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Reviewing Your Insurance Limits: Pedestrian Safety

September 8, 2011

Earlier this summer a Buffalo-area physician was charged with drunken driving in the hit-and-run death of a young woman who was struck while skateboarding home in a suburban neighborhood from her job.

On a late Friday night 18-year-old Alexandria Rice was skateboarding on the road when a BMW allegedly driven by an area doctor struck her. Shortly after, Rice was pronounced dead at Millard Fillmore Suburban Hospital.

According to the U.S. Department of Transportation, in 2009, 4,091 pedestrians were killed in traffic crashes in the United States, and another 59,000 pedestrians were injured. More than half of these fatalities occurred at nighttime. Alcohol-impairment—either for the driver or for the pedestrian—was reported in 48 percent of the traffic crashes that resulted in pedestrian deaths.

Alexandria Rice’s death and the circumstances surrounding it are tragic. If a driver hits a pedestrian, whose fault is the accident? In general, fault is determined by the law of negligence. A person who fails to use a reasonable standard of care under the circumstances is considered negligent.
Both the driver and the pedestrian can be negligent. Different states treat this circumstance differently. For example, some states use the pure contributory negligence rule, which means that if the pedestrian contributed at all to the accident, then she and her auto insurance company cannot recover damages from the driver and his auto insurance company. Other states follow a comparative fault rule that allows the pedestrian to recover some damages even if she was partly at fault.

Injured pedestrians are usually covered under their health and disability insurance policies, or worker’s compensation coverage, if the accident occurs on the job. They may also be covered under one or more auto insurance policies.

An injured pedestrian can usually file a claim against the driver’s or vehicle owner’s auto liability insurance policy. Almost all states require that vehicle owners and drivers carry liability insurance to cover personal injuries to third parties and damage to third parties’ property. Recoveries depend on who was at fault for the accident and various state statutes.

Coverage for injuries to pedestrians in no-fault states varies between the states. In some states, the driver’s insurance company pays the amount of the pedestrian’s medical expenses up to the Personal Injury Protection (PIP) limit, even if the accident is the pedestrian’s fault. There are exceptions; for example, if a pedestrian is not insured, she may be paid out of a special state-mandated fund called the Unsatisfied Claim and Judgment Fund.

State laws differ extensively when it comes to car insurance policies, and each policy has limitations and exclusions. Additionally, recovery may depend on the particular insurance policies involved as well as laws in that state.

Drivers and pedestrians have a responsibility to protect their own safety and the safety of others. If an unfortunate accident does occur, injured pedestrians should seek advice from their own insurer or a personal injury attorney in order to fully understand the many particulars and procedures.