The Evolution of Three-Foot Laws for Passing Cyclists

Posted by Chris Carville On May 19, 2022 at 9:35 am

It is Bike Month!  Steve Magas and I wrote an article for lawyers on Ohio’s and Kentucky’s Three Foot Laws for Cyclists in this month’s Cincinnati Bar Association’s monthly publication, The Report.  Here is a link to the SHORT VERSION of that article which starts on page 10.

The following is the longer version of that article for those who would prefer to see the full citation of the laws at issue.

Evolution of Three-Foot Laws for Passing Cyclists

By Bike Lawyers Chris Carville [[email protected]]
& Steve Magas [[email protected]]

Wisconsin was the first state to recognize the vulnerability of cyclists on its roadways and enacted the United States’ first Three-Foot Law in 1973 to protect riders.  Since 1973, several more states have since enacted such measures.

Thirty-three states: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, Utah, Washington, West Virginia, Wisconsin and Wyoming and the District of Columbia have enacted passing laws that require the motorist to leave at least three feet or more when passing a bicyclist.

North Carolina has a two-foot passing requirement for motorists.  However, North Carolina also allows passing in a no-pass zone so long as a motorist leaves four feet of clearance between the motorist and cyclist. [Sidenote: North Carolina is also one of the very few states that maintain a strict “contributory negligence” defense such that if a cyclist is hit by a car the motorist “wins” if the cyclist is even 1 PERCENT negligent].

Two states have laws that go beyond the three-foot zone of protection. Pennsylvania has a four-foot passing law. South Dakota enacted a two-tiered passing law in 2015.  South Dakota requires a three-foot passing requirement on roads with posted speeds of thirty-five miles per hour or less and a minimum of six feet separation for roads with speed limits greater than thirty-five miles per hour.

The following five states — Delaware, Kentucky, Nevada, Oklahoma and Washington — require a motorist to completely change lanes when passing a bicyclist if there is more than one lane proceeding in the same direction.

Eight states have general laws that provide that motorists must pass at a “safe distance.” These laws typically state that vehicles must pass bicyclists at a safe distance and speed; Montana’s law, for example, requires a motorist to “overtake and pass a person riding a bicycle only when the operator of the motor vehicle can do so safely without endangering the person riding the bicycle.”

In the E.U., where cyclists account for a higher percentage of total traffic deaths [8%] than the U.S. [2%], France, Spain, Germany, Belgium and Portugal have passed laws requiring motorists to pass cyclists at a distance of 1.5 meters. There are also more aggressive laws and fines in the E.U. for distraction, phone use and other violations that put vulnerable users of roads at risk.

 Ohio’s Three-Foot Law:  R.C. 4511.27

Ohio enacted its Three Foot Law in 2017.  Prior to 2017, Ohio was in the “safe distance” passing law category.   Today, Ohio’s Three Foot Law can be found in Revised Code 4511.27 entitled “Rules Governing Overtaking and Passing of Vehicles.”

(A) The following rules govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction:

(1) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall, except as provided in division (A)(3) of this section, signal to the vehicle or trackless trolley to be overtaken, shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley. When a motor vehicle or trackless trolley overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.

(2) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal, and the operator shall not increase the speed of the operator’s vehicle until completely passed by the overtaking vehicle.

Note the language of the statute’s safe passing standard: “When a [motorist] overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.”  Contrast this statutory language with the United States’ first Three-Foot Law in Wisconsin: “Exercise due care, leaving a safe distance, but in no case less than three (3) feet clearance when passing the bicycle and maintain clearance until safely past the overtaken bicycle.”  Wis. Stat. § 346.075.  Wisconsin’s three-foot law contains clear and mandatory minimum.  Ohio’s three-foot law invites debate over situations where less than three feet could be “considered” safe.

The consequences of Ohio’s less mandatory statutory language would be more significant in traffic court or a criminal court where defense counsel for the accused could argue that the unique circumstances of his or her client’s case justified a two-foot or one-foot (or less) pass as “safe.”

In fact, the language drafted by the Ohio Bicycle Federation and submitted by was tougher – stating that a “safe distance shall not be less than three feet.” However, one legislator held up the passage of the Three-Foot bill until the langauge was changed to the current language.  Current Ohio law states [perhaps less clearly] that a three-foot passing clearance is the minimum distance to be deemed “safe.”

There are no statewide resources available that track citations pursuant to R.C. 4511.27 in Ohio’s eighty-eight counties.  Such a task would likely require Public Records Requests to some 900 LEO’s – law enforcement organizations.  We have no data as to how often Ohio’s Three-Foot Law is being enforced and with what level of success.  One concern expressed at the time of passage was the potential for the law to be used as a pretext to generate a “stop” of someone police simply wanted to hassle or talk to. No such data or research exists on this topic so far as we are aware.

