We recently settled a case for the maximum policy limits for a local family by recovering the $100,000 underlying insurance policy in addition to the $1,000,000 insurance umbrella.
Facts of Motorcycle Accident
A husband and wife were on a motorcycle on a two lane country road in Mason, Ohio just before sunset. The husband was operating the motorcycle and his wife was on the back. Both motorcyclists were riding without a helmet. A motorist did not see the motorcycle due to the glare of the setting sun and pulled into its lane of travel as he exited a parking lot. The motorcycle avoided most of the car but was ultimately clipped and lost control just after impact. Both riders were conscious following the crash. Thankfully, the husband had a broken wrist with other minor cuts and bruises and nothing life threatening. Tragically, the wife suffered a traumatic brain injury and died ten days later at the hospital.
Potential Defenses: Comparative fault for not wearing a helmet
In Ohio, the defense is entitled to argue that a motorcyclist contributed to his death or injury for not wearing a helmet. If the argument is supported by expert medical testimony, a jury is permitted to assign a certain percentage of fault to the motorcycle rider for not wearing a helmet. The jury determines the percentage of comparative fault. A verdict for damages against the at-fault driver is reduced by the amount of fault given to the rider and if the rider is deemed to be greater than fifty-percent at-fault, there is no recovery. For example, if a jury says a case is worth $1,000,000 and assigns 25% fault for the motorcycle rider, then the recovery is $750,000. If the jury assigns 51% fault to the rider, then the recovery is zero.
Assumption of Risk
Some people believe that motorcyclists assume the risk of injury by riding a motorcycle. Assumption of the risk is a legal term but it does not apply to motorcycle riders. Motorcycle riders and bicyclists have the same right to the road as other drivers. Every driver has a duty to look for two-wheeled vehicles on our roads. The implicit bias related to motorcycle crashes is something a good lawyer will begin to overcome through themes and strategy at the beginning of each case.
Other Excuses; not applicable
Not being able to see a motorcycle because of the sun, weather, or the relatively small size of the bike is not an excuse. The rarely applicable legal defenses of “sudden emergency” and “act of God” are also not applicable to this situation and are rarely applicable. Drivers are required to operate vehicles in a manner that is safe for the conditions and environment.
Last Clear Chance
The “last clear chance” argument is a dangerous argument for defense lawyers because it is an attempt to avoid full responsibility when full responsibility should be taken. The last clear chance argument in a case like this is an argument that despite the at-fault driver’s failure to yield, the motorcyclist had an opportunity to react and avoid the collision by swerving or stopping.
Bad Faith Litigation and Quick Recovery
In most cases, defense lawyers and insurance companies attempt to drag the case out, prolonging suffering for the family, and preventing full and prompt payment for damages. The best lawyers will find pressure points with the at-fault party and his insurance company. In a case like the one described in this blog, there is a good possibility that a jury would assess the loss of life and damages in excess of $1.1M which would expose the at-fault driver personally. Meaning a verdict could exceed the insurance limit which would force the driver to pay personally.
Early in the case, we worked with the at-fault party’s personal counsel to help express the danger of an excess verdict to his insurance company. We also showed the insurance company that a delayed payment of full policy limits constitutes bad faith under Ohio law. The insurance company tendered its full policy limits without the need for prolonged litigation or trial.