Welcome to“Wheels of Justice” a monthly column co-written by New York Bike Lawyers
James B. Reed, Esq.and
Daniel Flanzig, Esq. Jim and Daniel are both active Trial Lawyers representing cyclists in New
York. With Jim’s office located in Elmira and Daniel’s in
Manhattan and Long Island, they have collaborated to produce a monthly
column on legal issues for New York cyclists. Each month Jim and Daniel
will provide guidance on cycling safety, advocacy, bike crashes or insurance
issues relevant to all cyclists across the State. Whether you ride in
Albany, Buffalo, Brooklyn Manhattan or Montauk, Dan and Jim have you covered.
A GUIDE TO UNDERSTANDING BIKE DAMAGE CLAIMS IN NEW YORK: Our firms get several calls or e-mails a week from New York cyclists involved
in a crash where their bikes were damaged or totaled. They call for advice
on whether they need to hire a lawyer to pursue a property damage claim
when a negligent driver causes damage to their bike. If the cyclist was
injured in the crash then our firms can and will help. It is our normal
practice that while representing cyclists in their personal injury claim
that we will gladly and aggressively pursue the claim for damage to their
bike as well.
If the cyclist was thankfully not injured, but still wants to pursue a
property damage claim,they most likely do not and will not need the assistance of a lawyer.
Handling the property damage claimshould be relatively simple. By law you are entitled to be compensated for the cost of repairs. If
the bike was totaled and cannot be repaired you are entitled to be compensated
for the replacement value of your bike. Do not let the insurance company
convince you that you should settle for a “depreciated” value
of your bike. There is no such thing as a “Kelly Blue Book”
for bikes. It is our position that if a bike is no longer manufactured
and the closest or similar model costs more, the company is responsible
to pay the increased replacement cost. They normally don’t agree
but this remains our position and we suggest you do the same. It’s
not your fault that your perfectly good bike is now trashed. Why should
you have to pay more to replace it? Also, BEFORE you have any repairs
performed offer to make the bike available for the insurance company to
Be careful when making statements to an insurance company. Be aware that
they are usually recorded. The adjuster may act warm and friendly but
remember they are not your friend. The innocent statement you make may
be detrimental to your claim latter on.
Here our suggestions in how to handle property damage claim:
1.) Get the Police Report. This will give you all the contact information
you need and hopefully the driver’s insurance information as well.
If there is a witness on the report contact the witness and ask that they
provide you with a statement.
2.) Locate the driver’s insurance company using the police report.
Next to the registration information is a three digit code. You can look
up the company by going to:www.dfs.ny.gov/insurance/dmvindex.htm#dmvnum
3.) Take pictures of your bike. The pictures should show the whole bicycle
as well as the individual parts that were damaged. We also suggest taking
photos of serial numbers or other identifying labels or inscriptions.
4.) Get one or more estimates for the repairs. If the bike is totaled,
try to obtain your original purchase receipt. Most bike shops are very
helpful in this task as they hope you will return to their shop to make
your new purchase. If you can’t get the original receipt, some insurance
companies will accept a credit card bill. Internet searches are also helpful
in obtaining the original and replacement costs of the Bike.
5.) Document other damages that you will claim. Did you make improvements
to the bike such as bags, water bottle cages, bike computers? Was your
clothing or other items damaged in the crash? If so, you are entitled
to be reimbursed for these items as well.
Once you have compiled all your evidence you’ll need to call the
insurance company and file a claim. Do this as soon as you can. You should
be provided with a claim number. Use this to identify your claim when
calling and writing. After you send them the documentation give them some
time. Insurance companies are notoriously slow. Give them a call and ask
if they received everything and if they require anything else. Expect
a call back within 2-3 weeks. They will usually tell you that they are
completing their investigation and need more time. If you don’t
hear from them call again to follow-up on the claim.
If the insurance company continues to ignore you, tries to lowball you,
or flat out denies your claim, you can file a “Small Claims”
lawsuit.. Each county in New York has a small claims court. In New York
State Small claims Courts can hear disputes up to the amount of $5,000.00
Small Claims Court is specifically for people with cases that might not
warrant hiring a lawyer. Small claims courts are generally more informal
and often have relaxed rules surrounding evidence to make it easier for
people to seek legal relief without representation by an attorney. When
filing your Small Claims case remember to sue
both the driver and the owner of the vehicle as in New York State the owner is almost always responsible for the driver’s
actions. The owner is the one who holds the insurance policy for the car.
You and the Judge will want a representative of the insurance company
present in Court to be able to settle your claim.
The defense of Comparative Negligence in New York
Be prepared. The insurance company or the Small Claims Judge may tell you
that they will not pay the full claim and will reduce the payment buy
what they consider to be your “comparative negligence” in
contributing to the crash. New York State is a “comparative negligence”
State. A simple description of how comparative negligence works is the
2 cars have an intersection collision and one driver was injured. That
driver sues the other. At trial a jury finds them equally responsible
for the crash. If the jury awards $100,000.00 to the injured driver, that
verdict is then reduce by 50% for that drivers comparative negligence
in contributing to the crash and the judgment entered for the driver is
now only $50,000.00.
There are all types of scenarios that may create comparative negligence
so do not be surprised if this defense is raised and full value of your
claim is not paid.
These are some simple guidelines provided by NewYorkBikeLawyers.com, Flanzig
and Flanzig, LLP and Jim Reed, Esq. of Zifflaw.com. We are New York Attorneys
focusing in the rights and protection of cyclists across New York. Nothing
on this page should be construed as legal advice nor does the use of this
page or column create and attorney client relationship. The advice on
this page offers a general overview of the laws in New York. Remember,
every incident or claim is specific and the guidelines may not be applicable
to your particular case. As always, we suggest contacting an attorney
with any legal claim or issue before taking action on your own behalf.
Daniel Flanzig, Esq.
James Reed, Esq.