Washington Supreme Court Rules that People on Bikes are Pedestrians for Insurance Purposes

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December 10, 2020

Today, after a very long fight, the Washington Supreme Court ruled that our client was improperly denied no-fault medical payments by his own car insurance company after he was doored by a driver and injured while riding his bicycle.

Our client purchased car insurance in California, but was living in Washington and was involved in a collision in Washington. His insurance said it provided coverage for him “as a pedestrian struck by [] a motor vehicle” and the policy did not define the word “pedestrian.”

Nevertheless, the insurer denied coverage based on definitions of “pedestrian” in dictionaries and the Rules of the Road in California and Washington that exclude people riding bicycles.

We asked it to reconsider, reminding it that people on bikes are frequently referred to as pedestrians, but it refused.

We then notified the Washington Insurance Commissioner of possible bad faith on the part of the insurer, but still the insurer would not budge. We then sued the insurance company.

Unfortunately, the trial court sided with the insurance company and dismissed our client’s claim on summary judgement. We then appealed, with the the appellate law firm of Talmadge/Fitzpatrick providing invaluable support in briefing and at oral arguments.

Sadly, the Division One of the Court of Appeals again sided with the insurance company and upheld the trial court’s dismissal. Worse still, other insurance companies began to use the Court of Appeals’ published opinion to deny other claims by people who were struck by cars while riding bicycles.

Don't door me!  Bicyclist swerves while a car driver on a mobile phone is swing open the car door without first looking that it is safe to do so.

Today, the Washington Supreme Court reversed, noting what should have been controlling in the prior decisions:

The policy does not define “pedestrian,” but our legislature has defined “pedestrian” for purposes of casualty insurance in Washington as follows: “‘Pedestrian’ means a natural person not occupying a motor vehicle…”

The Court reasoned that the statutory definition of pedestrian in the insurance context controlled insurance coverage, rather than the definition of pedestrian in the Rules of the Road. It noted:

This court has long acknowledged that insurance policies . . . are simply unlike traditional contracts, i.e., they are not purely private affairs but abound with public policy considerations, one of which is that the risk-spreading theory of such policies should operate to afford to affected members of the public . . . the maximum protection possible consonant with fairness to the insurer.

The Court concluded:

Here, … an insured would expect to be covered when injured in a collision with an automobile whether the insured was walking, skateboarding, using a wheelchair, standing on a sidewalk, sitting on a park bench, riding a bike, or doing something else. The average purchaser of insurance would expect to be covered by this policy when injured by an automobile. Accordingly, we hold that McLaughlin’s injuries are covered by his insurance policy.

Our client was doored more than three years ago and, while we were able to resolve his liability claim some time ago, his own insurance company has still not honored its “no-fault” coverage.

This clear decision by our Supreme Court finally brings this matter to a close. And, because we kept at it– all the way to the Supreme Court– we now have a strong precedent that will prevent insurance companies from denying no-fault benefits to people injured on bicycles.

We appreciate the support of Cascade Bicycle Club, United Policy Holders, and the Washington State Association for Justice Foundation who all filed amicus briefs supporting our client’s position and helped achieve this win for people on bikes.

Dogs of WBL: Millie

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Millie’s humans are Jessica and her husband Niels.

Favorite ride: I once got to ride over 100km on Niels’ back in the Outer Banks in North Carolina! I love the beach and being warm so this was my favorite ride!

Favorite treat:  Despite living with two humans who eat a plant-based diet, my favorite treat is dried sweet potato wrapped in chicken jerky.

Pet (ha!) peeve: I hate seeing any of my favorite humans leave on a bike ride without me.  I get so upset that I bark, grumble, and try to chase them down the street.

Favorite thing about your human being a bike lawyer: Since I love going on bike rides either on my human’s back or while being towed in a trailer, I love that my human works somewhere where she is encouraged and even expected to ride her bike to work every day.

more >> Dogs of Washington Bike Law: Moses

Working to Make Vision Zero a Reality

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Washington Bike Law doesn’t just represent individual clients, we work to make Vision Zero a reality by holding road designers responsible for unsafe streets.

