Investigating Motorcycle Accidents

Claims Magazine, one of our sister publications, published an article recently entitled “Steel Horses—Understanding the Dynamics of a Motorcycle Accident”; this appeared in the June 2009 issue of Claims. This article was written by Mr. Peter R. Thom and Mr. Timothy A. Logsdon. Mr. Tom is principal of Peter R. Thom and Associates, a national firm of consulting automotive engineers. Mr. Logsdon is a company associate. They can be reached at 1-800-874-1664 or at www.prtassoc.com.

This article contained ten top inquiries that can be asked by claim adjusters following a motorcycle accident and these inquiries are reproduced here for informational purposes.

1. Were there any witnesses to the accident? Are their stories consistent with those of the involved parties? If the rider was with a group, be sure to interview the other riders. Note whether there was a passenger, and record any injuries.

2. What was the year, make, and model of the motorcycle involved? Speeding is much more likely in accidents involving super sport bikes, whereas overloading is more common in accidents involving touring bikes. Thoroughly document the condition of the motorcycle, noting any aftermarket accessories.

3. Are maintenance records available for the motorcycle? Examining the rider's maintenance practices may reveal a lot about their concerns for their own safety. Check dealer records for any recalls or technical service bulletins.

4. Was the motorcyclist licensed and trained in motorcycle safety? Novice riders have higher probabilities of suffering single-vehicle accidents caused by their inexperience and weak riding skills. Note any protective apparel worn by the rider and/or passenger and document any damage to it.

5. What day of the week and time of day did the accident occur? For accidents occurring between 6:00 p.m. Friday and 6:00 a.m. Monday, there is a higher likelihood of alcohol being involved.

6. Are the tires in good condition? Measure each tire's tread depth and inflation pressure. Motorcycle tires wear much faster than passenger vehicle tires and need to be replaced more frequently. Low inflation pressures can contribute to poor handling.

7. Did the motorcycle leave skid marks? If two parallel skid marks are visible, then the rider may have lost control under heavy braking conditions. If only one skid mark is visible, then the rider may have braked only one wheel. A locked front brake results in a heavy curved skid mark with subsequent evidence of bike crash marks on the roadway.

8. If there are scrapes on the roadway before the point of impact, then is there corresponding abrasions on the motorcycle's foot pegs? If a foot peg contacts the roadway surface due to a too-aggressive lean angle, then the motorcycle may lose rear-wheel traction.

9. Is the accident damage to the motorcycle on the high side or the low side? High side and low side accidents have different characteristics and different causes.

10. Is gravel, oil, or other debris present on the roadway? Motorcycles are much more challenging than passenger vehicles to control. Roadway debris may be a contributing factor to the accident.

Tips for Handling EDR Data

In this same issue of Claims magazine, there was another article published entitled “Recording the Big Bang—Using Auto Black Box Information Appropriately”. This article was written by Mr. Timothy B. Parlin, Esq., a senior associate at Carroll, McNulty, & Kull, LLC. His practice specializes in complex commercial litigation, premises liability, insurance coverage disputes, and other areas. He may be reached at 1-908-848-6300, or www.carrollmcnultykull.com.

This article contained tips for handling the data in event data recorders (EDRs) in the event of an accident. These tips are reproduced here for informational purposes.

1. To avoid the loss of EDR data. Promptly—and thoroughly—investigate collisions that may result in such data being recorded.

2. Check with counsel about whether the state where the accident occurred has an EDR access statute. If such a statute exists, then familiarize yourself with the statute's requirements.

3. If an EDR access statute is involved, to avoid any potential arguments regarding right to privacy or trespass issues, secure the written consent of all vehicle owners prior to retrieving the date.

4. In those states that have EDR statutes, should the owner(s) of the vehicle refuse to consent to the retrieval of the EDR data and litigation ensues, contact counsel to prepare a preservation order so the vehicle cannot be disposed of without a court order and request the EDR data through discovery demands.

5. Recognize that even if you do gain access to the EDR data, some states impose prospective restrictions upon the use of that data. They may not allow setting insurance premium rates or conditioning the payment or settlement of a claim as part of that consent. Once again, check with counsel as to what can be done with the EDR data once it is retrieved.

Work Product Exclusion and Impaired Property Exclusion Clash

Before the court was a motion for summary judgment with respect to insurance coverage. The insurer asserted that the policy provided no coverage for any of the claims against the defendant and the insured, of course, disagreed. This case is Mississippi Phosphates Corporation v. Furnace and Tube Service, Inc., 2009 WL 1448967 (S.D.Miss.).

Furnace and Tube was hired to rebuild the waste heat boiler in the sulfuric acid plant of Mississippi Phosphates. After the work was completed, the boiler began to leak. Water from the inside of the boiler escaped and damaged refractory and related materials. Also, water from the inside of the boiler leaked into the stream of sulfur dioxide and sulfur trioxide and this damaged the catalyst downstream of the waste heat boiler, reducing its effectiveness and shortening its useful life. After repeated attempts to repair the problem areas, the claimant was eventually forced to retain another contractor to dismantle the boiler and rebuild it. The claimant then filed a lawsuit against the insured to recoup its losses.

