Bike Trails in Autumn and During a Pandemic

With Autumn comes shorter days and time changes.  I prefer to refer to October and November as “Autumn” because it takes the edge off of the cold and wet riding conditions of “Fall.”  “Autumn” also invokes imagery of beautifully changing leaves, clear sunny skies, crisp air, apples (or pumpkins), and truly epic rides where you enjoy a long ride without thinking about a race around the corner, worry about checking off an interval workout or checking your watts.  Stated plainly, riding in Autumn is just fun.

Shorter riding windows have a tendency to force some riders onto the relative “safety” of bike trails.  Well, the last two years have redefined safety in all circumstances as we deal with a global Pandemic that affects us as both regular citizens and as cyclists.  I found this Rails-to-Trails video that gives you some insights into how those charged with the care and maintenance of our bike trails during a Pandemic:

Some time ago I wrote about the differences and similarities of riding on Kentucky and Ohio bike trails.  It might be worth a review as you venture back onto bike trails this time of year:

Cycling Injuries on Ohio and Kentucky Bike Trails – Do You Have a Case?

 

Race Report: 2021 Kentucky Senior Games

First things first.  I raced the 5K and 10K time trials and managed to score some hardware in both distances.  But that is not the story here.

The Backstory

The real story is how I was almost not racing the Kentucky Senior Games in Lexington, Kentucky on September 6, 2021 at all.  This is where the story does get more “senior.”  It is my experience that if you get two forty-somethings or fifty-somethings (I could go on) going on about their ailments the conversation quickly devolves into a game of one-upmanship as to whose back, knee(s) or hip(s) is worse.

My intent is not to have a one-sided conversation about my ailments, but that is where this conversation is going.  I have long-standing L4 and L5 disc herniations that have been a decades-old challenge for me, but pretty much under control.  I have avoided surgery and that is a good thing.  But things went really sideways ten days before the race.

Things started out normal enough on a Saturday morning.  That is, until I tried to pick up a sock on the floor of my bedroom floor with my right toes and my left leg suddenly buckled with searing left-sided low back pain.  I knew immediately my back “had gone out” but I was in total and complete denial.  I took a hot shower and threw an ice bag on my back hoping it would just get better in an hour or so.  If only.

Reality on the pain scale set in quickly, however I steadfastly remained in denial for the ensuing five days.  I could not stand up straight, get out of a chair, much less ride my bike.  So, I told myself my circumstances forced a taper.  The taper was honestly a welcome change.  The law business was busy, and I needed the extra hours.

I. Hate. Prednisone.

However, on day five (five days before the race day), I gave in to reality and started an eight-day course of Prednisone.  I loathe Prednisone.  I hate Prednisone.  I detest Prednisone.  But Prednisone is a powerful anti-inflammatory that does work.

This course of Prednisone ran a similar course as past courses.  My head buzzed.  My brain was foggy.  I was fatigued.  And I put on fifteen pounds in five days.  One might say I was not feeling at the top of my game.  In fact, I had no idea how I was going to feel on race day, but I was not optimistic.

 

Race Day

With an 8:00 a.m. start, I did not want to make a long drive on a tender low back so my wife and I spent the night at a nearby hotel.  At 7:00 a.m. I threw my leg over the TT Bike to run my first systems-check in ten days.  My back did not immediately seize up, so we were off to a good start.

I warmed up on the course.  It was a tight circle with 165 feet of elevation gain over five kilometers.  The course basically had a 32-35 mph downhill followed by a 19-20 mph uphill which you rinsed and repeated three times for the 5K and six times for the 10K.  I had to hold 425 watts in my warmup to barely hold 20 mph on the uphill.  That was not an encouraging development according to my quadriceps.

Here is the thing about Prednisone.  Its side effects are somewhat predictable from person to person.  The brain fog is real.  The irritability is real.  For me, it felt like I had a constant buzzing in my head from morning to night.   Those symptoms are “subjective” in the sense that one should be able to set them aside and perform when the situation calls for it.

But I was not performing.   In warmups and during the race events.  Everything felt weaker, especially my legs.  My heart rate soared and my breathing was labored.  But that is supposed to happen with a sub-eight-minute effort or sub-fifteen-minute effort, right?  This just felt different.  Your lungs are supposed to be scorched with a violent effort, but not right away!

In my experience, with a super hard Strava Segment or TT Effort, my body goes through the following predictable sequences of events:  my quads start to burn; then I start to lose feeling in my hands, forearms and the inside of my biceps (it seems like I can feel my pulse inside my biceps); then and only then, my breathing gets raspy and labored.

Five days into Prednisone and fifteen pounds later (did I mention the weight gain?), the sequence was inverted.  My breathing was immediately labored and then the legs started to go, and everything felt like it had a governor on it.  This inverted sequence of events continued, even as I tapered off the Prednisone.  I tried to do a “tempo”, not “race” effort on the Wednesday after the Senior Games while finishing the Prednisone course.  I saw some of the highest heart rates in Training Peaks for all of 2021 at tempo, not race, power numbers:

Lessons Learned

So what did we learn?  Racing is still fun.  I have a supportive wife.  And Prednisone is the Devil, but without it I may not have raced at all.  I was not capable of standing up straight and was basically bedridden for five days.  Five days later I am racing.  That would not have been possible without Prednisone.  So we take the good with the bad, right?  And I made a new friend or two.  Not a bad weekend at all.

 

Uninsured and Underinsured Motorist Coverage for Ohio Cyclists. Are You Covered? – Part 3

Part 3 of this Blog Series on Uninsured and Underinsured Motorist Coverage merits both Trigger Warnings and Apologies!!! But not for the same reason.

Trigger Warning – Politics

The Trigger Warning is a Heads-Up that I am going to talk a bit of politics.  Not Democrat versus Republican politics, but rather the enduring and age-old question of the role of the government in contracting – especially where one side is a multibillion-dollar company and on the other side is a mother or father with a full-time job (who probably don’t have a law degree) and kids that need to get back and forth from school and soccer practice. I would humbly suggest that one side has a bit more time and resources to devote to drafting the insuring agreement.  There are definitely consequences to that lopsided negotiation when a cyclist or pedestrian is struck has to make a UM or UIM Claim against this/her insurer.  A careless motorist may compound his or her carelessness by carrying only the state-minimum insurance coverage or no insurance.  That carelessness and irresponsibility become your problem if you don’t have UM/UIM coverage.

Apology

The Apology is for over 3500 words and virtual ink spilled over two blog articles on the history of Ohio’s Uninsured Motorist and Underinsured Motorist Statute, Revised Code 3937.18 and legislative amendments over the past two decades. Legislation can be boring.  Tracking legislative changes over time is even more so.  But, I did not want you to have to just take my word for it when I say, of the last fifteen amendments to R.C. 3937.18, nine of those changes benefitted insurance companies, five were arguably neutral, and only one of those fifteen amendments was pro-citizen!  If I took a more paternalistic view of the changes, the insurance companies would have nearly run the table with a score of 14 to 1.

Again, picking up on a trend here?  Your elected officials HAVE NOT BEEN YOUR ADVOCATES in recrafting UM/UIM legislation.  In fact, they have been just the opposite, the legislative changes overwhelmingly favor multibillion-dollar insurance companies’ interests over the interests of the citizens who cast votes to elect them.

Back to Politics

Back to politics (without labels).  Traffic accidents take a toll on society.  Per the United States National Highway Traffic Safety Administration, in 2017, for the ninth consecutive year, motor vehicle traffic crashes were not among the top 10 causes of death in the United States. Motor vehicle crashes were the 13th leading cause of death overall among all causes in both 2016 and 2017. Motor vehicle traffic crashes were the leading cause of death for ages 3, 11, 12, and 17 to 21 in 2017. In 2016 motor vehicle traffic crashes were the leading cause of death for ages 10, 11, and 17 to 22. When motor vehicle traffic crashes were ranked within unintentional injury deaths, they were the second leading cause of death during both 2016 and 2017. They were the leading cause of unintentional injury death for ages 3 to 21 in 2017. In 2016 motor vehicle traffic crashes were the leading cause of intentional injury death for ages 3 to 22, and 65 and 66. Assessing by another measure, the years of life lost (i.e., the number of years people were expected to live had they not died), motor vehicle traffic crashes ranked 7th in 2016 and 2017 as it has been ranked since 2011.