Vision Zero is an international strategy to eliminate traffic fatalities and severe injuries while increasing safe, healthy, and equitable mobility for everyone.

Washington Bike Law recently settled a case against the City of Kent involving a dangerous crosswalk, so we can now share with you some things we learned litigating it.

Vision Zero is an ethical framework stemming from the premise that it is unacceptable for people to suffer serious injuries or death as a result of traffic violence. Before Vision Zero, serious injuries and loss of life were merely factors to be considered in the cost-benefit analysis of transportation engineers.

Vision Zero was first approved by the Swedish Parliament in 1997. Seattle produced its first Vision Zero plan in 2015. The state of Washington has been producing its Target Zero Highway Safety Plans since 2000. Washington and Seattle’s plans both call for zero deaths or serious injuries on our roads by 2030.

What about Kent? Here is an excerpt from a deposition of its Transportation Engineering Manager and officially designated speaking agent:

We also took the deposition of Kent’s Police Research and Development Analyst, who was designated as the City’s speaking agent on Vision Zero. She talked about “shared responsibly” and questioned whether drivers even had a duty to stop for pedestrians at intersections. We followed up with her:

We have previously written about how Kent’s streets are dangerous for pedestrians, and these depositions show what the people at the top are thinking (or not thinking).

In another deposition, we asked Kent’s Transportation Engineering Manager:

The intersection in our case involved a marked crosswalk for the Interurban Trail that crosses Willis Street at 74th Ave W. People wanting to use the crosswalk always approach a red light because it defaults to red. They must use what is sometimes called a “beg button” to get a green light.

Meanwhile, drivers approaching the same “T” intersection from 74th Ave have two lanes: one that can only turn left; and one that can only turn right. Drivers in the left-turn lane can only drive through the marked crosswalk. The signals for all the car lanes turn green simultaneously, regardless of whether someone has pressed the beg button to cross the road safely.

This intersection is shown from above on Google Maps:

We asked Kent’s Transportation Engineering Manager how its design compared to the design of demolition derby tracks:

Kent claimed that its design was safe because drivers should know that they have a duty to stop at crosswalks—even though its own speaking agent wasn’t sure what constitutes a crosswalk.

According to the Vision Zero Network, the “Vision Zero approach recognizes that people will sometimes make mistakes, so the road system and related policies should be designed to ensure those inevitable mistakes do not result in severe injuries or fatalities.”

This means that streets need to be designed to be safe even without perfect human behavior. While road users are required to follow the rules of the road, if users regularly fail to comply (for instance, not stopping for people in crosswalks) then system designers—traffic engineers and lawmakers—need to change the system to make it safer.

This ethical platform loop is illustrated below:

We asked Kent’s Transportation Engineering Manager about this:

Vision Zero means that governments must take into account not just what they think users should do on their streets, but also what they actually do, like not stopping for people in crosswalks.

Vision Zero policies will make our streets safer and better, but there is a learning curve. Road designers, politicians, and the public all need to understand that crashes resulting in serious injuries and deaths on our roads are not accidents.

They are preventable, but we all need to be part of their prevention. At Washington Bike Law, we’d very much prefer for people to not be seriously injured and killed on our streets. But when they are, we work to hold people—and road designers—responsible.

While the City of Kent’s insurance ultimately paid to compensate our client, Kent has yet to make that crosswalk safe. We attempted to negotiate safety improvements, but the City refused. We hope than it will improve it before someone else is seriously injured or killed. Unfortunately, we cannot force our leaders to do the right thing—but litigation and significant verdicts can help make our streets safer.

