he gets paid before you, and before your lawyer. Lawyers don’t like that very much, and neither do you.
So although the message might seem to be, “If you’re going to get hit, make it a catastrophic injury and get hit by someone with a billion dollars of coverage,” it isn’t. The message is that there is at least one low-cost way to keep the healthcare provider’s grubby paws off your money so that it can remain in your grubby paws and the even grubbier paws of your lawyer.
Here’s how: Get MedPay coverage added to your auto liability coverage. If your insurer doesn’t offer MedPay, switch insurers. MedPay coverage is an add-on that lets you send medical bills directly to your auto insurer when you’ve been hit by a car. Your healthcare insurance pays zip, and therefore has no lien on your recovery. For small and moderate cases, MedPay coverage is great, and some insurers will offer benefits up to $25,000.
You submit the bills directly to YOUR auto insurance company, they pay you or the doctor/hospital/ambulance directly, and you submit your claim for pain, suffering, and lost wages to the insurance company of the offending driver. When you reach a settlement, your healthcare insurer (Kaiser, Anthem, Providence, etc.) has no claim to any portion that was covered by MedPay.
The other good (great) thing about MedPay is that it kicks in regardless of fault. In other words, you don’t have wait until the mud wrestling match is completed with the offending driver’s insurer to receive the benefits, and in the event you’re tagged as being the one who caused the collision, your MedPay coverage still pays as long as your injury isn’t covered by worker’s comp.
One added note about MedPay: In some states, and California is one of them, MedPay does have a right of reimbursement in the event you are “made whole” by your settlement. Although it’s beyond the scope of this blog post to discuss the “made whole” doctrine, even a MedPay insurer may be able to claw back some of its payments from your settlement. In any event, MedPay gets you paid more quickly and will cover co-pays and other out of pocket expenses that your healthcare insurer will not.
Be sure to check the policy for exclusions, reimbursement rules, and read the fine print; every insurer’s policy is different.
So before you lawyer up, MedPay up.
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October 26, 2015 § 67 Comments
This is a topic that I’ve written about before and that I can’t write about enough. It’s dry, it’s a bit legalistic, and it includes the dreaded word “insurance,” but please take a minute to read because it concerns the most important purchase you’ll ever make as a cyclist.
You may think that if you get hurt in a bike-car collision you’ll be able to recover money from the negligent driver as long as the driver is insured.
What you may not know is that in California the minimal insurance coverage for collision liability is $15,000. What you also may not know is that 85% of the drivers on the road have this minimal coverage.
This means the odds are overwhelming that the driver who hits you will have to compensate you for a maximum of $15,000 and THAT’S IT. Once your expenses exceed the $15k that most drivers carry, you’re done, even when you’ve suffered injuries totaling hundreds of thousands of dollars.
There is, however, a very cheap and very effective way for cyclists to protect themselves and their families from cagers who carry minimal insurance. It’s called uninsured motorist and underinsured motorist coverage (UM/UIM), and it comes standard with every auto insurance policy unless you specifically decline the coverage. [Note: NEVER, EVER, EVER, EVER DECLINE THIS COVERAGE. You may think you’re saving a few bucks but in reality you’re declining the best and cheapest insurance you will ever buy as a cyclist.]
Few cyclists know that UM/UIM coverage on their own auto liability policy exists, and even fewer know that it covers them in a bike-car collision when they’re cycling and get hit by a motorist. This means that if, for example, the driver’s policy tops out at $15k, you have the legal right to turn to your own UM/UIM insurance for the remaining expenses or damages above and beyond the $15k paid out by the driver.
So far, so good, but there’s a catch: If you’re like most people, your UM/UIM coverage is also minimal, often only $15k or $25k. Since you have to deduct the amount already paid out by the offending driver from your own UM/UIM claim, if you have minimal UM/UIM coverage the additional recovery is very small or zero. (15k UIM coverage – Offending Driver’s $15k liability coverage = 0 additional recovery.) It’s not uncommon at all to see a cyclist who has a responsible liability policy for $500k, but a measly $15k or $30k for the UM/UIM portion of his policy.