So, one could argue that “the government” has a role in mitigating these social costs through insurance coverage.  Hence, the birth of mandatory minimum automobile coverage in all but two states.  The “State” mandates that you must do the socially responsible thing and carry insurance to cover the damage you may cause another citizen from a moment’s inattention behind the wheel.  We know that that some citizens are going to “run bare” and just not incur the cost of that insurance.  Hence the need for UM/UIM coverage.  Nationally and in Ohio, roughly 13% of motorists are uninsured.  UM/UIM coverage fills that gap right?  NOT NECESSARILY.

Back in 1988 when Ohio enacted its UM/UIM statute it regulated insurance companies by requiring a certain strength of coverage.  It should have been a win-win for citizens and insurance companies.  Mandatory coverage means mandatory premiums and more premiums should lead to more profits for insurance companies.

Fast forward from 1988 to 2001 and we see a steady erosion of the regulatory protection afforded Ohio citizens under their UM/UIM coverages.  This erosion is especially acute for pedestrians and cyclists – THE MOST VULNERABLE USERS OF OHIO’S ROADWAYS.

Do Pedestrians and Cyclists “Occupy” “Covered Autos”?

When was the last time you read your automobile liability policy?  Never?  I thought so.  An insurance policy is conceptually a three-ring binder of documents.  Behind the first tab you have the insuring agreement which is typically very short.  Behind the second tab you have exclusions which are typically a long list of conduct or circumstances where the coverage you paid for is excluded.  And behind the third tab is a list of endorsements that restore or modify the coverage provided by the insuring agreement or excluded by an “exclusion.”

I have noted a disturbing trend in the language of the insuring agreement for UM/UIM coverage.  Once upon a time, an insured was simply defined as “you” (the guy or gal who paid for the insurance), or “a family member”, sometimes described as “a relative.”

An example of the “old” definition of an insured:

I have seen this straightforward definition get subtlety, but significantly modified to read:

Did you see the change?  The old 1, 2, 3 got a precondition to coverage.  Instead of covering “you”, the policy purports to cover “you” IF you were in a “covered auto.”

Here is a typical “covered auto” definition:

Do you see “bike,” “bicycle,” or “pedestrian” in there?

I am not offering specific legal advice here or suggesting that coverage for a bike crash or pedestrian impact would not be covered if your Ohio policy had this language.  Steve Magas and I are litigating this very issue on a commercial policy as I write this article.

I am suggesting that “covered auto” language in your UM/UIM Policy is not helpful to Ohio cyclists and pedestrians.

However, there is nothing in R.C. 3937.18 that prevents an insurer from including this very subtle change.  The Tenth District has noted as much:

[W] hile the General Assembly removed from the statute preconditions or preclusions to coverage, * * * it expressly left to the contracting parties to agree upon any ‘terms and conditions that preclude coverage for bodily injury or death suffered by an insured under specified circumstances.’ The fact that the legislature removed its own ‘terms and conditions that preclude coverage’ from the statute does not mean that no such terms and conditions are permitted to be placed in policies with UM coverage. Rather, R.C. 3937.18(I) reveals that the legislature sought to ‘deregulate’ such policies, leaving to the parties whether any preconditions or exclusions to coverage will govern their relationship.”

Snyder v. Am. Family Ins. Co. [(10th Dist. 2005)], 2005-Ohio-6751, at ¶ 22.

Stated differently, “the General Assembly expressly left it to [a multibillion-dollar insurance company on one side and a busy Soccer Mom on the other side] to agree upon any terms and conditions that preclude coverage.”

These insurance companies will not have your interests as a cyclist or pedestrian front and center in the event of a catastrophic injury.  Every dollar an insurance company pays you on a UM/UIM claim is one less dollar of profit at the end of the financial year.  They will be looking for reasons to avoid UM/UIM coverage and consequent payment in the event of a crash.

Hit and Run Victim?  Think You are Covered?  Think Again.

Did you know that your UM/UIM policy may have a provision limiting your ability to recover if a drunk driver hits you while cycling, running or walking and that driver flees the scene? Well to (literally) add insult to injury your insurance company will very likely make it harder to recovery UM/UIM benefits because YOUR WORD IS NOT GOOD ENOUGH.  Most insurance companies start from the default position that you are a liar and require additional burdens to prove your hit-and-run case because you are a liar.

Here is an example:

The foregoing policy requires “additional evidence” (because you are probably a liar).  Other policies will require “independent corroborative evidence” (again because you are probably a liar).

In 2016 the Ohio Supreme Court interpreted the “corroborative” policy language, which tracked R.C. 3937.18(B)(3), in Smith v. Erie Ins. Co. (2016), 148 Ohio St.3d 192 and held “that the contract’s requirement of independent corroborative evidence can be met using evidence derived from the insured’s testimony.” Id. at 193. In Smith, the Majority pointed to the 911 Call, the diagram of the Trooper, and the plaintiff’s medical and therapy reports as evidence satisfying the independent corroborative evidence test – despite the fact that all of the foregoing evidence was derivative of the Plaintiff’s testimony.

Concluding Thoughts

This article only touched on two significant deregulated issues: (1) the definition of an insured in a UM/UIM policy and (2) hit-and-run accidents.  There are more examples to be discussed, but these two are the most significant in my mind when discussing deregulation of UM/UIM coverage and the impact on cyclists and pedestrians in Ohio.

I suggest the following takeaways.  Your insurance company had a team of lawyers write your UM/UIM coverage.  He or she did not write that policy with your interests in mind. Maybe you should have a lawyer review your coverage before an accident, not after.  Recall, “the General Assembly expressly left it to [a multibillion-dollar insurance company on one side and a busy Soccer Mom on the other side] to agree upon any terms and conditions that preclude coverage.”

With regard to hit-and-run accidents, always report the accident to the police and secure witness statements.  Consider riding with front-facing and rear-facing cameras like those from Cycliq (I had to buy my own – no sponsorship deal).  Video will be the “independent” or “additional evidence” to support your hit-and-run claim.  Finally, secure a lawyer.  Your Insurance Company is going to know the policy and claim process better than you.  Hopefully, a crash is a once-in-a-lifetime event for you.  Insurance companies deal with crashes 24 hours a day, 7 days a week.  They have had a lot of practice.

Finally, and at a minimum, look at your policy.  Do the words “covered auto” appear?  Also, have an annual sit down with your insurance agent and make sure that agent understanding you are a cyclist and you need coverage for when you are out on your bicycle.  You should be making an informed decision about your UM/UIM coverage.  You should also consider umbrella coverage which ties back to your UM/UIM coverage.  My friend and colleague Steve Magas has recently written on this issue.  Your umbrella coverage may not provide the coverage you think it does.

If you have any questions or comments, I can be reached at [email protected] or 513 600 8432 or 859 380 8309.

History Lessons in Uninsured and Underinsured Motorist Coverage for Ohio Cyclists – Part 2

Last week we went over the amendments to Ohio Uninsured/Underinsured Motorist Statute which were incorporated into Ohio law in 1994 and 1997.  Several more amendments would unfold only three years later in 2000 and then again in 2001.  This article will put the more significant changes into some context for Ohio insureds.  Next week we will discuss the impact of those changes on the rights of cyclists and pedestrians in Ohio.

2000 (Small) Change #1: Reduction of Exemptions to UM/UIM Motor Vehicle

R.C. 3937.18(K) was further amended to reduce a category of motor vehicles that was previously exempt from the definition of an uninsured motor vehicle and underinsured motor vehicle:

The foregoing amendment prohibits a claim between family members or a driver that was using a household vehicle as a guest or as a friend.

2000 (Large) Change #2:  No Need to Offer UM/UIM on New Policies

R.C. 3937.18(C) received a subtle but significant revision, the addition of the word “new”:

The 1997 Amendments relieved insurers of their obligation to offer UM/UIM replacement coverage to insureds who had previously rejected said coverage in writing upon renewal.  The 2000 Amendments further relieved insurers’ obligation to obtain the written rejection to “new”, not just replacement policies.

