TheWashCycle

Motor Vehicle Collision Recovery Act of 2015

The Motor Vehicle Collision Recovery Act of 2015, Mary Cheh's bill to fix the contributory negligence issue for cyclists and pedestrians, is now online. You can compare it to the 2014 bill here. The language is quite different, but I'll try to summarize the differences as best as I can.

1. The new bill allows cyclists and pedestrians to recover from a motorist as long as they are less than 50% responsible. So if the vulnerable user is 49% responsible, than the motorist(s) pays 100% of the cost. If there are two other parties that are 25% and 26% responsible, the vulnerable user can still collect 100%. But if they are 51% at fault, they get nothing. Under the 2014 bill, the cyclist could collect at the proportion that the other party was at fault. So if the driver was 60% at fault, they paid 60% of the costs.

2. This new bill specifically says that "in no event shall this act change or affect the doctrine of joint and several liability"

3. The new bill explicitly states that it doesn't change the protection offered to cyclists or pedestrians under a pair of previous laws; and that it is nonseverable - if one part is invalidated, the whole law is invalidated. 

In addition to Cheh, it is being co-introduced by Bonds, Evans, Grosso, and Allen. That's bodes well for the bill. There is reason to be hopeful. 

Cheh now on board with new negligence bill

Late last year, CM Grosso introduced a bill to make it easier for cyclists to get compensation for damage sustained in accidents with cars, by ending the legal use of contributory negligence in automobile-bicycle collisions. That bill died in committee and one of the people to vote against it was Mary Cheh, because, it was reported, she was concerned about joint and several liability.

But now, Martin di Caro reports, she's introducing a bill to address the issue of contributory negligence (so well written about here). 

"This bill that I am going to introduce tomorrow simply says that if a cyclist or a pedestrian is involved in an accident with a car, then nothing will prevent the cyclist or the pedestrian from recovering unless their negligence is more than — more than — the automobile driver," Cheh says

But the insurance industry is still opposed

The D.C. Insurance Federation apparently supports Cheh’s effort to reach a compromise, but says it's not the right approach.

In a statement sent by the DCIF's executive director, Wayne E. McOwen, the organization says solutions "including potential revisions to the traffic laws and an education initiative aimed at encouraging a more respectful coexistence among cyclists and motorists" are "potentially more effective."

Which changes to the traffic laws would help exactly? What education initiatives? And if they're more effective, that's great. That doesn't mean that changing from contributory to comparative negligence won't also be effective. 

Without Cheh's bill, I'm left to guess, but it sounds like the big difference is that under Grosso's bill a cyclist who was 51% at fault could get 49% of the costs from the driver, but under Cheh's, they get squat. 

That's still an improvement. I do have to disagree with this statement:

D.C. Council member Mary Cheh (D-Ward 3) has been trying to change that, but bills debated in recent years have died after insurance companies expressed their opposition. But now Cheh will try again.

If Cheh has tried to change the law, that's news to me. She hasn't introduced any legislation and she voted against the only legislation introduced prior to this year. I would say she is just now getting involved. 

Contributory Negligence Bill officially dead

Tabled in committee. 

Washington Post thinks the Comparative Negligence Bill should be deferred

Surprise! The Post Editorial board came out in opposition to passing Grosso's bill that would change the standard of negligence in cases involving  bike/ped traffic collisions with motorists. They believe that instead the bill should be deferred to the next session.

Instead, it should undertake a more comprehensive review of the law. In the meantime, debate over the legislation has pointed to problems that could be fixed without legislation as the city strives to be friendly to cars, bikes and pedestrians. These include how accidents involving cyclists are investigated and the need to educate both drivers and bikers about roadway safety.

In part they take the intellectually flawed position that if this is a good policy change then it should be applied across the board (OK so far) and if not applied across the board it should not be applied at all.

Any change should be across the board, and it should come only after careful study.

This is like saying that if life preservers are good for people on a sinking boat, then either everyone should get one, or no one should. 

They may be right about the need for change, but the D.C. Council should not carve a special exception in the law for one class of citizens. 

Really? Because we carve out exceptions ot the law for one class of citizens all the time. For one example, of many, isn't that what the ADA does? And as WABA has noted, DC law already has a carve out on this very policy for railroad workers. I don't recall the Post coming out against that. 

