Have you been injured in a motorcycle accident caused by someone else’s negligence? Contact a Massachusetts motorcycle accident lawyer at The Law Office of Louis S. Haskell for a free consultation and case evaluation. The Law Office of Louis S. Haskell has successfully represented thousands of accident victims and obtained exceptional results in a wide variety of injury cases including motorcycle accidents.
Motorcycle accidents are a form of motor vehicle accident. In many ways, motorcycle cases are easier than car and truck accident cases. However, they do present some of their own unique issues, especially where the payment of medical bills is concerned. There are some legal differences between motorcycle accident and car and truck accidents. This post will explore some of these differences.
Medical Expenses Present Unique Issues And Opportunities
The biggest legal difference between motorcycle accidents and other motor vehicle accidents in Massachusetts is that motorcyclists are not covered by Personal Injury Protection (“PIP”) Benefits. New Hampshire does not have PIP anyway, so this is not a change. Although a motorcyclist pays for Personal Injury Protection, that coverage extends to pedestrians who may be hit by the motorcyclist, but not to the motorcyclist directly. As such, there is no compulsory first party coverage for medical bills and wage losses as a result of a motorcyclist being injured in a motorcycle accident.
If the motorcyclist has health insurance, and enough disability insurance and/or sick time to cover any lost time from work, then I see the absence of Personal Injury Protection as a good thing. First of all, it removes any control of the motorcyclist’s own insurance company from the motorcyclist’s treatment. The Personal Injury Protection carrier has the right to have its own insured examined by a doctor of its choice. It has the right to conduct an “examination under oath” which is commonly more like an inquisition. Many doctors refuse to see automobile accident victims, because they do not like dealing with automobile insurance carriers. As obnoxious as your HMO can be when you seek treatment, automobile insurers are often worse. If there is no Personal Injury Protection, then that whole issue is removed from the case.
In addition, if there is no Personal Injury Protection, there is no “PIP offset”. Generally speaking, if you are injured as a result of someone else’s negligence, the negligent party, or their insurer, is obligated to pay your medical bills. Because of something called the “collateral source rule” that obligation is unaffected if your medical bills are paid by your own health insurance. The law states that as between the negligent tortfeasor and his innocent victim, it is the victim who shall be the beneficiary of the victim’s own prudence in providing for the collateral source, or third party payment, in the first place. In other words, somebody gets a windfall. Either the victim collects the medical bills twice, or the wrongdoer avoids paying medical bills for which the wrongdoer is responsible. The law says that the innocent victim, who paid for the health insurance in the first place, gets the windfall. However, there is an exception to the collateral source rule for Personal Injury Protection payments. The Personal Injury Protection statute provides for a PIP offset. Specifically, the insurer for the at fault party reimburses the PIP insurer directly, and does not pay it through the settlement. As such, it is generally better, if you have been injured as the result of someone else’s negligence, to have your medical bills paid by your health insurance company, instead of PIP.
This analysis even holds true if your health insurer is MassHealth. MassHealth does have a “statutory lien” on your settlement, and will be paid back at settlement time. However, MassHealth pays the providers so much less than what they bill, that you still come out ahead.
If you are a motorcyclist and you do not have health insurance of any sort then you really should purchase optional Medical Payments coverage, or “MedPay”. This will pay you for any medical bills that you may incur as a result of a motorcycle accident. Please note that the money is paid directly to you and not the provider. As such, MedPay can sometimes be leveraged by negotiating the bills, and sometimes it can be converted into a form of disability insurance. The MedPay money can be used to support you while out of work and then the bills paid at settlement time. What is more, if you are knocked out of work for a prolonged period as a result of a motorcycle accident, the hospital emergency room, may qualify you for MassHealth. Then your medical bills are being paid by MassHealth while you still collect MedPay. In this case, MedPay is acting like the disability carrier even though it is tied to your medical bills. The same analysis works if you have health insurance but do not have adequate sick time or disability insurance. Again, MedPay can be collected for bills that are being paid by the health insurance and used in any manner that you choose.
