A Vicious Cycle
Dan Leventhal has always considered himself a safe motorcycle rider. He makes it a point to obey all posted traffic laws and doesn't take advantage of his bike's superior maneuverability by cutting off other motorists or splitting lanes to trace the white line. For Dan, who's in his late twenties and has been riding for a decade, his motorcycle isn't a recreational vehicle, but his main form of transportation. As such, he treats it much as cowboys circa the mid-1800s treated their horses: with admiration, with respect, with affection -- and with an awareness that the two of them are traveling through a dangerous world.
Dan knows that since he's not protected by steel framing, padded dashboards and air bags, he's especially vulnerable to injury or worse. And in his mind, the popularity of mammoth sport utility vehicles and equally large trucks only adds to this threat. After all, SUVs ride so high that many of their drivers have difficulty seeing motorcyclists, period, and the sheer size of these roadway leviathans can do an awful lot of damage to anything that gets in their way. That's why Dan tries never to ride when he's angry or emotional -- any loss of focus can be fatal -- and prefers to pilot a motorcycle with a boxer twin engine, which juts out on either side of the bike's frame. The design isn't as sleek as those of sportier motorcycles (dubbed "crotch rockets"), but in a collision, a car might hit the engine instead of the driver's legs -- and that could mean the difference between walking away and never walking again.
Dan also outfits himself in $1,500 worth of protective gear, but he resents having to do so. "It doesn't seem right that I have to dress like I'm going to war to ride my motorcycle," he says. Yet each day before he hits the streets, he dons the ensemble. A leather jacket that's reinforced with Kevlar body armor. A kidney belt. Jeans -- never shorts. Custom-made knee-high boots padded with foam that's specifically designed to absorb impact. Gloves also lined with Kevlar.
And, finally, a helmet. Dan's not opposed to Colorado's helmet law, which gives motorcyclists the right to ride without this headgear; he doesn't like the government telling people what they should and shouldn't wear. But he started putting one on regularly several years ago, after a young, healthy, helmetless friend of his was smacked by a van -- poor guy hasn't been the same since. His resolve was strengthened further after he himself became an accident victim and discovered firsthand just how at risk motorcyclists are.
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He's learned a lot of other things since the crash, too. Most of them bad.
The lessons began on May 27 last year. The day was bright and clear -- beautiful conditions for riding -- and after waking, Dan opted to motor a few blocks from his Denver home, near Eighth Avenue and Clermont Street, to a barbershop. He put on his protective gear before departing, with the exception of his helmet. The place was so close that strapping on a helmet seemed unwarranted. Why bother, he thought.
At the time, Dan owned a 1996 BMW boxer twin, which he kept in top condition; whenever he switched it on, the engine purred with delight. That morning, a little before 10 a.m., he revved it up and headed out, but he arrived too early: The joint wasn't open yet. So Dan swung the bike around and headed to a nearby Einstein Bros. Bagels for breakfast. He was rumbling west on Eighth toward Colorado Boulevard when the signal at the intersection turned red. He waited there for it to change to green, and when it did, he nudged the motorcycle forward at the same moment that Thomas Comcowich, a 34-year-old resident of Leadville heading north on Colorado Boulevard in a 1995 Chevrolet pickup, accelerated in a belated effort to beat the light.
An instant later, the pickup slammed into the motorcycle, hurling Dan approximately thirty feet. (The motorcycle wound up wedged under the truck.) Dan landed in the right lane of northbound Colorado and was dazed as a result of a potpourri of wounds even his protective gear couldn't prevent: multiple fractures of his left tibia and fibula, a fractured hip, and a severe concussion that affected the part of his brain governing vision; he had trouble seeing without pain for weeks afterward. He also sustained serious bruising and a large cut over his left eye where his face hit the truck, and a large bruise on the right side of his head where it smacked the pavement.