In other words, the cyclist is being very responsible with regard to paying for damage he might do to others, but completely failing to make adequate provision for the damage that some uninsured drunk or underinsured deadbeat may do to him.
There’s a great solution, though. You can increase your UM/UIM coverage so that it equals the amount of your liability coverage for only a small increase in your monthly premium. Although your UM/UIM coverage is barred from exceeding your liability coverage, as an example, if you have $500k of liability insurance but only $25k in UM/UIM, you can bump up your UM/UIM from $25k to $500k for only a few bucks a month. If you only have $25k or $50k of liability insurance to begin with, you have a problem.
If you ride a bike and have liability coverage of anything less than $100k you are grossly underinsured. I’d say that a barely adequate UM/UIM policy should be no less than $500k. If you have a family nothing less than $1M is enough. If you can’t afford $1M in liability/UM/UIM coverage, sell your extra bike or extra set of carbon wheels. It is the best money you will ever spend as long as you ride a bike, and obviously it’s exactly the kind of protection you want if you’re driving. UM/UIM coverage also kicks in if you get hit by a car while you’re walking.
There are certain insurers such as Mercury who will not offer a policy for more than $250k. Run from these insurers and go with an insurance company that will sell you an adequate policy. Chubb, Allstate, AAA, State Farm, Farmers, and Tokio Fire Insurance and Marine are just a few of the insurers who offer adequate policy coverage. I’ve found Tokio Fire Insurance and Marine to have the cheapest rates with the best coverage and the best claims responses.
For the sake of yourself and your family, take a minute to look at the declarations page of your insurance policy, check liability limits and the UM/UIM coverage, and then call your agent or go online and raise it to the max. This is something you can’t afford to put off.
The other huge benefit to turning to your UM/UIM coverage in the event you get hit is that if you’re forced to use it because the driver’s coverage was inadequate, you actually wind up with a larger recovery than you would if you were making a claim against a driver with adequate coverage.
This is because your health insurance provider will have a lien against any recovery you get from the driver’s insurance. In other words, if Anthem pays your doctor $15,000 in medical bills, Anthem will be able to recover what it paid your doctor from the insurance proceeds you get from the offending driver, effectively reducing the amount you ultimately receive by the amount of their lien. However, when the recovery comes from your own UM/UIM motorist policy, the health insurance provider will have no claim on those proceeds except in a very few limited instances.
Call your insurance agent and raise your limits now. I’ve seen too many injured cyclists with six and seven-figure injuries who are hit by uninsured or underinsured motorists and whose own UM/UIM coverage is only for a few thousand bucks. Don’t be that cyclist!
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September 25, 2015 § 19 Comments
The entire German national Volkswagen team was caught doping earlier this week, but unlike their cycling compatriots, rather than blaming it on a vanishing twin or a tainted supplement, they confessed to having intentionally doped their diesel cages to evade emissions regulations in the U.S. and in other nations, including Germany. Team leader Martin Winterkorn resigned today, taking full responsibility for cheating.
Unlike his Gerolsteiner compatriots, rather than disbanding the team and handing out two-year bans, Team Volkswagen will continue operations after pledging a “completely transparent investigation” and “full cooperation with the authorities.” These are the same authorities they have systematically lied to and cheated since 2009.
If you haven’t already heard, Team VW tested positive for Chinese computer coding that allowed their environmentally friendly, clean running diesels to spew 40 times more filth into the air than the law allows. Suckers, I mean consumers, who purchased these enviro-friendly cages paid a premium and now will be selling at a loss. In addition to fraud, breach of contract, breach of the implied covenant of good faith and fair dealing, the Consumers Legal Remedies Act, civil fraud, and possibly violations of the Rees-Levering Act, Team Clean Diesel will certainly face class action litigation, federal and state fines, and possible criminal charges as well.
Skeptics believe that other cage manufacturers will soon be caught up in the cage doping scandal, particularly those who make diesel engines.
Contrast the high crimes and misdemeanors of the cage industry and its lethal ignition lock flaws, transmissions that suddenly shift into reverse, “unsafe at any speed” Corvairs, exploding Pintos, pickups with exploding gas tanks, defective tires, and now, intentional pollution of the air, with the bicycle industry.
Pretty quick comparison.
