Lake Oswego, OR asked in Personal Injury and Car Accidents for Oregon

Q: I got in an car accident with a bicyclist who wasn't wearing a helmet.

Does my insurance still need to pay for any preventable head-related injuries? It was his fault for not wearing a helmet.

2 Lawyer Answers
Joanne Reisman
Joanne Reisman
Answered
  • Personal Injury Lawyer
  • Portland, OR
  • Licensed in Oregon

A: Let the insurance figure it out. You don't need to worry about it unless you are concerned that the damages will exceed the available policy limits (see below). I will say that you are at fault for hitting the cyclist whether they were wearing a helmet or not. There is no Oregon law that requires an adult to wear a helmet while riding a bicycle. The only bicycle helmet law is for minor children. https://www.oregonlaws.org/ors/814.485 (There is a law that requires adults to wear a helmet while riding a motorcycle in Oregon. https://www.oregonlaws.org/ors/814.269)

Your insurance company will try to reduce what they pay be arguing contributory negligence. They will argue that the bicyclist is partially at fault for not wearing a helmet and any other thing they can argue the points to some fault being on the bicyclist. But, as long as the contributing factor is less then 50% of the fault, you, through your insurance company, will still be liable to pay damages reduced by the percentage of contributory fault. When the fault of the injured party exceeds 50% of the total fault, then you don't have to pay. https://www.oregonlaws.org/ors/31.600

If you are worried that the damages that are being requested will exceed your policy limits you might want to speak to your own personal attorney. There can be exposure if you have non-exempt assets that could be used to satisfy a Judgment. However in most cases the Plaintiff's Attorney just wants to get the policy limits of the available insurance policy and the case will end when the insurance company settles within the policy limits and gets a full release that will protect you from further action.

Less common but possible is that the case goes to trial and there is a verdict that is in excess of your policy limits. You may then have a case against your own insurance company if they didn't at least offer to settle for policy limits. The Plaintiff's attorney will contact you and ask you to sign over your rights to sue your insurance company for negligence in handling the claim and will release you and instead pursue the insurance company. In this situation the insurance company can be forced to pay more than the policy limits.

If your insurance company did offer policy limits however and the case still went to trial and got an excess verdict, the above strategy won't work. Instead you will be consulting with a bankruptcy Attorney to figure out how to mitigate your damages. Actually I wouldn't wait until this last worst case scenario happens. I think it would be in your best interest to discuss the situation with your own personal attorney, one that understands both bankruptcy and debtor creditor law and who also understands insurance companies and personal injury cases. Just have the talk so you can know if you are likely to have any risk in the above scenarios. Have a rough plan of what to do, worst case scenario. This will probably give you a lot of peace of mind.

Robert D. Kreisman
Robert D. Kreisman
PREMIUM
Answered
  • Personal Injury Lawyer
  • Chicago, IL

A: The fact that the injured bicyclist was not wearing a protective helmet would not be an issue that could diminish the the value of the case to the plaintiff who was injured. In fact, most lawyers would submit a motion in limine to prevent the lack of a helmet to be introduced as a factor in the case. There is no law that I am aware of in your state or any state for that matter that requires bicyclists to wear a helmet. The damages that your insurer may become obligated to pay would be up to it. The exception to that would be unless there is a coverage deficiency or some other insurance coverage problem that may make you personally liable for any excess judgment above your policy limits.

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