Limitations of the MUTCD When Applied to Bicyclists

Have you ever wondered where the design for bike signs or bike routes came from?  No?  I am not surprised.  It is Bike Month and I thought I would share a few thoughts on signage or “Traffic Control Devices” and “Bicycle Facilities” from a design perspective.

In the United States, engineers and urban planners rely on the Manual on Uniform Traffic Control Devices for Streets and Highways or “MUTCD” for a shortened reference.  The Current Tenth Edition was issued in 2009 with two Revisions dated May 2012.  Last month the Federal Highway Administration issued a Notice of Proposed Amendments.  Once those amendments are finalized, the Eleventh Edition of the MUTCD will be issued.

The MUTCD drills down into the smallest detail of size, shape and look of “Warning Signs and Plaques” related to bicycles:

 

The MUTCD is the Bible for traffic control engineers and civil engineers who design “Roadways”, “Rural Highways”, “Designated Bicycle Routes”, “Bicycle Lanes”, “Bikeways”, and “Bicycle Facilities.”  All of these are defined terms within the MUTCD.  It also includes or relates other design documents like The Uniform Vehicle Code and Model Traffic Ordinance and Guide for Development of Bicycle Facilities:

 

The purpose of the MUTCD is right in its title – Uniformity.  Uniformity is good.  Red means stop and green means go.  Right?  Of course.  It is easy to analyze signage and placement.  The MUTCD provides definite proscribed standards for the look and location of signs.  The MUTCD and its incorporated documents can only provide guidance on the tougher issues of retrofitting Bicycle Facilities in an urban environment, for example.  And that guidance promotes a very conservative approach in designers of new and retrofitted Bicycle Facilities.  If a designer takes the most conservative approach, he or she is insulated themselves and their clients or employers from legal liability for injuries and death that may (or may not) have resulted from a design decision.  And once those design decisions are executed, it is very difficult, not to mention expensive, to reverse or change course.  Road improvements are expensive and modifications can lead to traffic delays, congestion, and irritated citizens.

Our friends at America Walks sponsored a very informative Webinar on the limitations of the MUTCD which aired on April 26, 2021.  The panel discussion which begins at 39:30 is very helpful to the average bicyclist in understanding the limitations of the MUTCD:

Oklahoma House Bill 1770 Would Legalize Idaho Stops and Provide Cyclists Additional Protections.

On March 16, 2021, I wrote about the status of Delaware’s Bicycle Friendly Delaware Act.  The protections afforded to bicyclists in Delaware’s intersections are set to expire this year as the Bicycle Friendly Delaware Act contained a sunset provision.

The Oklahoma Legislature followed the safety statistics in both Idaho and Delaware. The Oklahoma House passed House Bill 1770 with an overwhelming vote of 76-13 on March 11, 2021.  On April 20, 2021 the Oklahoma Senate approved the Bill and sent it back to the House for further consideration.

My compliments to Representative Dobrinski and his Staff.  House Bill 1770 sets forth a straightforward and easy-to-follow-standard for bicyclists to apply at intersections:

An “immediate hazard” is defined as “a vehicle approaching a person operating a bicycle at a proximity and rate of speed sufficient to indicate to a reasonably careful person that there is a danger of collision or accident.”

House Bill 1770 also provides a standard for bicyclists approaching a steady red traffic-control signal.  A complete stop is required when traveling through the intersection.  However, “if a person operating a bicycle determines there is no immediate hazard, he or she may proceed through the steady red traffic-control signal with caution.”

Where a bicyclist is making a right-hand turn at a steady red traffic-control signal, he or she may “roll” the intersection provided, he or she “slow[s] to a reasonable speed and yield[s to] the right-of-way, if required, to oncoming traffic that constitutes an immediate hazard[.]”

House Bill 1770 also makes it a crime of reckless driving for a motorist to “taunt or maliciously throw an object at or in the direction of any person riding a bicycle, equine or animal-drawn vehicle.”  This only appears to be a misdemeanor offense as the maximum penalties are six months in prison and a One Thousand Dollar fine.  House Bill 1770 also prohibits drivers from “us[ing] a horn when passing a person riding a bicycle, equine or animal-drawn vehicle under normal conditions if no imminent danger of a collision exists.”

This is very encouraging news out of the State of Oklahoma.  I would love to see similar legislation regulating intersections in Kentucky and Ohio.

 

A Day of Remembrance For Deceased Pedestrians and Cyclists

On Wednesday, April 7, 2021, I attended A Day of Remembrance recalling and celebrating the lives lost to pedestrian and cycling deaths on Kentucky and Ohio roadways.  Penning a blog on preventable deaths is both difficult and jarring considering one week ago I was writing about the joys of bike riding and bike racing.  Unlike you and me, those remembered will never throw their leg over their bike’s top tube or lace up their sneakers for a run or a walk.  Pedestrians and cyclists are the most vulnerable users of Kentucky and Ohio roadways.   In Kentucky alone, in 2018 there were 1,024 pedestrian collisions resulting in 12 deaths and 332 bicycle-motorist collisions resulting in 9 deaths.  In 2019 there were 1,048 pedestrian collisions resulting in 80 deaths and 330 bicycle-motorist collisions resulting in 4 deaths.  We await a final compilation of 2020 figures from Kentucky Traffic Safety Data Services.

Elected Officials, Policymakers, and Traffic Engineers can do much to design, redesign and retrofit existing roadways to make them safer for those vulnerable users.  We can do something too.  We can be vocal advocates for the deceased and their families.

I am struck by the totally preventable deaths – in particular those involving drugs and/or alcohol use.  Just last month, on March 1, 2021, Bradley McNally, only 33 years old, was struck and killed on his bicycle in Bell County, Kentucky by an impaired driver who fled the scene.