I hope these dopers get what’s coming to them.
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September 12, 2015 § 21 Comments
I was late for the Sunday Wheatgrass Ride a few weeks ago and had fallen in with Wily and Pilot. The downhill on PV Drive North gets you up to a solid 40 mph then hits a most inconveniently placed stop sign, right at the bottom of the descent where it veers left and up into the starting lot at Malaga Cove.
No self-respecting, early morning Sunday cyclist gives this stop sign so much as a nod, and we didn’t, either. The problem was that when we banged through the stopper at forty, out of the saddle, shoulders hunched, and heads slightly down as we slammed up the little rise, there was a police car waiting for us, and in the car was a trainee. And no cop lets a bike scofflaw go with a trainee in the passenger seat. It’s the perfect teaching moment, with the possibility of restraints and chokeholds thrown in for good measure.
There were other problems, too, like the fact that the cop leaped out of the car and immediately began purple-neck-veining at Wily. “Didn’t I pull you over here for the same damn thing last week?” he roared. We all got ticketed.
My last PV stop sign violation cost me about $150.00. I had declined to fight it and did the call-in fine-pay. This time, though, I figured I would go to the arraignment, enter a not guilty plea, set a trial date, and hope the cop didn’t show–especially since he had muttered to Wily that he was on vacation for the month of November. If he did show I’d at least be able to plead guilty and hope for a reduction.
Since I was riding my bike this morning and it was my own ticket I thought I would go to court as a regular citizen, so I put on shorts and t-shirt instead of a suit and went to the Torrance Courthouse. While waiting for the doors to open, a queue of about sixty people formed. Torrance, Hermosa Beach, Redondo Beach, Rancho PV, and PV Estates are predominantly white. So it was kind of amazing to see only three other white people here in the heart of Whitebreadsville.
I guess all the white drivers in the South Bay never run stop lights and such.
We pooled into the courtroom annex and a sheriff’s deputy gave us a speech before letting us into the courtroom. It was incredible.
He told us that his goal was to get us out of there in 30 to 45 minutes, and that 98% of us would do so. However, there were 2% who would be “problems” who “just didn’t get it” and they’d get to hang around for a couple of hours and waste the rest of their morning.
This was a great way to put us all under time pressure (Let’s get this done) and loser pressure (Don’t be a 2-percenter).
Then the deputy gave us an amazing sales pitch. He told us that his courtroom had a different judge every day and sometimes a different judge in the morning and one in the afternoon. This meant that if you got a bad judge you’d pay a big fine. However, today we were all really lucky because we had a good judge. This guy was one of the best, we were told. This judge would give us traffic school. He’d mark down our tickets. He’d give us six months to pay our fines. But if we pled not guilty, well, that was fine with the deputy, but you never know who the judge will be on the trial date.
Then he told us about the bad judge who levied an $8,000 fine on a truck driver who had rejected a $500 plea deal at his arraignment with one of the good judges.
You could see people cringe.
The whole time I was wondering where this fucking sheriff deputy’s bar card was. I was wondering who had appointed him city attorney. I was wondering if he knew it was illegal to give us legal advice–even as he lectured the younger defendants to think long and hard about how going to trial, losing, and not getting traffic school would up their parents’ insurance by hundreds of dollars a year.
The speech was relentless, smooth, practiced, and it was effective. By the time we entered the courtroom we were all so thankful we had a good judge. Then it got worse. The deputy handed out a clipboard and told everyone to write their name and sign. He never mentioned that it was permission to have our cases heard by a judge pro tem, who is not a real judge and is a lawyer hired at a cheap hourly rate to do the work that real judges can no longer do because of state budget cuts.
He never said that we had a right to have our case heard by a real judge and that we had a right to not have our case heard by the judge pro tem. So we baaaa-ed and signed our right away.
Now it got serious. The deputy and the courtroom clerk stood at the defendant table, checked us in, and made each one of us an offer. Not a judge. Not a city attorney. Not even a lawyer. Nope, the deputy glanced at the ticket, told you what the fine was going to be, and offered you a deal. “This is your out-the-door price, folks,” he said. “No hidden fees.”
