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Answers to the Ten Most Frequently Asked Questions in Motorcycle Accident Injury and Death Cases
1. Who can sue for a motorcycle accident injury and death case?
The operator of a motorcycle and his/her survivors in a
wrongful death case can sue for their damages if any other party
is at fault.
The passenger on a motorcycle can normally sue a motorcycle
operator if the operator is at fault and/or any other person or
entity who is responsible for their injuries.
Any other person injured by a motorcyclist, such as a
pedestrian, can recover damages against the motorcycle operator
and any other responsible party.
2. Who can be held responsible for injuries or death to
motorcycle operators and passengers?
Any person or entity that in any way causes a motorcycle
accident through his or her wrongful conduct will be considered
to be at fault and held responsible for the injury or death.
This includes a wide array of potential defendants including
other vehicle drivers, product manufacturers, owners of dangerous
private or public property, repair shops and any other person or
entity that contributed to the accident.
3. What if I was partially at fault for causing the accident?
California is a comparative fault state. A person can sue
for serious personal injury even if they are partially at fault.
As long as they can prove that one or more other parties are also
at fault. However, the amount of a plaintiff’s recovery will be
reduced by the amount of their fault. Therefore, if someone is
awarded $5 million dollars in a serious personal injury case, but
are found to be fifty percent (50%) at fault, the recovery will
be limited to $2.5 million dollars. This is also true in
wrongful death cases in which the award is reduced by the
percentage of decedent’s fault.
As a motorcycle operator, you should be aware that there is
a general public prejudice against motorcyclists that can effect
the amount of fault attributed to a motorcyclist in any given
accident. This is one of the reasons why it is important to
retain an attorney and experts skilled in motorcycle accident
cases who know how to deflect this bias against motorcyclists.
4. Is an investigation of my motorcycle accident case
important?
It is critical. Since there is almost a presumption in the
general public that motorcyclists assume the risk for their own
injuries and they are usually at fault for causing accidents, it
is essential that a quick and thorough investigation is performed
to establish fault on other responsible people or entities and to
establish that the motorcyclist did little or nothing to
contribute to the accident.
Investigation should consist of an examination of the scene;
an examination of the instrumentalities that were involved in the
accident; obtaining statements from witnesses and the reports
from investigating agencies.
Of prime importance is maintaining the motorcycle and helmet
in the exact condition they were in at the moment when the
motorcyclist came to rest after an accident.
5. Is insurance coverage an important issue?
It may be the most important issue in your case. If you are
a motorcycle operator and did not have liability insurance at the
time of the accident, you will not be able to recover damages for
your pain and suffering. Thus, you will be limited to recovery
of damages for medical expenses and wage loss. However,
passengers on motorcycles do not have to carry insurance to be
able to recover all of their damages.
Further, since motorcycle accidents usually involve serious
injuries or death, it is important that the at-fault party have
enough insurance coverage to cover all of your damages. If you
have purchased an uninsured or underinsured motorist policy, that
policy might help compensate you if the responsible parties are
uninsured or underinsured.
One of the reasons why it is so important to do an
investigation in a motorcycle accident case is to make sure that
all potential defendants are included in the case which will
increase your likelihood of obtaining full compensation for your
injuries.
6. Are liability experts important for my case?
Yes. Most motorcycle accidents that result in serious
injury or death will require the retention of accident
reconstruction experts and human factors experts. It is helpful
if the plaintiff retains an expert who specializes in motorcycles
and motorcycle accidents. There are unique aspects of motorcycle
accidents that many general accident reconstruction experts do
not understand.
7. Is it important to retain experts on the issue of liability
and damages?
Yes. In addition, biomedical and biomechanical engineers
can be helpful in proving that the accident caused your serious
injury or a relative’s death and other experts such as doctors,
vocational/life care experts and economists can also be useful at
trial in wrongful death or serious injury cases.
8. How long do I have after my accident to file my motorcycle
injury case?
Generally speaking, you have one year from the date of the
accident to file a lawsuit. This time period can occasionally be
extended if for some reason you were not able to discover your
injury or the negligent cause of your injury for some time period
after the accident. However, in a serious injury case, a delayed
accrual of the statute of limitations for late discovery is
extraordinarily rare.
If your case is against a government entity, a claim must be
brought within six months of the date of the accident.
If the plaintiff is a minor, a minor has until their 19th
birthday to bring case unless there is a government claim in
which a minor should bring the claim within six months of the
accident, or one year at the latest.
9. Will my motorcycle accident settle out of court?
Yes. Probably close to 90 percent of motorcycle accident
cases settle; however, they can be more difficult to settle than
other motor vehicle cases because defendants and insurance
companies are more willing to try them, hoping that the public’s
bias against motorcyclists will help them win the case or hold
down damages.
10. Is it important to retain an attorney for my motorcycle
accident case?
Yes, if the motorcycle accident has resulted in a serious
injury or death. Without an attorney, there will always be an
assumption that the motorcyclist was at fault and evidence will
be gathered by the other side to support that contention. You
need to hire an attorney to perform investigation and retain the
right experts to prove your case and your injuries. Further,
through the litigation, an attorney will be able to cross-examine
witnesses against you and hopefully turn their testimony to your
favor.
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