Last year, Steve Adams, a friend, was struck from behind on a morning ride in Cincinnati and ultimately succumbed to his injuries.  Again, the driver fled the scene.  We have ordered the police report and investigation file – whether impairment was an issue remains an open question.

In 2017, William Rust was struck from behind on U.S. 52 by an impaired driver who fled the scene. William was 61 and survived by his wife and children.

In 2016, again on U.S. 52, Michael Prater, a friend, was struck from behind on a training ride and killed, again, by an impaired driver who fled the scene.  Michael was 42 and survived by his wife and children. His son was three years old, and his daughter was only four months old.

We will never know whether immediate medical attention would have mitigated the injuries of these cyclists.  We do know that the drivers were cowards selfishly motivated to protect themselves at the expense of a dying cyclist.  More needs to be done in the charging and sentencing of these cowards.  Their cowardice may have cost these men their lives.  Their criminal sentencing should send a message to all users of Kentucky and Ohio roadways.

Death March Race Report, The Art of Under-Planning, and a DNF-M Finish

Many of us will not forget March 13, 2020.  That date is doubly significant for me. At 10:00 a.m. I had resigned from my secure corporate litigation job to hang a shingle to represent cyclists in Kentucky and Ohio.  By 3:00 p.m. Governor Dewine had begun the inexorable “lockdown” process to “flatten the curve.”  Governor Beshear would soon follow.

Needless to say, in-person marketing (the lifeblood to any organization which needs to generate revenue or raise capital) was put on a bit of a hiatus.  Professional and college sports went on a hiatus until team doctors and administrations figured out how to operate in “a Bubble.”  Church services went online; schools went online; work went online; groceries went online; even bike racing went online.

Online bike racing?  I get Canyon/SRAM finding riders online based on power numbers and I sort of get Zwift Academy.  But what about “The Rules”?  For a Road Cyclists, these are the 10 Commandments or 95 Commandments as it were.  There is absolutely no reference to “online” or “Zwift” or “Smart Trainer” in The Rules.  As an attorney, I would argue that Rules #5 and #9 resolve the question of Smart Trainers and online platforms, but I digress …

The point of riding a bicycle is to be outside with friends.  The point of living is to be with loved ones.  If you are lucky, the two will meet.  “Online” living, riding, and racing does not allow you to be with – “online” is a poor facsimile for the real thing.  So fast forward to March 27, 2021, exactly one year, and two weeks later I was back to racing!  And boy did I need it – more than I knew.

Death March.  It is an (almost) annual tradition for me dating back to 2013.  Allow me a quick plug for the Race.  If you love gravel, do it.  If you love mountain biking, do it.  If you love adventure racing, do it.  If you love racing with friends, do it.  Here is the premise:  find a bunch of cemeteries that are assigned time bonuses with whatever route you chose, and the lowest time (calculated by actual time minus bonuses) wins.  There are some other rules, but that is the gist of it.  What follows is a “sort-of” race for most racers.  I say sort-of because everyone is not taking the same right turns, so during the race no one really knows who is winning until the end of the race.  This promotes much comradery and cooperation on the course because the cemeteries can be hard to find (more on that later).  You can flog yourself as hard as you choose between cemeteries, knowing that one navigation error is the equivalent of burning all the matches you have in your box, and then some. The vibe is chill, and everyone looks forward to a post-race beer.

This Year’s Edition was unusually kind weatherwise.  The race started out at 39.2 degrees and ended at 78.8 degrees and sunny throughout.  Almost like God gave us a hall-pass on the weather.  In the 2019 Edition, the weather averaged 34 degrees with lightning and thunderstorms – which can feel really, really REAL on the top of an exposed ridgeline.

However, this Year’s Edition was not equally kind on race-day mandatories.  Well, not kind to those of us who started their route-planning at 10:00 p.m. on March 26, 2021 because his son had a high school lacrosse game under the lights.  One under-plans at their own peril.  I have made under-planning an artform.  Just ask my Pal Charlie.  I invited him down all the way from Michigan in 2015 with NO MAP between us and only my 2013 route loaded on my Garmin 500 – remember those?  Not much of a navigation screen to work off.  Lose a GPS signal and you get lost pretty quick.

Well, history has a way of repeating itself.  Fast forward to March 26, 2021 11:30 p.m.  I was much more prepared than my 2015 navigation disaster — or so I thought.  My new partner, Nate (he is not really new, we did it together in 2013) had a brand-new Karoo 2 with all the GPS coordinates downloaded and I had my trusty laminated National Geographic Topographical Map with all the cemeteries called out with red and yellow stickers.  Red for mandatory, yellow for optional cemetery checkpoints.  By 11:30 p.m. I had found all the cemeteries on my topographical map.

In my defense, how hard is it to find a cemetery, right?  You find a road, you ride along it until you see a cemetery, stop, take and picture to prove you were there, and then ride on to the next checkpoint, right?  Wrong.  This thinking only applies to cemeteries on paved roads.  The Callahan Cemetery dates back to 1812 and there are no paved roads to get you there.  A little history lesson from a geocaching website:

At the start of the war of 1812 there were about 70 families in Jackson Co. When the Indians started fighting with the British and killing settlers, all of the families in Jackson Co. except for twelve families, left. Those twelve families holed up in Fort Vilonia. At the end of the war the Indians were pushed north of what was called the Indian Treaty Line at the northern edge of Jackson Co. This allowed settlement of Jackson Co.

Jesse and Eve Callahan aged 22 and 17 were among those couples. Sometime around 1817 Jesse Callahan bought 160 acres of land in a valley just west of Cornett grove cemetery for $1.25 an acre. Jesse and Eve died around 1865 and had 8 children over their lifetime. Jesse and Eve and most of their adult children are buried in the Callahan Cemetery.