When you accepted the amount, he wrote it down in bright red ink, put it in a stack and told you to sit down. Of course for most people — WHO FUCKING CARES — but there were people in court with multiple violations, people who really wanted to set their case for trial and get a fair hearing, and people for whom a guilty plea was going to have serious repercussions. And instead of having either an attorney or the judge explain it, we were getting the red-letter discount markdown offer and a high pressure sales pitch from a deputy sheriff.
And how could you say no? People who waffled were reminded what it would cost if they went to trial and lost and had to pay full freight, and how sideways things could go if they got a “bad” judge. By now we’d heard so much about good judges and bad judges that it seemed like the judiciary was a holding tank of either saints or reprobates.
A handful of people set their case for trial, but everyone else accepted the deputy’s plea deal. In my case, it was an amazing offer: My “out-the-door-price” was $25, and the deputy offered me the legal advice that it was a “no points” ticket. I wondered about that since I have many biker friends who’ve gotten “no points” tickets and wound up with points and big insurance rate hikes.
The only person with any backbone at all was the last defendant, a black man. “Hey, now,” he said to the deputy. “Before I sign anything, I got something you need to know.”
We all perked up. This guy was a two percenter.
“Yes?” said the deputy.
“This ticket is bullgarbage. I was sitting in my car minding my own business and this cop who didn’t have nothing to do came over and wrote me this bullgarbage ticket for running a stop sign. I was parked in the damn carwash parking lot.”
“Yes, yes,” the deputy nodded. “Take a seat over there and we’ll get to you after we’ve taken care of everyone else.”
TRANSLATION: GO SIT THE FUCK DOWN AND WAIT FOR TWO HOURS AS PUNISHMENT FOR NOT TAKING MY OFFER.
The judge came in and went through the docket quicker than an alcoholic goes through his first glass of vodka at breakfast. It was my turn. “How do you plead?”
“No contest, your honor, as long as there aren’t any points for this citation.”
“Well, I’m not sure about that. The ticket says traffic school isn’t an option, and that’s usually because it’s a no-points ticket.”
“Usually, your Honor? What about this ticket?”
“I don’t really know. How do you plead?”
So in addition to getting a non-lawyer deputy sheriff selling cut-rate discounts on bogus tickets to indigent defendants with a high pressure sales pitch, I got my case handled by a judge who knew no more about the ticket than I did.
“No contest, your Honor.”
“That’ll be $25, Mr. Davidson. Any questions?”
I had quite a lot of questions, but wasn’t about to make up the rest of the 2%. I had other fish to fry.
November 13, 2014 § 24 Comments
It’s a common question with a short answer: Yes.
Here’s the scenario: You come up with a new course and invite your friends to join you. It’s the classic “group ride” with no waiver, no rules, no controlled access to the course, no referees, no ambulance on stand-by, and no entry fee.
The guy who invites his buddies to the beatdown wants to know, of course, whether or not he can be sued if someone falls off his bicycle, gets hit by a car, or gets taken out by another wanker.
The easy answer of course is “YES.” Anyone can sue anyone for anything at any time. Pay the filing fee and it’s game on. But the real question is whether or not the plaintiff will win. And it all starts with something called assumption of the risk.
In California, if some wanker sues you because he fell off his bike during the Thursday morning beatdown ride that you mentioned on Facebook, your best defense is assumption of the risk. In common language, this means that if you’re dumb enough to do it, don’t come whining to the judge when you get hurt.
Technically, it’s more, well, technical. After your former best friend sues you, and you’ve become the defendant, you move for summary judgment on the basis of primary assumption of the risk. This is a fancy way of saying that you’re asking the court to kick the case out the door before it ever goes to trial because you can show that you owed no legal duty to the whining wanker to prevent the harm that he’s now complaining about.
If you can show that the wounded wanker expressly assumed the risk, then you have a complete defense to his negligence lawsuit. Of course, the group ride is exactly the scenario in which you won’t have a signed waiver, or even a speech advising everyone that they’re about to engage in something that may maim or kill them, so proving an express assumption of the risk may be contentious. One way you can protect yourself is by admonishing everyone at the start of the ride that they’re voluntarily assuming the risk of death or catastrophic injury. Another way, of course, is making people sign a waiver.
