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Insurers seek brakes on comparative negligence for cyclists

‘Carve-out’ proposed in car accidents; other legislation would make repeat drunken driving a felony

Bruce Bereano, a tobacco lobbyist, stands in front of the Maryland State House in Annapolis. Bereano said he believes states used money from the Master Settlement Agreement with tobacco companies as an opportunity to bring in money instead of placing enough money on tobacco programs. (Capital News Service photo by Erin Serpico)

Lobbyist Bruce Bereano was critical of a Washington law establishing a ‘comparative negligence carve-out’ for bicyclists and pedestrians hit by cars. ‘This idea came out of D.C. and that’s enough. What D.C. did really is farkakte,’ Bereano told a Senate committee, using the Yiddish word for ‘crappy.’ (File photo)

ANNAPOLIS — Cycling organizations urged legislators Tuesday to establish a comparative negligence standard for when they or pedestrians are struck by vehicles, drawing opposition from insurers, defense attorneys and local governments.

Sen. Susan C. Lee, D-Montgomery, proposed a “comparative negligence carve-out” similar to one that went into effect in Washington, D.C. in 2016. Senate Bill 465 would allow such plaintiffs to recover damages even if they were partially at fault in a collision. It has not been cross-filed.

“This bill is about bicycle and pedestrian safety and that’s it,” Lee told the Senate Judicial Proceedings Committee.

Joshua Feldmark, executive director of Bike Maryland, said he feels like “David against the Goliath all-stars” lobbying for this change, referencing the insurance company opposition, but said he has spoken with dozens of individuals who have cases that lawyers won’t take because they may have been partially at fault.

“We’re here today to give them a voice and hopefully give them a chance to get their just compensation,” he said.

But legislators and the bill’s opponents expressed concerns about creating a special class of plaintiffs and “upending” Maryland’s contributory negligence system.

“There are a million different torts that are out there that have one set of rules. We have, for better or worse, the law of contributory negligence,” said Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and the committee’s chair.

Representatives from the Maryland Association of Counties and Maryland Municipal League argued greater uncertainty and costs for local governments. Lobbyist Bruce Bereano, representing business clients who use commercial vehicles, was critical of the D.C. law.

“This idea came out of D.C. and that’s enough. What D.C. did really is farkakte,” said Bereano, using the Yiddish word for “crappy.”

Vulnerable plaintiffs

Feldmark said cyclists and pedestrians are a “class of specifically vulnerable folks” who face drivers with insurance companies in their corner.

“What we’re saying is this is a place where it is unjust and this is a way we can fix it,” he said.

The Washington law did not lead to a measurable change in insurance rates or number of cases litigated, according to Greg Billing, executive director of the Washington Area Bicyclist Association.

Insurers cautioned that rates will increase, however, and noted that the D.C. law has not been in effect for long and rates are likely to rise there soon.

L. Noel Patterson, general counsel for Allstate Insurance Company, said the law wouldn’t encourage good behavior but rather would generate increased litigation and a “flood of litigation.”

Defense attorneys also cautioned against creating a different standard for a certain class of victims.

Paul A. Tiburzi, partner at DLA Piper in Baltimore, called contributory negligence “an essential part of the balance in Maryland tort law” and likened any change to tossing a pebble in a lake and creating ripples.

Despite being a cyclist himself, Gardner M. Duvall, representing the Maryland Defense Counsel Inc., said his organization also opposes the bill.

“There really shouldn’t be special exceptions for reasons that no one can explain except for, ‘I like cyclists,'” said Duvall, a partner at Whiteford Taylor Preston LLP in Baltimore.

Duvall said in his experience, cyclists are no more or less careless than any other class of people and the law already requires drivers to use more care when the approach someone more vulnerable, such as someone on a bike or on foot.

“There really isn’t a good theory that says vulnerable people need easier theories to recover than other people,” he said.

Lee’s other piece of legislation before the committee, Senate Bill 268, would allow drivers to cross a double-yellow line where practicable to pass a bicycle at a safe distance.

Some of the insurers opposed to the comparative negligence bill expressed support for SB 268, saying legislating the rule of the road for dealing with cyclists is the way to address safety concerns.

Other traffic legislation

Proponents of a bill to make drunken driving a felony crime for repeat offenders returned to Annapolis to push for the law, which is backed by Gov. Larry Hogan.

Drunken drivers account for 7 percent of vehicle collisions, according to Cara Sullivan, deputy legislative officer with Hogan, and those with prior convictions are more likely to repeat the behavior. Maryland law, however, has a maximum sentence of three years for drunken drivers no matter how many prior convictions they have.

Rich Leotta, whose son, Montgomery County Police Officers Noah Leotta was killed by a drunken driver, told the committee a big reason for the number of repeat drunken drivers is lack of deterrence.

“We’re clearly not getting the message out,” he said. “We’re not doing the right thing.”

Senate Bill 296 would make it a felony offense to be convicted of driving drunk for a fourth time, punishable by up to 10 years in prison.

Another bill seeks to establish a misdemeanor for smoking marijuana in the passenger area of a car, which sponsor Sen. Robert G. Cassilly said is currently only a civil fine at most.

Cassilly, R-Harford, said Maryland is “sending a muddled message” to young drivers when an open container of alcohol, even if not consumed, is a criminal offense but a lit joint is not.

“We’ve seen far too much trauma on the highway,” he said.

Riverdale Park Police Chief David Morris, who testified on behalf of the Maryland Chiefs of Police Association, said police are seeing an increased number of traffic fatalities from impaired driving and more drug recognition experts being called to determine if someone is intoxicated by something other than alcohol.

Senate Bill 345 would create a misdemeanor punishable by a $500 fine for consuming marijuana as a driver or occupant in the passenger area of a vehicle.

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