There are at least 25 headstones in the cemetery, most are unmarked flat creek rock, and there are some graves that have no marker. In Jesse’s time the main east-west road ran past Cornett Grove on to his farm and forked. The south fork wound through the valley and came out on Hickory Ridge Rd. just north of Norman. The North Fork climbed to the top of the ridge, passing the cemetery, and going along the ridge top to near where the other fork came out just north of Norman, on Hickory Ridge. Sometime around 1900 The Hoosier National Forest was formed and took all the land from Cornett Grove to Norman.

The only way to get to Callahan Cemetery is by horse trail.  Like “Trail 16” which our friends at National Geographic’s map clearly, to my eye, showed as the closest trail to Callahan Cemetery.  If National Geographic, who gave us endless Jacques Cousteau documentaries, shows “Callahan Cemetery” above Callahan Creek and southeast of Trail 16, Callahan Cemetery should be above Callahan Creek and southeast of Trail 16, right?  If it’s good enough for Jacques, it should be good enough for Nate and me, right? WRONG.  I should have known better when the Race Director snickered over the loudspeaker when he announced “Callahan” as one of the race-day mandatories.

Callahan Cemetery as Shown on National Geographic Topo Map

I learned, over a beer, at the finish line from a Local, “that everyone around here knows Callahan is off Trail 15 and ‘The Map’ is wrong.”  You mean that map that cost me $14.95 for the waterproof and tear-resistant version?!?

To be clear, I do not blame the Race Director for National Geographic’s placement of Callahan Cemetery on its topo map.  And to be equally clear, I don’t blame anyone other than myself.  And to be super clear, I do not blame Nate!  It was all on me.  I had been to Callahan in 2017 (without Nate) and it was indeed off of Trail 15 as it has been for 150 years.

Strava Screenshot of Callahan Cemetery from 2917 Edition of Death March

In my humble estimation, it is these kinds of idiosyncrasies that make Death March, well Death March.  Technically, Nate and I are DNF. I would humbly suggest that Death March needs to add a DNF-M for those racers who, like me, got lost in 2013 or could not find a mandatory in 2021.  Adding an “M” to Did Not Finish [all] Mandatories would restore a small measure of dignity.  I still got over 6 hours in the saddle (and over one and half hours of hike-a-bike along horse trails) and 70 miles of sweet gravel/road/single track in my legs.  And I had a fine cold beer from Upland Brewing Company waiting for me at the finish line.  I had been waiting over a year for that beer and it never tasted better.

Idaho Cycling Stops and Kentucky Law on Cyclists at Intersections

Many Cyclists and Cycling Advocates are big fans of Idaho Stops.  I know I am.  Currently, at least six states have “legalized” Idaho Stops: Idaho, being the first in 1982, as well as Arkansas, Colorado (on an opt-in basis), Delaware, Oregon, and Washington.  California, Colorado (on a statewide basis), New York, Utah, and Virginia have proposed passing Idaho Stop legislation in 2021.

Delaware’s “Idaho Stop” legislation entitled Bicycle Friendly Delaware Act was enacted on November 1, 2014.  The legislation is unique as the original bill contained a “sunset provision” which provided that the law would “sunset” or terminate if not renewed.  Well, the sun is descending toward the horizon line.  An amendment in the form of House Bill 36 proposes making the Bicycle Friendly Delaware Act permanent is pending on the floor of the Delaware Legislature.

As a nonresident of the fine state of Delaware, all of this came to my attention as the Kentucky Bike Lawyer via my Google Alerts which got me thinking about Idaho Stops in Kentucky.

Idaho Stops can be divisive between motorists and cyclists, so they are back in the news in Delaware with strong feelings on both sides of the debate.  On the one hand, uniform laws should encourage uniformity among all users of the roadways and therefore safety should follow.  On the other hand, cyclists will report that while uniformity in the use of the roadways is a noble goal, predictability at intersections does not necessarily follow.  A lack of predictability makes intersections particularly dangerous for cyclists.

Let’s face it, at intersections cyclists are often treated as a hybrid of motorist and pedestrian.  In most localities pedestrians are not held to the same traffic rules as motorists and that may further confound a motorist’s understanding of the “rules of the road.”  Most motorist-cyclist intersection interactions, in the best-case scenarios, are fraught with confusion:

A motorist with right-of-way may yield despite arriving at the intersection first just to avoid the potential for a crash. 

A motorist without right-of-way may incorrectly interpret eye contact with the cyclist as permission to proceed.

A cyclist without right-of-way may also incorrectly interpret eye contact with a motorist as permission to proceed.

A motorist may not come to a complete stop when making a right turn and collide with a cyclist proceeding with his or her right-of-way.

A cyclist may just blow a downhill stop sign with painful results – I have seen it myself on a group ride.

The permutations can go on.  All it takes is one first person experience to harden a person’s belief system for a lifetime.

Idaho as Model Legislation

Title 49, Chapter 7 of the Idaho Code states:

Idaho Code 49-720.

The most important language in this legislation requires that a cyclist “approaching a stop sign shall slow down and, if required for safety, stop before entering the intersection[.]”  The legislation further requires the cyclist to “yield right-of-way to any vehicle in the intersection or approaching  . . . so closely as to constitute an immediate hazard[.]”  Simply stated, an “Idaho Stop” permits a cyclist “to roll” an intersection provided no other vehicles are in the intersection or approaching the intersection.  More simply stated, a cyclist needs to exercise common sense when deciding “to roll” a stop sign-controlled intersection.

“Follow the Science”

Our friends at Bike Delaware are encouraging voters to follow the science, to borrow a recent turn of phrase.  Bicycle crashes at Stop Sign Intersections have been down a whopping 23% in Delaware since the Bicycle Friendly Delaware Act was enacted.  Fortunately, all other crashes involving bicycles were also down during that 30-month period, but by only 8%.  23% versus 8% is statistically significant, even for this simple country lawyer.