Please recall that last week I “scored” the 1994 and 1997 amendments as pro-insurer, pro-insured or neutral.

I would score Change #1 as pro-insurance companies.  Change #1 above reduced the number and type of drivers against whom a UM/UIM claim may be asserted.

I would score Change #2 as neutral as Change #2 eliminated an insurer’s obligation to offer UM/UIM Coverage with the renewal of an automobile insurance policy where UM/UIM coverage had been declined in writing.  As a matter of personal opinion, if a party declined a certain type of coverage in writing, it should be up to the citizen to ask for it if he/she changes his/her mind.  Insurance companies should not have to act like parents and remind insureds of rights previously relinquished.

2001 Change #1: Insurers No Longer Obligated to Offer UM/UIM Coverage

The 2001 Amendments went a step further and completely eliminated an insurer’s obligation to offer any UM/UIM coverage to its insureds.  R.C. 3937.18 received a significant revision to subsection (A).  Prior versions of R.C. 3937.18(A) required that no automobile liability or motor vehicle liability policy of insurance . . . shall be delivered [in Ohio] unless [UM/UIM] coverages are offered to persons insured under the policy[.]”  That mandatory language, subject to written rejection, was deleted in favor of permissive “may, but is not required to include uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages[.]”

I would score this as a pro-insurance companies amendment.  Not all insureds know or appreciate the value of UM/UIM coverage.  Most states require some level of minimum coverage for third-party claims.  The same reasoning applies to UM/UIM coverage.  If we, as a State, believe it is important to have some modest level of insurance in place to address the impacts of careless driving, that reasoning applies with equal force to third-party claims as it does to first-party UM/IUM coverage.  The result is the same – we are assuring coverage where a careless driver flaunts his or her legal obligation to obtain automobile coverage.  Think of it as a belt-and-suspenders approach.

2001 Change #2: New Definitions of Uninsured Motorist

The statute redefined or collated the definition of an uninsured motorist under new subsection B:

The new subsection B also defined what an uninsured motorist was not:

I would score these changes as neutral.  The new subsection B codified previously recognized categories of uninsured motorists.

2001 Change #3: Reminder That Claimant Has to Prove His/Her Claim

The statute was revised to include a legal truism in new subsection D:

Again, I would score the foregoing change as neutral.  The Ohio legislature was simply codifying contract principles regarding who was an uninsured/underinsured motorist and tort principles of proximate causation

2001 Change #4:  Introduction of the Three Year Limitation

Current subsection H was added to permit the addition of provisions setting forth a three-year claim limitation period in UM/UIM coverage:

This amendment is often misunderstood in the insurance industry as a Statute of Limitations of three years.  This is not the case as Ohio Courts recognize UM/UIM Claims as contract claims, not tort claims.  Contract claims have a much longer statute of limitations – six years. On June 16, 2021 the Ohio Legislature reduced the statute of limitations on a written contract action to six years.  R.C. 2305.06 now reads as follows: “Except as provided in sections 126.301, 1302.98, 1303.16, 1345.10, and 2305.04 of the Revised Code, an action upon a specialty or an agreement, contract, or promise in writing shall be brought within six years after the cause of action accrued.”

In Miller v. Progressive Cas. Ins. Co. (1994), 69 Ohio St.3d 619, the Ohio Supreme Court reaffirmed the principle that:

“[I]n the absence of a controlling statute to the contrary, a provision in a contract may validly limit, as between the parties, the time for bringing an action on such contract to a period less than that prescribed in a general statute of limitations provided that the shorter period shall be a reasonable one.”

Id. at 624, quoting Colvin v. Globe Am. Cas. Co. (1982), 69 Ohio St.2d 293, 295, overruled on other grounds.

“Therefore, case law authorizes insurers, . . . to reduce the statutory [6]–year statute of limitations applicable to contract actions so long as the limitations period is reasonable.”  Miller, supra.

This is definitely a pro-insurance company change.  Without it, an Ohio citizen would have six years to make a claim.  The foregoing amendment permits insurance companies to sneak a shorter three-year limitation for making a claim into their UM/UIM policies.

2001 Change #5: Protection of Insurer’s Subrogation Rights

New subsection J sets out protections of an insurer’s subrogation rights:

I would also score this as a pro-insurance company change.  Subrogation is the right of an insurance company to seek repayment of medical benefit payments to its insureds from third parties (a/k/a tortfeasors, a/k/a uninsured or underinsured drivers) and the repayment of any UM/UIM payments from the same third parties’ personal assets if any.

Reaching back to last week’s article, I scored the 1994 and 1997 amendments as 5 pro insurance companies, 1 pro citizen, and 2 neutral.  I would score the seven 2000 and 2001 amendments as 4 pro insurance companies, zero pro citizen, and 3 neutral.  In total, the 1994 through 2001 amendments scored 9 amendments in favor of Ohio insurance companies and one in favor of Ohio’s own citizens.  Picking up on a trend?

Next week I will discuss the practical implications of pro-insurance company changes to UM/UIM law to cyclists and pedestrians in Ohio.  Should you have any questions or comments in the interim, I can be reached at [email protected] or 513 600 8432 or 859 380 8309.

 

History Lessons in Uninsured and Underinsured Motorist Coverage for Ohio Cyclists – Part 1

It has been a few weeks since I posted a blog. I have been busy preparing materials for multiple educational seminars on insurance coverage matters that I give to other attorneys in the summer months. Much of that information may be of interest to the average cyclist. In previous blog articles, I compared and contrasted Ohio and Kentucky uninsured and underinsured motorist (“UM/UIM” herein) laws. This blog takes some of that lecture material I have been preparing for an attorney education audience and tailors (or attempts to tailor) that material to a cycling audience.

This next series of blogs will take a deep dive into the history of Ohio UM/UIM law in an effort to explain how we have gotten to where we are now in Ohio. For those of you who hang in there, in my final blog of this series, I will provide some general observations that you can take to your insurance agent during an annual renewal.

A BIG disclaimer here! I am NOT OFFERING PARTICULAR LEGAL ADVICE. Every person’s situation may vary and the observations that follow are general in nature. However, you can direct any specific questions to me directly at [email protected].

Getting that CYA out of the way, one must ask why do we have laws requiring insurance in the first place? In 1927 Massachusetts became the first state to require the purchase of auto liability insurance. Since then 48 states and the District of Columbia have followed suit. Which leaves Virginia and New Hampshire as the only states without compulsory auto liability laws.
Such laws usually have the support of the public as anyone could be the victim of a crash with an uninsured driver. As set forth below, compliance with such laws is generally poor and enforcement activities are costly and not effective when one considers that the minimums are just that – a minimum.

Currently, only two states have $50,000.00 minimums – Maine and Alaska. The minimums drop off to $30,000.00 or $25,000.00 for most of the remaining 26 states. Curiously, California is among the four states having the lowest limits of $15,000.00. Louisiana, New Jersey, and Pennsylvania round out the $15,000.00 Club.
Anyone who has litigated a personal injury case with more than a sprain/strain injury knows that $15,000.00, or even $25,000.00 will not likely provide sufficient coverage. So the risk of a crash with an underinsured motorist can leave a coverage gap for an insured or insufficient coverage for an injured plaintiff.
Per the Insurance Information Institute, it is estimated that Mississippi is the state with the highest number of uninsured motorists and New Jersey has the lowest percentage of uninsured motorists as of 2019.


The Insurance Information Institute ranked Ohio as the 21st state in uninsured motorists with an estimated 13% of motorists driving without insurance through 2019. That same study put the national average at 12.6% so Ohio is very much in line with the overall estimate of uninsured motorists on its highways and byways.

R.C. 3937.18 was amended no less than six times between 1994 and 2013 to reach the current version of Ohio’s Uninsured and Underinsured Motorist Coverage Statute. This blog will focus on eight significant amendments that occurred in 1994 and 1997. The amendments which occurred in 2001 will be addressed in a separate blog.