We still have much work to do, particularly with people who don’t follow this issue. Someone in our community recently wrote in the Seattle Times:

The nonprofit Transportation Alternatives disagrees:

Not accepting that crashes are just accidents is an easy way you can help achieve Vision Zero. There’s even a hashtag, #CrashNotAccident, but please don’t use it while driving.


2019 Awards for Making Streets Safer and Better for People

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On August 4, 2019 at Seattle Neighborhood Greenways (SNG)’s Feast in the Street celebration, Bob Anderton announced the 2019 award winners.

Bob Anderton announces the 2019 People’s Champion and
Community Enhancer award winners.

In announcing the awards, Bob Anderton said, ” I am a bike lawyer. I’ve been representing people injured on our streets for more than a quarter century. I founded Washington Bike Law not just to represent injured bicyclists, but to help make our streets safer for everyone.”

Anderton continued, “But here’s the deal, my office represents people who’ve already been injured in bike and pedestrian crashes. Mostly what we do is too late.”

“Tonight, with these first-annual awards, we recognize Seattle people and organizations who work to prevent crashes and make Seattle’s streets better for people.”

The annual Washington Bike Law and SNG awards are:

The People’s Champion Award, for outstanding safe streets advocacy and achievement; and

The Community Enhancer Award, for leadership in creating vibrant public space and making streets places where communities can thrive.

Feast in the Street image

Friends of Hing Hay Park is the 2019 winner of the Community Enhancer Award for bringing to life perhaps Seattle’s best new public space at… (wait for it) Hing Hay Park.

Jeff Hou spoke about how the park really serves the community and is actually used by it.

Brie Gyncild and David Seater are the 2019 co-winners of the People’s Champion Award for their work on the Pike/Pine Protected Bike Lanes Community Engagement

Under their co-leadership, Central Seattle Greenways led the multi-year advocacy effort for protected bike lanes connecting Capitol Hill to downtown.

Dogs of WBL: Moses

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Moses is Bob’s dog. He and his wife adopted him from the Seattle Humane Society about 3 years ago which makes him about 5 years old. Moses regularly rides to work in a luxurious and relatively safe basket on the front of Bob’s bike.

Favorite ride: Bikes are fine, but paddle boarding is my favorite
Favorite treat: Whatever you’re having
Pet (ha!) peeve: Birds
Favorite thing about your human being a bike lawyer: Riding in a covered basket with a plush blanket.

more  >> Dogs of Washington Bike Law : Millie

“When I look back, my life seems full of blank spots.”

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A Presumed Liability law would help ensure that drivers who injure people walking, biking, or using wheelchairs are held accountable. Better still, it would help prevent these collisions.

Morgan Scherer was injured when a driver failed to stop for her as she rode a bicycle through a marked crosswalk. Although state law is fairly clear on this duty, the police ticketed Morgan and the driver’s insurer refused to admit liability.

Morgan’s case went to trial, but a King County jury found that the driver used ordinary care in failing to stop and was therefore not negligent. A presumed liability law could have helped, particularly if it had motivated the driver to stop.

Morgan suffered a traumatic brain injury in this crash. Here, we are republishing, with Morgan’s permission, a remarkably gracious and accepting glimpse into how much this collision continues to affect her.

Morgan Scherer

February 24 at 8:12 PM ·

I biked to Golden Gardens today to try out a kayak. It turns out the owner of the kayak is someone I knew from 25 years ago when I was racing. Apparently, I knew him rather well. He reminded me that we drove the kayak club’s racing boats from Seattle to Sacramento together when I was 18 or 19. He taught me how to drive with a trailer. He vividly recalled that I consistently refused to start the car until he put his seatbelt on, which was annoying since I was a kid telling him what to do.

I can totally see myself doing that, and am delighted with my chutzpah. I also remember his advice about backing up with a trailer, “Just try not to have to back up”, though I don’t remember he was the one that gave it. In fact, I have literally no memory of the trip. I don’t remember driving down together, though he assures me we had fun and listened to a lot of great music, which seems plausible. I don’t even remember that the trip happened at all.