There were plenty of witnesses to the accident, including several with medical training; when Dan tried to drag himself out of the street fearing that other cars might run over him, two pros held him stationary and kept the other vehicles at bay. A moment later, a buddy of Dan's, who was riding his bicycle in the neighborhood, happened upon the scene and immediately used his cell phone to call Dan's longtime companion, Lisa Polisher. I'm at the corner of Eighth and Colorado, he said, and it's not good. Lisa, now a clinical research coordinator at National Jewish Medical and Research Center, jumped in her car and arrived in time to see Dan being loaded into an ambulance for transport to Denver Health Medical Center -- the beginning of two and a half weeks of emergency care, surgery and treatment that also included a stay at Rose Medical Center.
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.
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.
Yet the end of no-fault would likely have little impact on Colorado motorcyclists, who are excluded from the statute; the act considers motorcycles to be off-road vehicles not unlike minibikes and snowmobiles. This designation overlooks the many thousands of drivers who ride street cycles, but it's reassuring for insurance companies, which place motorcycles in a risk pool separate from cars because of the hazards inherent in riding them.
Carole Walker, executive director of the Rocky Mountain Insurance Information Association (RMIIA), an organization supported by the insurance industry, feels there's plenty of justification for doing so. "Motorcycles are just much less stable than cars," she says. "The number of deaths on motorcycles is about fourteen times the number in cars when you look at per-mile travel."
The group responsible for this last statistic -- the Insurance Institute for Highway Safety -- has plenty of other damning digits concerning motorcycles. In 1999, for example, there were 57 deaths per 100,000 registered motorcycles as compared to 17 deaths per 100,000 registered cars. Furthermore, 91 percent of motorcyclists killed were males, with about a third of them between 16 and 29 years old -- the demographic that traditionally has the worst safety record.
Predictably, motorcycle enthusiasts counter these figures with information of their own.
Deb Craig, state coordinator for ABATE of Colorado, highlights one study demonstrating that motorcyclists rack up medical costs roughly equal to those of automobile drivers on a per-claim basis, and another showing that bikers are just as likely to have insurance as people with cars. She also presents data suggesting that automobile drivers are disproportionately to blame in car-against-motorcycle accidents -- a message ABATE of Colorado pushed during a May visit to Washington, D.C., to promote a new national safety campaign dubbed Motorist Awareness of Motorcycles.
Sean Maher, legislative specialist for the American Motorcycle Association (AMA), a Pickering, Ohio, organization, has similar stats. He points out that motorcycle fatalities declined 48 percent between 1990 and 1999 -- a greater dip than for any other form of transportation. In addition, he says, "Two out of every three motorcycle crashes are the fault of Joe Car Driver."
This last contention helps explain AMA's opposition to no-fault in general: The association believes that far more motorcyclists are compensated under a tort system in which blame is assessed than under one from which they're essentially barred. But in no-fault states, AMA and the insurance industry are on the same page regarding PIP coverage for motorcycles. Neither wants it -- insurers because they fear they'll be stuck shelling out millions more in claims than they bring in from the sale of motorcycle policies, AMA because its execs worry that their insurance rates will zoom skyward at a frightening pace.
"PIP just doesn't work," says Maher. "What's happened in the states that have tried mandating PIP for motorcycles is that insurance went up so much that folks stopped buying motorcycles, and insurance companies pulled out of the marketplace because they didn't want to have to offer it. In the end, they had to repeal it."
That was certainly the case in Hawaii, a no-fault state. According to Roy Gomez, the Hawaii director of Street Bikers United, the state's largest motorcycle organization, "The PIP that was quoted for us was really, really expensive. We were paying upwards of four or five thousand dollars a year. So we went down to the capital in Honolulu and let the legislators know what this was doing to us -- that a lot of people were riding illegally, without insurance, because they just couldn't afford it. And thank goodness they listened." Mandatory PIP on motorcycles was repealed in Hawaii in 1984, and drivers were allowed to ride legally after purchasing nothing more than basic liability insurance, just as their Colorado brethren can.
Gomez adds that he'd be willing to pay for PIP if it cost as much for motorcycles as it does for cars. But that could only happen if motorcyclists were put into the same risk pool as automobile drivers -- and the insurance industry is having none of that. Says the RMIIA's Walker, "The injuries of motorcyclists are just so devastating, and you have such a higher accident rate. That would raise prices for everybody."