The rationale behind the assumption of risk defense is that you owe no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport voluntarily played by the wanker, absent some reckless or intentional misconduct. For cycling, falling off your bicycle is unquestionably an inherent risk of riding in proximity to other wankers. The only thing that a defendant may not do is increase the risk of harm above that inherent in the sport. For example, tossing hand grenades into the peloton, or intentionally knocking someone off his bike to “teach him a lesson,” or pushing someone off a cliff on a descent.
The ordinary stupidity that most wankers exhibit on a group ride isn’t enough for the whining wanker to win his lawsuit. California courts have said that “[i]n some situations, the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” So, when there are 85 knuckleheads on the NPR, many of whom still don’t know how to ride in a straight line, you can’t sue someone because you got knocked off your bike.
Whether the primary assumption of risk doctrine applies doesn’t have anything to do with whether the whining wanker behaved reasonably. It’s a question of law that depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.
In other words, group rides involve riding proximately to unskilled idiots, lots of them. It is inherent that if you’re going to hammer your bike on a public road next to some bonehead, said bonehead may inadvertently chop your wheel, whack into you from behind, or barf onto your handlebars. The law says, “Tough shit.”
Generally, the primary assumption of risk doctrine applies in a “sports setting,” and an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies. The case of Moser v. Ratinoff basically held that you can’t sue a fellow wanker who takes you out on a group ride when the person who knocked you off the bike was just an ordinary idiot. Remember when your mom told you that if you hang out with dope smokers you’ll be a pothead, too? Same deal.
There are a number of cases involving sports activities in which the court found a primary assumption of risk. Snow skiing, water skiing, ouch football, collegiate baseball, off-roading, skateboarding, golf, lifeguard training, tubing behind a motorboat, wrestling, gymnastics stunt during cheerleading, little league baseball, cattle roundup, sport fishing, ice skating, football practice drill, judo, rock climbing, river rafting, and sailing have all been found to be activities where the assumption of risk applies.
Now I know what you’re thinking, and I am, too: “GOLF IS NOT A SPORT.” But the judge says it is.
In some other recreational activities, courts have held that there was no primary assumption of risk. Boating passenger and recreational dancing cases in California allowed the whiny plaintiff’s case to proceed, but it’s my opinion that the embarrassment of having to admit that you’re a recreational dancer totally negated the value of any money awarded in the litigation.
Primary assumption of risk applies to competitive sports and to noncompetitive recreational activities as well, such as a ski boat driver towing a water skier. Like competitive sports, vigorous participation in noncompetitive sports would likely be chilled and the nature of the sport altered if liability were to be imposed for ordinary careless conduct. This has particular meaning for your informal group ride beatdown, which may not technically be a sporting race (especially given all the wheelsuckers who will cut the course).
An activity falls within the meaning of “sport” if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury. So, not ballroom dancing, but yes, the Thursday ride. You can get whacked by a car. By a co-wanker. You can slide out on the wet spot on the descent on the golf course. Hit a peacock. Slam into the curb while ogling the hot chick in front of you. Thrill, physical exertion, and risk of injury are all present.
Although bicycle riding, like driving an automobile, can be a means of transportation, “organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge․ In view of these considerations, the organized, long-distance, group bicycle ride qualifies as a ‘sport’ for purposes of the application of the primary assumption of risk doctrine.” The court in Moser basically said that big, organized group rides are a sport. Incredible, but true.
But before you get too happy, recall that you’re not allowed to do anything to increase the risks inherent in the activity. Although defendants do not have a duty to protect the plaintiff from risks inherent in the activity, they do have a duty not to increase the risk of harm beyond what is inherent in the activity. Analyzing the liability of other than co-participants requires defining “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.”
In other words, you can’t take the tackle out of tackle football, but neither can you let people play it with handguns.
But a defendant may not increase the likelihood of injury above that which is inherent, and conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence.
In the group ride context, you can’t intentionally take someone out, but you can apparently be a wanker. Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. So if you’re showing up for the 6:30 AM ride completely soused, and you accidentally push a pal into oncoming traffic, expect a lawsuit.