Even stranger, I don’t remember driving the trailer home again from California. He flew home, and I apparently drove home alone, so I can’t say whether I had fun. I still love driving trips to California though, so it was probably fine.

It all sounded like me, and seemed plausible given what I remember of what I was doing and involved with at that time. But his stories sparked no reflection in me, except for the one vague and disconnected recollection…

It’s quite startling. Either he is remembering the wrong person, or I have completely lost some big memories. I think the latter is true, because this is not the first time this has come up. After my brain injury we drove through the redwoods on Hwy 101 in California. I know for sure I’ve been there many times in the past, but everything was unreasonably and eerily unfamiliar.

I have been assured by doctors that my brain injury and subsequent epilepsy probably has not damaged my long-term memory storage. However, there have been several times when, after a seizure, I have been unable to recall a childhood memory that I had recounted to Sofia in the week prior to the seizure.

Once the memories are gone, they seem totally gone. Listening to his stories, I could imagine the trip. It all sounded like me, and seemed plausible given what I remember of what I was doing and involved with at that time. But his stories sparked no reflection in me, except for the one vague and disconnected recollection about backing the trailer.

I feel….grateful, mostly. Certainly it is surreal. When I look back, my life seems full of blank spots. I am grateful when someone fills me in on the stories of my life. Grateful that I have been friends with many people who remember fun and astonishing things we have done together. Now, though I don’t remember the events my friend remembers, I do remember kayaking in the sun today, hearing his stories of the events. What a gift.

Kent’s Zero Vision Plan Injures and Kills People

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     Washington Bike Law believes in #VisionZero. Many people haven’t heard of Vision Zero, which is fine if they don’t have anything to do with transportation or law enforcement, but outrageous if they do.
    The following is a search on Kent’s website for Vision Zero plan:
   The website’s search asks, “did you mean vision AND eros?”  Well sure, we’d LOVE for Kent to have shown a vision for safe streets, but alas, nothing is to be found… #ZeroVision.
     We  represent a client who was seriously injured in Kent, Washington when he was stuck in a marked crosswalk. He is suing Kent for having Zero Vision– meaning in that case, not just that Kent failed to adopt Vision Zero, but that it failed to meet the bare legal minimum of having streets reasonably safe for ordinary travel.
     Our client was riding to work on the Interurban Trail, but had to cross Willis Street along the way.
     Unfortunately for our client (and others who use crosswalks there) the City of Kent was not thinking about Vision Zero when it designed the crosswalk where our client was struck and– apparently– others in the city.
     The city intentionally designed traffic lights to default to red for anyone using the Interurban Trail. Our client stopped and pressed what is sometimes called a Beg Button to get a green light to cross the street. Only after he had a green light did he enter the street.
     Traffic on 74th Avenue South, which is more or less parallel to the Interurban Trail, also had a red light. The driver who struck our client stopped for that red light and was in a right-turn-only lane with a separate signal. Drivers on 74th Avenue get a green light AT THE SAME TIME AS THE GREEN LIGHT FOR THE CROSSWALK.
     This is a “T” intersection. Traffic from this conflicting light could ONLY turn through the crosswalk with the conflicting signal. While this is obviously dangerous, the City of Kent claimed that it was fine even after we called their attention to it and asked them to make changes.
     By the way, if a municipality (or any defendant) makes changes after an injury due to its negligence, the fact that they made these changes (usually called “subsequent remedial measures”) is generally not admissible to prove negligence. This evidence rule is intended to promote safety, but the City of Kent apparently didn’t see it that way.
     From 2016 to 2018 Washington Bike Law wrote the city of Kent on six separate occasions asking them to please make changes.
     In our last letter before they hired a law firm to write our office to demand that we stop writing them, we wrote as follows:

Pedestrians and bicyclists using the marked crosswalk after waiting for the green light are lured into a false sense of safety while right-turning motorists are also given the green light.

