Bike and Pedestrian Crash Compensation Bill Goes Before D.C. Council Again

July 7, 2016

By Thai Phi Le


The D.C. Council is set to vote on July 12 on the Motor Vehicle Collision Recovery
Act, a proposal that would make it easier for cyclists and pedestrians to recover damages following a crash with a motor vehicle.

Currently, the District is just one of five jurisdictions—along with Alabama, Maryland,
North Carolina, and Virginia—with contributory negligence laws, which state that if a cyclist is more than 1 percent at fault for a collision, he or she can be denied a claim for damages.

Peter Anderson of Grenier Law Group PLLC says, "What this bill would do is modify the contributory negligence rule in D.C. to make it a comparative fault rule, which
is huge. If the cyclist is less than 50 percent negligent in the crash, than he or she can still recover." Forty-six states have some version of comparative fault laws.

The vote was originally set for June 28, but it was pushed back after a disagreement between Councilmembers Kenyan McDuffie and Mary Cheh. While both want the District to move away from contributory negligence standards, they argued over how much compensation cyclists and pedestrians should receive. McDuffie wants to amend the current bill to limit the compensation depending on the percentage a cyclist or pedestrian is determined to be at fault in the accident. Cheh, on the other hand, argues that cyclists should be eligible for full recovery if they are found to be less than 50 percent responsible.

John Mesirow of Mesirow &Associates, PLLC, which specializes in bicycle accident laws, says, "There's pure comparative law, which I think is a little over the top. It says you can be 90 percent at fault and still recover the 10 percent, but most [states] have modified comparative, which means it has to be less than 50 percent your fault, which seems fair to me." Only 13 states have pure comparative and 33 recognize modified comparative fault, but they have varying standards for recovery.

An earlier version of the bill was introduced in 2014, but it was not adopted because of concerns from trial attorneys seeking to retain joint and several liability. Cheh introduced an amended proposal in January 2015 that explicitly kept the joint and several liability, says Tamara Evans, the advocacy director for the Washington Area Bicycle Association.

"The environment the cyclists are operating in is really compounded by this very unfair legal standard," Evans says. She points to a September 2013 report out of the District of Columbia's Office of Police Complaints that found that police officers need more training on how to respond to cyclist accidents, as well as greater knowledge of bike laws in general. As first responders to a crash, officers often take statements from only the driver's perspective because the cyclist must receive immediate medical attention at the hospital. The crash report compiled at the scene is then used by the insurers to determine whether cyclists should receive compensation.

"There's no plaintiff lawyer on the face of the Earth who's for contributory negligence.
It's the worst," Mesirow says. "The threshold is so low. You get a jury instruction that says if you find that the victim is 1 percent responsible, then you're done? It's just not fair."

Opponents, however, cite rising insurance costs as the primary reason to block the bill.
In an e-mail to its members ahead of the June 28 vote, AAA Mid-Atlantic Director of Public and Government Affairs Thomas Calcagni wrote, "Why should residents pay $600 more for auto insurance annually, and become the target of civil lawsuits in case of a traffic collision with non-auto users in the city?"

If the bill is passed on July 12, a second and final vote will be required in October before it's adopted by the city.