Are there any alternatives? Many motorcycle advocates tout the no-fault law in Michigan, which doesn't require motorcyclists to pay for PIP yet allows them to benefit from such coverage if they're involved in an accident with an automobile. But since motorcycle drivers in Colorado don't have this option, they're left to purchase medical insurance that will pay hospitalization and other costs if they're injured on their bikes. And because of a recent federal ruling, doing so may get more difficult in the future.
The edict at the heart of this latest blow to motorcyclists -- the Health Insurance Portability and Accountability Act of 1996, or HIPAA, which amends portions of the labyrinthine Employee Retirement Income Security Act (ERISA) -- initially had bikers cheering. Sponsored by Massachusetts Democratic senator Ted Kennedy and Kansas Republican senator Nancy Kassebaum, HIPAA contains language preventing employer-provided health-care plans from excluding individuals who participate in motorcycling, horseback riding, skiing or several other ordinary recreational activities as had been allowable under previous law. But after President Clinton signed the bill, bureaucrats still had to write the guidelines governing it, and doing so took the better part of four years. Worse, the final regulations, made public during the waning days of the Clinton administration, state that even though employer-provided policies can't reject workers based merely on their interest in motorcycling, the plans aren't required to offer benefits to people injured in this activity.
Put plainly, insurance companies aren't allowed to ban bikers from group health plans, but provisions may legally nix payments to anyone injured while motorcycling.
In response, AMA and the Washington, D.C.-based Motorcycle Riders Foundation, arguably the motorcycle community's most powerful lobbying organization, asked the U.S. Department of Health and Human Services to review the decision. But despite the MRF's friendly relationship with new HHS Secretary Tommy Thompson, a former governor of Wisconsin and himself a motorcyclist, and letters of support written by approximately 100 members of Congress, the department reported in May that it couldn't find legal justification to guarantee benefits to motorcyclists.
"The bottom line is, the 1996 law has a loophole in it," says Tom Wyld, MRF's vice president for government relations. "Which is an earth-shattering development. We were hopeful that common sense would prevail -- that licensed users of American highways driving registered motor vehicles would not be summarily denied health-benefit coverage in the case of an accident. But that's what we're facing."
He adds that Coloradans who think they won't feel the effects of the decree because the state passed a law in 1997 making it illegal for insurance companies to deny health-care benefits to motorcyclists may find out otherwise. "The federal government commands the field on group health," says Wyld. "That means that for every insurance program the state runs and regulates, the Colorado guarantee is golden. But people from Colorado who have group health plans may very well suffer."
Of course, not every employer-provided health plan will immediately move to deny benefits to injured motorcycles. But in the event of an accident, even those insurance companies that still represent motorcyclists can be counted on to try to recoup their expenditures. And the process of doing so is seldom pretty.
January 8, 1995. Back then, Bill Head, a forty-year-old independent contractor, lived in a north Boulder mobile-home park with his wife, his four-year-old stepson, Jason, and his 1981 Harley-Davidson -- a classic "wide glide" model. There'd been a hard freeze the night before, and Bill wanted to warm up the battery on his bike by taking it on a six-block spin around the neighborhood. But his journey ended up taking considerably longer than he figured.
A couple blocks from home, Bill, clad in riding gear and jeans but no helmet, was heading west on Yarmouth Avenue behind a 1968 Volkswagen bus driven by Esta Kirschner. According to Bill and two witnesses on the scene, Kirschner, who couldn't be reached for comment, veered onto the right shoulder of Yarmouth approaching Lemon Place, leading Bill to conclude that she intended either to turn right or park on the right shoulder of the road. Bill accelerated in order to pass the VW on the left. But in the midst of his maneuver, Kirschner suddenly stopped veering rightward and turned left instead, swinging her vehicle directly into Bill's path. A fraction of a second later, the Harley's front tire hit the front wheel well on the driver's side of the bus, and Bill's body hit the door. "I looked her straight in the eye as I went over the car," Bill says. "That's the first time she saw me."