The insured forwarded the lawsuit to the insurer which then denied coverage based on certain exclusions: the work product exclusion; the impaired property exclusion; and the care, custody, or control exclusion (although this exclusion was not deemed relevant since the damage occurred after the work of the insured was finished). These are the work-related exclusions found in the standard commercial general liability coverage form.

The court hearing this case applied Louisiana law in order to resolve the coverage dispute. In discussing the work product exclusion, the court noted that Louisiana courts had consistently held that the work product exclusion eliminated coverage for the cost of repairing or replacing the insured's own work or defective product. Here, the claim was for damage to the boiler due to defective work and the exclusion eliminates coverage for the cost of repairing or replacing the insured's defective work.

However, as to the impaired property exclusion, the court found that the exclusion provided coverage for loss of use to other property arising out of sudden and accidental physical injury to the insured's work after it was put to its intended use. The claimant seeks damages in this case beyond those attendant to or caused solely as a result of the allegedly defective repair work performed by the named insured: namely, loss of use of other property (the plant itself which had to shut down due to all of the repair work) arising out of the sudden and accidental physical injury to the plant after the boiler was put to its intended use. These damages were not excluded from coverage by the impaired property exclusion.

Therefore, based on the failure of the insurer to show that the claims made against the insured are totally excluded from coverage, the motion for summary judgment was denied.

Is the Worker a Temporary Worker or an Employee?

The insured brought a declaratory judgment action against the insurer, seeking a declaration that the insurer had a duty to defend in an underlying action relating to an accident in which a worker hired by the insured was injured. The main issue was whether the worker was a temporary worker as defined in the policy or an employee. This case is Rhiner v. Red Shield Insurance Company, 2009 WL 1458380 (Or.App.).

The insured had a comprehensive general liability insurance policy issued by Red Shield Insurance Company. This policy excludes coverage for claims made by the insured's employees, but it does extend coverage for claims made by temporary workers who are not employees. The policy defines a temporary worker as a person furnished to the named insured to substitute for a permanent employee who is on leave or to meet seasonal or short-term workload conditions.

The insured hired Mize to work for him cutting and trimming trees and shrubs. The insured hired Mize himself and did not go through an employment agency, labor contractor, or any other entity to obtain Mize's services. Mize worked for the insured continuously from October 2002 to December 2003. The worker was injured one day when he fell from a tree and he filed a claim for workers compensation. The claim was approved and benefits were paid to Mize. However, the Department of Consumer and Business Services later determined that Rhiner was a noncomplying employer and Mize used this to bring an action against Rhiner for negligence and employer liability. Rhiner turned to Red Shield for defense and indemnification but the insurer refused to defend or indemnify, citing the policy's exclusions for employment-related injuries. The insurer contended that Mize was an employee because he was not a person who was furnished to the insured by a third party. Rhiner filed a declaratory judgment action against Red Shield and the trial court determined that Mize was a temporary worker and so, the insurer was required to defend and indemnify the insured against any liability to Mize. This appeal followed.

On appeal, the insurer said that Mize did not fit the definition of a temporary worker since he was not furnished to the insured and because he was not hired to meet seasonal or short-term workloads. The insured contended that the definition of a temporary worker was ambiguous. He said that the phrase “a person furnished to you” is not relevant to the case since the definition of temporary worker could be read to apply to any person hired to meet seasonal or short-term workloads, regardless of who furnished the worker. Moreover, the insured said, the definition is not clear about whether the worker may or may not furnish himself.

At the outset, the appeals court rejected the insured's contention that the policy's definition of temporary worker may be read to apply to any person who has been hired to meet seasonal or short-term workloads, regardless of who furnished the worker. The court held that the wording of the policy simply cannot reasonably be read to say that. The reference to seasonal or short-term workload refers to the purpose for which the worker has been furnished to the employer.

As for the meaning of “a person who is furnished to you” and whether it encompasses a worker who the insured hired directly, the court agreed with the insurer that there is only one plausible reading of the policy language. The word “furnished” is not defined in the policy, but the dictionary defines the word as meaning “to provide or supply with what is needed”. Under that definition, the court said, the person who furnishes is the party who provides or supplies what is needed, and in the context of human labor, it is conceivable that a person can provide or supply himself to an employer. However, this must be viewed in the context in which the term is used in the policy as a whole. In context, the insured's proposed reading of the term “furnished” becomes untenable because it renders the entire phrase “a person furnished to you” superfluous.

The appeals court reversed the opinion of the trial court and held that, because the insured hired Mize directly and not with the aid of a third party, Mize was not a temporary worker within the meaning of the policy. Coverage of his claims against the insured is excluded.