In civil cases R.C. 4511.27 provides a standard to argue negligence per se in a case arising out of a crash where a cyclist is injured or killed by a passing motorist.

A cyclist always “loses” in a crash with a passing motorist.  Absent evidence of a dramatic and sudden swerve or change in direction of the cyclist, the fact that the crash occurred as a car was trying to pass a cyclist is damning evidence that the motorist violated R.C. 4511.27 and there is tremendous value in that.  The statute sets up a per se safety standard of a three-foot buffer for passing a cyclist.  If a cyclist can reach out and touch any part of a passing vehicle, the vehicle is clearly too close.

Although not explicitly stated, there is also a subtle burden shifting to the motorist to prove his or her pass was made at a safe distance when less than three feet was afforded the cyclist.  What we typically find is a suggestion by the motorist that she/he was passing “lawfully” at three feet or more when the cyclist “suddenly swerved” into the side or path of the car.  These “suicide swerve” suggestions can often be proved, or disproved, through the testimony of an expert in bicycle crash reconstruction.

Tension Between R.C. 4511.27 and 4511.55

AFRAP is short for “As Far Right As Practicable” and is a universal Bike Law term in the United States. Every state has some version of an AFRAP law. Ohio’s Three-Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists which is found in R.C. 4511.55:

(A) Every person operating a bicycle or electric bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.

(B) Persons riding bicycles, electric bicycles, or motorcycles upon a roadway shall ride not more than two abreast in a single lane, except on paths or parts of roadways set aside for the exclusive use of bicycles, electric bicycles, or motorcycles.

(C) This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.

The word “practicable” is used over 400 times in the Ohio Revised Code… and is undefined throughout.

The word is used many different ways but is always used to reflect an imprecise situation.  R.C 4511.36 states that a right turn must be made “as close as practicable to the right-hand curb…”  R.C. 1567.39 requires roadways to be maintained “… as free as practicable…” from bottom irregularities and muddy conditions. Phrases like “as speedily as practicable” and determining if something is “reasonably practicable” abound.

Prior to the amendment of R.C. 4511.55 in the “Better Bicycling Bill” of 2006, we used to argue that “practicable” MUST mean “reasonable” and “safe.” We argued that the legislature would never mandate that cyclists behave in a way that was not reasonable and safe.

In 2006, the section was amended and the “C” section was added as an exception to the AFRAP Rule. In drafting 4511.55(C) our intent was to add these elements of “reasonable” and “practicable” but also to set out some common examples of situations cyclists encounter daily that would necessitate NOT riding “as far right as practicable” – such as parked cars, debris and the like. However, the last sentence of R.C. 4511.55(C) bears special attention. It is, frankly, the exception that swallowed the Rule.

R.C. 4511.55(C) states that one does not need to operate a bicycle AFRAP “…if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.”

If you think about, and look at, the places that bicyclists ride bikes on Ohio’s roads you realize that virtually EVERY road in Ohio is “too narrow” to be safely shared by a cyclist and a motor vehicle side-by-side.

Keri Cafferty, a Florida graphic artist and bicycle advocate, created the graphic below which shows how a truck and bicycle cannot safely share a fourteen foot wide lane. Even when she allows only 40 inches of space for the cyclist, the truck cannot pass at three feet without leaving the lane. Virtually EVERY road on which cyclists ride in Ohio is less than fourteen feet wide. 4511.55(C) allows you to avoid ANY argument of AFRAP at all.

[SIDENOTE: If a cyclist is charged with violating R.C. 4511.55 there is also a constitutional argument that the traffic prohibition is “void for vagueness” and therefore unenforceable, but that makes for a separate and much longer article. See, e.g.,  U.S. v. Davis (2019), 139 S. Ct. 2319. (“In our constitutional order, a vague law is no law at all…”)}

Where a cyclist is injured as a result of a passing crash, R.C. 4511.55 can come into play if the crash occurs within the road’s white lines.  The motorist in that situation will invariably assert that there was sufficient “roadway” [or “shoulder” or “berm”] for the cyclist to ride more safely or “more practicably” to the right to have avoided the crash.

A cyclist on the “roadway” is required to follow the rules of the road.  A cyclist trying to ride “as far right as practicable,” might end up weaving along the right-most portion of the roadway in a dangerous manner, and appear erratic and unpredictable.  Fortunately, R.C. 4511.55(C) contemplates this tension and provides that a cyclist is not obligated to ride as far right as possible, or on the “edge of the roadway” when it is unsafe or unreasonable to do so.  The safety valve of Subsection (C) offers a bit of definitional depth to what is “practicable” by allowing a cyclist to ignore the “AFRAP” law.