Both Bill and the Harley somersaulted through the air, with Bill landing in a ditch around 150 feet away. He was knocked unconscious briefly, and when he snapped out of it, he saw that his legs were crisscrossed beneath him in an extremely unnatural position. He knew in that instant that his injuries were bad, but not until he was taken to what was then Boulder Memorial Hospital did he learn how bad -- and how many of them there were. The list was long. Two compound fractures of his right femur. A shattered left hip plate. A blown left hip socket. Three cracks in his pelvis. First-, second- and third-degree chemical burns between his waist and his knees from exposure to gasoline, which wound up gushing onto Bill after his knee ripped open the fuel tank. A skull fracture with a concussion. A broken jaw. An inch-and-a-half tear in his esophagus, torn from the inside by his renegade jaw bone. And finally, for good measure, eighteen broken teeth that went from his mouth to the pavement, never to return.
Unsurprisingly, a good many doctors spent a great deal of time putting Bill back together again. At first physicians thought his right leg might have to be amputated, but a surgeon at University Hospital in Denver managed to reconstruct him with the assistance of screws, rods and other hardware. After that, he stayed first in the convalescent wing at Longmont United Hospital, then in a Longmont nursing home. By the time he was released, it was four months later, and winter had given way to spring.
The care Bill received didn't come cheap: He estimates that the total topped out in the vicinity of $350,000. Luckily, the previous October, Bill had invested in health insurance for himself and his family through USA for Healthcare, a Texas outfit specializing in insurance for the self-employed. (Because of the expense involved, Bill had called to cancel in December; a company representative talked him out of it.) But payments for which Bill was responsible came to about $18,000, and other debts mounted because he wasn't cleared to work for over a year. He received some money from Progressive Insurance, his motorcycle-insurance carrier, to replace his mangled Harley, as well as public assistance from Boulder County, but it wasn't nearly enough. So he looked into suing Nationwide Mutual Insurance, the Ohio corporation that represented Kirschner. Her policy limit was $100,000, which certainly would have helped Bill and his family.
But there were complications. For one thing, Kirschner wasn't ticketed after the accident, but Bill was, for improper passing; the Boulder police officer on the scene determined that he had crossed a yellow center line in an effort to get around the VW bus. Bill challenged that ticket, saying that Kirschner had failed to signal a left turn while simulating a turn to the right, and the citation was eventually dropped -- but it still provided ammunition to Nationwide. So, too, did the speed Bill was traveling. Witnesses guessed he was moving at 55 miles per hour or so at the time of the accident, and even though Bill thinks that's 10 or 15 mph too high, he was definitely going over the posted 35 mph limit. Finally, Bill's appearance hardly contradicted the negative representation of bikers that has been perpetrated over the years. "I hadn't worn a ponytail for twenty years; I had a styled cut," Bill says. "But my hair was shoulder-length, and I had a beard, and I was a construction worker and...well, you know -- I looked like a biker."
Legally, Bill's mild resemblance to a Hell's Angel and his decision to ride helmet-free shouldn't have made a difference -- but a lot of people in the motorcycle community are certain that in court, it would have. ABATE of Colorado's Deb Craig says, "I absolutely believe there are a lot of misconceptions about motorcyclists out there." This comment is echoed by Mike LaFore, the owner of LaFore's MC, a Lakewood motorcycle shop. His son Christian, who worked at LaFore's as a mechanic, was killed in July 1999 while riding a motorcycle on the Sixth Avenue frontage road near his business after a car pulled out from a side street in front of him. The driver of the car wasn't cited by police, in part because observers claimed that Christian was racing at 80 mph in a 35 mph zone. But Mike disputes that, and he feels his inability to get his side of the story investigated smacks of roadway bigotry. "Lots of people, law enforcement included, typecast the motorcycle public," Mike says, "and it isn't right."
Perhaps not, but Jim Hult, Bill's attorney, had to deal with reality, and he felt his client had several marks against him. "I've tried a bunch of motorcycle cases," he says, "and if people look a certain way and wear a helmet, they'll come out fine. But here I had a guy with kind of long hair and a beard driving a loud bike and who wasn't wearing a helmet. And some of the other facts weren't good for him, either. I just didn't think he'd get a fair shake."