1994 Change #1: No Intrafamily Stacking

Subsection (G) was amended in 1994 as follows:

1994 Change #2: Single Limit/Single Claim for UM/UIM Coverage

A new R.C. 3937.18(H) was added in 1994 as follows:

Taken together, these 1994 amendments will limit an injured cyclist, assuming there is coverage in the first instance, to a single maximum pot of money under the policy.  For example, if your UM/UIM Policy has a limit of $500,000.00.  That will be the maximum recovery regardless of the number of family members insured under the policy and regardless of the number of family members (or other insureds) who were involved in the accident with an uninsured or underinsured driver.

1997 Change #1: Return of Immunity?

R.C. 3937.18(A)(1) was amended in 1997 as follows:

“It is obvious from a reading of the [prior version of the] statute that the insured must be an entity capable of collecting from an uninsured. The city, in the instant cause, is cloaked with immunity, and, therefore, the [insureds] are not legally entitled to recover damages from the city. It is the legal defense, and not the status of insurance, that warrants our decision herein. The uninsured motorist coverage is to apply only in those situations in which the ‘lack of liability insurance’ is the reason the claim goes uncompensated, and not when the claim goes uncompensated because of the lack of liability due to the substantive laws of Ohio.” Middleton v. State Farm Mut. Automobile Ins. Co. (12th Dist.), 1997 WL 716885, *4.

In Kearns v. Permanent Gen. Assur. Corp. of Ohio (4th Dist.), 1998 WL 761679, the Fourth District recognized the change in the plain language of the statute: “’The version of R.C. 3937.18(A)(1) in effect on October 20, 1994 clearly states that ‘[t]he fact that the owner or operator of the uninsured motor vehicle has an immunity, whether based upon a statute or the common law, that could be raised as a defense in an action brought against him by the person insured under uninsured motorist coverage does not affect the insured person’s right to recover under his uninsured motorist coverage.’ The footnote in Fahnbulleh[v. Strahan (1995), Ohio St.3d 666] accords with the clear language of the statute. Although appellate cases decided after October 20, 1994 effective date of the statute have continued to follow Kurent, none of those cases involved insurance policies written after October 20, 1994 or accidents that occurred after that date.3 For the above reasons, we find that Kurent does not control the outcome in the case sub judice.’” The footnote in Fahnbulleh referenced above read: “The General Assembly amended R.C. 3937.18(A)(1) in Am.Sub.S.B. No. 20, effective October 20, 1994, which mandates that an insurance carrier honor uninsured motorists coverage to insureds regardless of whether the alleged tortfeasor claims immunity. Accordingly, the General Assembly has resolved the issue raised in this cause. Hereafter, injured persons may recover from their insurance carriers if injured by a tortfeasor who is immune from liability.” Fahnbulleh, supra at fn 1.

It is a good thing that immunity does not bar an uninsured/underinsured motorist claim.  This was a good amendment that protects Ohio cyclists from getting zeroed out on an uninsured/underinsured motorist claim, just because the other party could claim some variety of immunity.

If you are keeping track, the amendment score is 2 to 1 in favor of amendments that benefit Ohio insurers rather than Ohio insureds/citizens/cyclists.

Let’s take a look at 1997 and continue compiling the scorecard.

1997 Change #2: UM/UIM Limits Lower Than Auto Limits

The 1997 Amendments also permitted UM/UIM limits lower than limits provided by the automobile liability policy provided those limits are not less than $25,000.00 pursuant to R.C. 4509.20. R.C. 3937.18(2)(C) was amended to state:

This amendment modified previous requirements that UM/UIM coverage had to match liability (to third parties) limits.  The previous requirement made sense from a risk-allocation perspective.  If you wanted 300,000 or 500,000 dollars worth of protection from claims by third parties if you caused the accident, it stood to reason that you would want the same coverage limits if someone caused an accident in which you were injured for no fault of your own.

The foregoing amendment allowed insurers to offer UM/UIM limits for presumably lower premiums.

I would score this a neutral change.  I would not recommend it, but if you wanted to save a couple of nickels on UM/UIM premium, then you can face the consequences of insufficient coverage should you suffer a catastrophic injury in a cycling accident.  One should be free to contract away protection for less premium.

1997 Change #3: Insured Can Reject UM/UIM Coverage in Writing

R.C. 3937.18(2)(C) was further amended to permit rejection of UM/UIM coverage, provided that rejection was in writing:

If there was a written rejection, an insurer is not obligated to offer UM/UIM coverage at renewal:

One of the attractive elements of UM/UIM coverage in Ohio prior to 1997 was that it was automatic, in the sense that insurers had to offer it.  The foregoing 1997 change opened the door to rejecting coverage.  I think it is a good thing to alert consumers of the consequences of their cost-savings decisions by requiring a signature or written waiver of their right to UM/UIM coverage.

Again, I would score this a neutral change.  One should be free to contract away protection for less premium.

1997 Change #4: Insured’s Testimony Is Not Good Enough to Prove Causation Where Uninsured Driver is Unknown

The Ohio Legislature attempted to make the testimony of the policyholder inadmissible to prove an accident was caused by an unidentified driver. R.C. 3937.18(D) was amended to state:

The foregoing change would undoubtedly score as a pro-insurance company change.  The Ohio Legislature stepped into the evidentiary process of a trial and tipped the scales in favor of Ohio insurers.  This is a particularly onerous change given the rise of hit-and-run cycling accidents in Ohio.  This is a baffling change to UM/UIM law.  This is unquestionably an anti-citizen, anti-cyclist, anti-pedestrian, and singularly pro-insurance company amendment to Ohio law.

1997 Change #5: Subsection (J) Is Added Permitting Exclusions

R.C. 3937.18(J) was added to permit additional exclusions to UM/UIM Coverage:

It should be noted that R.C. 3937.18(J) above, now R.C. 3937.18(I) has continued to this day with only one minor change in 2013 to harmonize this subsection with R.C. 3937.46 which was enacted in the same year as discussed below. However, this was a seismic shift in Ohio UM/UIM jurisprudence. UM/UIM coverage was no longer personal to the insured.  This, as explained below, and in more practical detail in the final blog article of this series of articles, is uniquely problematic for Ohio cyclists and pedestrians.

The Ohio Supreme Court way back in 1994, found “occupying” language in a UM policy invalid in Martin v. Midwestern Group Ins. Co.(1994), 70 Ohio St.3d 478. The UM policy at issue in Martin required the insured to be “occupying” an automobile “listed” in the policy. Because the injured insured was not in a car listed on his UM policy’s declaration page, his insurer, Midwestern Group, refused to honor its obligations to pay UM benefits. The Ohio Supreme Court found that the “occupying” requirement violated the then-current version of R.C. 3937.18 as UM coverage is designed to cover people, not cars:

Because we do not believe Hedrick is in accord with the law of our state, which is that uninsured motorist coverage was designed by the General Assembly to protect persons, not vehicles, we now expressly overrule it. If an insured is negligently injured by an uninsured motorist, he cannot be denied uninsured motorist coverage by a policy exclusion requiring that he be occupying an insured automobile under the policy.

Accordingly, we hold that an automobile liability insurance policy provision which eliminates uninsured motorist coverage for persons insured thereunder who are injured while occupying a motor vehicle owned by an insured, but not specifically listed in the policy, violates R.C. 3937.18 and is therefore invalid.
*** Pursuant to R.C. 3937.18(A)(1), such insurance must provide coverage “for bodily injury * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * *.” The statute does not permit insurers to eliminate this required coverage on the basis that the injury was incurred in a vehicle not listed in the policy.

Martin, supra at 482.

Martin v. Midwestern Group was decided on October 5, 1994. In 2008 the Supreme Court reversed the Martin holding finding that it had been superseded by the revisions to R.C. 3937.18 discussed above in Lager v. Miller-Gonzalez (2008), 120 Ohio St.3d 47.

The Ninth District Court of Appeals noted this reversal of fortune for Ohio insureds:

“It is important to note at the outset that the posture of this case is different than many other cases interpreting the term “occupying.” This is perhaps due in part to the fact that exclusions like the one in this policy were invalid under previous versions of R.C. 3937.18. See Martin v. Midwestern Group Ins. Co., 70 Ohio St.3d 478 (1994), paragraph three of the syllabus. R.C. 3937.18(I) now permits this type of exclusion. See generally State Farm Mut. Auto. Ins. Co. v. Grace, 123 Ohio St.3d 471, 2009–Ohio–5934, ¶ 26–28.