But what about cyclocross, which ordinarily can’t be properly done without beer? The Supreme Court of California has yet to rule on such a thorny issue.
Going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride.
I’d argue that it’s inherent in your local group beatdown, too, but to be safe you should take the time to mention it.
So what does it all mean? In general, people who participate in informal group rides appear to be protected in California by the doctrine of assumption of the risk. This doesn’t mean you won’t get sued, it just means you have a fairly solid leg to stand on when you have to defend.
Disclaimer: This isn’t legal advice for you or your case or your upcoming ride. It’s general legal advice. No attorney-client relationship has been created between us without a signed retainer agreement.
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May 29, 2014 § 63 Comments
Last fall a movement began. A handful of riders in the South Bay stopped playing gutter bunny on Pacific Coast Highway and took their rightful place in the lane.
It was like the Prague Spring of 1968, and repressed cyclists, long confined to the detritus of the roadside and the terrorization of buzzing motorists, rode smack in the lane, forcing drivers to slow down and pass them, safely, in the left-hand lane. It caught on.
The justification for selecting the dominant position in the lane was legal and practical. Under California Vehicle Code Sec. 21202, bicycle riders are required to ride as far to the right as practicable unless the width of the lane is such that a bike and car cannot safely share the lane. As everyone who rides PCH knows, the narrow lanes (often less than 11 feet wide) make it lethal to coexist in the same lane with trucks and their tow mirrors, trailers, boats, buses, big-ass SUV’s, and even ordinary passenger cars.
Before long, the South Bay’s biggest, most visible, and most activist racing club, Big Orange, was leading all of its Sunday rides on PCH in the lane. Riders who were initially doubtful about the safety and benefits of riding in the lane rather than cringing in the gutters as they dodged nails, glass, rocks, cracks, garbage cans, and the rear-ends of parked cars, became believers.
At its height Big Orange was towing 70 to 80 riders in an orderly 2×2 formation down the best bike lane in America: the right-hand lane of PCH.
Trouble in paradise
That all came crashing down one Sunday last October when the ride, being led by Greg Leibert, was pulled over by a pair of sheriff’s deputies in a squad car. G$ was cited for violating CVC 21202 — failure to ride as far to the right as practicable.
Discussion was fruitless. When G$ whipped out his handy-dandy copy of the vehicle code, one deputy advised him that “I been writing these tickets for 20 years, I know the law, and you’ll never beat it.”
For this law enforcement duo, the sight of so many riders behaving like cars was too much. Despite the clear language of the law they slapped G$ with a citation.
In one fell swoop this single ticket turned the victorious PCH Sunday riders back into gutter bunnies. All the talk about how it was legal to control the lane was overcome with one traffic ticket. Who wants to go out for a Sunday ride and come home with a fine that runs into the hundreds of dollars?
With the same force of Leonid Brezhnev’s tanks rolling into Prague, the L.A. County Sheriff’s Department had crushed the cyclist uprising.
LA County Bicycle Coalition to the rescue
But G$ wasn’t going down without a fight, and he had an ally in Eric Bruins, policy director of the Los Angeles County Bicycle Coalition. Eric had been working for months to arrange a meeting with the captain of the Agoura Hills Substation, which has jurisdiction of PCH all the way from Santa Monica to the county line.
When Captain Pat Devoren met with Eric, me, and Dr. Gary Cziko earlier this year, I laid out our chief complaint with riding on PCH: the lane was the only safe place to ride, it was legal for us to be there, and the sheriff’s department was illegally writing citations. After a few minutes, Captain Devoren raised his hand and smiled. “Guys,” he said, “I get it. I’m a bicyclist.”
We all looked at each other in amazement. A bicyclist in charge of law enforcement on PCH? The dogs must be crazy.
We continued the discussion for a while with Captain Devoren –an incredibly polite and professional man — and the sergeants who were also in the meeting. Some skepticism was expressed that riding in the lane was safe, but when we detailed the dangers of riding in the gutter, they agreed. “Anyway,” one of them said, “it’s the law.”
