A Guide for Attorneys
This article is the second piece of a three-part series on electric scooter accident claims. In out previous article, we outlined how fault is determined in scooter accidents. We’ll resume this discussion by taking a closer look at the role of arbitration in dispute resolution, as well as themes commonly found in scooter companies’ user agreements. The third article in this series surveys evidence collection following a scooter accident.
While we this has been written with fellow attorneys in mind, we hope that everyone can benefit from this article — especially if you ride electric scooters frequently or have been injured while riding an electric scooter.
Topics that we cover in this article include:
- Arbitration provisions
- Statutes of limitations and accelerated deadlines
- Arbitration jurisdictions
- Differences in laws between jurisdictions
- Versioning in user agreements
- The complexity of user agreements
- Dangers not addressed by user agreements
Getting Started: Arbitration Provisions
At the outset of an electric scooter accident case, it’s smart to carefully study a scooter company’s user agreement. It’s common for scooter companies to make their agreements available on their sites. Examples include:
Generally speaking, these agreements contain arbitration provisions that typically require scooter companies to be put on notice of a plaintiff’s intent to arbitrate. The rider’s party must comply with the terms of the agreement in order to elect for arbitration.
This process isn’t as simple as making a claim with the scooter company’s claims department or customer service team, who would put your case in the hands their legal team and start the arbitration process. At the plaintiff, you have to meet the terms of the agreement. Sometimes, doing so is a matter of sending a letter, by certified mail, informing the company that you’ve elected to arbitrate a claim, and you’re going to rely on that provision in the user agreement.
Statutes of Limitations and Accelerated Claim Deadlines
Scooter companies’ user agreements may have language about the deadline that you have to bring your claim. In the legal profession, this is commonly known as the statute of limitations, which specifies the number of years that a plaintiff has to bring a claim.
Statutes of limitations vary by state. For example, in Arizona and California, the statute of limitations is typically two years for a personal injury claim. In Colorado, it’s two years, as well, but cases involving car accidents are afforded three years to be brought forward.
Keep in mind that some user agreements accelerate the statute of limitations to up to one year. In fact, in one agreement we recently encountered, the scooter company stated that it had to be notified of the injury or accident within six months of its occurrence. The claim needed to be started in that timeframe in order for the rider to have any remedy available to them. This is another reason why attorneys should read user agreements carefully.
With this said, we should note that it’s not uncommon for injured riders to contact attorneys well after their accidents have happened, asking assistance. They may try to submit claims themselves, only to learn later that their claims have been denied. Some riders are so preoccupied with treatment for their injuries that they don’t have the opportunity to consult with an attorney. This is perfectly understandable.
Be sure to study a user agreement for language detailing the jurisdiction where arbitration will occur. Arbitration will utilize the laws and rules that are germane to that jurisdiction. Many scooter companies have corporate headquarters in California.
Imagine that you were to bring a claim against Bird, which is based in Santa Monica, California. Bird’s user agreement requires that arbitration will occur in the Los Angeles area, unless the parties agree otherwise. As an attorney, to bring that claim, you will need to be licensed in California.
Now, assume that your client were injured in Arizona while riding a Bird scooter. You could abide by the terms of the agreement and move to arbitrate, only to quickly learn that you are being subjected to the rules of procedure and rules of evidence as they relate to California, and you don’t have the ability to practice in California.
At Negretti & Associates, we receive calls from attorneys looking for us to either take over their cases or just take them from the beginning. Some firms lack experience dealing with scoter cases, while others may be unable to practice in certain jurisdictions. Since Negretti & Associates is licensed in Arizona, California, and Colorado, we have the ability to practice in those three jurisdictions. Most of the arbitration cases that we’ve led have occurred in California, and we use our California license for that work.
Differences in Laws Between Jurisdictions
Attorneys should also be mindful of laws in which claims may be adjudicated. Many user agreements have binding arbitration provisions that put claims in California, where a case law — Howell vs. Hamilton Meats & Provisions — says that the injured party can be compensated on paid medical charges, not billed medical charges. That’s a big difference from what our clients see in personal injury cases in Arizona and Colorado.
To illustrate, suppose that an accident-related hospital bill may total $30,000. If your client is Medicare eligible, Medicare may pay $3,000 of that bill. In California, where this claim may be arbitrated, you can ask the arbitrator for only $3,000 related to your hospital bill. All you get is dollar-for-dollar. If there is a recovery, your client may have to pay back Medicare for what Medicare paid.
