DEFENSE TACTIC #1 – The UNSAFE California Motorcyclist Defense Argument:
If you drive anywhere in California, we have all seen the unsafe motorcyclist speeding down the highway, and cutting in-and-out of traffic, lane-splitting unsafely, and sometimes surprising motorists with their noise, agility and high rate of speed. Fortunately, the unsafe motorcyclist is in the minority of all motorcyclists. The fact remains, most California motorcyclists are safe, and law-abiding citizens. As with anything in life, most people remember the “bad apples” more, as opposed to the “good apples.”
Thus, the first thing an insurance company is going to want to do on your motorcycle injury case is to figure out if they can “paint you” as one of those “unsafe motorcycle riders” on our highways. They first examine the type of motorcycle you had in the collision, and then the type of motorcyclist you are. Yes, it usually gets scrutinized in that order. I first hear about the motorcycle, whether it was a sport bike or not, or what kind of stickers it had, and then about the experience level my client had as a motorcyclist or what my client was doing as a motorcyclist in the collision itself. I have heard it all.
For example, if you are involved in a motorcycle collision, the first question to be analyzed is, what kind of motorcycle did you have? Was it a “crotch-rocket,” “standard bike,” “cruiser,” “chopper,” “bobber,” “touring bike,” “sport bike,” “motorized scooter,” “moped,” or “off-road motorbike?” Believe it or not, there is an inherent “biased hierarchy” on what most people would consider more unsafe just by looking at the kind or type of motorcycle involved in the collision. I have had focus groups assume my client was speeding by just looking at a photograph of the motorcycle!
Is a "Crotch Rocket" Motorcycle The Most Unsafe Motorcycle Out There?
Most people consider a “crotch rocket” motorcycle either the most unsafe motorcyclist out there on the roadway today, and, therefore, he or she must be the kind of person who is crazy enough to even ride it. This type of motorcycle requires the rider to assume a “Z” position with the body leaning forward onto the bike in order to reduce wind drag. A good defense lawyer can try to link in this inherent bias of this being an unsafe motorcycle (thus, unsafe motorcyclist) in the minds of jurors at trial, and likewise, a good claims adjuster will set that impression early in the claim file when the claim is first reported. I have heard that adjusters at some insurance companies are ordered to always look for fault when it comes to a motorcycle collision injury, especially on sport type motorcycles. If there are no overt facts to assert that, then they are to be creative and come up with one!
An Example of a Motorcyclist Case in California
I had a motorcycle injury case where my client was in the Navy and he was riding a Triumph brand “crotch rocket” type of motorcycle with a “skull and bones symbolized by patched eye pirate” on the front plaque near the windshield and the handle bars.
Although my client was following the safe driving rules at the time of the crash, the defense lawyer alleged my client was unsafely lane-splitting just before the crash. I even took the video deposition of a credible witness who was behind my client on the roadway indicating he was not lane-splitting at the time of the collision. The defense still took the position prior to trial that lane-splitting “may” have still occurred because they knew they can always toy with idea of it possibly happening just to play in the inherent bias that some people have even though they swear they will be fair and impartial as a juror. It is part of human nature, and if you have been injured on your motorcycle by another person on the roadway, you should be aware of this inherent bias. In a nutshell, the “safer your motorcycle looks,” the better for your injury case.
After the type of motorcycle is scrutinized by the defense, they then focus on YOU, as the motorcyclist. There will be many questions running through the minds of the people reviewing your file at the insurance company to see if they can devalue it.
California Motorcycle Accident Defense Oriented Questions
- What kind of witness will you make for yourself and your injuries?
- Are you a safe-motorcyclist, and how do we prove you are safe?
- Do you lane-split, and if so, how often?
- Were you safely lane-splitting at the time of the collision?
- What is your riding skill level?
- How many prior motorcycle collisions have you experienced?
- How many years have you been riding, and how are you on motorcycle safety?
- Did you have proper riding gear on, and if not, why not?
- What could you have done, as the injured motorcyclist, to prevent the collision?
- Were you over-weight or considered obese that this may have contributed to motorcycle balance issues?
- Did you over-treat your injuries, or take too many pain killers?
- Did you use alternative care not prescribed by your primary care physicians like acupuncture, naturopathy, or chiropractic?
- Was there damage to your motorcycle?
- How were you injured if you were not thrown off of your motorcycle?
These questions, and many more too numerous to list here, represent the defense focus when it comes to these types of cases, and it all starts as soon as the injury claim is reported.
When I get a new motorcycle injury case, I immediately have my client describe to me how they are a safe motorcyclist. Sometimes my clients tell me they never ride their motorcycle at night, or while raining, or they ride just on the weekends, and not every single day; or, they never ride with passengers. In my Navy case I spoke about above, my client actually taught motorcycle safety for safely riding motorcycles on the San Diego Navy Base. So, I obtained evidence of his safety training certificates and completed safety training courses. He had many different ones, and sent them all over to the defense lawyer letting her know that she will be dealing with a safe motorcyclist, not an unsafe one, at trial.
I was able to frame my argument that my injured client was not only defending our country at the time of the motorcycle collision (he was active duty Navy), but he was also in charge of motorcycle safety for all motorcyclists at the San Diego Naval Base. This is evidence, and it is part of my job advocating my client’s injury position. Sometimes my clients have had safety training that goes well beyond what is required by the California DMV, like what happened in my Navy case. If you are reading this, and you are an avid rider, it would be a good investment to collect safety motorcycle trainings for your records now just in case it is ever needed in the future. At the very least, it will make you a much safer motorcyclist.
Beyond safety training certificates, training, and skill experience, if needed, we can also utilize friends, family members or work colleagues to testify that an injured motorcyclist is a safe motorcyclist. If my client belongs to a riding club, we can use witnesses from that organization too.
We can also use witnesses who are present at the time of the collision, like in my Navy case above. In that case, I obtained witness deposition testimony that my client was being safe at the time of the crash, and not unsafely lane-splitting. I always want the claims adjuster and defense lawyer to see my injured client as the exception to the “bad apples” on the roadway. Credibility goes a long way in any injury case, but it is especially true in motorcycle injury cases. Remember, an injured motorcyclist has the burden of proof, and the more we can deliver on that proof the better for the injury case.
California Motorcycle Accident Attorney That Is Here To Help You
If you were injured on a motorcycle by someone not being careful enough, then fill out my convenient online form to schedule a free consultation to learn how I can help you today. Or, you can always call me direct at 619.813.7955, or via email at email@example.com.