At the end of the meeting Captain Devoren told us that he would inform his deputies regarding the proper interpretation of CVC 21202 and that henceforth cyclists would no longer be cited for failure to ride to the right on those sections of PCH where doing so was unsafe, hazardous, or where the lane could not safely be shared with a car. The three of us walked out of the meeting in a daze. We felt like we hadn’t so much won a battle as gained an ally.
It was too good to be true but … there was still that matter of the ticket.
G$ and I showed up in Santa Monica traffic court on Tuesday morning. He had pled “not guilty” and we were going to try his case in front of the judge. Rather than descending into a he-said, she-said confrontation with the officer who wrote the ticket, we came armed to the teeth with two of the finest expert witnesses in the business.
It was the largest display of legal firepower to fight a traffic infraction that the court had seen in a while. Dr. Gary Cziko was going to be our first weapon, beating back the state’s assault on our right to ride in the lane with his unpronounceable last name. The strategy was that by the time the court had figured out how to spell it, then say it properly (Psycho? Seeko? Cheeseko?), they’d be so tired of the case that they’d acquit just to move things along.
If the slavic name stratagem failed, Gary had brought three gigantic exhibits showing the amount of space in lanes of varying width when the lane was shared by a bike and a vehicle. These exhibits would clearly demonstrate how deadly it is when a bike has to be in the lane on PCH with a fast-moving vehicle.
We planned to lay a foundation as to Gary’s expertise in cycling safety by pointing to his three decades as a professor of educational psychology at the University of Illinois, his certification as a cycling instructor by the League of American Wheelemen and Cycling Savvy, and the scruffy patch of unshaved facial hair he’d missed in his morning shave.
We would further cement his qualifications as a cyclist to opine on the safety of the lane where G$ was ticketed by pointing out the bike helmet he brought into the courtroom, his giant commuter backpack, the strap around his ankle to keep his slacks out of the chain, and if necessary we’d take the judge out to the front of the courthouse where he could see Gary’s commuter rig chained to the flagpole, a misdemeanor. (Kidding. Gary would never chain his bike to a flagpole.)
After putting on the killer testimony of our hired gun Dr. Cziko, we planned to storm the battlements with the erudite and nattily-dressed Eric Bruins. Eric would testify regarding safe lane widths, standard lane width determinations under a variety of federal design regulations, and would further opine that the point at which G$ was ticketed could not have been safely occupied by a bike and a vehicle, and therefore G$’s decision to control the center of the lane was legal and defensible and the safest possible option.
After stabbing the twitching carcass of the police state with these sharpened harpoons, we planned to save the final bludgeoning to the head for last. We would put G$ himself on the stand.
In preparation for his testimony, our hero had shaved, brushed his teeth, bathed, put on deodorant, whacked the four inches of dust off his blazer with a carpet beater, and taken a 2-hour YouTube course on “How to Tie a Necktie without Strangling Yourself.” He was clean and buffed, his hair was combed, and he had even decided to wait until after the trial before re-dying his hair with his signature electric orange coiffe.
I had spent the previous six months preparing for this momentous trial, which I knew would be the defining moment of my career. I’d carefully analyzed every detail of the seminal CVC 21202 Supreme Court case, Pooky v. Festersore. In Pooky, cyclist Blood E. Festersore had been cited for “running” a red light. The arresting officer, Fluffer Pooky, had cited him for conspiracy to overthrow the government and Festersore received a life sentence.
In its landmark decision, Justice Antonin Scalia, writing for a unanimous court said this: “Guns. Benghazi. Obamacare is for commies.”
Victory for the little people
As the court came to order, Judge Kahn looked up. “The following cases are dismissed due to the citing officer’s failure to appear for court today. Case No. 292811, Greg Leibert.”
We threw our hands up in the air and began hugging. G$ broke down into uncontrollable sobs, relieved at the thought that he wouldn’t have to pay the $221 fine, and would only have to pay $4,000 for my legal services and $15,000 in expert witness fees.
Camera crews from CBS, NBC, and Pornhub.com captured every moment of the victory celebration, and the other people in court, although they would have clapped, instead cursed and threw cigarette butts at us for being lucky enough not to have to go to trial. After interviews with major news media, we went over to a coffee shop to debrief.