One of the first, most influential, and oft-cited studies of the “Idaho Law” was penned by Jason M. Meggs in 2010.  That study was entitled Bicycle Safety and Choice: Compounding Public Cobenefits of the Idaho Law Relaxing Stop Requirements for Cycling.  As of 2010, Idaho had been a real-world test case for relaxing stopping rules for bicyclists at intersections.  Meggs reviewed several studies.  Comparisons of Boise, Idaho to comparable cities found Boise to be safer for cyclists.  For example, when compared to Sacramento, California bicycle safety fared 30.4% better in Boise on the low end and 60.6% better on the high end.  Within the State of Idaho, bicycle injury rates in the state declined by a substantial 14.5%, with no change in the number of cycling fatalities the year following the enactment of the Idaho Law.

A Little Common Sense

Cycling Advocates have done, and continue to do, their homework on increased safety at stop sign intersections as a result of Idaho Stop Laws.  I would like to see the numbers from “Motorist Advocates” (is there such a group?) that demonstrate that Idaho Stop Laws have increased the number of injuries to motorists who collide with  cyclists at an intersection (regardless of fault) in Idaho (we are approaching 40 years since the enactment of the Idaho Law) or in their state.

In this age of inexpensive digital cameras and accessible public records, opponents of the Idaho Law could easily cobble together statistics on motorists injured because of collisions with cyclists at stop sign-controlled intersections.  Why don’t they?  Common sense would dictate that a motorist encased in a quarter ton of steel usually fares better than a cyclist on a 15-to-25-pound bicycle with nothing more than a jersey or jacket on his or her back.  But I am willing to be convinced by the science if it is out there.

Idaho Stops in Kentucky

The Delaware kerfuffle got me thinking about Kentucky’s Revised Statutes and Administrative Code on Idaho Stops.  Kentucky is definitely not on the list of the BIG SIX: Idaho, Arkansas, Colorado (on an opt-in basis), Delaware (for now), Oregon, and Washington.

Kentucky’s Administrative Code does permit a type of Idaho Stop: “[a] bicyclist operating on a highway or highway shoulder may proceed after stopping and if safe against a red light if a traffic signal fails to detect the bicycle.” See, 601 KAR 14:020 Section 7(5).  Note that this is an administrative regulation, not a full-blown bill passed into law.  This regulation is not written in the vein of the original Idaho Law, which contemplates a cyclist “approaching a stop sign [who] shall slow down and, if required for safety, stop before entering the intersection[.]” Idaho Code 49-720.  It contemplates a full stop and a light that fails to detect a cyclist before a cyclist is permitted to proceed through the intersection.

As an administrative regulation, 601 KAR 14:020 Section 7(5) is also arguably subordinate to any local or municipal ordinances on point.  KRS 189.287 is the statute that gives the Department of Transportation the authority to pass regulations like 601 KAR 14:020 Section 7(5).  KRS 189.287 contains a caveat which states: “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.

So the short answer is that a true “Idaho Stop” remains illegal in Kentucky but a cyclist can proceed against a red light (1) provided he or she comes to a complete stop and the light was not triggered and (2) provided there is not a local ordinance on point regulating a cyclist’s use of an intersection.

If you have any questions about the Idaho Law in general or Kentucky Law as applied to cyclists, you can reach the author at [email protected]

 

Excuse Me For Impeding – Differing Laws for Ohio and Kentucky Cyclists

So, if a Cyclist has the right to ride in the roadway and a right to ride two-abreast, does he or she have a right to impede traffic?

In Ohio…

In Ohio, you are not impeding traffic presuming that you are operating your bicycle at or near its maximum speed.

In Ohio, R.C. 4511.22 states:

(A) No person shall stop or operate a vehicle, trackless trolley, or streetcar at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.

“Vehicles” are broadly defined in Ohio.  Pursuant to R.C. 4501.01(A), a “vehicle means everything on wheels or runners, including motorized bicycles, but does not mean electric personal assistive mobility devices, vehicles that are operated exclusively on rails or tracks or from overhead electric trolley wires, and vehicles that belong to any police department, municipal fire department, or volunteer fire department, or that are used by such a department in the discharge of its functions.”

Bicycles are defined by R.C. 4501.01(K) as “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.”

Given the broad definition of “vehicle” in R.C. 4511.22, a Cyclist “operating a vehicle [including a bicycle]” who travels at “an unreasonably slow speed” could be guilty of “imped[ing] or block[ing] the normal and reasonable movement of traffic[.]”  Measured against a motor vehicle, virtually any nonprofessional cyclist would be operating his or her bicycle at an unreasonably slow speed could impede the normal and reasonable movement of traffic.  Steven O. Selz was charged with just such an offense by the City of Trotwood.  Mr. Selz was accused of violating Section 333.04(a) of the Trotwood Municipal Code, which provided (similar to R.C. 4511.22):

No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with [the] law.

Mr. Selz was convicted of this offense in Traffic Court.  Fortunately for Mr. Selz and Cyclists in Ohio, he was capably represented by my friend and colleague, Steve Magas.  Section 333.04(a) of the Trotwood Municipal Code could not be fairly read to prohibit any bicycle on an Ohio roadway.  Steve argued, with success, that Mr. Selz was operating his “vehicle” (also known as a bicycle) at the maximum speed at which he could possibly operate his bicycle – 15 mph uphill!

Steve analogized Mr. Selz’s operation of his bicycle to that of an operator of a corn combine in a prior case, where that court found: “The corn combine, was traveling at or near its highest possible speed. To permit the jury to impose liability on the basis of the speed of the combine would be tantamount to a holding that the operation of farm machinery such as appellants’ on the public roadway typically constitutes negligence per se. We cannot endorse such a holding. Title 68A [of the Georgia Code] does not exclude farm machinery from the public roads.”

Trotwood v Selz was decided in 2000.  Two years later, pursuant to Senate Bill 123, R.C. 4511.22 was amended to include Subsection (C) which now includes language very similar to the Second District’s Holding in Trotwood v Selz:

(C) In a case involving a violation of this section, the trier of fact, in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.

