When you think of a motorcycle accident, broken bones and head injuries might come to mind. However, road rash—an injury so common among motorcyclists that it’s almost expected in a crash—is just as debilitating.
Road rash isn’t just a scrape; it’s a severe injury that can lead to infections, nerve damage, and permanent disfigurement.
If you suffered road rash in a motorcycle accident, you might wonder: Can a lawyer really help?
Absolutely. An attorney will help hold those responsible for your injuries accountable so that you receive the compensation necessary to cover your medical expenses, lost wages, and emotional suffering.
At Wilshire Law Firm, we understand the physical and emotional pain you’re going through, and our goal is to provide the guidance you need during this challenging time. We wrote this guide to equip you with the knowledge to protect your rights and get the justice you deserve.
If you’re dealing with the aftermath of a motorcycle accident, don’t hesitate to reach out. Contact us today to discuss your case with an experienced motorcycle accident attorney ready to fight for you.
How Severe Is Road Rash?
Road rash is often dismissed as a minor injury, but that can’t be further from the truth. It occurs when a motorcyclist’s skin makes violent contact with the pavement, scraping away layers of skin.
The severity of road rash varies, but it generally falls into three categories:
- Avulsion: This is the most common type, completely tearing away the skin and exposing underlying tissues like fat, muscle, and sometimes bone. This type of road rash requires extensive medical treatment, including skin grafts.
- Open Wound: This form of road rash is characterized by deep cuts that can leave the skin hanging. In severe cases, stitches or skin grafts may be necessary to heal the wounds properly.
- Compression: This type occurs when a part of the body is trapped between the motorcycle and the road, leading to bruising, muscle damage, and sometimes broken bones along with the skin injury.
The complications from road rash can be life-altering. Uncleaned and untreated wounds often lead to significant infection. Severe cases can lead to scarring, disfigurement, and even permanent nerve damage, affecting your mobility and quality of life.
Moreover, the long-term consequences of road rash sometimes extend beyond the physical. The emotional toll of dealing with a disfiguring injury can be immense, often leading to psychological issues such as depression and anxiety.
How Liability Affects Your Potential Compensation
In order to be entitled to compensation, you must prove the defendant is liable for your damages. This process hinges on the legal principle of negligence, which requires proving four key elements: duty of care, breach of duty, causation, and damages. Here’s what you need to know:
Duty of Care: The Foundation of Liability
Every driver on the road has a legal duty of care under California Vehicle Code Section 17150. This duty mandates that drivers must operate their vehicles safely and responsibly to avoid causing harm to others.
When another driver fails to uphold this duty—such as by speeding, driving under the influence, or ignoring traffic signals—they breach this legal obligation.
Breach of Duty: Proving Negligence
Proving a breach of duty involves showing that the other driver’s actions were unreasonable and directly led to the accident.
In California, for example, the standard for negligence is whether the driver acted as a reasonably prudent person would under similar circumstances, as outlined in California Civil Jury Instructions (CACI) No. 400. The challenge often lies in gathering evidence that clearly demonstrates this breach.
Causation: Linking the Breach to Your Injuries
To win your case, it’s not enough to prove that the other party was negligent; you must also establish causation—specifically, that their breach of duty directly caused your injuries.
Many states, including California, use the “but-for” test to determine causation. This standard requires you to prove that your injury would not have occurred but for the defendant’s actions (i.e., your injury would not have happened if the defendant did not perform their negligent actions).
Your attorney may use accident reports, witness statements, and expert testimony to draw a clear line between the defendant’s actions and your injuries.
Damages: Quantifying Your Losses
Once we establish liability, the focus shifts to proving damages. Damages include medical expenses, lost wages, pain and suffering, and long-term impacts such as disfigurement or disability.
Under California Civil Code Section 3333.4, you may recover damages for economic and non-economic losses if you prove the other party was at fault. For road rash injuries, this might include costs for surgeries, skin grafts, and rehabilitation, as well as compensation for the emotional distress and diminished quality of life resulting from scarring or disfigurement.
Comparative Negligence
In California, the doctrine of comparative negligence under California Civil Code Section 1431.2 allows your compensation to decrease by your percentage of fault.
Even in a seemingly clear-cut case, insurance companies will often try to find any reason to assign some of the blame to you so that they don’t have to pay out as much.
Even if your actions contributed somewhat to the crash, your attorney will minimize your liability as best as they can and negotiate for the maximum compensation allowed by law.
How a Lawyer Maximizes Your Compensation
After establishing liability, the next step is to ensure that you receive the maximum compensation available for your injuries. Road rash, especially when severe, can lead to significant medical expenses, lost wages, and long-term physical and emotional suffering. Here’s how a skilled attorney will help maximize your compensation.
Calculating Comprehensive Damages
Compensation in personal injury cases typically falls into two categories: economic and non-economic damages. Economic damages cover tangible losses like medical bills, rehabilitation costs, and lost income. Non-economic damages compensate for pain and suffering, emotional distress, and loss of enjoyment of life.