The “too narrow” provision of Subsection (C) is a secret weapon. We argue forcefully that virtually EVERY lane in Ohio on which cyclists are riding is “too narrow” to be shared. Certainly, a fourteen-foot lane does NOT allow “sharing.” Subsection (C) allows the cyclist to “Take The Lane” – a phrase used in teaching “transportation” cycling which means to choose a lane position that is adequately into the lane, and away from the edge, so as to make the cyclist more conspicuous to all traffic. Since virtually every lane in Ohio is “too narrow” to be shared, then virtually every lane in Ohio is a lane in which the cyclist can choose a safer lane position without being in violation of the AFRAP law.

Kentucky’s Three Foot Law: KRS 189.340

Subsection (2) of KRS 189.340 was amended in 2018 to include bicycles and further amended in 2019 to include electric low-speed scooters.  In its present form, KRS 189.340(2) states:

(a) Vehicles overtaking a bicycle or electric low-speed scooter proceeding in the same direction shall:

  1. If there is more than one (1) lane for traffic proceeding in the same direction, move the vehicle to the immediate left, if the lane is available and moving in the lane is reasonably safe; or
  2. If there is only one (1) lane for traffic proceeding in the same direction, pass to the left of the bicycle or electric low-speed scooter at a distance of not less than three (3) feet between any portion of the vehicle and the bicycle or electric low-speed scooter and maintain that distance until safely past the overtaken bicycle or electric low-speed scooter. If space on the roadway is not available to have a minimum distance of three (3) feet between the vehicle and the bicycle or electric low-speed scooter, then the driver of the passing vehicle shall use reasonable caution in passing the bicyclist or electric low-speed scooter operator.

(b) The driver of a motor vehicle may drive to the left of the center of a roadway, including when a no-passing zone is marked in accordance with subsection (6) of this section, to pass a person operating a bicycle or electric low-speed scooter only if the roadway to the left of the center is unobstructed for a sufficient distance to permit the driver to pass the person operating the bicycle or electric low-speed scooter safely and avoid interference with oncoming traffic. This paragraph does not authorize driving on the left side of the center of the roadway when otherwise prohibited under state law.

Unlike Ohio’s Revised Code 4511.27, Kentucky’s Three-Foot Law includes a very clear prohibition on overtaking or passing a cyclist: “Vehicles overtaking a bicycle . . . proceeding in the same direction shall: . . .  If there is only one lane for traffic proceeding in the same direction, pass to the left of the bicycle . . . at a distance of not less than three feet between any portion of the vehicle and the bicycle or electric low-speed scooter and maintain that distance until safely past the overtaken bicycle or electric low-speed scooter.”  KRS 189.340(2)(a).

Simple and straightforward, right?  Yep.  Whether in traffic court or a civil suit arising from an injured or killed cyclist, the minimum standard is three feet, period.  End of story.  A motorist is prohibited from passing a cyclist any closer than three feet.

Unlike Ohio, Kentucky does not have an AFRAP statute like Ohio’s Revised Code 4511.55 specifically addressing cyclist.  Rather, KRS 189.300 broadly states that “any vehicle when upon a highway shall travel upon the right side of the highway whenever possible[.]”  As discussed below, the “keep right rule” as applied to cyclists is set forth in  601 KAR 14:020 Section 7(3)(a) through (i).  The Administrative Regulations do not regulate “practicability” as seen in R.C. 4511.55.

So, the question of where the cyclist is riding on a Kentucky highway is of paramount importance.  A strict reading of KRS 189.340(2)(a) would require a three-foot buffer under all conditions when passing or overtaking a cyclist.  Although untested, there is an argument that if the cyclist did not have a right to be on the roadway in the first instance, then KRS 189.340(2)(a) might not apply.  If there is a crash with injuries or death as a cyclist is overtaken and struck by a motorist, the motorist may argue contributory negligence on the part of the cyclist for riding in an area where he or she did not have a legally protected right to ride.

For example, a cyclist is prohibited from riding in a roadway where there is a “designated bike lane” in Kentucky.  This is a strict prohibition.  601 KAR 14:020 Section 7 states as follows:

Section 7. Operation of Bicycles. (1) A bicycle shall be operated in the same manner as a motor vehicle, except that the traffic conditions established in paragraphs (a) and (b) of this subsection shall apply.

(a) A bicycle may be operated on the shoulder of a highway unless prohibited by law or ordinance.