Darno v. Davidson (9th Dist. 2013), 2013-Ohio-4262 at ¶7.

This is in sharp contrast to the “personal” and “portable” nature of UM and UIM coverage found, for example, directly across the Ohio River in the Commonwealth of Kentucky. Kentucky, like several other States treats UM/UIM coverage as “personal” and “portable”, meaning your coverage follows you as the insured (“personal” to you) no matter what vehicle you are driving or in the case of a cyclist, what you are riding. Per Judge Van Tatenhove in Foster v. American Fire & Casualty Co. (E.D. KY), 2015 WL 2097735 (E.D. KY), “Kentucky courts have long held that UIM coverage—precisely like UM coverage—is ‘personal to the insured … and is not connected to any particular vehicle.’ Sparks v. Trustguard Ins. Co., 389 S.W.3d 121, 126 (Ky.Ct.App.2012) (citing Dupin v. Adkins, 17 S.W.3d 538, 543 (Ky.Ct.App.2000)).”

“This means that UIM coverage follows an insured person as opposed to any particular vehicle (i.e., the policy covers each insured as a driver, a passenger, a pedestrian, or a bystander, whether inside or outside a vehicle).” Pennington v. State Farm Mut. Auto. Ins., 553 F.3d 447 (6th Cir. 2009).

The Supreme Court of Hawaii’s (borrowed from the Supreme Court of Connecticut) elucidation leaves no question regarding the personal nature of UM/UIM coverage:

[T]he following propositions are established elements of this state’s insurance law: UM insurance coverage is personal to the named insured * * * [and] a named insured, injured by an uninsured motorist from whom the named insured is legally entitled to recover damages, is entitled to UM coverage no matter where he or she is injured, whether the injury occurs while the named insured is (a) occupying an insured motor vehicle, (b) occupying an uninsured but owned motor vehicle, (c) occupying an unowned motor vehicle, (d) on a motorcycle, (e) on a bicycle, (f) on horseback, (g) on a pogo stick, (h) on foot, or (i) in a rocking chair on a front porch.

Dines v. Pacific Ins. Co., Ltd., 78 Hawai’i 325, 893 P.2d 176 (1995) (citations omitted).

Underpinning this change was a legislative and judicial philosophy that insurers and insureds freely contract with equal levels of sophistication. “[I]nsurance companies and their customers are free to contract in any manner that they see fit. Insurers are not required by law to offer UM/UIM coverage. However, if insurers opt to offer UM/UIM coverage, they are free to include exclusions or limitations on that coverage.” Green v. Westfield Natl. Ins. Co. (9th Dist.), 2006-Ohio-5057, ¶ 20.  One must ask oneself how many times they have sat down on one side of the negotiating table and hammered out the terms of their auto or homeowner coverage with their insurance company on the other side of the table.  These legislative and judicial philosophies are just not realistic and do not pass the “reasonable expectations test” adopted in many jurisdictions outside of Ohio.

Like 1997 Change #4 above, change #5 would undoubtedly score as a pro-insurance company change.

1997 Change #6: Subsection (K) Refines the Definition of an Uninsured Motorist

R.C. 3937.18(K) was added to further refine the definition of an Uninsured Motorist:

This change would not directly affect Ohio cyclists and pedestrians.  Regardless, I would score this change as pro-insurer as it narrows the circumstances under which an injured insured could make a claim.

In the final tally, I would score the eight 1994 and 1997 amendments as 5 pro insurance companies, 1 pro citizen, and 2 neutral.  Next week we will analyze the 2000 and 2001 amendments.

In the interim, you can direct any questions or comments to the author at [email protected] or by phone at 513 600 8432 or 859 380 8309.

An Embarrassing Ride with My Nephew

Merriam-Webster Dictionary defines a “Blog” as:

As a Bike Lawyer, I blog about “The Law” and how it affects bicyclists in Kentucky and Ohio.  I also blog about bicycle advocacy, bicycle happenings, and bicycle riding and racing.  This week, however, I choose to write about a recent cycling experience with more than a modest amount of embarrassment.

Cycling is a lot of things to a lot of different people.  Cyclists come in all sizes and shapes and varieties of disciplines and interests.  But we all have one thing in common – we love our cycling.  Being a cyclist is part of our identities.  We share that part of our personality with family and friends.  Most cyclists can attest to involuntarily becoming the resident expert at work every July as Le Tour rolls through France.  In those moments we are ambassadors for the cycling community.

We make new friends on group rides and enjoy old friends on weekend rides.  When we ride with friends, we often solve all the world’s problems and at times work through personal difficulties on those rides.  There is a kinship at the center of cycling.  That kinship is all the more special when you can share it with family.

I am approaching half a century on the planet and have lasted long enough that I can ride with younger family members.  Last week I had the treasure of getting to ride with my nephew Taylor who was in town for a family wedding.

Miles of Bike Paths Along C-470

Taylor is one of a kind.  He is an Eagle Scout, an Architect, and presently a Wanderer.  J.R.R. Tolkien reminds us that “Not all those who wander are lost” and that applies to Taylor.  Taylor has always loved the outdoors from Cub Scouts to Adult Life.  He spent his Summers at Philmont Scout Ranch and now his adventures are headquartered in Denver, Colorado.  He has hiked the entire 2,650 miles of the Pacific Crest National Scenic Trail (PCT) and as I pen this blog, he is somewhere in Maine hiking the Appalachian Trail (AT) from north to south. In his words, he is “chasing summer” along the trail.  There is more than a modest amount of irony in those words as I watch a young man challenge the convention of hiking the AT from south to north and more broadly challenge the convention of spending the summer of his life at a desk job.

Can you tell I am fond of Taylor?

So, I was very much looking forward to a ride with him while we had him in town.  When in Denver Colorado he rides a fixie, a gravel bike, and a Pedicab for extra cash.  He regaled me bike packing stories and tales of riding Mount Lookout, Green Mountain, South Table and North Table Mountains.  When Taylor goes out for beers he can connect over 10 miles of protected bike paths from Golden, Colorado to Morrison, Colorado.

I did not have anything on par with Taylor’s Colorado cycling options in Northern Kentucky and Southwestern Ohio (although we have plenty of hills).  Regardless, we rolled out of my garage at about 3:15 on a Thursday.  We had planned on a 2:00 start, but as work would have it, I was running late.  We road single file, then two-abreast and back to single file along some rollers just north of my house.

Taylor’s Bike Packing Set Up

Taylor’s Fixie

Strike One – Am I Entitled?

When we reached the first lighted intersection a middle-aged woman rolled up to us at the intersection and with her window down declared (I later learned the question mark was rhetorical) “Do you feel entitled?”

Entitled?  I thought to myself.  This is weird because this woman literally had a trunk rack with a bike on it!  So, facing a fellow cyclist I took stock of the situation.  What did I do wrong?  We were 2 miles into the ride.  I had a blinky on.  Taylor had a blinky on.  We both had helmets.  We were riding at 17 miles per hour (uphill) and alternated between two abreast and single depending on traffic.  She could not have been behind us for more than a quarter-mile.

So that left me with two alternatives: I must have felt entitled to be on the road in the first place or I must have felt entitled to ride two abreast – both legal and neither really holding her up.  I did note that there was zero traffic behind her at the intersection.

So, I asked her for clarification: “To what did I feel entitled?”  This was an earnest question as I was genuinely confused and had clearly irritated a fellow cyclist.  Her response?  “You know what I mean.”  And she drove off in a huff.

That. Was. Weird.

The middle portion of the ride was on a bike path so Taylor and I chatted that conundrum up for at least fifteen minutes and we both remain confused to this day about what she really meant.

Regardless, that was an unfriendly way to start our ride.

Strike Two – What About That Three Foot Law?

Once we exited the bike path, we were on old country roads with zero shoulder and a white line.  I have nothing against old country roads, I kind of like them to be honest.  With a delayed start time, it must have been around 4:30 when we hit that patch of roadway and we had vacillating adherence by our fellow motorists with the three-foot law as they passed during growing rush hour traffic.  Getting buzzed is par for the course, but again, embarrassing to me as I was showing Taylor one of my local routes.  I had to wonder; Did Taylor get the same treatment in Colorado?  Colorado has a three-foot law.  I was too embarrassed to ask.

