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The meaning of this legalese? The collateral-source rule, the requirement that a party be made whole, and other aspects of Colorado common law apply to some employer-provided health plans (mostly smaller ones), but not to the ones used by the vast majority of insured Coloradans. For the most part, Eldridge says, insurance companies in the state can subrogate to their heart's content.
The local group most upset about this situation is the Colorado Trial Lawyers Association, whose president, Bob Schuetze, calls subrogation "a serious problem that often leads to awful results." But it's not presently at the top of the organization's agenda, largely because of political realities. "We try to get legislation passed that will help injured people and consumers," Schuetze says, "but there's a very strong insurance lobby in Colorado, and they have the ear of many of our legislators, who are more than willing to do whatever the insurance companies want. So the prospect of getting subrogation legislation passed is extremely difficult."
The sledding isn't any easier when it comes to legal challenges, as a series of subrogation rulings in Maryland demonstrates. In March 2000, the Maryland Court of Appeals ruled that subrogation by HMOs was illegal, thus throwing the state's legislature into a panic; two months later, the legislature passed a law giving HMOs permission to subrogate again and protecting companies against refund requests from people who'd previously paid off subrogation-inspired liens. Shortly thereafter, on June 1, lawsuits were filed by Washington, D.C.-based Trial Lawyers for Public Justice and others to challenge the constitutionality of the law, but their efforts came up short -- and while two more appeals are pending, they deal only with the retroactive portion of the new law.
No such activity is taking place at present in the Colorado court system, and Colorado legislators seem as reticent to look into subrogation as they are to grapple with the subject of motorcycle insurance.
Colorado Republican senator Ben Nighthorse Campbell, among the country's most visible motorcycle boosters (he made headlines earlier this year after offering to take new senator Hillary Clinton for a ride on his Hog), didn't return several calls from Westword on these topics.
For her part, Democratic state representative Lois Tochtrop, seen as one of the Colorado House's most motorcycle-friendly legislators, says there's no groundswell among bikers to focus attention on their insurance concerns. "Motorcyclists don't want PIP because there's the feeling that it would increase premiums," Tochtrop says. "And if the rules were changed so that motorcycles and automobiles were put on the same footing, people with cars who've never given much thought to helmets would start screaming for mandatory helmet laws."
Such an occurrence would be disastrous from the standpoint of ABATE, the Motorcycle Riders Foundation and the American Motorcycle Association, all of which regard Colorado's helmet-optional measure as the standard for the nation and would raise a holy stink if anything were done to threaten it. But that doesn't mean motorcycle activists are immune from the same kinds of insurance concerns that can sneak up on the average biker. Witness Brighton resident Mike Williams, known in the motorcycle community as Maggot Mike.
When the Colorado legislature isn't in session, Maggot Mike is a dry-land wheat farmer, but when it is, he's a full-time lobbyist for BIKEPAC, a political action committee formed last year for the express purpose of advocating on behalf of the state's motorcyclists. As such, he monitors legislation to make sure that bills with a pro-motorcycle slant are supported and those that might have the opposite effect are vigorously protested.
This year, Maggot Mike says, no insurance legislation bearing on motorcyclists came to the fore, and his sponsors aren't beckoning for any, because most of them see having health insurance as their best defense against financial ruin owing to an accident. Still, he can empathize with any biker who's had to make tough decisions with respect to insurance, because he's done so himself.
It was Labor Day 1998, and Maggot Mike was riding his vintage 1949 Harley-Davidson (it features a panhead engine design) from Brighton to a motorcycle rally in the Four Corners region as part of a mini-convoy: A friend on a bike was in front of him, and his wife, driving a van, was behind. Everything seemed fine on that gorgeous day until about 2 p.m., when, atop Wolf Creek Pass, he hit an unexpected dip in the road that was later described by a state patrolman who arrived at the scene as a "frost hump." Maggot Mike kept the Harley upright for about 260 feet before setting it down and sliding for just over a hundred yards. His buddy on the bike ahead didn't see a thing and kept going, but his wife witnessed the whole accident. "She was pretty upset," Maggot Mike says, understating her reaction considerably.
The Harley suffered a broken engine case, a damaged transmission case and a bent frame, and Maggot Mike sustained some damage as well. Despite wearing a full set of leathers, he wound up with what he casually refers to as "road rash," and he did quite a job on one foot. "I don't know if I broke any bones in it," he says. "There weren't any compound fractures or anything. But I did something to it."