(b) If a highway lane is marked for the exclusive use of bicycles, the operator of a bicycle shall use the lane unless:

  1. Travelling at the legal speed;
  2. Preparing for or executing a left turn;
  3. Passing a slower moving vehicle;
  4. Avoiding a hazard;
  5. Avoiding the door zone of a parked vehicle; or
  6. Approaching a driveway or intersection where vehicles are permitted to turn right from a lane to the left of the bicycle lane.

Simply stated, unless one of the six exceptions in Section 7(b) applies, 601 KAR 14:020 Section 7 makes the use of bike lanes mandatory.

Similarly, a cyclist is prohibited from riding within the right-of-way of a “fully controlled access highway” (603 KAR 5:025 Section 4) which is, in laymen’s terms, a highway that provides an unhindered flow of traffic, with no traffic signals.  601 KAR 1:019(3) defines a “fully controlled access highway” as “a highway that: (a) gives preference to through traffic[.]”

So long as the foregoing prohibitions (use of available “designated bike lane” and nonuse of right-of-way of a “fully controlled access highway”) are not at issue and the cyclist, at worst, is in the shoulder of a highway, Kentucky’s protective three-foot buffer would apply.

Even before the passage of KRS 189.340, the Kentucky Supreme Court recognized that a motorist can be guilty of negligence per se when overtaking a cyclist on Kentucky roadways.  In Previs v. Daily (2005), 180 S.W.3d 435, 436 the defendant approached the plaintiff cyclist from behind “driving a pick-up truck with an eight-foot bed and camper top [and] was pulling two flatbed wagons, making the total length of the vehicle approximately forty-eight feet.”  The Supreme Court noted that defendant admitted that he did not look in his rearview mirror when returning his pickup truck and trailers to the right lane as he was passing the plaintiff.  Id. at 438.  The Supreme Court was not sympathetic to defendant’s excuse for returning to the right lane to “avoid a potential collision with oncoming traffic” finding “[i]f the terrain was such that Dailey could not see oncoming traffic, then he certainly was in violation of his duty to exercise ordinary care for the safety of other persons using the roadway. See KRS 189.340(4).”  Id. at 438.

The Supreme Court reversed the trial court’s failure to grant the plaintiff’s motion for directed verdict against the defendant and the case was remanded for a new trial.  Id. at 439.

However, when the case was tried on remand the entire focus of the new trial was the conduct of the cyclist and the Supreme Court held that a directed verdict against the motorist was proper.  Further, new jury instructions were utilized by the trial court that placed duties of care on plaintiff based on KRS 189.350, entitled “Assistance in passing or overtaking” between vehicles.  The trial court instructed the jury that where the plaintiff cyclist was being overtaken, she had duties to:

[A] To keep lookout to the rear for other vehicles near enough to be affected by the intended movement of her bicycle;

  1. If she was about to be overtaken and passed by the Defendant’s vehicle, to give way to the right in favor of the Defendant’s vehicle;
  2. If she became aware that the Defendant’s vehicle was passing or attempting to pass, to give the Defendant such assistance and cooperation as the circumstances reasonably demanded in order to obtain clearance and avoid an accident; and
  3. To exercise ordinary care generally to avoid collision with other persons or vehicles on the highway.

The second jury found plaintiff to be 50% contributorily negligent.  Some cyclists in Kentucky will refer to the Previs II case as giving rise to a cyclist’s “duty to give way” to passing motorists.

Neither Previs I, supra nor Previs II, 2006-CA-002243 have been cited in any cases since KRS 189.340 was amended to include three-foot buffers when passing cyclists in Kentucky in 2018.  One could argue that KRS 189.340 (a)(2) controls as the more specific regulation of vehicular passing (between motorist and cyclist) rather than the general regulation of vehicular passing (simply between “vehicles”). “[W]here there is both a specific statute and a general statute seemingly applicable to the same subject [the rule] is that the specific statute controls.” Bevin v. Beshear, 526 S.W.3d 89, 91 n.6 (Ky. 2017) (citations omitted).  This argument is further buttressed by the fact that KRS 189.340 was amended in 2018 as compared to the 1994 amendment of KRS 189.350.

Previs I, supra still stands for the proposition that the contributory negligence of a cyclist may be at issue in a passing or overtaking crash between a motorist and a cyclist.  However, KRS 189.340(2)(a) should govern over KRS 189.350’s “duty to give way” where the overtaken vehicle is a bicycle.

Conclusion

Cyclists are vulnerable users of Kentucky and Ohio roadways.

Kentucky’s 2021 numbers are still being tabulated.  Per Kentucky’s Annual 2020 Traffic Collision Facts Report, 337 cyclists were involved in crashes with motor vehicles.  The 2019 Report documented 330 cyclist-motor vehicle crashes.