Everyone was amazed at the withering cross examination I would have unleashed, and we thanked Eric and Gary for the devastating expert testimony that they would have used to crush the state’s case. The credibility and forcefulness of the testimony that G$ would have given was so brilliant that we clapped him on the back for how great he would have been and how amazing we would have felt listening to him.
Of course the true import of Greg’s case is that as a result of our discussion with Captain Devoren, the Sheriff’s Department appears to have accepted that controlling the lane on PCH is in fact legal, and CVC 21202 citations will not be issued for riders who safely and legally occupy the full lane. Let’s hope that riders will begin to take advantage of this new development, and get back to the joyful days of last fall, when we could, with nary a care in the world, cruise the best bike lane in America.
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July 16, 2013 § 22 Comments
I had just finished charging up Silver Spur on my ‘cross bike, newly equipped with very big, very urban commuter tires. My new training mantra is “make it an interval,” which means “pound whenever you can.”
We’ll see how long that lasts.
Although I didn’t know that I’d set one of my fastest times up the first portion of this beast (Strava segment here), on fat tires, no less, I knew I’d gone up it fast (for me) because my legs burned the whole way up. I crested the top and kicked into glide, gulping in the air and feeling the waves of acid in my legs dissipate.
I felt great.
Let’s get Jr. something he’ll be safe in
About a hundred feet before the ARCO at Silver Spur and Hawthorne, a Toyota ForeRunner blew by me with about six inches to spare, barely missing my shoulder with the mirror, then slammed on the brakes and made a hard right into the gas station.
I pulled up behind the car, which was about ten years old, and waited for the driver to exit. He hopped out and looked surprised — but only for a split second — to see me there.
“Hi,” I said.
“Hello,” he answered. He was about seventeen and wearing a floppy white t-shirt, saggy shorts, and flip-flops. You could tell he had just gotten up because after all, it was almost noon.
“You passed me with a few inches to spare and came pretty close to hitting me.”
“I did?” He tried to look concerned as he sized me up. “I must not have seen you.”
“Really? I was in the middle of the lane.”
“I’m so sorry, but it’s a good thing I didn’t hit you, right?”
“Yes, it’s a very good thing. You might have scratched your car if you had.”
“Yeah,” he said, uncertainly, then brightening as he understood how lucky he’d really been not to scratch the car.
“How could you not see someone in the middle of the lane? Were you on the phone?”
“No.” Then he threw away the pretense as he realized that I wasn’t angry and therefore no longer a threat. “Look, I have an issue with you cyclists.”
“Yeah, really. You guys get out in the way of cars and then we have to swerve at the last minute to keep from hitting you. It’s really dangerous.”
“Yes, it is. Are you aware that we have the legal right to be in the lane along with cars like yours, even cars that parents have bought for their somewhat selfish and spoiled children?”
“Sure, I know you have the right to be there. Look, I’m really sorry.” Everything about his tone, his face, and his posture said he wasn’t sorry at all, and that now he was annoyed.
“You don’t look sorry. You look annoyed, as if I’m bothering you.”
“Look, mister, I said I was sorry. You’re lucky I didn’t hit you. I had eye surgery the other day. I can’t see very well. When I saw you all I saw was a blur.”
“I thought you didn’t see me.”
“Can I just go inside and get my Coke? You’re harassing me, mister.”
“Really? You consider being spoken to in a civil tone of voice after coming close to killing someone ‘harassment?'”
“Do you want me to call the police?”
“I don’t want you to do anything other than pay attention to bicyclists in the roadway. They’re not all as skilled as I am. A little wobble and I’d be in an ambulance right now. But if you think the police will help facilitate this conversation, by all means call them. I’ll be interested to see what happens when they ask to see your I.D.”
Now he was paying attention, fully. “What do you want me to do? How many times can I say I’m sorry?”
“I want you to think about something.”
“I want you to think about your dad.”
“What about him?”
“How old is he?”
“I turn fifty in a few months.”
“Would you have done what you just did, and would you be speaking like you’re speaking right now, if it had been your dad on the bike?”
He looked at me. “No. But you’re not my dad.”
“I suppose we can both be grateful for that, right?”
He was uncertain again. “Right.”
I got back on my bike and rode off.