Things have a way of occurring in threes.

Strike Three – The All-Black SUV

As we descended off the hardest segment of the ride, Eight Mile Wall, we approached a four-way intersection with a stoplight.  We were facing west with a left turn lane.  As a matter of personal policy, I always enter the roadway as I approach intersections.  A cyclist in the roadway is more visible and avoids the risk of being clipped by a right-turning vehicle if the cyclist remained in the shoulder.   This approach also allows you to stay out of the way of any motorists who are taking a right turn on a red light.

Well, none of this sat well with the fella in the All-Black Ford Expedition EL with Black Rims who was immediately behind us in the intersection.  Here comes Strike Three!  In an attempt to get our attention, he laid into that Ford Expedition’s horn with multiple five-second horn blows.  This had the intended effect of getting my attention and I turned around to find him gesticulating madly in between horn blows.  I interpreted his hand signals to read something along the lines of You-Have-No-Right-To-Be-Where-You-Are-Get-Out-Of-My-Three-Quarter-Ton-SUV’s-Way.  It was almost like I hurt his beloved SUV’s feelings and he felt honor-bound to defend his slighted vehicle.  His face was very red.

We did not move.  I offered him the opportunity to roll down his window and use words instead of his horn to communicate with us.  He declined.

Regardless, at the end of the day, all of this: (1) angry motorist number 1; (2) the close passes on narrow roads; and (3) the excessive use of one’s SUV’s horn, all left me embarrassed.  Taylor is too kind to complain about it, but our community sure did not give him a warm reception as a cyclist.

However, the ride was not a complete bust.  He did ask me to text him a screenshot of the Eight Mile Wall Segment and its 16% grade.  I hope he adds that part to his story when he is chatting with his Denver buddies about riding back home because the rest was not very pretty.

 

 

Is It Bicycle or Not?

My fellow Florida Cyclist (and Father) recently sent me this article from his hometown newspaper on the legality of ElliptiGos on Florida roadways.

On December 1, 2019, Dan Moser was ticketed for riding a “bicycle” without a seat on a roadway.  Per the citing Officer, Dan’s use of his ElliptiGo was reserved for multi-modal paths, not roadways.  Under then-current law, the Officer may have been right.

All of this got me wondering about ElliptiGos in Kentucky and Ohio.

In Kentucky, per 601 Kentucky Administrative Regulation Section 1 a “Bicycle” “[m]eans a device with an attached seat propelled primarily by human power upon which a person rides astride or upon, regardless of the number and size of the wheels in contact with the ground.” This definition in subsection (1)(b) goes on to exclude a wheelchair from the foregoing definition. So, a bicycle in the Commonwealth of Kentucky is characterized by an “attached seat” and propulsion by “primarily human power.”

In Ohio, per Revised Code 4511.01(G) a “Bicycle” “means every device, other than a device that is designed solely for use as a play vehicle by a child, that is propelled solely by human power upon which a person may ride, and that has two or more wheels, any of which is more than fourteen inches in diameter.”

Dan would have never been subject to citation in Ohio, but his ElliptiGo would not qualify as a bicycle under Kentucky law.  

Back in 2019, per Florida Statute Statute 316.003(4) a bicycle was defined as “every vehicle propelled solely by human power, and every motorized bicycle propelled by a combination of human power and an electric helper motor capable of propelling the vehicle at a speed of not more than 20 miles per hour on level ground upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. The term does not include such a vehicle with a seat height of no more than 25 inches from the ground when the seat is adjusted to its highest position or a scooter or similar device. A person under the age of 16 may not operate or ride upon a motorized bicycle.”

Dan pushed for a change in Florida law and he won.  He was instrumental in pushing through House Bill 353 which is scheduled to go into effect on July 1 which will amend Florida Statute Statute 316.2065(2) to read:

One should note the current definition of a “bicycle” under Florida Statute 316.003(4)  defines a “Bicycle” as “every vehicle propelled solely by human power, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. The term does not include a scooter or similar device.”

So for you ElliptiGo Riders out there, you are good-to-go in Florida and Ohio.  But beware, you are not riding on a “bicycle” in the Commonwealth of Kentucky.

 

I69 – A Bridge Over Troubled Waters for Cyclists and Pedestrians in Kentucky and Indiana

My new friend and fellow Cyclist, Gary Davis is the Community/Governmental Relations Liaison for Indiana Trails.  Gary recently reached out to me about the new Interstate 69 Bridge which plans to span the Ohio River at Evansville, Indiana and Henderson, Kentucky.  You can find the Indiana Trails website’s discussion of the Project here.  Why did Gary reach out to me?  You guessed it – there is NO PROVISION FOR BICYCLE OR PEDESTRIAN TRAFFIC in this new Project!!!  The only current access for cyclists and pedestrians from Henderson, Kentucky to Evansville, Indiana are the US 41 Bridges which have no protected lanes in either direction.  So the Project currently removes the only unsafe passage (two US41 Bridges) between the states and replaces it with one even more unsafe US 41 Bridge with traffic in both directions and no plans for protected lanes for cyclists and pedestrians.   

Evansville-Henderson has two existing U.S. 41 bridges–both of which have been declared patently unsafe for non-motorized travel by the Interstate-69 Bridge project managers.  The latest plan is to demolish one of those bridges and keep the other for non-tolled local auto traffic when the new I-69 bridge is opened.  There is currently no plan to safely accommodate bicyclists or pedestrians on the proposed new I69 Bridge or the old US 41 Bridge.

From Evansville-Henderson, the nearest safe crossings of the Ohio River for anyone but the most experienced or daring cyclists are Louisville-Jeffersonville to the east (121 miles/three bridges) and the Cave-in-Rock Ferry in Southern Illinois-Western Kentucky (75 miles).

Kentucky Cyclists and Indiana Cyclists must have their voices heard.  Please consider lending your support to their efforts to secure safe passage from one state to another by signing the petition for safe passage on the proposed I69 Bridge linked below.  You can also write Governors of Indiana and Kentucky with proposed letters which are also linked below.

Image care of https://i69ohiorivercrossing.com

The Interstate 69 Bridge got me thinking about cycling in Northern Kentucky and Southwestern Ohio.  For most of my adult life, I have taken getting across the Ohio River on my bike for granted.  The Ohio River between Northern Kentucky and Cincinnati averages one mile in width and averages 24 feet in depth which basically eliminates the get-a-couple-soakers-and-wade-across-option for cyclists.

Not only have I taken the dry passage across the Ohio River for granted, it occurred to me that we have an embarrassment of riches in Northern Kentucky when it comes to river passage by bike.  We have no less than four bridges that allow for bicycle and pedestrian traffic.

Image care of Google Earth

Photo Care of PurplePeopleBridge.com

Heading from East to West, the first and safest bridge for cyclists and pedestrians is the Purple People Bridge (aka The “C&O” or Chesapeake & Ohio Bridge) located in Newport which has no vehicular traffic; the second is the Taylor Southgate Bridge with protected lanes on either side; the third is the John A. Roebling Suspension Bridge located in Covington which has protected lanes on either side; and the fourth is the Clay Wade Bailey Bridge which has a protected lane on the east side of the bridge.  If you want to take a step back in time, you can cross the Ohio River from Kentucky to Ohio via the Anderson Ferry to the west and the Augusta Ferry to the east of Northern Kentucky.

I have been able to combine old (the Augusta Ferry) and new (Purple People Bridge) transportation technology to create a beautiful 125-mile route that crossed the Ohio River at two locations:

 

But you do not need to go on a Century Ride to appreciate the value of pedestrian and bicycle access on bridges.  Both sides of the Ohio River have seen increased development.  It is a typical occurrence for Reds Fans to grab a beer at the Hofbrauhaus in Newport, Kentucky, and take the Purple People Bridge to Great American Ballpark.  All of the dining options in Covington, Kentucky are connected to Cincinnati’s Smale Riverfront Park by the Roebling Suspension Bridge.  Both sides of the Ohio River’s economies are enhanced by pedestrian access on these bridges and folk’s quality of life is undoubtedly enhanced by the parks and trail systems connected by these bridges.