Ohio averages about 1500 cycling accidents per year.  2020 and 2021 were not good years for cycling fatalities.  Ohio usually averages 16-17 cycling fatalities per year, but those numbers are skewing up.  In 2020, 21 cycling fatalities occurred.  This unfortunate figure is up further in 2021 with 28 cycling fatalities.

Both R.C. 4511.27 and KRS 189.340 are designed to do one thing: protect a vulnerable user of Ohio and Kentucky Roadways.  Each State’s legislature went about affording the three-foot differently, but the aim of the public policy is the same, and application of each statute should be made by judges and juries with the protection of vulnerable users in mind.

 

 

 

Pedaling Squares, Episode 5: John Gatch, Cofounder of Two Johns Podcast

Posted by Chris Carville On April 27, 2022 at 7:30 am

In this Episode of Pedaling Squares, we talk with John Gatch.  John Gatch is a lifetime bike racer, bike mechanic, race promoter, race director, francophile, world traveler, EMT, husband, and father.  We talk about all of the above and get some intel on his VO2 Max – you will be impressed.  As an aspiring Podcaster, I was able to pick his brain about his podcast, Two Johns Podcast, which he co-founded with “John K.”, his long-time riding and racing mate.  The Two Johns Podcast is, to my knowledge, the longest-running Cycling Podcast on the interwebs.  Enjoy!

 

Pedaling Squares, Episode 4: Mitch Graham of Biowheels Fit Studio, Retul Master Fitter, IBFI Level 3 Fitter

Posted by Chris Carville On March 29, 2022 at 9:05 am

Numb hands?

Neck Pain?

Knee Pain?

If you have any of these symptoms on your bike, you should consider a professional bike fit.  If you are uncomfortable on your bike, you won’t ride it.  Or, you will ride one of the other bikes in your garage or basement.  After all, the correct number of bikes is N + 1.

You might even find an extra couple of watts with a professional bike fit.

That is where Mitch Graham and Biowheels Fit Studio come in.  Mitch is a Retul Master Fitter and IBFI Level 3 Fitter.  Join me for a conversation with Mitch about all things Bike Fitting!

Pedaling Squares, Episode 3: Peter Wimberg, Cycling Coach, USA Cycling Level 1 Coach, USA Triathlon Level 1 Coach, Certified Personal Trainer

Posted by Chris Carville On February 23, 2022 at 9:10 am

Pedaling Squares Through a MAMIL’s Life is a Youtube Channel about endurance sports, from a Master (er, middle-aged) Athlete’s perspective.  My focus is that of a MAMIL or a middle-aged man in lycra.

It is February.  December and January tend to be about setting racing and fitness goals – usually from the comfort of our couches. February through November (if you race cyclocross) is about execution.  But if you don’t have A PLAN to execute, you are never going to achieve those goals.  And goals are very, very individualized.  If we had the engine to race at the World Tour level, we would know that by now.

Endurance sports are about rounding us out as busy people with spouses, children, jobs, and extended families.  Our goals should reflect that reality.  Most of us did not race the World Tour (or compete in other professional sports), but we should still chase a dream or two outside of work and family life.

What is the best way to realize those athletic dreams?  Hire a Coach!

A Coach will individualize your training program, tailor that program to your goals, and mentor you along the way to achieving them.

And that is where Peter Wimberg comes in.  When he is not running a successful landscaping business, and when he is not playing the drums, and when he is not training and racing himself, he is coaching loads of endurance athletes which includes a MAMIL like me.  Peter does not need a lot of sleep.

You can find Peter’s coaching website here and his blog here.

Please enjoy an hour or so of our conversation about structured training, improving fitness as a Masters’ Level Athlete, and achieving individual goals in Episode Three of Pedaling Squares Through a MAMIL’s Life.

Typo In The Kentucky Administrative Regulations’ Definition Of A “Shared Lane”?

Posted by Chris Carville On February 8, 2022 at 9:00 am

I will get to the typo but allow me to set the stage.

Too Close for Comfort

Most, perhaps all of us, have been on the receiving end of a “punishment pass” where a motorist intentionally violates your three-foot buffer provided by KRS 189.340(2)(a).   Regardless of intent, ANY violation of our three-foot buffer is always disconcerting and sends off alarm bells in our central nervous system releasing a cascade of hormones that leaves us simultaneously fearful and enraged.

So the question is: how much roadway or “lane” is necessary for a cyclist and motorist to “share” a lane?  I present this as a technical question and in terms of best practices for safe riding – they are two different things.