The Post actually takes no position on whether contributory negligence is a bad policy, which is telling in and of itself. 

If so, why apply it piecemeal, advantaging a special class of citizens?

Because they're the citizens most being harmed by this. Who else is having a problem with it? And because politics is the art of the possible. This is possible. An across the board change probably is not. WABA went down that path and no one would even introduce that bill. 

Some people argue, meanwhile, that a switch would have unintended consequences and hidden costs. Trial lawyers, for example, are concerned that it would hamper the ability of plaintiffs to be fully compensated when multiple defendants are at fault but some have more resources than others. Other considerations include a possible impact on insurance rates and the fact that neighboring Maryland and Virginia are two of the four states that use contributory negligence.

Those people are wrong. The law still works in 46 other states, insurance rates do not go up much if any at all and we often have non-uniform laws across the region. The Post again takes no position on these claims.

In the meantime, debate over the legislation has pointed to problems that could be fixed without legislation as the city strives to be friendly to cars, bikes and pedestrians. These include how accidents involving cyclists are investigated and the need to educate both drivers and bikers about roadway safety.

Those are good ideas, but they do nothing to help the cyclist who was injured and can not get a settlement from the at-fault drivers insurance or find a lawyer willing to take their case out of fear of contributory negligence's high standard. 

On the upside, at least people are talking about this issue. 

Vote on Contributory Negligence bill postponed until next week

GGW reports

Mary Cheh had said she wanted to speak more with trial lawyer representatives to ensure the bill doesn't harm joint and several liability.

That still leaves Anita Bonds, who according to Greg Billing "suggested adding provisions requiring lights, helmets, and such," and Jack Evans and Muriel Bowser, who haven't taken a position and weren't at today's session, as well. Pedestrians, cyclists, and other residents can contact members of the committee to push them on the issue.

If you haven't already, you should read Alpert's piece on Cheh's concerns. 

Cheh, swing vote for Comparative Negligence Bill, likely to vote against it.

Martin Di Caro reports that the  “Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014” is unlikely to make it out of the Judiciary and Public Safety Commitee tomorrow and so will die. It has been expanded to include other vulnerable users.

According to Di Caro, Cheh is the swing vote and is going to vote against it.

Mary Cheh (D-Ward 3), says she cannot support the legislation in its current form. It would compromise crash victims' ability — especially in major accidents — to be fully compensated if they are injured by more than one person, she says.

There she's referencing Joint and Several liability. The plan was to amend the law to protect J&SL. The amendment was based on a similar one from some other state (I didn't write down which one. Oregon maybe?)

So that would leave Wells and, I believe, Bonds for - and Cheh, Bowser and Evans against. So, we'll see.

It is interesting that one of the two parties opposed to the bill is the Trial Lawyers Association and that comparing their list of leadership to Mary Cheh's Office of Campaign Finance Report, they contributed at least $14,500 of the $368,000+ she's raised since 2006.

Update: From a DCist article.

"Trial lawyers are concerned this could be the camel's nose under the tent," Wells said. "That it could impact the size of the awards."

Wells said trial lawyers hold "a lot of sway in the John Wilson building."

"We just went through an election cycle, they contribute a lot of money to campaigns," he said. "And that will have an impact."

Grosso noted that, between the first hearing and now, he worked with trial lawyers who expressed concern over the bill to make changes. "There's no reason why this shouldn't move forward, but there's obviously some hesitancy," he said.

Contributory Negligence Bill unlikely to get out of committee. Expanded to include peds and wheelchair users.

From the Post

Council members Tommy Wells, chair of the Committee on the Judiciary and Public Safety, and David Grosso (D-At-Large), the bill’s main sponsor, said at a press conference Thursday that the bill is long overdue. They acknowledge the bill is unlikely to advance out of the committee — this is the third time it has been introduced –and already were talking about trying again next year.

Ward 6 CM-elect Charles Allen has already promised to support it.

When introduced, the bill only covered cyclists, but since its September hearing, it has been expanded to also cover pedestrians and people with disabilities, including those who use wheelchairs.

Another amendment is likely to be added that protects joint and several liability. Why won't it pass?

But the American Insurance Association says the change is unnecessary and would result in significant cost increases to D.C. drivers.

Where is the all-powerful bike lobby when you need it?