So the moral of the story in Ohio is that a Cyclist will not be impeding traffic if he or she is operating their bicycle at the upper end of their capabilities, which may beg the question of what that particular Cyclist’s capabilities were in the first instance.  A professional cyclist’s “capabilities” going uphill on a roadway will be much different than a weekend warrior’s capabilities.  These are arguments that may fall on deaf ears as you are issued a citation by a police officer but may find a receptive ear by a municipal or state court judge or a jury of your peers if that matter goes that far in the justice system.

In Kentucky…

Kentucky Cyclists do not face similar exposure to criminal convictions.

In Kentucky, KRS 189.390(7) states:

A person shall not drive a motor vehicle at a speed that will impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

The difference, like the devil, is in the detail.  KRS 189.390(7) is limited to motor vehicles.

Like Ohio, vehicles are broadly defined in Kentucky.  A bicycle will be considered a “vehicle” under the Kentucky Revised Statutes as a bicycle is an “agency” for ”the transportation of persons over or upon the public highways of the Commonwealth.”

KRS 189.010(19)(a) defines a “vehicle” as including:

1. All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth; and

2. All vehicles passing over or upon the highways.

Bicycles are specifically exempted from “slow vehicle” signage in Kentucky. A bicycle does not have to display a slow-moving vehicle emblem that is required of other “slow-moving vehicles.”

KRS 189.830 states as follows:

(1) The slow-moving vehicle emblem shall be restricted to the uses specified herein and the use on any other type of vehicle or on other objects is prohibited.

* * *
(5) The slow-moving vehicle emblem shall not be used on a bicycle.

So the short answer to the pending impeding question is: Cyclists in Ohio are broadly defined as vehicle operators and may be subject to prosecution for impeding traffic, but a good lawyer should be able to “get you off” (because you were innocent in the first instance) pursuant to Trotwood v Selz (2000 2nd Dist.), 139 Ohio App.3d 947 and subsection C of R.C. 4511.22 arguing that you were pedaling within your “capabilities”; and Cyclists in Kentucky should not be charged in the first instance because the impeding traffic statute, KRS 189.390(7), is narrowly limited to motor vehicles, not all vehicles.

Three Foot Law Protection for Cyclist in Ohio and Kentucky – Part 2 of 2

This Blog Article follows my February 15, 2021 Article on Three Foot Law Protections for Cyclist in Ohio and Kentucky.  The February 15, 2021 Article discussed Ohio’s Three Foot Law.  This Article discusses Kentucky’s Three Foot Law.

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.”

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

In this era of GoPros and Cycliq’s Fly12 (front facing light and camera) and Fly6 (rear facing light and camera) many crashes and close calls are caught on film.  These devices allow cyclists to document without question the manner in which the illegal pass took place, and unfortunately, how the vehicle-bicycle crashes occurred.

Cycliq’s website catalogues what remains a scourge on roads worldwide.  This Cycliq Video entitled CLOSE PASS-APALOOZA will send shivers down your spine:

Perhaps it is my skeptical view of the world or my bias born of decades of experience in Kentucky and Ohio Courtrooms, but it is my view that litigants are not always as accurate as they could be (I am being charitable) or just plain misrepresent (you know where I am going) the moments leading up to a crash.  A GoPro camera or Cycliq camera can often take all the speculation out of these events for a judge or jury.  Simply stated, they are worth the extra money.  Unfortunately, these cameras do not prevent crashes, but they can document them creating invaluable real-time evidence.

Unlike Ohio, Kentucky does not have an AFRAP statute like Ohio’s Revised Code 4511.55 specifically addressing cyclist.

So, the question of where the cyclist is riding 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) apply, if there is a highway lane “marked for the exclusive use of bicycles, the operator of a bicycle shall use [that] lane[.]”  601 KAR 14:020 Section 7 makes the use of bike lanes on a highway 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 states:

Section 4. Limitations. The following shall be prohibited within the right-of-way of a fully controlled access highway:

(1) Bicycles or motor scooters[.]

However, a cyclist is specifically permitted to ride within a shoulder of a highway.  601 KAR 14:020 sets forth permissive “may” language in Section 7(1)(a) with regard to the use of a highway’s shoulder:

(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.

I would contend that 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/roadway, Kentucky’s protective three foot buffer would apply.

Cycling accidents that occur as a result of a motorist passing or overtaking a cyclist are fraught with peril.  If you are the victim of such an accident, do not hesitate to reach out to Chris at Carville Legal Counsel, LLC.  We offer FREE consultations. Chris can be reached at [email protected] or 513 600 8432.

Three Foot Law Protection for Cyclist in Ohio and Kentucky – Part 1 of 2

On my second visit to the Two Johns Podcast, we discussed both Ohio’s and Kentucky’s Three Foot Passing Laws and how they protect Cyclists. This article is the first of two comparing and contrasting Ohio’s Three Foot Law for Cyclists with Kentucky’s Three Foot Law for Cyclists.

Our friends at the National Conference of State Legislatures offer us the following summary:

In 1973, Wisconsin became the first state to enact such a law; several more states have since enacted such measures. As of April 2020, 33 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 3-feet or more when passing a bicyclist.

North Carolina has a 2 feet passing requirement for motorists, and also allows passing in a no-pass zone if a motorist leaves 4 feet clearance.

Two states have laws that go beyond a 3-feet passing law. Pennsylvania has a 4-feet passing law. South Dakota enacted a two-tiered passing law in 2015; with 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.

Additionally, 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.

In 8 other states, there are 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.”

Ohio enacted its Three Foot Law in 2017.  As will be discussed in Part 2 of this series of Articles, Kentucky enacted its Three Foot Law in 2018.

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.