Ten Pounds of You-Know-What in a Five Pound Bag

When a one hundred and two-inch maximum width truck, trailer or bus passes a thirty-inch-wide cyclist (the AASHTO/American Association of State Highway and Transportation Officials design standard), the three-foot buffer required by KRS 189.340 cannot be technically maintained in a fourteen-foot lane.

On the other hand, a small SUV, such as a Ford Escape or Honda CR-V, are seventy-two to seventy-five inches in width, which would add another two feet of buffer to KRS 189.340’s three-foot buffer within a fourteen-foot lane. But that does not mean it is safe to pass a cyclist in that scenario.

“Taking the Lane”

Kentucky’s Administrative Regulation 601 KAR 14:020, Section 7, Operation of Bicycles, contemplates the scenario where a cyclist is riding on a lane that is too narrow to be considered a “shared lane.”:

(3) A bicycle operated in a highway lane with other vehicle types shall keep to the right unless:

(a) Preparing for and executing a left turn;

(b) Passing a slower moving vehicle;

(c) The lane is too narrow to be considered a shared lane. A bicycle may be ridden far enough to the left to prevent overtaking vehicles from attempting to pass in the same lane[.]

Many safe cycling advocates will refer to this as “taking the lane” where the cyclist rides in the center or just left of the center of the lane to prevent a motorist from passing within the same lane.  This is in fact safer for the cyclist.  KRS 189.340(2)(b) permits passing the cyclist left of center in this scenario:

(b) The driver of a motor vehicle may drive to the left of the center of a roadway, including when a no-passing zone is marked in accordance with subsection (6) of this section, to pass a person operating a bicycle or electric low-speed scooter only if the roadway to the left of the center is unobstructed for a sufficient distance to permit the driver to pass the person operating the bicycle or electric low-speed scooter safely and avoid interference with oncoming traffic. This paragraph does not authorize driving on the left side of the center of the roadway when otherwise prohibited under state law.

Back to that Typo

So, where is that typo and why is it important? Because “taking the lane” is akin to a self-defense argument in that “taking the lane” is an affirmative defense that must be proved at trial. The administrative regulations contemplate that a cyclist will “keep to the right.” Taking the lane in a roadway that is “too narrow to be considered a shared lane” is the exception, not the rule. Just like refraining from assaulting someone is the rule unless you are acting in defense of yourself or in defense of someone else. In Court the defendant must prove the exception. This is what judges and lawyers refer to as an affirmative defense.

In taking the lane, the cyclist may be required to prove in Court that the lane was too narrow to be a shared lane.

Here is where that typo comes in. In order to “take the lane”, the cyclist must be able to prove that he or she was in a “shared lane.” 601 KAR 14:020, Section 1, defines a “shared lane” as follows:

“Shared lane” means a single lane of traffic less than fourteen (14) feet in width not including the gutter pan.

Less than fourteen (14) feet? Wait. What?!?

So a shared lane could be the width of a tractor-trailer (eight-and-a-half feet) because it is less than fourteen feet?  Or even worse, a shared lane could be the width of a Honda CRV, six-and-half feet, which is much less than fourteen feet?  How does a cyclist “share” an eight-and-half foot lane with a tractor-trailer?  The simple answer is that you cannot.

I need to give some attribution here.  The typo at the heart of this blog came to my attention at Cincinnati Cycling Club’s Annual Banquet last month.  Jim Lindner, a fellow cyclist, and Director of Safety and Education for CCC raised the issue with me. I have always glossed over two important words – “less than” and simply focused on “fourteen feet in width” as we all know that is the minimum width of lane that can accommodate a cyclist (thirty to forty inches wide) and a Honda CRV (seventy-five inches wide).  30 inches + 75 inches = 105 inches or 8.75 feet, which is less than 14 feet.

Perhaps the authors of 601 KAR 14:020 intended to define a shared lane, as a single lane of traffic greater than fourteen (14) feet in width, not including the gutter pan as such a lane could technically “share” a Honda CRV and a thirty-inch-wide cyclist with space to spare after a three-foot buffer.

Effect of the Typo?

One must keep in mind that the definition of a “shared lane” comes up in Kentucky’s Administrative Code, not Kentucky’s Revised Statutes.  The regulations are just that, regulations.  They do not have the force of law of the Revised Statutes, which are the laws of the Commonwealth passed by the Legislature.

The most likely scenario where “taking the lane” will come up is in a local traffic court.

In legal-speak, KRS 189.340, is Enabling Legislation. In KRS 189.287, which was entitled “Bicycle Safety Regulations and Standards,” the Legislature “enabled” the “Transportation Cabinet [to] promulgate[] administrative regulations[.]”

KRS 189.287 does confer a very limited benefit on cyclists who follow the regulations:

“Bicycles and riders which comply with the regulations promulgated under this section are exempt from municipal and other local government regulations concerning safety equipment but not method of operation.”

