Boston Injury Lawyer Blog

Motorcycle fatalities climbed from the late 1990s to 2008, when there were 5,312 deaths. In 2009, that number went down, to 4,462, a 16% decline. This is notwithstanding an increase in usage. While still too high, the significant decline is encouraging.
There is more good news for motorcycle owners in Massachusetts as the season comes to a close. Fifteen Massachusetts motor vehicle insurance companies have agreed to return overcharged premiums to motorcycle owners. The refunds, which include $5 million from Travelers Insurance Company, and $35 million from other companies, are based on overcharges on the collision and comprehensive sections of the insurance policies. In essence, the insurance industry overvalued motorcycles. Motorcycle accident lawyer Neil Burns reported that many motorcycle owners, especially those who own Harley Davidson bikes, should have received their checks already.

The refunds are a culmination of work by Attorney General Martha Coakley. Apparently, one Harley Davidson owner complained that his bike was overvalued: a 1999 Road King. The consumer complained and the Attorney General's office found that the initial complainant was overcharged $1,500 from 2003 to 2008, based on a $20,000 valuation of the motorcycle.

We first reported this on February 19, 2010, when Safety Insurance Group agreed to pay $7.4 million for Massachusetts motorcycle accident insurance overcharges. To date that was the largest settlement. However other companies have given refunds in settling with the Attorney General as well: Arbella Mutual Insurance paid $6.3 million, Plymouth Rock paid $3.99 million, Metropolitan Property and Casualty paid $3.65 million, Liberty Mutual Insurance paid $3.1 million, USAA paid $2.7 million, Hanover paid $2.5 million, OneBeacon paid $2.1 million, and a host of companies paid somewhat less than one million dollars in refunds.

Consumers who want to see if they are entitled to a refund can go to the Attorney General's website, www.motorcycle.ago.state.ma.us
Other motorcycle news includes the top five brands of motorcycles stolen: Honda, Yamaha, Suzuki, Kawasaki and unknowns. The top five states for motorcycle thefts are: California, Texas, Florida, North Carolina and Indiana.

A word of caution: Supersports motorcycles have a death rate of 22.5 driver deaths per 10,000 registered bikes; regular motorcycles are half that rate, at 10.7 deaths per 10,000 registered bikes. Supersports bikes are those that are built on racing platforms but are street modified. They car reach speeds close to 200 miles per hour and are lightweight. They are popular with younger riders.

Of course, no motorcycle new article by a Massachusetts accident lawyer could be complete without an update on helmets. Our friends in New Hampshire enjoy a "live free or die" approach to helmet laws. Along with Illinois and Iowa, there are no helmet laws in New Hampshire. The statistics show that helmet use declines form 99% to 50% when the laws are taken away. But, when used they save lives: 1,483 lives were saved in 2009, according to the National Highway Safety Transportation Authority. 732 lives were lost in 2009 because of failure to wear helmets.

Finally, a few obvious tips. Don't speed: 35% of motorcycle fatalities were as a result of speeding. Get a license: 25% of motorcycle fatalities involved riders who were riding without a valid license. Don't drink: 39% of motorcycle fatalities involved riders who were over the 0.08% acceptable blood alcohol level. All of these numbers are significantly above the same numbers for cars and trucks.

We have worked hard to educate our clients about Massachusetts uninsured motor vehicle accidents and underinsured Massachusetts motor vehicle accidents. Significantly, we have encouraged our Boston car accident clients to consider purchasing insurance beyond the minimal insurance. We regularly represent victims of serious Massachusetts car accidents and they often suffer a second "injury: -- insufficient insurance to cover their losses.

A recent Massachusetts motor vehicle collision is an unfortunate example of this occurred. Apparently a Weymouth driver was driving a vehicle on I-93 south without a valid driver's license. She crashed into two other vehicles, resulting in numerous victims and her own car going up in flames. Assuming the Massachusetts State Trooper was correct regarding her license, the Weymouth vehicle may not have insurance to protect the victims of the collision.

