Guide to Handling a Crash
If you have been involved in a crash and are injured, call 911 or seek medical attention. This guide has been prepared as a resource for people involved in a bike/car crash or are seeking information should they ever be involved a crash. But first, the disclaimer: This guide is intended as an introductory educational tool only - it is not intended to provide legal advice or to replace legal counsel. The fault of crashes varies with each case, and this resource is written from the perspective of someone hit by a driver who was at fault. Always ride responsibly, predictably, and follow the laws of the road.
If you'd like to download a printable copy of our "Crash Checklist" as found on the back of Bike to Work Day spokecards, View it Here. The helpfulness of this guide is limited because every case is different; and most cases won't require a legal representation, but if you would like to consult a lawyer, click here.
File a police report. Police reports are powerful evidence. Immediately after the crash, ask anyone who may have seen the crash to call the police and to give you their contact information. Wait for the police at the scene. Insist that the police take a report. General Order 9.02 requires that the SFPD take a report for any case involving injury, which includes 'complaint of pain' -- you do not need to get into an ambulance for the police to file a report. If you have not filed a report at the scene of the crash, you can do so at any police station after the fact.
If you suspect that the driver may have been using a cell phone or was otherwise distracted, be sure to tell the police officer and double-check that he or she has included that statement in the police report. Proof can be attained later by viewing the driver's cell phone bill. The police will give you a receipt with instructions for attaining a copy. If the police report turns out to be inaccurate, go to the police station and submit a revision. The police report is one of the most important tools in settling your case with the insurance company.
Always make sure you get complete information about the driver and the vehicle involved in the incident. Copy down all of the information from their driver's license, insurance card, and license plate. Get the contact information from every witness available. Follow up with the witnesses as soon as possible and ask them to email you what they remember immediately, before memories fade. By having them email it, you have a date-stamp of these statements.
Keep a detailed diary of everything in one place -- go buy a small notebook just for this long process. Write everything down: descriptions of the incident, physical descriptions of everyone involved, a daily log of your injuries and pain, records of any economic losses, notes of all conversations relating to the crash, especially names and employee numbers of insurance agents and police. After every conversation with the insurance company or other party, send a confirming letter restating the points discussed. It can take a long time to settle your claim, so keep everything carefully organized.
Preserve all evidence. Take photos of your injuries each day, and photograph any damage to your bicycle or other personal property. Physical evidence, including your damaged bicycle or clothing should be kept intact. When you bring your bike to the shop, be sure to tell them it was the result of a crash and you plan to file a claim against the insurance company. They will detail all of the damages for you to make your claim easier.
Get medical treatment immediately because those medical records are extremely important to attaining a fair settlement. Medical care can be expensive, but if the driver is at fault you are entitled to be reimbursed for reasonable medical expenses and pain and suffering caused by the injuries. In some cases, medical care providers will accept a lien in lieu of payment.
If the insurance company phones you, it is your right to refuse to speak with them when appropriate for you. Keep in mind that staff at insurance companies first job to is avoid paying claims, so be cautious what you say and speak to them only when you are in a place where you aren't distracted and can focus on the issue at hand. Everything you say is recorded and can be used to refute your claim.
Your case may involve a crime. If the driver was acting recklessly, on purpose or under the influence of drugs or alcohol, California Penal Codes which may apply include (but are not limited to): assault; assault with a deadly weapon; battery; drunk or drug-influenced driving; hit and run; reckless driving; opening a door into (bicycle) traffic. Even if you were not injured, you may still be entitled to recourse under the criminal law if you are the victim of a crime. Failure to signal a turn, turning from a lane other than alongside the curb, speeding, and running stop signs are all crimes, and are contributing factors to crashes -- be sure the police understand what actions led to the crash.
If you are a victim of a crime, you are entitled to a police report and an investigation. If a police report was not taken at the scene, go immediately to the police station to make a report. In a few days, you can request a copy of the report. Check it for accuracy and report inaccuracies back at the police station. Follow up on the investigation with phone calls and letters. Speak with an attorney regarding your rights.
If you are the victim of a crime, you may be entitled to state victim support services. Information is available from the Victims of Crime Resource Center: 1-800-842-8467. If your injuries result from the driver's criminal activity, you may be entitled to punitive damages in addition to pain and suffering.
If you are severely injured, have long-term or permanent disabling injuries, or were injured in the course of a crime, you should consult with an attorney as soon as possible. If you do not know of a good lawyer you can trust, call your local bar association or see our click here. In addition to private lawyers, the Bar Association of San Francisco provides free consultation in some cases: 415-989-1616.
If your injuries are minor and your case uncomplicated, you may want to attempt to handle your case on your own. Benefits of representing yourself include: self-empowerment and considerable savings on fees. If you are at fault, your injuries are minor, and/or the driver is unknown or uninsured, it may be difficult to find an attorney who will help you on a contingency basis (contingency = instead of paying the attorney by the hour, the attorney takes a proportion of your settlement). Simply put, lawyers are expensive -- if your injuries or damages are less than a few thousand dollars and you have the driver's insurance information, a lawyer is probably not necessary.
You have a limited time to sue someone, after which no lawsuit can be filed by the injured person to seek compensation for his or her injuries. In California, the time limit is generally one year from the date of the incident. However, there are exceptions for cases involving the government (shorter time limit) and for hidden injuries (sometimes extends the deadline). If you have still not settled your claim within nine months of the incident, you may wish to file the papers for your lawsuit. Although filing the papers triggers other filing deadlines, it does not mean you have to immediately begin a court case. Filing your lawsuit protects your right to proceed with your case after one year from the crash.
Just because the car is bigger, does not necessarily make the driver at fault. For example, a bicycle illegally cutting across traffic in the middle of a block might be at fault. However, fault can be shared. If the driver had plenty of time to stop, but had been negligently distracted by his cell phone, the fault may be partially his. Usually, you don't need to prove fault. As long as you make a reasonable argument that an insured driver was negligent, the insurance company will usually settle the claim. Insurance companies will usually prefer to pay a nominal claim settlement rather than pay the expense of going to court.
If the crash was the fault of several drivers, or even someone outside of a car who caused the hazard, the law usually permits you to sue any and all of them. It is up to them to settle amongst themselves who should get reimbursed. If the driver was working or in a company-owned vehicle, the employer may be liable. You can't get multiple settlements, but you can sue the responsible party most likely to pay. This can be helpful if one responsible party is uninsured.
The SF Bicycle Coalition works hard to protect bike riders by advocating for more bike lanes and improvements to reduce crashes. But, when crashes do occur, we provide resources like this guide to help people who choose to bike in San Francisco. If you are not currently a member of the SF Bicycle Coalition and found this information useful, please consider joining the SF Bicycle Coalition today
Prepared by Mona Lisa Wallace, Esq. and the San Francisco Bicycle Coalition.