Photo Care of CincinnatiParks.com

Other cities with pedestrian and bicycle access to bridges have experienced the same benefits.  The Ben Franklin Bridge Pedestrian Walkway in Philadelphia, Pennsylvania spans the Delaware River and provides bridge access between Pennsylvania and New Jersey.  Minneapolis and Saint Paul, Minnesota boast 23 bridges with pedestrian and bicycle access!  Pictures and the history of those bridges can be found here.

Interstate bridges like the new Quad Cities Interstate-74 Bridge over the Mississippi River between Illinois and Iowa should be a model, not an exception for providing protected travel for cyclists and pedestrians.  Our friends at Indiana Trails provide us with the following list of bridges across America that provide similar pedestrian and bicycle access.

The population of the Evansville-Henderson metro area is approximately 300,000.  Evansville has an advanced and expanding trails/greenway system.  Southwest Indiana and Western Kentucky are home to dozens of major parks, forests, lakes, and tourism amenities, and have the American Discovery Trail, the Bicentennial U.S. 76 Bike Route and a planned added north-south U.S. Bicycle Route.

Indiana Trails, the Evansville Trails Coalition, Advocacy — Evansville Trails Coalition, Hoosier Environmental Council, the Greenways Foundation, Ride Illinois and others are advocating for safe/separated/protected multi-use pathways on the new Interstate-69 bridge.

Also voicing support for the advocacy are the Rails-to-Trails Conservancy, East Coast Greenway Alliance, Missouri Bike-Ped Federation, BikeWalk Tennessee, and the mayor of Kentucky’s first Trail Town, Dawson Springs–along with various individuals belonging to bicycling and hiking organizations.

New USDOT Secretary Pete Buttigieg says transportation safety is his number one concern.  The I-69 Bridge, with its use of federal funds, is a good place to start.

What can you do?

The stakeholders for this project need to know that the cycling community supports bike and hike accommodations to the new bridge project between Evansville, Indiana, and Henderson, Kentucky.  There are several ways you can help out:

Sign Indiana Trails petition.

Write a letter to the Governors of Indiana and Kentucky.

Spread the word!

 

Road Rage Is A Real Thing And Cyclists Have Civil Remedies – Part 2 of 2

Last week we discussed Road Rage.  Here is Part Two of that Article.  Here is how Steve Magas and I handled a real-world case of Road Rage in Ohio.  You have remedies!

R.C. 2307.60 As a Civil Remedy for Assaulted Cyclists

Revised Code 2307.60 provides an assaulted cyclist a remedy.

Ohio Revised Code 2307.60, entitled “Person Injured by Criminal Act Has Civil Remedy; Exceptions” states as follows:

(A)(1) Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.

(2) A final judgment of a trial court that has not been reversed on appeal or otherwise set aside, nullified, or vacated, entered after a trial or upon a plea of guilty, but not upon a plea of no contest or the equivalent plea from another jurisdiction, that adjudges an offender guilty of an offense of violence punishable by death or imprisonment in excess of one year, when entered as evidence in any subsequent civil proceeding based on the criminal act, shall preclude the offender from denying in the subsequent civil proceeding any fact essential to sustaining that judgment, unless the offender can demonstrate that extraordinary circumstances prevented the offender from having a full and fair opportunity to litigate the issue in the criminal proceeding or other extraordinary circumstances justify affording the offender an opportunity to relitigate the issue. The offender may introduce evidence of the offender’s pending appeal of the final judgment of the trial court, if applicable, and the court may consider that evidence in determining the liability of the offender.

Assuming a criminal appeal has not been taken, the key language of R.C. 2307.60 for an assaulted cyclist can be found in subsection (A)(2): “A final judgment of a trial court that has not been reversed on appeal … or upon a plea of guilty, . . . that adjudges an offender guilty of an offense of violence punishable by death or imprisonment in excess of one year, when entered as evidence in any subsequent civil proceeding based on the criminal act, shall preclude the offender from denying in the subsequent civil proceeding any fact essential to sustaining that judgment, unless the offender can demonstrate that extraordinary circumstances prevented the offender from having a full and fair opportunity to litigate the issue in the criminal proceeding or other extraordinary circumstances justify affording the offender an opportunity to relitigate the issue.”

First and foremost, the crime must be one of violence (typically assault, battery or menacing) that could be punishable with a prison term of one year or greater.  Stated differently, R.C. 2307.60 will not apply if the crime is pled down to a misdemeanor assault, battery or menacing that carries a prison term of less than one year.

Having said that, the Ohio Supreme Court has recently held “that the plain language of the statute does not require proof of an underlying criminal conviction.”  Buddenberg v. Weisdack, 2020-Ohio-3832, ¶11.  While an injured cyclist may not have the benefit of the statutory estoppel provided by subsection (A)(2) of R.C. 2307.60, an action under R.C. 2307.60 can still be brought as a matter of law.  The Ohio Supreme Court recognized” “[i]t is certainly possible for an individual to commit an unlawful act and be prosecuted, yet evade conviction for a variety of reasons. Thus, we do not read the phrase “a criminal act” to mean “a criminal act that resulted in a conviction.”  Id. at ¶13.

Second, the criminal conviction or guilty plea must be entered into evidence.  This can be accomplished by admitting a certified copy of the conviction or plea agreement.

Third and most important, the criminal, now civil defendant is “precluded” or estopped from denying the elements of the civil causes of action for assault, battery and/or menacing provided “extraordinary circumstances” do not apply.

As discussed below, R.C. 2307.60 has been amended several times since it was enacted in 2008.  However, between 2008 and the date of this article, the question of what constitutes “extraordinary circumstances” has not been litigated in an Ohio courtroom and reduced to a published decision.

I would submit that the Ohio Legislature added this language where exculpatory evidence surfaced after the criminal trial akin to DNA evidence relied on in Innocence Project type of cases.  Further, one must note that the language of the statute focuses on due process rights.  The “circumstances” must have prevented a “full and fair opportunity” in the criminal trial to litigate the issue.  I would further submit the fear of incarceration or loss of liberty, while real concerns, are ordinary fears every criminal defendant faces when deciding to take a case to trial.  As a result, these fears should  not rise to the level of “extraordinary” just because a lengthy jail term may follow if the defendant is convicted.

Self-Defense? Really?

A typical response to an assault is that the defendant was acting in self-defense.  This allows a defendant to admit the allegation that he struck the victim, but justifies that contact on the grounds that he was protecting himself.  In my Ohio case, John Doe Cyclist, Steve Magas, Esq. and I were faced with an argument that John Doe Cyclist was careening toward the assailant (now felon) at issue and he had no choice but to push John Doe away and the fractured elbow that ensued was an accident.

If he was successful in asserting self-defense at the civil trial, that success would mean a complete defense to the assault and battery claims.  We argued that the defendant was estopped by common law under the doctrine of res judicata and statutorily estopped under R.C. 2307.60 from raising such a defense because (1) he admitted to the crime of assault in open Court under oath and (2) he had the opportunity to raise that defense in his criminal trial but chose not present that defense to the jury.

Res Judicata – Guilty Pleas Mean Something

As for the doctrine of res judicata, the Ohio Supreme Court has held:

Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.

State v Perry (1967), 10 Ohio St.2d 175.

The Twelfth District Court of Appeals in McLoughlin v. Sword, Case No. CA93-05-014, 1993 WL 512370 (12th Dist.) involved a Road Rage incident.  Citing the doctrine of res judicata and relying on State v. Perry, supra, the trial court found that a Guilty Plea completely waived a subsequent claim of self-defense in tort proceedings.  The Twelfth District affirmed the trial court’s holding, finding:

However, with reference to the offense or offenses to which a guilty plea is entered by a defendant in a criminal prosecution, the plea is a complete admission of the defendant’s guilt. See Crim. R. 11(B)(1); State v. Pernell (1976), 47 Ohio App.2d 261, 264. Under the doctrine of res judicata, a final judgment of conviction bars a defendant from raising and litigating, in any subsequent civil or criminal proceeding, any defense that was raised or could have been raised by the defendant at trial which resulted in that judgment of conviction.  State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. Consequently, any defense to the crime is completely waived by the entry of a plea of guilty. See Hoppe v. State (1928), 29 Ohio App. 467, 473; 26 Ohio Jurisprudence 3d (1981) 651, Criminal Law, 823.

