June 26, 2019 by Greg Meckbach
If you have clients who are riding their bikes this summer, how does liability insurance work if they get into an accident?
“Specialty cyclist insurance policies do exist, but my understanding is they are not very common,” said Ari Krajden, a partner with Toronto law firm Kawaguchi Krajden LLP.
Liability for bicycle accidents is “typically” covered under a home insurance policy but motorized scooters and other types of vehicles may not be, Krajden said Tuesday in an interview.
Cyclists who are unsure of their coverage should be asking their insurance broker or agent, said Krajden, whose areas of practice include personal injury and insurance coverage.
Unlike auto insurance, the wording of home insurance policies are not stipulated in provincial regulations.
“They can differ from insurer to insurer. It’s important to read your policy,” said Krajden.
Suppose a cyclist collides with a pedestrian, no motor vehicle is involved, and the pedestrian decides to launch a personal injury lawsuit.
“If a cyclist is sued, and the allegation is that they are negligent and caused a personal injury, (the cyclist) would likely turn to a home insurance policy or a renter’s policy first,” said Krajden.
If a plaintiff suing a cyclist alleges that the cyclist is at fault in an accident, the plaintiff must prove the cyclist owes a duty of care. Whether a duty of care exists depends on the facts in that situation, said Krajden.
In addition to proving the cyclist has a duty of care, the plaintiff would also have to prove the cyclist somehow failed to meet the standard of care required by civil law.
“The standard of care is determined by considering what would be expected of an ordinary, reasonable and prudent person in the same circumstances,” LexisNexis reports.
So if you have a duty of care towards someone, and if you fail to meet the standard of care and the other person is injured or suffers property damaged, you or (your insurer) could be forced to pay that other person.
In Ontario, bike riders must share the road with others and obey all traffic laws, notes Toronto-based Ambridge Law. The Highway Traffic Act stipulates a bicycle is a vehicle, so cyclists have the same rights and responsibilities as drivers and cannot carry passengers.
What happens if a motor vehicle is involved?
“All cyclists in Ontario involved in car accidents have access to accident insurance benefits, even if the accident was their fault,” reports Ottawa based Grenier Law, whose areas of practice include pedestrian and bicycle accidents.
“Bicycle accident cases can get very complicated and involve a number of parties, including motor vehicle operators who may be held liable,” Grenier Law notes. “It is worth noting that a car doesn’t even have to be moving for you to have a collision; ‘dooring’ [is] when a motorist opens their door without looking, and a cyclist runs into it. As well, some cycling accidents can be caused by dog attacks.”
So what happens if a cyclist gets into an accident on private property, and no vehicles, pedestrians or other bikes are involved?
This is where the Occupiers’ Liability Act could come into play.
In this scenario, if the cyclist wants to sue a property owner or manager, alleging that dangerous conditions on the property caused the accident, the cyclist would have to prove the property occupier failed to meet the legal standad of care, suggested Krajden.
“If I am operating any type of business and I am inviting people on to my premises, a duty of care is already established by the Occupiers Liability Act to maintain the premises so as to be reasonably safe.”