Please let me know if the City has made any changes or, if not, if there anything I can do to convince it to do so before others are seriously injured or killed.

     The lawyer representing the city wrote back in October of 2018 stating that “the traffic signals comply with applicable guidelines and accident data shows the intersection is safe.” The City made no changes to this intersection or any other similarly dangerous intersection, despite our multiple explicit warnings.

     In November of 2018 a driver struck a woman pushing a stroller with two children in another marked crosswalk in Kent, killing the woman and injuring the children. The driver admitted that she saw another person in the crosswalk, but chose to turn anyway, intending to drive through the crosswalk in front of him. Instead, she killed the woman pushing the stroller, who was entering the crosswalk from the opposite direction.
     Of course, what these drivers did was negligent. But in both these cases, the people using the crosswalks and the drivers turning through them had green lights. Drivers have a duty to stop for people in crosswalks.
     But the real tragedy is that the City of Kent could have prevented this death and other serious injuries but chose not to act. This is Zero Vision.
     A recent article in the Kent Reporter by reporter Steve Hunter entitled “Seven Months, Seven Pedestrian Deaths in Kent” provides a sad overview of how dangerous Kent’s streets are for pedestrians.

Adding insult to many needless injuries and senseless deaths, the article quotes Kent Police Assistant Chief Jarod Kasner  regarding the death of the woman pushing the stroller:

“We forwarded all the information we had to King County, we expect a decline on this,” Kasner said about whether a charge would be filed by prosecutors. “The suspect was sober and not on her phone, with no excessive speed or other contributing factors, it was truly a tragic accident.”

     This was no accident. It was tragic that the driver chose to violate the law and drive into a marked crosswalk when she admitted that she saw another pedestrian in it.
    This was no accident. This death was the direct result of what I am calling Kent’s #ZeroVision policy. The City of Kent knew or should have known that their crosswalks were a trap for pedestrians years before our client was seriously injured in 2016.
     There can be no doubt that the City intentionally ignored our repeated warnings of this danger.  The City’s lawyer wrote in response to our last request to fix this danger:
“Obviously a city needs to follow the advice of traffic engineers– not lawyers– when deciding what traffic signals are appropriate.”
     I can understand the defense lawyer’s point. But I wasn’t writing Kent so that I could write this now and say “I told you so.”  I really wanted safer streets. What did they want?
     It remains to be seen what, if any, analysis the City’s traffic engineers did in our case. But the fact that so many people are still being injured and killed makes me think that the engineers should reconsider Kent’s #ZeroVision policy.

Happy New Year! Let’s Make 2019 the year our streets become safe for everyone!

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We were happy to help many clients in 2018, but we ended the year with an almost month-long jury trial involving a collision in a marked crosswalk where the jury found ZERO responsibility on the part of the defendant.

The collision occurred when our client was more than halfway across the street in the crosswalk shown above and had the right to assume that the driver would obey the law and stop for her.

Sadly, the jury decided that the defendant driver exercised “ordinary care” in failing to stop for the crosswalk and in passing another vehicle that had stopped for our client to use the crosswalk.

This is ZERO VISION, not VISION ZERO. This is why we need to legislate Presumed Liability NOW.

You’ve probably heard about #PresumedLiability from us (and others) before. We didn’t expect to need it in this trial, because the state laws requiring drivers to stop for crosswalks appear to be straightforward and strong. But, as you probably know all too well, those laws are frequently not obeyed and are rarely enforced.

A King County Jury decided that NOT following those clear crosswalk laws constituted Ordinary Care. Here’s what that means: Injured people have the burden to prove negligence. Negligence is the failure to exercise Ordinary Care.  In most situations, injured people are only compensated by insurance companies (even their own) if they can prove negligence on the part of another person.

The Court instructed the jury that the driver had a duty to stop at the crosswalk and that the driver had a duty not to pass another vehicle that was stopped for our client to use the crosswalk. Nevertheless, the jury found that the driver exercised Ordinary Care.

