Oregon Cycling Magazine

by Ray Thomas

Fortunately, most bicycle accidents do not result in personal injuries. Instead, wheels get bent, helmets scraped (you did have your helmet on didn’t you?) and, if the accident is the motorist’s fault, a “property damage” claim is made against an insurance company.

For the bicyclist, property damage claims are frustrating. Few lawyers are interested in representing a bicyclist whose claim involves a few hundred dollars. Consequently, bicyclists with little or no experience in legal matters find themselves advocating for damages with experienced claims adjusters. Since the amount involved is usually small, the bicyclist ends up appealing to the claims adjuster’s sense of fairness. Most claims adjusters are not experienced riders and they are frequently shocked by the costs of bicycle repair and parts.

Further, property damages are not recoverable unless the motorist is more than 50 percent at fault, because Oregon’s law (unlike the law of some other western states) requires that a potential defendant pay their percentage of fault only if their fault is greater than that of the bicyclist. This means that if the bicyclist is 51 percent at fault and a motorist is 49 percent at fault the motorist completely escapes financial responsibility. The system is particularly unfair when catastrophic personal injuries are involved because it means that an injured person receives nothing whatsoever for their injuries, which are partly the fault of another person who gets off without paying their fair share.

Since the claims adjuster’s job is to pay as little as possible on a claim, any fault arguably attributable to the bicyclist will be pointed out as a reason to reduce the amount paid. It is essential during these discussions that a bicyclist know the basic Rules of the Road. If possible, be prepared to cite actual Oregon Revised Statute (ORS) numbers. These statutes form the basis for the legal clinics we periodically conduct under the auspices of the Bicycle Transportation Alliance (BTA). If you would like to attend one of these clinics, contact our office or the BTA.
The law relating to property damage claims is technical. Many people believe that they should receive the amount of money they will need to replace their damaged property. Unfortunately, that is not the law. Instead, the bicyclist is entitled to the amount of money that is equal to the difference between the fair market value of the property immediately before, and immediately after, the occurrence. This is called the diminution in property value.

Bicycles depreciate rapidly and often the market value of a used bicycle is considerably less than its original purchase price. In order to establish market value, it is best to take your bicycle to a bike shop and obtain the following estimates:

1. Cost of repair of the bicycle. Do this even if you are certain the bicycle is beyond repair.

2. Value of the bicycle in the condition it was in immediately prior to the accident. In other words, the appraisal should be an appraisal of the bicycle the same year and model as your bicycle in the condition your bicycle was in immediately prior to the collision. It is sometimes difficult to find an employee at a shop who can perform this appraisal because most bike shops only sell new bikes. If you are having trouble, call around and find out about the name of a bike shop that sells used bicycles.

3. Value of the bicycle in the condition it was in immediately after the accident. This amount is usually very low; what market value is there for a damaged bike?
The claims adjuster will almost certainly call the shop to verify your figures. If your bike is “totaled” the adjuster will want to pay the value of your bicycle before the accident minus its salvage value. Frequently, bicycles have little or no salvage value. If you have a particular attachment for some of the components, such as that Terry saddle or that wonderful old Campognolo crankset, let the adjuster know and they will frequently be willing to let you have these parts. It has been my experience that the adjuster will usually recognize that a bike has no salvage value and allow you to keep the damaged bike if it is indeed totaled. On the other hand, if the bicycle can be fixed, it is up to you whether you want to fix the bike or not. You are not entitled to receive more money because your bicycle had a particularly high sentimental value. However, if your bicycle was a rare bicycle, and was, therefore, of an unusually high monetary value, you are entitled to receive that greater value if it is damaged or destroyed. Remember, the diminution in value of the bicycle may be much less than it would actually take to fix the bike. The law states that the person responsible for the damage need only pay the diminution in value, not the cost of repair.

The same rules apply for other personal items such as helmet, panniers, clothing, and other personal property. If the clothing is new and you still have a receipt, it will be helpful for the bike shop in making an appraisal. If the property is older, the shop will need to know when you purchased it and the condition it was in prior to the collision. Finally, it is important that you save all property damaged so that you can show it to the adjuster if asked.

We frequently hear from angry bicyclists who feel that they are not being dealt with fairly in determining who was at fault in the accident, or the value of damaged property. Few bicyclists are willing to go to small claims court to advocate for themselves. Unfortunately, this means that riders frequently grudgingly accept “low ball” offers to settle property damage claims.

One tool that does exist for bicyclists is a law that gives the victim a negotiating edge. ORS 20.080 provides that in claims for less than $5,500 if a ten-day demand letter is sent to the responsible party and is not paid, and the victim gets a lawyer and files a successful lawsuit, the responsible party has to pay the amount originally owed, plus attorney fees and costs. In a simple property damage claim the attorney fees and costs could total several thousand dollars. If a bicycle rider is in negotiations and is being treated unfairly, it will probably be of assistance to mention this law because if the bicyclist has to go out and hire a lawyer to file a lawsuit and wins the case then the amount awarded as costs and fees may very well exceed the amount owed in the first place. The statutory provision is contained in its entirety below:

20.080 Attorney fees in actions for damages for personal or property injury.

(1) In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $5,500 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant not less than 10 days before the commencement of the action of the filing of a formal complaint under ORS 46.465, or not more than 10 days after the transfer of the action under ORS 46.461. However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action or the filing of a formal complaint under ORS 46.465, or not more than 10 days after the transfer of the action under ORS 46.461, an amount not less than the damages awarded to the plaintiff.

(2) If the defendant pleads a counterclaim, not to exceed $5,500, and the defendant prevails in the action, there shall be taxed and allowed to the defendant, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the counterclaim.

Property damage claims can be very frustrating for riders who are trying to represent themselves to get a fair recovery for their damaged equipment. Knowledge of the law helps to make the process a little easier, but, in the final analysis, fair payment on damaged property claims requires a willingness to spend the time necessary to present the proof of loss, and persevere through negotiations to obtain fair payment.

Possibly Related

• November 2007: What shall we do now?
• September 2008: Stop or yield
• September 2008: Track racing at its best: the Alpenrose Velodrome Challenge
• May 2008: Education is the first step
• August 2007: The law of crosswalks