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D.C. Council again weighs making it easier for bicyclists and pedestrians to collect insurance after crashes

Pedestrians crossing the street in downtown Washington. (AP Photo/Pablo Martinez Monsivais)

The D.C. Council on Tuesday will take one more shot at a proposal that would make it easier for bicyclists and pedestrians to collect insurance after collisions with vehicles.

Currently, in order for a cyclist or pedestrian to collect damages, the incident must be 100 percent the driver’s fault.

Essentially the bill would reform the city’s “contributory negligence” doctrine to a comparative negligence standard, which dictates how the responsibility for a collision would be shared between the parties involved. That would give them a greater chance to collect damages.

Nationwide, 46 states have abandoned contributory negligence.

But the insurance industry and advocates for drivers have been lobbying against the change, warning that if the bill passes D.C. drivers could face much higher insurance premiums. Opponents have been successful in blocking changes to laws in Maryland and Virginia.

The D.C. proposal has been approved by Council committees in past years but has failed to be adopted by the full panel. The Council is expected to vote Tuesday. If the bill passes, it will likely become law after a second vote on July 12.

Some city officials have been reluctant to support the proposal in past, citing Maryland and Virginia’s use of contributory negligence and noting that any action the city takes could have regional ramifications.

Advocates for cyclists and pedestrians say the change is necessary now that bike commuting has exploded in the District and city policies continue to push for bike infrastructure and promote biking and walking as alternatives to driving. They also point to the growing number of collisions involving the most vulnerable road users.  On average, 265 bicycle and 600 pedestrian collisions involving vehicles are reported to D.C. police each year, according to data from the D.C. Department of Transportation.

“As we have more people walking and biking this is becoming a more common story,” Greg Billing, executive director of the Washington Area Bicyclist Association said during a recent discussion of the issue on WAMU’s Kojo Nnamdi Show.  According to Census data, about 5 percent of working D.C. residents commute by bicycle and 14 percent walk to work.

A WABA analysis of police reports found that in 40 percent of cases where police investigated crashes they didn’t get a statement from the pedestrian or cyclist. It’s often the case that while the police officer is conducting fact-finding as part of the investigation, the injured cyclist is being loaded into an ambulance, Billing said.

“It’s hard to make a determination of who is at fault when you are only hearing half of the story,” he said.

D.C. resident Ralph Lindeman, who is a member of the advocacy group All Walks DC, said the change “will basically level the playing field to allow them to recover in a proportional way depending on the amount of negligence they may have had,” he said.

Attorney Bruce Deming, an avid cyclist who represents injured bikers in personal injury cases, said the current law is harsh. When a bicyclist is struck and injured, he said, if the rider is even one percent negligent he or she is barred from recovering any damages–  even if the motorist who struck them was 99 percent at fault.

“They can’t get a dime,” he said on the Nnamdi show. “It is unfair to bicyclists and pedestrians because it does not consider the facts of each case.”

“It works well for the insurance companies,” Deming said. “It hasn’t worked well for the injured public.”

A cheer squad on your commute? Only with ‘Tour de Bike Lane’

Insurance industry executives and some trial lawyers have warned of unintended consequences, including higher insurance costs to D.C. drivers.

AAA, for example, has told its members that if the bill passes, some drivers could see their car insurance premiums go up by $600 annually, making the nation’s capital an even more expensive place to purchase auto insurance. Citing estimates by the auto insurance industry, AAA said the typical auto insurance premium could increase by 24.2 percent a year.