(3) The operator of a vehicle or trackless trolley overtaking and passing another vehicle or trackless trolley proceeding in the same direction on a divided highway as defined in section 4511.35 of the Revised Code, a limited access highway as defined in section 5511.02 of the Revised Code, or a highway with four or more traffic lanes, is not required to signal audibly to the vehicle or trackless trolley being overtaken and passed.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

Note the language of the statute’s “requirement”: “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 State’s first Three Foot Law: “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” as found in Wisconson’s Wis. Stat. § 346.075.  When one drills down into the detail of Ohio’s Three Foot Law, it reads more like a suggestion than a mandatory prohibition on passing distances between a Cyclist and an overtaking motorist.

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 will invariably argue that the unique circumstances of his or her client’s case justified a one or two-foot pass as “safe.”  There are scant resources available that track citations pursuant to R.C. 4511.27 in Ohio’s eighty-eight counties.  So we have little idea of how often Ohio’s Three Foot Law is being enforced and with what level of success.  However, we do have a standard to enforce in a civil case where a cyclist is injured or killed as a result of a crash with a passing motorist.  A cyclist rarely wins – like never – in a crash with a passing motorist.  And the fact that the crash occurred is damning evidence that the motorist violated Ohio’s Three Foot Law and there is tremendous value in that.  Further, most citizens in Ohio have never read R.C. 4511.27 and only know that Ohio has a “Three Foot Law” designed to protect cyclists.  There is even more value in a conversation and increased awareness of legislation designed to protect cyclists in Ohio.

Ohio’s Three Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists which requires Cyclists to ride as “As-Far-Right-As-Is-Practicable.”  Ohio’s AFRAP requirement for Cyclists can be 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.

(D) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

“Practicable” is undefined anywhere in the Revised Code which leaves it in the eyes of the beholder – or a judge or a jury of your peers.  Where a cyclist is charged with violating R.C. 4511.55 there is a constitutional argument that the criminal prohibition is “void for vagueness” and therefore unenforceable, but that makes for a separate and much longer article.

Where a cyclist is injured as a result of a 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 so as to have avoided the crash.  This sets up some very obvious tension for a cyclist using Ohio’s roads.  If you ride within what is commonly understood as the roadway or within the right lane so as to be established and predictable in your movements you could be criticized for not being more “practicable” and riding within the berm or shoulder (if available and practicable).  On the other hand, if you ride as far right as possible, you could be weaving along the right-most portion of the road/roadway and appear erratic and unpredictable.  You could also be exposing yourself and fellow cyclists (if on a group ride) to problematic tarmac and other hazards that find their way into a shoulder or berm.   Fortunately, R.C. 4511.55 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”: “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.”  Subsection (C) provides a safety-valve of sorts, allowing a cyclist to argue that the conditions at the “edge of the roadway” would not permit safe riding.  However, this does leave open the question of whether a cyclist is obligated to ride in an unobstructed or hazard-free shoulder or berm.

Cycling accidents that occur as a result of a motorist passing or overtaking a cyclist are fraught with peril.  If you are the victim of such an accident, do not hesitate to reach out to Chris at Carville Legal Counsel, LLC.  We offer FREE consultations. Chris can be reached at [email protected] or 513 600 8432.

My Friends at Two Johns Podcast Have Me Back for Round 2!

Chris Carville and the Two (really one) Johns discuss the December 2020 Las Vegas Bicycle Crash; Three Foot Cycling Laws in Ohio and Kentucky; Riding Two Abreast in Ohio and Kentucky; “Impeding” Traffic, GoPro and Cycliq Cameras, and more.  You can link to the Two Johns Podcast and our discussions here.

Uninsured and Underinsured Motorists Claims by Kentucky and Ohio Cyclists

Let’s face it.  Cycling crashes can be catastrophic.  Whether you are riding a UCI Limit fifteen pound carbon fiber marvel or a thirty-five pound cruiser, you are no match for a quarter ton vehicle or – even worse — a three quarter ton truck or SUV.

Unfortunately, “might makes right” when a car, truck or SUV crashes into a cyclist.  The cyclist never wins that battle.  The results can be catastrophic.  A cyclist can face enormous medical bills, lost wages or lost time from work, and tremendous pain and suffering.  To add insult to (literally) injury, the driver of that vehicle may not be carrying auto liability insurance or only state minimum auto liability insurance coverage.  If you are hit in Kentucky or Ohio, those limits may only be $25,0000.  Unless you skinned your knee, $25,000 does not go far in this day and age.

Not to worry, you have Uninsured/Underinsured Motorist (UM/UIM) Coverage on your own auto policy to cover negligent drivers and irresponsible drivers who do not carry sufficient liability coverage, right?  Think Again.  You may have No Coverage at all for your cycling accident despite years of loyal premium payments to your automobile liability insurance carrier.

Whether you are entitled to UM or UIM Benefits under your policy following a vehicle-cyclist crash will be determined by four things:

(1) who is at fault and by how much (let’s face it, sometimes cyclists are at fault too);

(2) the State you purchased your UM/UIM policy;

(3) whether that UM/UIM policy is personal or commercial; and

(4) the language of that policy as the devil is always in the detail.

Who was at Fault?

Unlike a Medical Payments Provision in your Homeowners Policy or your Auto Policy, UM/UIM Benefits are not automatically paid just because you were in a crash.  This article will not address questions of fault or comparative fault of the cyclist.  Suffice it to say in most crashes, the motorist very rarely admit that they were responsible for causing the crash.  If that is the case, their, and potentially your own UM/UIM Insurance Carrier will likely “take their side.”  If an insurance company can avoid paying benefits, it will.  If an insurance company can delay making payments, it will. Despite humorous or reassuring ad campaigns, an insurance company is in the business of turning a profit for its shareholders.  Making payments to you under UM/UIM policies reduces the profits for its shareholders.  The same may hold true with regard to compensation paid to the employees who are charged with negotiating fair compensation for your injuries and damages.

Where Did You Purchase Your UM/UIM Policy?