Therefore, the trial court was correct in finding that by pleading guilty in his criminal prosecution for assault, appellant made a complete admission of his guilt and, as such, waived his ability to bring up any claim of self-defense in this subsequent civil action for assault. Appellant’s first assignment of error is accordingly overruled.

Id. at *2 (emphasis added).

R.C. 2307.60 Should Prohibit Self-Defense Arguments

At least one Court prior to 2006 permitted a convicted felon to put on self-defense arguments in a civil case based on R.C. 2307.60.  Interpreting a then-current version of R.C. 2307.60, the Fourth District Court of Appeals found: ““[s]imilarly, testimony adduced at the criminal trial may be considered in the civil case when properly submitted. In the interest of fairness, however, we feel the defendant to the tort must be afforded an opportunity to present evidence rebutting or explaining the criminal conviction.”  Phillips v. Rayburn (4th Dist. 1996), 113 Ohio App.3d 374, 382.

We argued that Phillips v. Rayburn is no longer good law.  Any reliance a Court would place on it would invite error.  The foregoing dicta was specifically superseded in 2006 with the addition of subsection (A)(2) and its estoppel language which specifically prohibits relitigating of any element of an intentional tort where a defendant enters a guilty plea to the same course of conduct, save extraordinary circumstances.  Senate Bill 107 revised R.C. 2307.60 to include the current version of Subsection A(2) for the first time in 2002.  The current version of R.C. 2307.60, includes the same Subsection (A)(2), and was reenacted in 2004.  Both of these pieces of legislation postdate the Fourth District’s Decision in Phillips v. Rayburn.

The Fourth District in Burns v. Adams (4th Dist.), 2014-Ohio-1917 all but overruled Phillips v. Rayburn in light of revisions to R.C. 2307.60 discussed above: “[t]he language of R.C. 2307.60 has since been revised, as we have indicated above, to allow that ‘a final judgment of a trial court … entered after a trial or upon a plea of guilty, but not upon a plea of no contest …’ shall preclude the offender from denying in a subsequent civil proceeding any fact essential to sustaining that judgment.’ This is a significant difference.”  Id. at ¶ 30 (emphasis added).

The Fourth District correctly noted the significant changes in R.C. 2307.60 in its critique of its earlier rulings in Phillips v. Rayburn.  R.C. 2307.60 has been revised no less than five times since the cause of action in Phillips occurred on August 11, 1994 – over 26 years ago as of the date of this Article.  It is noteworthy that the cause of action in Burns occurred on September 12, 2012 and interpreted the current version of R.C. 2307.60.

Final Thoughts

John Doe’s case settled favorably within weeks of oral argument on these legal points.

My real-world example was fortunately a rare case where significant physical injury resulted from a Road Rage confrontation.  However, it was one case too many.  Ohio’s Legislature recognized this in its enactment of R.C. 2307.60 as a form of victim’s rights legislation.

For those of us who ride alone and are faced with an enraged motorist it will be our word against their word absent some record.  This is where a GoPro or phone video/audio recording is paramount.  Even if physical injury is not a result of Road Rage incidents, the video and/or audio evidence may allow a prosecutor to bring menacing charges and may allow for a civil suit if the local prosecutor elects not to proceed with charges pursuant to the Ohio Supreme Court’s recent decision in .”  Buddenberg v. Weisdack, 2020-Ohio-3832.

Don’t navigate these waters on your own!  If you have been the victim of Road Rage in Ohio or Kentucky, please do not hesitate to reach out to Carville Legal Counsel LLC.  We offer FREE Consultations and would be happy to review your case with you.  Call Chris at 513 600 8432 or email Chris at [email protected] or Steve at [email protected] if you have any questions about your case.

Road Rage Is A Real Thing And Cyclists Have Civil Remedies – Part 1 of 2

Road Rage is a very real thing.  And cyclists are some of the most exposed users of roadways, highways, and streets.  This article and next week’s article will address Road Rage under Ohio law and discusses recourse available to assaulted cyclists based on a real-world case that Steve Magas and I brought to a favorable conclusion last year.

Road Rage Defined

The United States Department of Transportation draws a technical distinction between “aggressive driving” and “road rage.”  The words, “aggressive driving,” emerged during the 1990s as a label for a category of dangerous on-the-road behaviors. The category comprises following too closely, driving at excessive speeds, weaving through traffic, and running stoplights and signs, among other acts. Aggressive driving occasionally escalates to gesturing in anger or yelling at another motorist, confrontation, physical assault, and even murder; “Road Rage” is the label that emerged to describe the angry and violent behaviors at the extreme of the aggressive driving continuum. NHTSA defines aggressive driving in DOT HS 809 707 as, “the operation of a motor vehicle in a manner that endangers or is likely to endanger persons or property.” An important distinction is that aggressive driving is a traffic violation, while road rage, aside from yelling and gesticulating, is a criminal offense.

Fortunately, assault cases against cyclists appear to be statistically rare.  So rare that I could not find a database that tracked this type of crime against cyclists in particular.  However, these incidents do happen and are likely vastly underreported.

Road Rage Statistics  

Per a 2019 survey conducted by thezebra.com, survey respondents admitted the following:

  • 82% of drivers in the U.S. admit to having road rage or driving aggressively at least once in the past year.
  • 59% of drivers reported showing anger by honking.
  • 45% of drivers report changing lanes without signaling.
  • 42% of drivers claimed they have yelled or cursed loudly at another driver.
  • 38% said they have used rude or obscene gestures against other drivers.

That same 2019 survey found:

  • 7% got out of their vehicle to verbally confront another driver.
  • 6% threw objects.
  • 6% got in a physical altercation with another driver.
  • 5% sideswiped another vehicle.
  • 5% bumped or rammed another vehicle on purpose.
  • 5% forced another driver off the road.

Road Rage Against Cyclists – Criminal Recourse

For cyclists, the predominant form of Road Rage would likely fall into the category of a “Punishment Pass” wherein the motorist gives much less than the three-foot buffer required by Revised Code 4511.27 in Ohio and KRS 189.290 in Kentucky.  In addition, cyclists can be subjected to pop (or soda pending on what part of the country the cyclist finds him or herself) cans or beer cans being thrown at them.  I personally have been subject to Punishment Passes.  In addition, I have had partially full Two-Liter Pop Bottles thrown at me by irate passengers.

All of these activities violate Ohio law.

R.C. 2903.11(A) defines Felonious Assault as:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordnance.

R.C. 2903.21 defines Aggravated Menacing as:

(A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family. In addition to any other basis for the other person’s belief that the offender will cause serious physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family, the other person’s belief may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs.

A True Story of Road Rage

The nightmare scenario is where one of these incidents escalates into an assault.  And that is exactly the scenario one of my clients found himself in while enjoying a 40-mile ride in rural Ohio.

As the matter is now settled and subject to a narrow confidentiality agreement, I will simply reveal that John Doe Cyclist was body checked into the criminal assailant’s truck following a hand gesture that was shared with said criminal after Joe Doe Cyclist was subjected to a Punishment Pass.

Unfortunately, this was one of those 7% scenarios where the motorist got out of his truck to verbally confront my client and his wife. That confrontation escalated into physical contact that resulted in a fractured elbow requiring multiple surgeries at the cost of tens of thousands of dollars.

That matter was criminally tried to a jury.  On the second day of trial, the criminal assailant opted to take a plea deal that avoided significant jail time. In open Court he admitted under oath to a felonious assault charge against our client and a menacing charge (as to his wife) as part of his plea deal.

In the civil suit, the criminal assailant denied the assault and menacing admissions entered under oath as part of his plea deal.  The criminal assailant claimed that my client was the aggressor, and he was the victim!  He claimed that he was simply acting in self-defense and my client was fabricating the allegations.

Our assaulted client, John Doe, had a civil remedy and next week’s article will discuss a unique application of Ohio law to Road Rage cases.