With this in mind, Hult decided to negotiate with Kirschner's insurance company. In an eleven-page letter dated December 5, 1996, he laid out his case, concluding, "It is easy to see how a reasonable Boulder jury would likely award Mr. Head at least $100,000 for each category of his damages; that is, $100,000-plus for economic loss, $100,000-plus for pain and suffering, and $100,000-plus for physical impairment...However, to avoid the delay and expense of litigation, Mr. Head has authorized me to settle his claim for $100,000, the amount we assume is the total available insurance."
But this argument wasn't especially persuasive. Nationwide countered with an offer of $10,000, which it increased to $15,000 after some additional dickering. But Bill didn't wind up with anything close to this amount. His insurance company, USA for Healthcare, engaged in subrogation (that term again) by placing a lien on the reward and wound up getting over a third of the money -- and, of course, Hult received his fee as well. In the end, after years of litigation and at least one arbitration hearing, Bill took home $4,700.
This modest sum hardly improved the negative consequences of the accident. Unable to afford the high cost of living in Boulder, Bill was forced to move his family to rural Oklahoma, where his wife's family lived. Then, with debts hanging over his head, he declared bankruptcy in 1999. Personal problems escalated as well, and Bill and his wife divorced. Sexual problems factored into the marriage's dissolution, Bill says. He sustained serious burns to his scrotum and penis during the crash, and for a year afterward he could only get an erection if he injected medication into his genital region with a hypodermic needle. Using this method, Bill fathered a son, James, who's four and lives with his dad, but he says it caused considerable strain.
Bill also experienced significant periods of unemployment (he's currently working for a company in Muskogee that manufactures shopping carts), as well as another injury. Last August, Bill tripped, badly tweaking his damaged hip. "When I first had the hip rebuilt, they told me I'd probably have to replace it in five to ten years, at my expense -- and my fall happened right before the six-year anniversary," he recalls. "After the doctor checked me out, he said, 'You'd better start saving your money.'" That's easier said than done: While Bill still loves motorcycles, he doesn't own one anymore "for financial reasons. There's just nothing left.
"It's still hard for me to believe what's happened," he adds. "I mean, when I bought my motorcycle insurance, I asked for full coverage, and that's what I thought I had. But I found out full coverage for motorcycles isn't very full at all."
According to Wheat Ridge insurance agent Bill Peterson, who's widely thought to be the local expert on motorcycle insurance, such misunderstandings are all too common and are not always the fault of riders who don't ask the right questions. Since motorcycles make up an extremely small percentage of most agencies' business, he believes, many agents are poorly informed about the coverage, and the rise in dealerships where salesmen toss in policies with the purchase of a bike only exacerbates the problem. (For instance, Harley-Davidson sells motorcycle insurance through its Web site, harley-davidson.com; motorcyclists can purchase policies online without ever talking to an agent.) For these reasons, Peterson's developed a five-minute videotape explaining motorcycle insurance that he makes each of his clients check out before buying anything from him. "If you won't watch it, I can't work with you," he says. "Simple as that."
Not only do viewers learn from the video that motorcyclists in Colorado don't have PIP, but they are told about an important way to compensate for this shortcoming: uninsured/underinsured motorist coverage. This option, which Peterson insists all of his clients exercise, pays injured parties when they're in an accident with a driver who's at fault but has no insurance or not enough insurance, or in the case of hit-and-runs. For automobile owners, uninsured/ underinsured can be superfluous, because the state mandates that they purchase $130,000 in PIP. But for motorcyclists, it helps make up for the absence of PIP in a limited number of scenarios -- and since it can be purchased in amounts up to the limits of a person's liability coverage, the protection it provides may in some circumstances exceed PIP dollar amounts. Better yet, the price is quite reasonable; the average motorcyclist with a good driving record can get $50,000 in uninsured/ underinsured coverage for under $100 per annum -- much lower than most car drivers pay yearly for PIP.