If your crash occurred in the same State where you purchased your insurance, the initial question of what State’s law will apply is never at issue-because it is the same!  However, if you purchased your UM/UIM policy in one State, but your crash was in another State, “Choice of Law” questions will arise as to which State’s law will govern a court’s analysis of the policy.  If you find yourself in that situation, do not try to navigate those waters alone.  Get a lawyer!  Seasoned judges and lawyers struggle with Choice of Law analysis and there are literally hundreds of legal decisions across the country which have dealt with conflicting legal analysis between States on how UM/UIM policies should be interpreted and applied.

I am licensed in both Kentucky and Ohio and this article addresses both the Commonwealth of Kentucky’s and State of Ohio’s jurisprudence on UM/UIM Coverage.  The analysis is very different.  As explained below, a cyclist who purchased an UM/UIM policy in Kentucky and was injured in Kentucky will likely fare much better in recovering UM/UIM Benefits than a similarly situated cyclist in the State of Ohio.

Kentucky Jurisprudence on UM/UIM Coverage

Like most States, the provision of UM/UIM Coverage is governed by statute in Kentucky.  “UM” (Uninsured Coverage) is different than “UIM” (Underinsured Motorist Coverage) and Kentucky has one statute addressing each circumstance.

As the name would indicate, UM coverage responds where a motorist was “running bare” or driving with no insurance at all.  UIM coverage responds where the motorist was carrying state minimum limits or limits that are less than your UIM coverage limits.

KRS 304.20-020 governs UM coverage and states as follows:

(1) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in KRS 304.39-110 under provisions approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided that any named insured shall have the right to reject in writing such coverage; and provided further that the rejection shall be valid for all insureds under the policy, and unless a named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal, reinstatement, substitute, replacement, or amended policy issued to the same named insured by the same insurer or any of its affiliates or subsidiaries.

 (2) For the purpose of this coverage the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency; an insured motor vehicle with respect to which the amounts provided, under the bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such motor vehicle, are less than the limits described in KRS 304.39-110; and an insured motor vehicle to the extent that the amounts provided in the liability coverage applicable at the time of the accident is denied by the insurer writing the same.

 (3) Protection against an insurer’s insolvency shall be applicable only to accidents occurring during a policy period in which its insured’s uninsured motorist coverage is in effect where the liability insurer of the tortfeasor becomes insolvent within one (1) year after such an accident. Nothing herein contained shall be construed to prevent any insurer from affording insolvency protection under terms and conditions more favorable to its insureds than is provided hereunder.

 (4) In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.

In layperson’s terms, KRS 304.20-020 makes underinsured motorist coverage mandatory or automatic on any liability insurance purchased in Kentucky up to the state minimum coverage of $25,000. These means that if you did not go out and purchase additional UM coverage, you would have $25,000 in coverage available if you were struck by an uninsured driver.  The only exception to the mandatory nature of KRS 304.20-020 is where the injured cyclist had their own auto policy but declined or “rejected” UM coverage in writingFurther, it should be noted that additional UM coverage above the $25,000 can be purchased by the cyclist, but it is not mandatory for the insurance company to offer it.

KRS 304.39-320 governs UIM coverage and states as follows:

(1) As used in this section, “underinsured motorist” means a party with motor vehicle liability insurance coverage in an amount less than a judgment recovered against that party for damages on account of injury due to a motor vehicle accident.

 (2) Every insurer shall make available upon request to its insureds underinsured motorist coverage, whereby subject to the terms and conditions of such coverage not inconsistent with this section the insurance company agrees to pay its own insured for such uncompensated damages as he may recover on account of injury due to a motor vehicle accident because the judgment recovered against the owner of the other vehicle exceeds the liability policy limits thereon, to the extent of the underinsurance policy limits on the vehicle of the party recovering.

* * *

(5) The underinsured motorist insurer is entitled to a credit against total damages in the amount of the limits of the underinsured motorist’s liability policies in all cases to which this section applies, even if the settlement with the underinsured motorist under subsection (3) of this section or the payment by the underinsured motorist insurer under subsection (4) of this section is for less than the underinsured motorist’s full liability policy limits. The term “total damages” as used in this section means the full amount of damages determined to have been sustained by the injured party, regardless of the amount of underinsured motorist coverage. Nothing in this section, including any payment or credit under this subsection, reduces or affects the total amount of underinsured motorist coverage available to the injured party.

Unlike the $25,000 in mandatory UM coverage pursuant to KRS 304.20-020, UIM coverage is entirely optional in Kentucky: “Every insurer shall make available upon request to its insureds underinsured motorist coverage[.]”  The coverage must be requested.

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).

Personally, I am partial to the Supreme Court of Hawaii’s (borrowed from the Supreme Court of Connecticut) elucidation of 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);  but see, Bright v. First Ins. Co. of Hawaii Ltd., 91 Hawai’i 299 (Ct. App. 1999)(finding cyclist’s accident did not arise out of a “motor vehicle accident” and no-fault coverage did not apply).

Following this clear and straightforward reasoning, if a cyclist or a pogo stick-ist is injured by an uninsured or underinsured motorist, his or her personal UM/UIM policy will respond.  Period.  Full stop.  End of Story.  Unless you are in Ohio.  And unless you are claiming coverage under a commercial UM/UIM coverage.

Ohio Jurisprudence on UM/UIM Coverage

While not as strong or straightforward in its reasoning, the Ohio Supreme Court way back in 1994, reached a similar conclusion finding the “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, flatly 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.  Shortly thereafter the Lobbyists were on the move.  Within 15 days Senate Bill 1994 S 20 was passed.  One must note the convenience and proximity of Ohio’s State House to many insurance companies headquartered in Columbus, Ohio.  For some Insurance Executives and/or Lobbyists, the Ohio State House is nothing more than a walk of a few blocks.