What happens to the victims if the Weymouth driver indeed did not have insurance? The victim, if she had a Massachusetts motor vehicle insurance policy, has uninsurance coverage. The minimal coverage in Massachusetts is $20,000. Thus, if the victim has significant injuries, she would file a claim against her own insurance company, where she has that $20,000 of coverage. What if her injuries are clearly worth more than the $20,000 policy? Unfortunately, if she had a minimal underinsurance polity, that is the maximum claim she could file.

Is there a way around this when the victim has permanent injuries? Yes, buy more than the minimal coverage. In Massachusetts, most motor vehicle insurance companies will sell up to $500,000 in uninsurance and underinsurance coverage. Wherefore, if you were seriously injured in a motor vehicle collision, and the other vehicle had no insurance (or insufficient insurance) you could file a claim and there would be up to $250,000 (or whatever amount of coverage you purchased) in available insurance.

Will my own motor vehicle insurance company simply pay my claim? Of course not. Even when your injuries are clear, insurance companies have lots of tricks to try to reduce the amount they pay out. Insurance companies have extensive experience in denying claims, reducing claims, and fighting against legitimate claims; they use insurance trial lawyers, private investigators, and insurance doctors at their disposal. And they use them in every case.

How does the claim work? The claims process works this way. You give your insurance company official notice that you are filing the claim. You "demand" arbitration to resolve your claim. That is, you cannot file a lawsuit because there is no one to sue and no one at "fault" in your situation. You are simply saying that you want the extent of your injuries to be determined by an impartial arbitrator. If your insurance company refuses to agree to arbitrate, you can file a lawsuit to force the arbitration.

How does Massachusetts motor vehicle arbitration work? You file your claim against your company. Statements are taken which are similar to depositions in civil cases in Massachusetts courts. Documents, including photographs and medical records, are exchanged. Witness lists are exchanged. An arbitration agreement is reached. An arbitrator, or judge, is hired. Finally, the arbitrator conducts an arbitration, which is similar to a civil trial in Massachusetts courts. The rules of evidence can be reduced. There is no jury, but the arbitration hearing is similar to a trial. Both sides present their witnesses and introduce their evidence. The arbitrator typically will take some time and render a written decision soon after the hearing. The process is generally faster than a jury claim in Massachusetts courts.

We have extensive experience in representing victims of underinsured motor vehicle collisions. We highly recommend that anyone injured in a motor vehicle collision retain a lawyer as the arbitrator process described above can be complicated; even the playing field by hiring an experienced Massachusetts injury lawyer.

The Massachusetts Supreme Judicial Court is currently considering an important case under Massachusetts General Laws, Chapter 93A, Consumer Protection statute. The issue before the SJC is how to calculate 93A damages following a finding, by the trial judge, that a motor vehicle accident insurance company violated the law by failing to make a fair settlement offer. We reported on this case last December, in an article called Massachusetts Personal Injury Victims Win Unfair Claims Settlement Against Insurance Companies.

The case currently on appeal stems from a 2002 motor vehicle and truck collision. When Marcia Rhodes stopped her vehicle on Route 109 in Medway, Massachusetts for a police officer, a tractor trailer rear ended her vehicle. Ms. Rhodes was severely injured, resulting in paralysis. The driver of the truck was an employee of Driver Logistic Services, working for GAF Building. GAF had motor vehicle insurance with Zurich American, for $2 million and there was a $50 million policy with National Union, with adjusting company AIGDC. When the truck driver plead out his criminal case in November 2002, the civil case should have been ready to settle.

The Rhodes family, through their Massachusetts personal injury lawyer, made a settlement demand of $15 million, in November, 2002. Unfortunately, notwithstanding the fact that the Zurich Insurance adjuster made an internal assessment of clear liability and gave a value of $5 million to $10 million, no offer was made by the company at that time. The defense attorney, paid for by the insurance companies, recommended that they make a settlement offer or they would be in violation of Massachusetts General Laws, Chapter 93A and Chapter 176D. The insurance companies did not follow the advice of counsel. Four months later, Zurich offered their $2 million policy. As that was the extent of the offers, the Rhodes family rejected the offer. A few weeks before trial, the insurance companies made an offer of $3.5 million. The trial resulted in a $9.5 million jury verdict, which, with interest at 1% per month per Massachusetts Court Rules, there would be a judgment of $11.3 million.