“Taking the lane” would likely fall under “method of operation”, so a cyclist would not be exempted from municipal or local regulations. Regardless, if a cyclist was charged with impeding traffic or failing to keep to the right under a municipal code or local regulation/ordinance/code, we could cite 601 KAR 14:020 in that cyclist’s defense in traffic court. However, we would have to explain the little typo in in 601 KAR 14:020’s definition of a shared lane.

Alternative Legislative Language

The League of American Bicyclists offers the following model law:

A person operating a bicycle upon a roadway at less than the normal speed of traffic shall ride in the right hand lane of the roadway subject to the following provisions:

If the right hand lane is wide enough to be safely shared with overtaking vehicles, a person operating a bicycle shall ride far enough to the right as judged safe by the bicyclist to facilitate the movement of such overtaking vehicles unless other conditions make it unsafe to do so.

A person operating a bicycle may use a lane other than the right hand lane when:

Overtaking or passing another vehicle proceeding in the same direction;

Preparing for a left turn at an intersection or into a private road or driveway;

Reasonably necessary to avoid conditions, including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards or lanes that are too narrow for a bicycle and a motor vehicle to travel safely side by side within such lanes;

Approaching an intersection where right turns are permitted and there is a dedicated right turn lane, in which case a bicyclist may ride on the left-hand side of such dedicated lane, even if the bicyclist does not intend to turn right;

Riding on a roadway designated for one-way traffic, when the bicyclist may ride as near to the left-hand curb or edge of such roadway as judged safe by the bicyclist; or

Riding on parts of roadways set aside for the exclusive use of bicycles, including, but not limited to, contra-flow bicycle lanes, left-handed cycle tracks or bicycle lanes on one-way streets and two-way cycle tracks or bicycle lanes.

A person operating a bicycle shall not be expected or required to:

Ride over or through hazards at the edge of a roadway, including but not limited to fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards, or narrow lanes; or

Ride without a reasonable safety margin on the right-hand side of the roadway.

A person operating a bicycle in compliance with this section and not violating any other section of law is not impeding traffic.

The foregoing language achieves two important ends: (1) the judgment regarding safety is in the hands of the cyclist and (2) the width of a shareable lane is not a predetermined figure.

Practical Solution: Signage

The realities of “Taking the Lane” often result in obnoxious horn honking, unpleasant hand gestures, and grumpy motorists. Cyclists in Kentucky would be well-served with better signage, especially on single-lane roads that cyclists share with motorists. Better signage would protect cyclists and potentially diffuse angry encounters with motorists.

For example, the State of Delaware contemplates signage that permits cyclists to “Take the Lane” in a shared lane scenario:

The Bicycles May Use Full Lane (R4-11) sign (see Figure 9B-2) may be used in Delaware on designated bicycle routes where no bicycle lanes or adjacent shoulders usable by bicyclists are present and where travel lanes are too narrow for bicyclists and motor vehicles to operate side by side.

The Bicycles May Use Full Lane sign may be used in locations where it is important to inform road users that bicyclists might occupy the travel lane.

Section 9C.07 describes a Shared Lane Marking that may be used in addition to or instead of the Bicycles May Use Full Lane sign to inform road users that bicyclists might occupy the travel lane.

The authoritative and widely recognized Manual on Uniform Traffic Control Devices for Streets and Highways contemplates signage that permits cyclists to “Take the Lane” in a shared lane scenario:

From an advocacy perspective, a sign can reduce a topic that merits almost two thousand words in this blog article down to just four words!

Final Thoughts

The Kentucky Administrative Regulation and the Model Law text above both address criminal or traffic violations for “impeding” traffic. However, they can be even more important than avoiding a fine or traffic conviction. Regulations, the Kentucky Revised Statutes, and Model Laws can be the basis for jury instructions when the stakes are much, much higher – in a personal injury or wrongful death lawsuit where a cyclist is injured or killed.

If you or anyone you know is charged in Kentucky with impeding traffic or failing-to-keep-right in a municipal or local traffic court, we are here to help. Should a typo keep you from “taking the lane” where the lane is narrow? No.  Safety first!  If you find yourself in Traffic Court? That’s what lawyers are for. You can find me at [email protected]. Or by phone at 859 380 8309 and 513 600 8432.

Pedaling Squares, Episode 2: Dawn Weatherwax, RD, CSSD, LD, ATC, CSCS, MET 1

Posted by Chris Carville On January 6, 2022 at 9:14 am

What is Pedaling Squares?

