Posted by: Bill Robison
August 06, 2009
Topic: Motorcycle Collisions Presumption of Fault by Bikers

A favored driver's speed in excess of the posted speed limit alone, does not raise a defense of comparative fault by the disfavored driver who failed to yield. Under most circumstances excessive speed by the favored driver is irrelevant. Experience however shows that insurers and their counsel will use any tactic to try to avoid a fair allocation of fault.

The favored defense is to claim that but for the motorcyclists speed he or she would have been able to avoid the collision. In a case where stopping, even from below the speed limit, was impossible the defendant driver claimed the motorcyclist could have swerved around the back of his car had he been going slower. In another case the argument was that the 5-8 mph the motorcyclist was allegedly over the speed limit prevented him from stopping short of the vehicle that turned across his path. In both cases investigating officers saw fault as clear and cited the other driver. In both cases the insurer hired an "accident reconstructionist" who developed the defense theory.

These are simply two more examples of why an early and careful investigation is a must in every motorcycle case. 

Attachments:
MVC-004S.411

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