But unlike PIP, uninsured/underinsured motorist coverage isn't immune from subrogation, a practice that hits motorcyclists harder than any other category of Colorado motorists, as Dan Leventhal and Bill Head know all too well. Most insurance policies contain a subrogation clause -- a contractual agreement -- that allows the company to claim part or all of a damage award to offset what it's paid in hospital bills and the like.
Louis Saccoccio, general counsel for Washington, D.C.'s American Association of Health Plans, a group that represents the health-care industry, says such clauses are necessary from a legal and financial standpoint. "First, it prevents a person who is injured from enjoying a double recovery," Saccoccio says. "An individual who is injured is entitled to be compensated for his injuries, but is not entitled under the law to be compensated for those injuries twice. And it also has an impact on costs. To the extent that health plans are able to recover payments from the person who caused the injury, there are savings there. That helps hold down premium costs in general."
Be that as it may, subrogation is still forbidden in a handful of states, such as Georgia and Arizona. And in the states where the practice is legal, there's no clear-cut set of laws or rulings governing what insurance companies can and can't do in this arena. Denver attorney Wade Eldridge, a motorcycle enthusiast who has spoken about subrogation at meetings and conventions across the country, concedes that many of his colleagues don't fully grasp the concept -- and as he sketches out the double helix of subrogation rules, it's obvious why.
Subrogation, Eldridge explains, is legally defined as one party standing in the shoes of another, meaning that when a health-insurance company pays a health-care provider for injuries inflicted by a driver who caused an accident, it's doing so with the expectation that it will be repaid for its expenditures. But because the victim in this scenario has already paid premiums to his insurance company for coverage, a Colorado common-law doctrine known as the "collateral source rule" comes into play. "Basically, it says that if a guy whacks you, he's got to pay your medical bills even though they may have already been paid by your carrier," Eldridge says. Better yet, Eldridge notes that Colorado common law also suggests that insurance companies don't receive subrogation rights until an individual is "made whole.
"For instance," he explains, "if your medical carrier has paid ten or fifteen thousand in medical bills but you get $25,000 by suing, the carrier will want that money. But if you're a paraplegic, $25,000 is going to be inadequate to compensate you for your injuries; it won't make you whole. So the carrier shouldn't be able to take that money."
Sounds good so far -- but, says Eldridge, "here's where it gets complicated." In 1974, the same year Colorado's no-fault law came into being, the federal government enacted the aforementioned Employee Retirement Income Security Act (ERISA), which deals in part with the ways insurance companies do business in the U.S. As the Motorcycle Riders Foundation warns, ERISA trumps Colorado common law, including state protections regarding subrogation, in many circumstances; that's why the Colorado law guaranteeing insurance benefits to motorcyclists doesn't offer nearly the protection its authors envisioned. Eldridge notes that ERISA includes a "savings clause" whose text -- "nothing in this chapter shall be construed to exempt or relieve any person from any law of any state which regulates insurance" -- seemingly offers a glimmer of hope. But said hope is quashed by a subsequent "deemer clause" that states, "Neither an employee benefit plan...nor any trust established under such a plan, shall be deemed to be an insurance company."
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."
It took the state patrolman about ninety minutes to reach the scene, and when he did, he told Maggot Mike that he'd already called for an ambulance. At the time, Maggot Mike didn't have any insurance because he couldn't afford it. So he told the officer that if an emergency crew turned up, he'd refuse treatment, and even after returning home, he never saw a doctor for his injuries. Why? "Because I knew from my time with ABATE" -- he'd been an active member since 1985 and had served as the group's state coordinator -- "that motorcyclists have often been portrayed as a social burden; people think we never have any insurance, and so when we're hurt, Medicaid or Medicare has to pick up the tab. And that's not me. So I figured I'd just deal with everything myself."
Maggot Mike had to use a cane for the next three weeks, but he doesn't believe he did any permanent damage to his foot. (His Harley is recovering, too; he hopes it will be roadworthy again before the summer is out.) And even though he acknowledges that his decision regarding medical care might not have been the best thing for his health, he'd do it again -- for himself, and for the good of motorcyclists everywhere.