Pedaling Squares Through a MAMIL’s Life was intended to be a podcast about two of my favorite things: Bikes and Beer.  Someday soon we will get back to my love of beer.  Suffice it to say that coordinating breweries, brewmasters,  and nearby Strava Segments was harder than I realized.  When I have more time on my hands I will get back to those projects.  My first episode was a COVID-inspired attempt to get things rolling without the benefit of actual brewmasters:

Between a pandemic and opening a law firm, my podcasting aspirations took a back seat to earning a living and riding my bike.  So I am back, with a slightly new approach to podcasting. Pedaling Squares will continue to be about one of my two favorite things: riding a bike.

More broadly, the Channel will be about endurance sports, from a Masters (er, middle-aged) Athlete’s perspective.  My focus will be that of a MAMIL.  For the uninitiated, a MAMIL is a “middle-aged man in lycra.” The Channel is intended to have a broad audience of endurance athletes, mostly middle-aged, but I will not be able to resist the pull of the bike.  So I apologize in advance for that likely drift.  Perhaps a better way to characterize the channel is podcasting for an audience of master-aged cyclists that has broader application to most endurance athletes.

So with that introduction out of the way, my first video of 2022 tackles a topic that is on most athletes’ minds in January of any year: the dreaded weight gain over the holidays.  For the less-monastic among us, the weeks between Thanksgiving and New Year presented a well-earned opportunity to spend time with loved ones that usually involved delicious food and an extra beer or two, or more…  Those extra calories lead to extra pounds.  Over the years I have learned to accept this reality rather than fret about it.  They call it an offseason for a reason.  I, for one, don’t make a living racing a bike and I suspect you don’t either.  So, you got to live a little – within reason.

Cycling is a sport replete with eating disorders at its highest level.  And maybe calling them eating disorders is a bit of a stretch.  Guys and gals who get paid to ride are acutely aware of a Mathematical Reality: extra pounds means lower power-to-weight ratios and lower power-to-weight ratios can mean slower times.  So strict dieting is a reality for those in the rarified air of professional cycling.  But that does not mean nutrition is not important for the rest of us – especially those of us who are chasing podiums and leaderboards on Strava!  Your power-to-weight ratio is a very real reality to any cyclist going uphill.  For runners, swimmers, and any other athlete in a timed event, also known as a race, pre-race and race day nutrition is important.  All of this brings me to my first guest on Pedaling Squares, Dawn Weatherwax.

Dawn Weatherwax, RD, CSSD, LD, ATC, CSCS, MET 1

Dawn is my Nutritionist, so let me plug her from experience. Dawn a Licensed Dietitian with a specialty in Sports Nutrition and Founder of Sports Nutrition 2Go.  She is also a Board Certified Specialist in Sports Dietetics, which is the premier professional sports nutrition credential in the United States. She is the author of Three Books: The Complete Idiot’s Guide to Sports Nutrition, Sports Nutrition Guide for Young Athletes, and The Official Snack Guide for Beleaguered Sports Parents.  And, she is a frequent presenter on Nutrition at a local and national level.

In this interview, we tackle “hack” diets and their limitations for endurance athletes.  And from a master’s athlete’s perspective, we talk about the importance of calculating one’s actual resting metabolic rate.  Many websites use a logarithm with assumptions about one’s age.  While a given logarithm may be accurate based on ages 15 to 35 years old, a significant amount of variability in the population starts to set in after 40, 50, 60, and so on. This is especially the case in lifelong athletes.  Many of the canned logarithms may be underestimating your resting metabolic rate.  Dawn has the hardware to calculate an actual, not assumed resting metabolic rate – the rate one is consuming most of his or her calories.  Strava, Garmin Connect, Wahoo, and Training Peaks can tell you what you burned during a given workout – that is the easy part.  Relying on a website to calculate how many calories you are burning while at work and asleep can end up being an exercise (pun intended) in guesswork. We also discussed the importance of measuring fat and lean muscle tissue and the effect of age on both and more.

Dawn brings a wealth of experience to the discussion.  My only limitation was Dawn’s time.  She promised to come back for more, so if you have ideas for future points of discussion please leave them in the comment section.

If you want to reach out to Dawn directly you can find her on all the socials: Twitter, Facebook, Linkedin, and Instagram.

So, please wake up your Smart Trainer or Treadmill and have a listen to my conversation with Dawn:

You know the drill: please don’t forget to like and subscribe!

 

Bike Trails in Autumn and During a Pandemic

Posted by Chris Carville On November 2, 2021 at 8:21 pm

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

Posted by Chris Carville On September 14, 2021 at 8:30 am

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

Posted by Chris Carville On August 31, 2021 at 9:03 am

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

Posted by Chris Carville On August 24, 2021 at 9:37 am

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.