Like many legal answers, it depends on the particular facts of the accident. This article only applies to bike accidents in Florida. Every state has different laws.
You can learn more about whether you can get lost wages after a Florida auto accident, but this article is specific to Florida bicycle accidents.
The most common type of bike accident that is due to another’s negligence (failure to use reasonable care) is when a car or truck hits a bicyclist. Florida Motor Vehicle No-Fault Law gives Personal Injury Protection (PIP) benefits to anyone who is not an occupant of a self-propelled vehicle if he or she is injured in an automobile accident.
If you look a Florida auto insurance policy, it uses the word “pedestrian” to describe anyone who is not an occupant of a self-propelled vehicle. “Pedestrian” includes, but is not limited to, someone who is riding a bike or sitting on a bicycle. So for purposes of being covered for PIP in Florida, a bicyclist is considered a pedestrian and qualifies for PIP benefits.
In a Florida auto insurance policy, insureds or resident relatives are covered by Florida PIP. PIP pays medical benefits and disability benefits, which combined cannot exceed $10,000. The topic of who pays your medical bills if you’re hit while in a bike in Florida is outside the scope of this article.
In addition to paying some of your medical expenses, PIP pays 60 percent of disability benefits for any loss of gross income and loss of earning capacity because of an injury sustained in an accident. Disability benefits also cover 100% of expenses reasonably incurred for household services that, if not for injury, the injured person would have performed.
I will refer to all expenses reasonably incurred for household services (that, if not for injury, the injured person would have performed) as replacement services.
Again, PIP pays medical benefits and disability benefits, which combined cannot exceed $10,000.
Example – PIP payable and Right to Sue
Mary lives with her daughter in Florida. Mary is riding a bike. Joe hits Mary while he is driving his truck which is insured. Mary doesn’t own a motor vehicle licensed in Florida or own a motor vehicle required to be licensed in Florida. Mary lives with her daughter Andrea who owns a motor vehicle licensed in Florida. Andrea has auto insurance.
Mary’s medical bills are $4,000, her lost wages are $6,000 and she incurred $500 in replacement services as a result of her disability from this accident.
Mary is entitled to PIP under her daughter’s auto insurance policy, because she was riding a bike, she is a resident relative under Andrea’s auto policy, Mary doesn’t own a motor vehicle licensed in Florida or own a motor vehicle required to be licensed in Florida, and Mary was struck and injured by a motor vehicle (a truck).
PIP would pay for 60% of Mary’s lost wages and all of her replacement services, in addition to medical bills, which combined cannot exceed $10,000. Andrea’s PIP insurer would pay Mary $3,900 for disability benefits. The formula is below:
Lost income: $6,000 x 60%= $3,600
Replacement services: $500
Total PIP benefits for lost wages and household services = $4,100
Mary would also be entitled to PIP benefits for medical expenses but that is outside the scope of this article.
If we take the same facts except Andrea was riding the bike instead of Mary, then Andrea would be entitled to the same disability benefits. This is because Andrea was riding a bike, she owns a car in Florida that is insured, and she was struck and injured by a motor vehicle (a truck).
Mary also has a tort right (right to sue) against Joe to recover economic damages that PIP doesn’t cover if Joe’s negligence caused Mary’s loss of gross income and inability to perform household services.
Let’s assume that Joe was 100% negligent in causing Mary’s injuries, her lost income and expenses for household services. If this is the case, Mary is entitled to recover $2,400 in economic damages for lost income and expenses for household services from Joe. This is in addition to the benefits that PIP paid Mary. Mary could also sue for medical expenses but that is outside the scope of this article. We arrive at $2,400 by using the formula below.
Lost income: $6,000
Household services: $500
Total PIP benefits for lost wages and household services: -$4,100
Mary can sue for Economic Damages for Lost Wages & Household Services from Joe: $2,400
The $2,400 in economic damages is generally paid by Joe’s auto insurer under its bodily injury (BI) liability coverage. This is in addition to the amount that Mary recovers from PIP.
If Mary was at fault, her recovery against Joe’s BI coverage would be reduced by her comparative negligence, and any of the 39 important factors that can affect the value of an injury case, or 13 factors that affect the value of an auto accident case.
Mary’s claim against Joe may be reduced by any collateral sources which have been paid for the benefit of Mary, or which are otherwise available to the Mary for which a subrogation or reimbursement right does not exist. Examples of collateral sources that may be applicable to lost wages are disability income (personal or group short term and/or long term disability insurance).
Let’s say Mary had short term disability insurance (without a right of subrogation) that pays $2,600 for lost income as a result of this incident. If this is the case, then she can’t make a claim against Joe for the same $2,600 because she would be collecting the same money twice.
But if Mary’s long term or short term disability insurance has a right of subrogation, then Mary could make a claim against Joe for this $2,600 because Mary may need to repay the short or long term disability company for the benefits that they paid Mary.
Tip: You should request in writing (via certified mail return receipt) a copy of any short term or long term disability from the plan administrator, insurer and recovery agent. You must include the language in the Florida collateral source statute. If you don’t include the subject language then the collateral source provider’s failure to respond to the letter doesn’t waive their lien.
Warning: If the short or long term disability insurer’s claims adjuster tells you that they have a right of subrogation or reimbursement, take it with a grain of salt. They may be dead wrong. We were able to get an approximately $50,000 short and long term disability lien waived (reduced to zero) in a claim that we settled for $300,000.
The settlement was before attorney’s fees, costs and medical expenses. Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.
Mary may also have a claim for non-economic damages (e.g. pain and suffering, etc.) against Joe but that is outside the scope of this article.
Example #2 – Florida Resident, PIP payable and Right to Sue
Let’s use the same facts as Example #1 except we’ll assume that Mary doesn’t own a motor vehicle or live with a relative who owns a motor vehicle. If Mary was a resident of Florida when Joe crashed into her, Mary would be entitled to PIP benefits from Joe’s auto insurer, since Mary was on a bike, she didn’t live with a resident relative and she was struck by a motor vehicle (a truck in this case) in Florida.
Mary would also have a claim for her medical expenses from PIP. Mary may have a claim for pain, suffering, mental anguish, and inconvenience if she can meet the tort threshold, but that is outside the scope of this article.
Example #3 – Florida Non-Resident, PIP payable and Right to Sue
Jenny lives in Georgia but she is on vacation in Miami Beach, Florida. Jenny is riding a bicycle. Joe is driving a car and he hits Jenny.
If Jenny was a NOT resident of Florida, and Joe crashed into Jenny while she was on a bike, Jenny would not be entitled to PIP benefits from Joe’s auto insurer. This is because Jenny was not a Florida resident at the time of the crash.
However, assuming that Joe was 100% at fault, then Jenny could recover all of her lost wages, household services and medical expenses from Joe’s BI coverage in his auto insurance policy. If Jenny was comparatively negligent, her recovery against Joe’s BI coverage would be reduced by her comparative negligence, if any.
Jenny also has a claim for pain, suffering, mental anguish, and inconvenience against Joe reduced by Jenny’s comparative negligence, if any. Joe would not be entitled to the tort exemption because Mary is a nonresident who was not an occupant of a self-propelled vehicle while visiting Florida. So Jenny would not have to meet the tort threshold to sue for non-economic damages (pain, suffering, etc.).
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