A lawyer will work with medical experts to accurately estimate the future costs of your injury. This can include long-term treatments, multiple surgeries, and even psychological therapy for the trauma of disfigurement.
Negotiating with Insurance Companies
California follows the fair claims settlement practices regulations (Title 10, California Code of Regulations, Section 2695.7), which require insurers to treat claimants fairly and settle claims promptly. However, insurance companies are there to protect their bottom line and pay out as little as possible.
If an insurer acts in bad faith—by delaying payment, offering an unreasonably low settlement, or denying a valid claim—your attorney will leverage these regulations to hold them accountable and push for a fair settlement.
Pursuing Legal Action When Necessary
While many motorcycle accident cases settle out of court, your lawyer will prepare to take your case to trial if necessary. This preparation includes gathering expert witnesses, such as accident reconstructionists and medical professionals, to testify on your behalf.
The statute of limitations in California for filing personal injury lawsuits is two years from the accident date. This might sound like a long time, but we always recommend acting as soon as possible.
Evidence gets harder to find, and witnesses’ memories fade over time, decreasing your chances of getting the compensation you deserve the longer you wait. Your attorney will ensure your case meets all legal deadlines and will gather all evidence as promptly as possible to maximize the strength of your case.
Including Punitive Damages When Applicable
In some cases, the court may award punitive damages if the at-fault party’s actions were particularly reckless or egregious. They award punitive damages, in addition to compensatory damages, to punish the wrongdoer and deter similar behavior. Although less common, these damages significantly increase the total compensation you receive.
Common Insurance Company Tactics to Decrease Compensation and How to Overcome Them
Insurance companies often employ a variety of tactics to reduce the compensation they must pay out in motorcycle accident cases, especially those involving road rash. Here’s a breakdown of a few arguments an insurer might use and the legal strategies our team might deploy to counter them.
1. Blaming the Victim for Not Wearing Proper Safety Gear
The insurer may argue that your failure to wear adequate protective gear, such as a leather jacket, gloves, or reinforced pants, contributed to the severity of your road rash injuries.
They might assert that if you had worn appropriate gear, your injuries would have been less severe or even nonexistent, thus reducing their liability.
Legal Defense:
- Counterargument on Gear Use: Your attorney can argue that while safety gear can mitigate injuries, it does not completely prevent them, especially in high-speed accidents. For instance, California Vehicle Code Section 27803 mandates helmet use, but there are no laws requiring the use of other protective gear. Therefore, the absence of certain gear should not reduce your compensation.
- Focus on the Cause of the Accident: The lawyer will redirect focus to the cause of the accident itself, emphasizing that the other driver’s negligence is the primary reason for the injuries. They might introduce evidence showing that the accident occurred due to the other party’s reckless driving, not because of the type of clothing you wore.
2. Claiming You Were Partially at Fault (Comparative Negligence)
As mentioned above, in states like California, which follow a comparative negligence rule, the insurer may argue that you were partially responsible for the accident due to alleged reckless or aggressive behavior.
For example, they might allege that you were speeding slightly, lane splitting (where legal), weaving through traffic or didn’t use a turn signal, and thus should bear some of the blame.
Legal Defense:
- Minimizing Your Fault Percentage: Even if you do bear some of the fault for the accident, our goal is to minimize it. We could argue that any minor infractions on your part did not significantly contribute to the accident. For instance, if you were slightly over the speed limit, but the other driver ran a red light, your fault would be minimal, and the lawyer would work to show that this minor infraction had little to no impact on the occurrence of the accident.
3. Offering a Lowball Settlement Early On
Insurers often offer a quick, lowball settlement shortly after the accident, hoping that you will accept it before fully understanding the extent of your injuries or the long-term costs associated with them.
Legal Defense:
- Comprehensive Damage Calculation: Your lawyer will thoroughly assess all damages, including future medical costs, lost wages, and pain and suffering, before engaging in settlement discussions. This ensures that any offer reflects the true value of your claim.
- Negotiation Strategy: Armed with detailed evidence, your attorney will negotiate with the insurer to secure a fair settlement. If the insurer refuses to budge, your lawyer might prepare to take the case to court, demonstrating to the insurance company that you are serious about pursuing full compensation. The possibility of a lawsuit can often prompt insurers to increase their settlement offer.
Secure the Compensation You Deserve with Wilshire
Insurance companies are armed with vast financial and legal resources and will use every trick in the book to safeguard their bottom line. However, they are not above the law. With a skilled personal injury attorney, you can effectively counter these tactics and secure the compensation you deserve.
Don’t let the insurance company take advantage of you—reach out to us today at (213) 335-2402 for your free consultation and let us fight for your rights. The sooner you take action, the better your chances of achieving a fair outcome.