Again, rather than pay, or negotiate, the insurance companies appealed, calling the jury's verdict excessive. The Rhodes family sent a 93A Demand Letter on November 19, 2004, to both insurance companies. Zurich responded by paying the $2 million policy; the adjusting company for National Union finally made an acceptable offer in June 2005, in the amount of $9 million.

Next, the Rhodes family filed a second lawsuit, against the insurance companies, for violations of Massachusetts General Laws, Chapter 93A and Chapter 176D. The Superior Court judge found that AIGDC violated 93A in failing to make a reasonable settlement offer, however, the Court found that the $3.5 million offer at mediation was "reasonable" and at that point stopped all 93A damages. The Court did find, however, that following the trial AIGDC failed to pay promptly, thus ordering "loss of use" damages and doubled those damages for violation of 93A. The Court of Appeals reversed the trial Court on the issue of pre-trial conduct but agreed with the trial Court's on the violation of 93A for post trial conduct.

The Court of Appeals ruling is now under appeal before the Massachusetts Supreme Judicial Court. At issue is how 93A damages should be calculated. Rather than provide all of the possible ways the SJC could rule, we will await their decision and report back at that time. In essence, the SJC will decide whether the measure of damages is the "loss of use" of funds or based on multiplying the judgment amount. The Rhodes family and their Massachusetts personal injury lawyers argue that a finding of unfair settlement practices should be double or treble damages, per the statute. The insurance companies argue that the judgment for the 93A case is not the same "traction or occurrence" as the underlying case and should be a different measure of damages.

Stay tuned. The outcome could determine how the insurance companies treat Massachusetts motor vehicle drivers.

A recent incident in Boxboro, Massachusetts, with an allegedly illegal immigrant charged with a sixth offense for driving under the influence in Massachusetts, sparked much debate about drunk driving accidents in Massachusetts. Motor vehicle accidents in Massachusetts are frequently caused by drunk drivers. According to the Centers for Disease Control, the number of times that Americans drove drunk in 2010 was 112 million! 33% of all motor vehicle deaths are associated with alcohol impaired drivers. In 2009 there were 11,000 alcohol related motor vehicle deaths.

In Massachusetts, alcohol fatalities totaled 334 in 2009. This was down from over 400 alcohol related motor vehicle deaths over several years in the '80s, there is clearly work to be done. While the Massachusetts highway accident rate makes it one of the safest states in the country, there is clearly still work to be done.

Driving under the influence, defined by national standards, is when driving with the blood alcohol level of 0.08% or greater. The CDC found that 81% of drunk driving "episodes" involved men. While men aged 21 to 34, "young men" are only 11% of the adult population, they were responsible for a disproportionally large percentage of drunk driving: 32%. 85% of drinking and driving episodes were associated with folks who are binge drinkers. Binge drinking, that is those men that have five or more drinks, or women who have four or more drinks in a short period of time.

Mothers Against Drunk Driving, an organization dedicated to educating use about the seriousness of the issue of alcohol and driving, claims that one person dies every 50 minutes from a drunk driving crash; 10,839 people per year. In addition, one person every minute is injured from an alcohol related motor vehicle accident.

The good news is that the number of alcohol impaired driving is down by 30% according to the CDC.

Massachusetts drunk driving laws are serious. A first offense can include jail time of up to 30 months, fines up to $5,000, license suspension of one year, and can include a court approved treatment program. A second offense includes jail time from one to 30 months, fines up to $10,000, two years of license suspension, and an ignition interlock device. We represent victims of motor vehicle accidents, and not those accused of violating the driving laws. However, many of our clients who are victims of alcohol induced collisions, note that many perpetrators get the 24D disposition, enabling initial offenders to keep their license and take the rehabilitation class.

In the incident in Boxboro, the problem goes beyond the drunk driving laws. This is because the driver had already been convicted five times; two in Massachusetts, three in California. His breathalyzer test was 0.09%, which is presumed drunk. He had no license, so he was also charged with a suspended license, another criminal offense. He had no registration for the vehicle he was driving, so that charge was added too. He produced false identification to the police officer, which engendered another criminal charge; his identity was made by fingerprints over a national system. Finally, he was charged with operating a motor vehicle with an open container of alcohol.