A Vicious Cycle

In Colorado, insurance offers little protection to badly injured motorcyclists.

Finally, on June 14, Dan returned home to begin the long process of healing, not knowing at the time that complete recovery wouldn't be possible. Nearly a year later, in April 2001, Dan's doctor, Hal Crane, sent a letter to Dan's attorney, Patricia Jarzobski, outlining his condition. It stated, "Mr. Leventhal will suffer permanent impairment," including "chronic pain, reduced strength and flexibility of the left leg and hip joint and a permanent limp," plus the likelihood of replacing screws and a rod in his leg and, quite possibly, his hip as a whole. Then, after noting that Dan would be unable to lift anything weighing more than fifty pounds for the rest of his life, Dr. Crane pointed out that Dan's concussion had "failed to fully resolve. The patient has difficulty working at the same task for long periods of time" -- a nightmarish state of affairs for Dan, a graphic designer for Intelligent Imaging Innovations, a digital microscopy company, who must do precise work requiring intense concentration on a daily basis. (The incredibly intricate illustrations on the company Web site, intelligent-imaging.com, are his.) Today, Dan's job, which once came so naturally to him, is frequently sheer agony, yet he can't quit. Not with his insurance situation in such a mess.

How so? Only after his accident did Dan find out that because motorcycles are exempted from Colorado's no-fault insurance law, he didn't have the personal-injury protection, or PIP, coverage that's often a financial godsend for insured automobile drivers. Dan's motorcycle insurance, purchased from the Farmers Insurance Group, reimbursed him for his motorcycle and a few odds and ends, including the pricey boot paramedics had to cut off his left foot, but that's it. Fortunately, he had Aetna medical insurance through his employer, which paid for the majority of his hospital stay and some rehabilitation -- although Lisa guesses that the total payments for which she and Dan were responsible reached five figures. Moreover, Aetna provided nothing for the three months Dan was out of work, and zero toward the cost of changes that had to be made to his house -- grab bars in the shower, an orthopedic recliner and so on.

Of course, Dan was entitled to sue the man who hit him -- and since Comcowich had $100,000 worth of insurance through State Farm, considerable funds seemed available. But before he could do so, Aetna placed a $58,000 lien on any would-be settlement as part of its attempt at something called "subrogation." This unfamiliar but widespread practice involves the insurer of the injured person collecting money from the insurer of a negligent party, in this case Comcowich, as a way to recoup its expenditures.

When he isn't farming, "Maggot" Mike Williams is a lobbyist for BIKEPAC.
John Johnston
When he isn't farming, "Maggot" Mike Williams is a lobbyist for BIKEPAC.

To Dan, this doesn't seem fair, and not only because medical benefits paid under PIP, which he would have had as a car driver, are exempt from subrogation. Since he paid Aetna for his medical insurance, he sees the firm's demand for the lion's share of any disbursement from State Farm as an attempt to be compensated twice. Worse, this could lead to a protracted court fight that might take months or even years to resolve, leaving Dan, after attorney fees and court costs, with less money than he's already spent or lost. And to literally add insult to injury, Comcowich, who didn't respond to an interview request, received only an $80 fine and the subtraction of two points from his license for his role in the accident -- an example, Dan believes, of a deep-seated, culture-wide prejudice against motorcyclists.

Lately, Dan, using the name "Beemer Dan," has written a couple of articles for The Spokesman, a monthly newsletter put out by the Colorado branch of the motorcycle-rights group ABATE (A Brotherhood Against Totalitarian Enactments), in an attempt to inform his fellow riders about the inequities of the current system. But he admits he has only the vaguest idea how to fix the problems -- and he's not alone. Motorcycle activists, attorneys and other observers agree that the insurance setup in Colorado can be terribly unjust to bikers.

But for reasons that are as rooted in politics as they are in a bottom-line mentality, practically no one is doing anything about it.

In the beginning, most U.S. states utilized the tort system for auto insurance, whereby the insurance company representing the party at fault in a given accident was responsible for covering all costs -- a seemingly judicious methodology. But this inevitably led to a great many lawsuits filed by, among many others, people blamed for sins they swore they didn't commit.

In response, insurance companies faced with defending themselves in trial after trial jacked rates up so high that legislators began searching for ways to deflate them. Among their proposals was no-fault insurance, in which an individual involved in an accident collects damages from his insurance company whether he caused the wreck or not -- the idea being that if liability was no longer up for debate, lawsuits would diminish, bringing rates down with them.

A rash of states adopted variations on this approach in the late 1960s and early '70s, including Colorado, whose No Fault Act passed in 1974. But in most places, the expected savings never really materialized, leading to disenchantment; although thirteen states -- Colorado included -- have some form of no-fault program at present, Connecticut and Georgia repealed theirs during the past decade, and elected representatives in other no-fault states have intermittently mused about following suit. Indeed, in a largely unnoticed maneuver during the Colorado legislative session that ended in May, Senate President Stan Matsunaka, a Loveland Democrat, engineered the inclusion of language in a bill that will cause Colorado's no-fault law to sunset in 2002 -- meaning that if the state's legislature doesn't tackle the topic in some way prior to adjourning next year, the act will die.

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