MedPay is usually cheaper than PIP. There is no MedPay offset like there is in PIP. Although the PIP statute creates a process called subrogation, in which one insurance company reimburses the other and thus creates the PIP offset, there is no equivalent mechanism in MedPay. It is an optional coverage and your insurance company does not get its money back. Although the law is the same for PIP and MedPay in terms of the rights of insurance companies, MedPay carriers tend to be less abusive of its own insureds than PIP carriers. This no doubt has to do with the fact that PIP is compulsory and MedPay is not. This means that you have to buy PIP whether you want to or not, but you do not have to buy MedPay. Part of this may be simple marketing, but there is also an element of jury appeal. It is bad enough when you sell your customer a compulsory policy and then refuse to pay on it when they need it, but when the customer has voluntarily written a check and now the insurance company is abusing them, the insurance company should expect a jury to clobber it.
Proof Of Injury Is Easier In Motorcycle Accidents
There are ways in which motorcycle cases are easier than other motor vehicle accidents. Some of what makes them easier is quite bad. Motorcycle injuries tend to be more severe than car accident injuries. However, from a personal injury attorney’s point of view, those injuries are much easier to prove. For example, it is much easier to convince an insurance company, or to convince a jury, that a headache six months or a year after a motorcycle accident was caused by a motorcyclist whacking his head on the pavement (even with a helmet), than it is to convince that same insurance company, or if need be that same jury, that a headache six months or a year after a car accident results from a coup-countrecoup injury caused by the seatbelt (although seatbelts save lives and everyone should wear them, they do tend to cause or exacerbate a number of non-life threatening injuries). What is more, we rarely have the issues associated with the lack of correlation between property damage and injury in a motorcycle case which we have with car accidents and unitized frames. I actually wrote a blog about the problems with cars not showing their damage, and thus creating situations where the injury and the damage do not correlate that can be read here. However, with motorcycles the mechanism for injury is rarely that a vehicle hits the bike and then there is a transference of energy to the body of the driver, which of course is the most common mechanism of injury in an automobile accident. Instead, motorcycle injuries are typically caused by the motorcyclist making contact with the pavement and sometimes the direct impact between the offending motor vehicle and the motorcyclist. As a result, the damage to the motorcycle is commonly irrelevant to the cause and nature of the injury and this whole area of reconstruction can be avoided. It is so much easier to tie the injuries caused by motorcycle accidents to the motorcycle accident than it is for other types of motor vehicle accidents.
Motorcycle Accidents Often Involve:
Unique Issues Of Negligence
In many ways, motorcycle accidents and other motor vehicle accidents are incredibly similar. Negligence standards are largely the same, even though car and truck drivers often exercise their own “rules of the road” when encountering motorcycles, rather than obeying the law. In other words, motorcycles have the same right to the road as every other vehicle on the road. The law of right of way does not change just because motorcycles are smaller and lighter vehicles. Nevertheless, it is common for cars and trucks to try to steal the right of way or try to steal lanes from motorcycles. This behavior is well understood by most insurance adjusters and most jurors. As such, negligence is often easier to prove in motorcycle cases than ordinary auto accident cases.
I had a client once, who was riding his motorcycle down the street, minding his own business, when a car traveling in the opposite direction decided to make a left turn to get onto the Lowell Connector running right into my client. In fact he hit my client so hard that the force of the impact shattered his leg. When the driver got out of the car, his first words to my client were “Why don’t you watch where you’re going.” I am not sure which is the more abhorrent, that the motorist who was making a left turn and hit a motorcyclist who had the right of way would have the nerve to say to him “why don’t you watch where you’re going”, or that he would yell such a thing at him while he is sprawled on the ground with an obvious, serious injury. While I have no doubt that to this day the motorist believes that my client should have been watching where he was going, the insurance company never raised an issue of liability or contributory negligence. It was obvious to them, as it would be obvious to any reasonable person, including any juror, that the motorcyclist had the right of way and that the motorist was at fault.
What is more, my client had previously shattered his other leg in an ATV accident. In fact, I had warned him that he needs to be more careful as he only has one leg left to break. Although he had obviously been in a very serious ATV accident prior to this accident, the insurance company made no effort to try to argue that his current injury was in any manner related to his previous accident. After all, the car had hit him with such force as to shatter his leg. Whatever may have happened to him before that was superseded by this.
The biggest problem with motorcycle cases is overcoming the “dare devil” imagine that some motorcyclists project. Obviously, if you are weaving in and out of traffic or engaging in acts that larger vehicles cannot do, then that would be a problem. I have handled a number of motorcycle cases in my career. Only occasionally is the motorcyclist’s conduct even an issue, although it does occur. Just keep in mind that the same rules of the road apply to motorcyclists as to all other vehicles. As long as you are obeying the “Rules of the Road” your legal case should work out fine.