Hit (or miss) and Run

If you have been a road bicyclist for a period of time you’ve probably either heard of or have seen a cyclist being forced off the road by a motorist failing to yield the right-of-way, causing the cyclist personal injury and/or bicycle damage.  Perhaps you’ve experienced this yourself!  When something like this occurs many cyclists assume, unless they talk to an attorney, they have no recourse if the unidentified motorist leaves the scene.

Most cyclists are probably unaware that the uninsured motorist provision of their automobile liability policy should cover a bicycle accident.  Most policies do cover such an accident. However, until 1993 uninsured motorist provisions of automobile liability policies covered only those accidents caused by unknown motorists who actually “hit” the insured’s vehicle or bicycle.  In 1993 the Arizona Supreme Court held that under Arizona’s Uninsured Motorist Act (A.R.S. § 20-259.01) insurance policies providing coverage only if the unidentified motorist made physical contact with the insured failed to comply with the statute. See ­Lowing v. Allstate Insurance Company, 176 Ariz. 101, 859 P.2d 724.

Automobile liability insurance companies’ response to the Lowing case was predictable.  They inserted language in their uninsured motorist provisions requiring insurmountable proof that the bicyclist or motorist had sustained bodily injury as a result of the actions of the miss and run driver.

In response thereto, the Arizona Legislature, in 1998, amended A.R.S. § 20-259.01(M) to provide that when a bodily injury claim is made based on an accident that involved an unidentified motor vehicle, and no physical contact with a motor vehicle occurred, the insured shall provide “corroboration” that the unidentified motor vehicle caused the accident.  The statute goes on to state that corroboration means any additional and confirming testimony, in fact or evidence, that strengthens and adds weight or credibility to the insured’s representation of the accident.

In summary, if you are forced to take evasive action while riding your bicycle to avoid an unidentified motorist and as a result you suffer injury, your avowal that the unidentified vehicle caused your injury is insufficient.  You must have additional corroboration which can consist of eye witness testimony, including that of other cyclists. If your injuries are substantial your attorney may hire an accident reconstruction expert whose expert opinion is sufficient to establish that an unidentified motorist caused the accident. See Scruggs v. State Farm Mutual Automobile Insurance Company, 204 Ariz. 244, 62 P.3d 989 (2003).

If you are a motorcyclist, rather than a bicyclist, and are involved in a hit or miss and run accident you can make a claim with your motorcycle liability insurance company based upon the uninsured motorist provision of that policy.  You will not be allowed to make an uninsured claim with your automobile insurance carrier.

In the wake of a motorcycle or bicycle accident, deciphering the language of your motorcycle or automobile policy and understanding the claim procedures may be more than you care to tackle alone.  Our office is prepared to assist you through the process and ensure that your interests are fully protected.