- The Washington Times - Monday, July 4, 2016

Picture this scenario: You are driving along Constitution Avenue and fail to notice a bicyclist darting into traffic from between two parked cars. The bicyclist ends up with a broken arm atop the now-dented hood of your car. Who is at fault — you or the bicyclist?

Another scenario: You are pedaling your 10-speed beside a row of parked cars on Independence Avenue when a motorist suddenly pulls out of his parking space directly in your path. You fly across the top of the car and break a leg. Who is at fault — you or the motorist?

In both cases, the bicyclist under current law is at least 1 percent at fault — and would not collect any damages from the motorist.

Currently in the District, bike riders cannot collect any damages if it can be proved they bear even one one-hundredth of the blame for an accident, meaning the driver has to be 100 percent at fault for any damages to be paid to the cyclist.

The D.C. Council has taken up legislation that would make it easier for cyclists and pedestrians to collect damages against errant drivers, but the bill has started another battle in the long-running cars-versus-bikes war for control of the streets: How much should motorists pay in the event of an accident?

The bill aims to employ a “comparative negligence standard” requiring both parties to share responsibility for a collision based upon their respective degree of blame in causing an accident. If a bicyclist is less than 50 percent at fault, he or she would be awarded full damages.

Biking advocates praise the legislation as being fairer to cyclists, but driving advocates say it would put undue burden on motorists and increase their insurance rates.

The council was to have considered the bill during its June 28 meeting, but contention over the comparative negligence standard prompted lawmakers to delay consideration until its July 12 meeting. Because the council will take a two-month recess after that meeting, a second vote on the proposal wouldn’t come until autumn.

Council member Kenyan McDuffie, the Ward 5 Democrat who heads the committee that initially marked up the bill, was set to introduce an amendment at the June 28 meeting that would change how money would be doled out to cyclists involved in accidents.

Instead of receiving full damages if they are less than 50 percent at fault, bike riders would get compensation based on the percentage of their responsibility. So cyclists who are 25 percent responsible for an accident would be awarded 75 percent compensation instead of full damages.

The McDuffie amendment sparked the ire of council member Mary M. Cheh, the Ward 3 Democrat who chairs the transportation committee. She vowed to whip up enough votes to strike down the changes before the first vote.

Mr. McDuffie opted not to introduce his amendment and, instead, moved to postpone a vote on the bill, which he is allowed to do because the legislation had come from his committee.

Last week’s fireworks in the council were only the latest in a two-year battle between cyclists and motorists over the city’s contributory negligence law, also known as the 1 percent rule.

The Washington Area Bicyclist Association has been at the forefront of the push to change the law.

According to the association, in 2012 there were 564 crashes involving cyclists and drivers in the District, with 458 people being injured in the accidents.

“Many of those injured will receive little to no compensation to cover medical bills, lost wages and damages to their property,” the bicyclist association says on its website. “The system fails them at every level.”

Executive Director Greg Billing wrote on the group’s blog after the vote on the comparative negligence standard was delayed that the council needs to act quickly to protect cyclists.

“There are real world, daily consequences that come with deferring action on this bill,” Mr. Billings wrote. “Only an hour after the bill was postponed, a woman riding a Capital Bikeshare bike was critically injured in a crash with a motor vehicle. The details of yesterday’s crash are unknown to us but it highlights the absolute and day-by-day urgency to protect bicyclists and pedestrians who are hit by drivers.”

Interestingly, Mr. Billing said that bicyclist association would support the current proposal or the proposal amended with Mr. McDuffie’s changes as long as the legislation is moved quickly.

“While we would likely continue to support the bill if Council member McDuffie’s amendment passes (it is still a measurable improvement over the status quo), we support the bill without amendment,” Mr. Billing said.

But others are trying to get the bill struck down altogether.

John Townsend, spokesman for the automotive club AAA Mid-Atlantic, said the legislation could cause insurance rates for motorists to soar.

“Anytime claims rise, the average insurance payouts will also rise,” Mr. Townsend said. “That’s what’s happening in D.C. This is about claims, not safety. Claims increase when you change the standard.”

He also said the bill could spell disaster for insurance companies in the District. Had the proposal been in place in 2005, it would have added $25 million to what insurers paid out that year, according to AAA’s statistics.

“If this becomes law, some insurers will leave the market because they won’t be able to afford to underwrite in D.C. anymore,” Mr. Townsend said.

Yet Mr. Townsend isn’t blaming cyclists for wanting a better shot at an insurance claim victory. Instead, he’s blaming lawyers.

“We know that some [cyclists] have been not treated properly, have not gotten the kind of recovery they want for their injuries,” he said. “Trial lawyers are to blame for manipulating them by saying that if you change the standard you can collect more. This is really about lawsuits, suing people.”

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