Until we change the law and create Presumed Liability, many drivers will not stop at crosswalks. And it’s not just crosswalks. Our streets are not and will not be safe without a change in the law. Better education, better enforcement, and (especially) better infrastructure will all help, but reforming our laws can be done without without protracted budget battles to secure funding—all it takes is the political will.

Let’s DO this! Please join us in working to pass legislation creating a presumption of liability for drivers who collide with pedestrians or people riding bikes. This is not #StrictLiability. Drivers could still prove that a pedestrian or person riding a bike was at fault, but drivers would have the burden to prove fault.

We should pass a presumption of liability law state-wide. Particularly in Seattle, the danger of riding bikes or even walking makes some people drive who would otherwise walk or ride. With our increasing density and #PeriodOfMaximumConstraint a/k/a #JennyJam coming up, we need to do everything possible to move people and make our streets safe for everyone. We need to pass this law.

Washington Bike Law is committed to making our streets safer for everyone and will do our best in 2019 to make this law a reality.

If you want to be involved in legislative efforts to pass a presumption of liability law state-wide and/or just in Seattle, please contact kimberly@washingtonbikelaw.com.  We will be resuming regular meetings with interested parties soon.

An Advocacy Organization or a Law Firm Representing Individuals? Yes.

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One of our takeaways from Bike Everywhere Day is that many people don’t quite know what Washington Bike Law (WBL) does… are we an advocacy organization or are we a law firm? In short, yes…

What we do: WBL is a law office that represents individuals who have been injured in bike crashes AND we advocate for safer streets for everyone. We also represent people who were not injured on bikes (like people walking and even occasionally people driving), but more than 90% of our clients are bicyclists.

Who we are: We are three advocate/attorneys (Bob, Rob and Jessica), two advocate/paralegals (Lauranne and Kimberly) and one advocate/law clerk (Nick). Also joining us at work are up to four office dogs, Moses, Millie, Raffi, and Laci.

Washington Bike Law

More about our advocacy: WBL helps to make our streets safer for everyone, not just by advocating for injured individuals, but by working on bigger picture issues directly and with other organizations.

WBL is one of Bike Works largest financial contributors. Bob has volunteered for more than a decade there and sits on its board. Bob is also on the board of Seattle Neighborhood Greenways. Bob has been a Major Donor to Cascade Bicycle Club as well as a contributor to Washington Bikes and to Washington Bike PAC.

Jessica started and runs the nonprofit NWCX Project and is a volunteer coach with the Washington Student Cycling League.

Kimberly came to WBL from PeopleForBikes and founded NYCBiketrain to encourage and support new bike commuters.

WBL advocates outside of the courtroom for legislative changes to the law like a presumption of liability against drivers involved in collisions with pedestrians or bicyclists. More on that here.

Want to know more about how we help injured individuals? Check here.

Takeaway for you: Contact WBL if you or a loved one need legal representation. While we earn our living helping people after crashes, know that we are also working to PREVENT injuries and deaths. Consultations are free and we are frequently able to help people resolve issues without formal representation.

Don’t Miss Washington Bike Law’s Bike Everywhere Day Celebration Station May 18

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Don’t pass us by without stopping… our Celebration Station will be open 7 am to 9 am May 18, 2018. We’ll be across the street from our office at Second and Cherry on the Second Avenue Bike Lane.

Seattle Neighborhood Greenways (SNG) will be joining us on May 18. SNG is the grass-roots based Safe Streets Advocacy organization that is probably in your neighborhood. Get involved with SNG!

Also joining us for the third year will be World Pizza… who can resist fabulous free breakfast pizza?!

We’ll also have world-famous Cherry Street coffee. Fuel up. We’ll even have water.

But wait, there’s more… you can win fabulous prizes… like T-shirts, flat repair kits, our famous waterproof Bike Law spoke cards, stickers, and more!

Come on down… or up. Come by and say hi!