If you ride in the District of Columbia, listen up.  For years, insurance companies have been using the harsh and outdated "contributory negligence doctrine" to deny claims to injured cyclists in DC.  Forty-six states have abandoned this doctrine, but it is still the law in DC.  With your support, that can change.

Right now, there is a well-crafted and widely supported bill pending before the DC Council that would do away with contributory negligence in DC once and for all, and we need your support to pass it.  That bill , B21-0004, is entitled the Motor Vehicle Collision Recovery Act of 2015, and has been stalled in the Judiciary Committee of the DC Council for over a year now.  Make your voice heard on this issue!

See my letter to Committee Chair Kenyan McDuffie and Mayor Bowser below, urging them to push the bill forward now for enactment by the full Council. 

BRUCE S. DEMING

ATTORNEY & COUNSELOR AT LAW

TWO COURTHOUSE PLAZA

2300 CLARENDON BOULEVARD • SUlTE 700

ARLINGTON, VA 22201

(703) 528-4669

bruce@brucedeming.com

January 14, 2016

FAX (703) 852-3970

www.thebikelawyer.com

January 14, 2016

BY FIRST-CLASS MAIL AND EMAIL

The Honorable Kenyan McDuffie

1350 Pennsylvania Ave, NW, Suite 506

Washington, DC 20004

Re: The Motor Vehicle Collision Recovery Act of 2015, B21-0004

Dear Councilmember McDuffie,

My name is Bruce Deming, and as a personal injury attorney and member of the District of Columbia Bar, I have represented injured cyclists and pedestrians in the District of Columbia for the past thirty years.   Indeed, my practice has evolved to the point where representing injured cyclists and pedestrians both in the District and throughout the U.S., is now 100% of my caseload.   It is all that I do.  As a life long bike commuter, competitive cyclist, and cycling advocate, I am writing on behalf of my injured clients - present and future - to urge that you make B21-0004 a strong legislative priority, and advance it for enactment by the Council at the earliest possible date. 

For many years now, I have experienced first-hand the manner in which insurance carriers and adjusters routinely use the harsh and inflexible contributory negligence doctrine as a weapon to deny claims, and preclude compensation to countless cyclists and pedestrians who have suffered grievous bodily injuries at the hands of negligent motorists.   In many cases the alleged "contributory negligence" on the part of the cyclist was slight in comparison to the overwhelming negligence of the motorist that caused the injury.  And yet, because of the rigid inflexibility of the "contrib" doctrine, if an accident victim is even 1% at fault, their claim is barred in its entirety. 

Insurance carriers get away with denying these claims, because they know that, faced with denied claims, most victims will simply give up - especially if they are unrepresented.  They also know that in most instances, personal injury attorneys like myself will turn down these cases - and thereby deny injured people access to the civil justice system.  That is not right, and it is not just, but it remains the legal reality in the District of Columbia. 

Recently, I represented a young woman who was struck by an SUV while riding her bicycle across a painted crosswalk with the "Walk" signal.  She was back boarded and transported via ambulance to Howard University Hospital.  She suffered multiple fractured ribs, incurred significant medical expenses, and incurred substantial lost wages and property damages.  The driver of the car was issued a citation by the investigating MPD officer for failure to yield to a pedestrian in a crosswalk.  Notwithstanding the insurance carrier's admission that their insured driver of the SUV was "probably negligent" in running her down in a crosswalk, it took the position that contributory negligence was a bar to her claim because she was also "negligent" by failing to anticipate the approach of the SUV. 

This case  - and it is only one of many - happened in 2015.  Had the pending legislation been enacted last year, this case - and countless others like it - would have turned out differently.  Every day that this bill remains pending in committee is another day that insurance companies deny these claims simply because the law allows them to get away with it.  They deny these claims because they can. 

The doctrine of contributory negligence is both old and outdated.   Originating in the common law of England in 1819, the doctrine of "contrib" was the law in many states in the 19th and early 20th centuries, until its overly harsh, putative effects were recognized and discarded by legal scholars and state legislatures.  Today, 46 of the 50 jurisdictions have rejected it -- but not the District of Columbia.  Today, DC is one of only five remaining jurisdictions in the United States where contributory negligence remains on the books.[1]  The bill before you would change that, and at least as to tort claims involving injured cyclists, pedestrians, and other non-motorized users of public highways, would bring the law of the district in line with the overwhelming majority of other jurisdictions in the country.  Enactment of this legislation is long overdue.

Opposition to the bill by the auto insurance industry is predictable.  Arguing that the economic sky will fall if the bill passes, industry opponents assert that insurance rates will climb, government transportation costs will skyrocket, and businesses will be driven out.  To date, however, the industry has presented not a shred of data to back up these alarmist assertions.

Bill opponents, for example, argue that unidentified "studies" show that auto rates have risen in states where contributory negligence has been abandoned.  However, to date, I have not seen a single study to back that assertion up.  Insurance rates routinely rise in jurisdictions throughout the country for all kinds of reasons, including population shifts, economic conditions, inflation rates, market forces, and countless demographic factors that are evaluated and sifted by insurance companies through complex pricing algorithms.  To tease out the effect of a change in contributory negligence as a driving force (or even remotely significant factor) in any given state would require the most complex statistical analysis available.  To the best of my knowledge, that research doesn't exist, and I am aware of no published study to that effect.

What has been published is straightforward data on how auto insurance rates compare on a state-by-state basis.  Interestingly, based upon 2015 industry data, of the 46 states that have abandoned contributory negligence, every one of them enjoys auto rates that are lower than those in the District of Columbia.[2]  I am not suggesting that rejecting contributory negligence will necessarily lower rates because of all the factors that affect them, but the data certainly does not suggest that abandoning "contrib" will drive rates higher either.

Ultimately, passage of the bill makes sense, and is consistent with sound public policy.  Mayor Bowser's Vision Zero goals are an important step forward in achieving pedestrian and cyclist safety, and the Council is to be commended for its active consideration of increased fines for speeding, and other measures that will enhance the protection of drivers and cyclists alike. 

In the broader context, while it is essential that we do everything possible to prevent injuries to our most vulnerable road users through Vision Zero initiatives, it is equally important that the laws of the District of Columbia laws provide fairness when the worst happens, and people are badly hurt.  Passage of B21-0004 is fully consistent with Vision Zero objectives, and with the modern law of 46 states, and the time to move the bill forward is now.  It is my sincere hope that your leadership on this issue as Chair of the Judiciary Committee will make it happen.

I am grateful for the opportunity to comment on this important issue, and thank you for your consideration.

Sincerely,

Bruce S. Deming, Esq.

BSD/bsd

cc: The Honorable Muriel Bowser, Mayor of the District of Columbia

[1] The other four jurisdictions are Maryland, Virginia, North Carolina, and Alabama.

[2] See http://www.insure.com/car-insurance/car-insurance-rates.html.  The study compiled rates from six large insurance carriers in 10 zip codes in each state, and averaged rates for the 20 best-selling vehicles in the U.S., which last year represented about 40% of all vehicles sold.