"I didn't want to be a bad statistic," he says.
Lisa Polisher, Dan Leventhal's partner, isn't a statistic at all -- not officially. But even though she wasn't in the accident that changed Dan's life, she's still dealing with it. The emotional toil it's taken on her has been exacerbated by frustration over the modest punishment meted out to Thomas Comcowich, the man judged responsible for the crash.
Last November, after getting nowhere with complaints to the city attorney's office, whose plea-bargain agreement with Comcowich resulted in his fine, Lisa took advantage of one of Mayor Wellington Webb's regular meet-the-public sessions to press her complaints in person. In February, she followed up with a detailed letter to Webb and numerous members of city government. The only person who responded to the missive was Councilwoman Elbra Wedgeworth, who sent a note promising to forward copies to Dan Euell, chief operating officer at Denver Health, whose care Lisa had praised, and Chief of Police Gerald Whitman. In April, Whitman mailed his own letter to Lisa. After running through his department's actions, he wrote, "I strongly encourage you to continue your efforts with the city attorney's office regarding [the] unacceptability of the plea arrangement" -- a sympathetic answer, but one that leaves Lisa back at square one.
In the meantime, Patricia Jarzobski, Dan's attorney, continues to search for ways to help her client. She thought more funds might be available for Dan in the wake of an April 30 Colorado Supreme Court ruling in the matter of DeHerrera v. Sentry Insurance. The plaintiff, Elizabeth DeHerrera, sued Sentry, her auto insurance company, after the firm refused to allow her to use the PIP and uninsured/underinsured coverage she carried on her car to benefit her son, who was injured in an accident with a pickup truck while riding an off-road motorcycle. Sentry refused to pay on the grounds that the policy only covered persons in an automobile, but the justices ruled otherwise. The decision, though, applies only to vehicles that aren't required to be licensed for operation on public highways, and Dan's was.
This leaves Jarzobski with only one practical choice: to negotiate first with State Farm, Comcowich's company, and then, paradoxically, with Aetna, Dan's own carrier, which declined to comment about his case. "I think there's an inherent unfairness in not allowing motorcycle owners and riders the same types of benefit rights you'd have in another vehicle," she says. "But the way things are, Dan's going to have to pay back something to his health-insurance company. I can't tell you how much that will be. Oftentimes we're able to negotiate subrogation lower than a dollar-for-dollar payback, and that's my hope and intent in Dan's case, since he's got a very, very serious injury. But I can't tell you what percentage of the coverage he's going to get."
As for Dan, he remains in limbo. Some of his injuries have healed, others haven't. Over a year after the accident, he continues to experience pain and mobility restrictions during the most commonplace activities, like walking and sitting. Likewise, he is still having an extremely difficult time concentrating, and although he's easily exhausted, he can sleep soundly only if he drugs himself into a stupor using painkillers. Otherwise, he suffers bad dreams, night terrors and symptoms often associated with post-traumatic stress disorder. Even watching TV can be an ordeal. A truck commercial in which the vehicle moves rapidly toward the camera is capable of triggering a flashback to the moment of his unfortunate introduction to that '95 Chevy pickup at the intersection of Eighth and Colorado.
At the same time, he refuses to stop riding a motorcycle. He's been doing so since he was a teenager, and with his injuries, he actually feels more comfortable straddling a bike than sitting in a car. But traffic panics him so much that he seldom goes into the office before ten, in order to avoid the morning rush, and lingers in a coffee shop for extended stretches each evening to allow the streets to clear.
Dan spends many of these hours researching motorcycle rights, and he occasionally stumbles upon positive news, such as a just-introduced New Jersey bill that would increase penalties for drivers who injure or kill motorcyclists and road users in general, and a newly enacted measure in Washington State giving prosecutors the ability to charge a driver with felony vehicular assault if he or she uses a vehicle without regard to the well-being of others, motorcyclists included. But these are small steps. What's needed, he believes, are some giant leaps -- and society at large still seems unwilling to take them.
"I just want to feel safe when I ride," Dan says. "That's all I want."
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