R.C. 3937.18 was amended no less than six times to reach the current version of Ohio’s “Uninsured and Underinsured Motorist Coverage Statute.  In 2008 the Supreme Court reversed the Martin holding finding that it had been superseded by the revisions to R.C. 3937.18 in Lager v. Miller-Gonzalez (2008), 120 Ohio St.3d 47.

The Ninth District Court of Appeals notes 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.

The now-current version R.C. 3937.18 favors insurance companies in all sorts of ways.  Generally speaking, R.C. 3937.18(I) permits a laundry list of “exclusions” to coverage that permits insurance companies to deny UM/UIM benefits to premium-paying insureds in Ohio.

Specific to cyclists, R.C. 3937.18(I)(4) legislatively destroys the personal and portable nature of UM/UIM coverage recognized by Kentucky Courts and other States.  Subsection (I)(4) permits an insurer to limit UM/UIM coverage to “covered” vehicles which are specifically listed in the declarations page of your policy.

How many of you have listed your bicycles as “covered” vehicles in your UM/UIM coverage?  I suspect before reading this, you never gave the issue a moment’s consideration.  R.C. 3937.18(I)(4) is a trap for the unwary. It states:

(I) Any policy of insurance that includes uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages may, * * *  include terms and conditions that preclude coverage for bodily injury or death suffered by an insured under specified circumstances, including but not limited to any of the following circumstances:

* * *

(4) While any employee, officer, director, partner, trustee, member, executor, administrator, or beneficiary of the named insured, or any relative of any such person, is operating or occupying a motor vehicle, unless [said person] is operating or occupying a motor vehicle for which uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages are provided in the policy;

Where does this leave a cyclist in Ohio?  In short, without any legislative protection.  Your insurance company can avail itself of this Statute and argue (if the policy language permits) that (1) you were on a bicycle, not a “motor vehicle” and (2) your bike was not “covered” because it was not listed or “provided” for in the policy.

This result is exactly what Ohio legislators intended when they wrote into law the following language: “Any policy of insurance that includes uninsured motorist coverage, underinsured motorist coverage, or both uninsured and underinsured motorist coverages may, * * *  include terms and conditions that preclude coverage for bodily injury” found in R.C. 3937.18.

In fact, Ohio legislators were so anxious to restrict UM and UIM coverage that they wrote into law their approval of UM and UIM policies which restrict coverage to certain motor vehicles in subsection (I)(4) of R.C. 3937.18.  This is in sharp contrast to the “personal” and “portable” nature of UM and UIM coverage found in the Commonwealth of Kentucky.

Individual/Personal Policies Versus Commercial Policies

Courts will take a much different approach to commercial UM and UIM policies as compared to personal UM and UIM policies. Commercial UM and UIM policies typically insure the interests of a business or some type of corporate entity.  It is difficult for a business or corporation to have a “personal” interest in the insurance as a business or corporation is, by definition, a grouping of several to potentially thousands of individuals.

The Supreme Court of Kentucky was faced with a UIM claim brought by a cyclist in Isaacs v. Sentinal Insurance Company Ltd., 2018-SC-0078-DG.  Mr. Isaacs was an attorney and the sole shareholder of his law firm Isaacs & Isaacs, P.S.C.  Mr. Isaacs was hit and injured while riding in Jefferson County.  The driver’s insurance company paid the limits of his policy to Mr. Isaacs leaving a UIM Claim against Sentinal.

The Kentucky Supreme Court addressed the sole shareholder argument that Mr. Isaacs and his law firm where one in the same thusly:

Professional service corporations are—as the name implies—corporate entities. KRS 274.015(2) provides: “A professional service corporation formed under the provisions of this chapter, except as this chapter may otherwise provide, shall have the same powers, authority, duties, and liabilities as a corporation formed under, and shall be otherwise governed by, KRS Chapter 271B.” If Isaacs and his P.S.C. were, as he argues, one and the same, he would have had no reason to form the P.S.C.

The Kentucky Supreme Court went on to find that an agent of a corporation cannot have a “personal” relationship to the UIM coverage unless he was listed as a named insured on the policy:

The Isaacses also argue they are entitled to UIM benefits under the Sentinel commercial policy because “UIM coverage is personal to the person who purchased the coverage.” However, as previously discussed, Isaacs was not the named insured. He did not purchase the coverage, nor did his name appear on the policy’s declarations page. The policy’s terms unambiguously distinguished between policies written to individuals and those written to corporations.

Absent a personal interest as a named insured, the Supreme Court applied the “covered auto” exclusion discussed above the Ohio subsection and found that the UIM coverage did not apply because Mr. Isaacs was riding a bicycle at the time of the accident and that bicycle was not listed as a “covered” vehicle or “covered auto” and therefore coverage under the policy was not triggered.

There is no reason to believe that a commercial UM/UIM policy written and litigated in Ohio would come to a different conclusion.

Lessons Learned

The first, and most obvious, lesson learned is get UM and UIM Coverage!

The second lesson learned is that the protections afforded an insured cyclist in Kentucky are much, much broader than the protections afforded insured cyclists in Ohio under UM and UIM policies.

The third lesson learned is that the devil is in the detail.  Make sure your policy does not include language like “covered auto” or “occupying” in the UM or UIM policy.  This is an argument for an Insurance Agent.  Sit down with your agent and let them know you are a cyclist, and you need UM and UIM coverage for while you are on the road enjoying one of your passions.

The fourth lesson learned is that personal and commercial UM and UIM policies are treated differently under both Kentucky and Ohio law.

The fifth lesson learned is that negotiating an UM or UIM Claim can be perilous.  Secure Counsel.

If you have any questions or concerns regarding UM or UIM coverage or a potential first-party claim against your automobile insurance company after a cycling accident, please reach out to us at Carville Legal Counsel LLC.  You can email Chris Carville at [email protected] or call 513 600 8432.  We offer free consultations.