In Arizona, the landscape is different. If you were to bring a claim involving a $30,000 hospital bill, and you get compensated on that, you may still have to pay back Medicare the $3,000. However, there remains a difference of $27,000 that can go towards resolving the claim — your client’s pain and suffering. Some of the things that allow you to get these claims resolved don’t exist in the way that the laws are constructed in California.
Be aware of these differences. They can be disheartening. Lawyers have called us at Negretti & Associates explaining that they have clients with more than $100,000 in medical bills. If the case is against Bird, in California, the dollar amount of medical bills does not matter. We only want to know what the paid charges are — what was paid by health insurance, whether it’s private or a public health insurance, such as Medicare or Medicaid. If the injured client was paid significantly less, then we’re dealing with those amounts, rather than the billed amounts.
People often look at medical bills and the severity of the injuries as a foundation to valuing claims. It’s easy to get caught up in $100,000 in medical bills. That doesn’t necessarily equate to a $100,000 claim. Depending on what is paid by health insurance, the claim could be significantly less.
Updates to User Agreements
While scooter companies’ user agreements have many things in common — such as arbitration provisions — they have many differences. Not only are there differences between scooter brands’ agreements, but one company’s user agreement can change significantly over time. Keep in mind that user agreements may be updated often.
With that said, the user agreement that your client may have clicked on and agreed to a few weeks ago could be different than the user agreement that’s available online today. If you’re looking for the user agreement that was in place at the time of the accident, as you engage in arbitration, you can specifically ask for it, through discovery. This is the version that your client is bound to.
It can be helpful to compare the version that your client agreed to with the user agreement that’s online now. Scooter companies will not highlight the changes for you. You’ll have to go through both documents and carefully compare them. You’ll want to see what language has been added and why it’s been added. As you read, consider possible reasons behind the changes.
At Negretti & Associates, we’ve used some of those additions to argue that scooter companies have known about things that they did not address in the older versions of user agreements. Only through the experience of litigation, arbitration, and handling more claims did these companies adjust their agreements’ language. In the past, they may have known that their scooters were dangerous. They may have been aware of an issue with an element of their service, but failed to disclose it.
Too Long and Complex for Riders to Understand
The terms of service that scooter companies use are sometimes difficult to understand. As attorneys, even we have some difficulty unpacking these! They are written in a very convoluted way. They’re what we call adhesion contracts, because you really have no way to negotiate their terms. Riders have no way to actually say, “Well, I disagree with this, but I agree to that.”
In a scooter company’s adhesion contract, if you disagree with something, then you shouldn’t ride the scooter!
What’s more, these contracts can be very long — perhaps dozens of mobile pages long. It is absurd to think that people will scroll through all 60 mobile pages of convoluted legal language before unlocking and riding a scooter, especially when they’re out on the town with friends. This is partly why scooter companies are creating user agreements that are so difficult to read and so long. They are hiding provisions in these agreements that people are never going to fully understand or review before riding.
Problem is, riders have to use their mobile phones to unlock scooters and ride them. They have to have the app installed on their phones.
This is where litigation can come into play. If you have a complicated case, you may want to look at the length of the user agreement or the level of difficulty in understanding and interpreting the user agreement. There may be a case to litigate, about whether the user agreement actually applies. If a court were to rule that the agreement doesn’t apply, your client in turn would not be bound to arbitration.
We’re not suggesting that because a user agreement says you’re bound to arbitration, that you should automatically arbitrate the case. You may have to look a little closer. There may be an opportunity to argue to a court whether the contract actually applies. At this point, you’re dealing with contract law. You’re not litigating the underlying personal injury claim, you’re litigating whether the contract, itself, applies to that underlying claim. Do all of the provisions apply, or can some provisions be stricken? If there is no user agreement, you may be able to bring the case to the court where the accident occurred.
Dangers Not Properly Addressed
One of the other arguments that we’ve made is that a lot of these scooters are being deployed in high-traffic entertainment zones, where there are numerous bars and restaurants.
Prior to COVID-19, at the beginning of 2020, people were out and about, dining at restaurants and going to bars and clubs. It was common for riders to hop from one bar to the next on a scooter, rather than hiring an Uber or Lyft driver.
The argument we’ve made is that it’s extremely dangerous and overly enticing to put these scooters in areas where people are going to be drinking — engaging in activities that are going to be distracting — and expect them not to use these scooters, when they’re right in front of them.
Most scooter firms’ user agreements have language that states that you shouldn’t ride scooters while intoxicated. Unfortunately, most people don’t see this language until it’s too late. Riding a scooter while intoxicated is no different from riding a bicycle or driving while intoxicated: you should not do it. However, it’s understandable why a rider may walk out of a bar in an area where there are a lot of bars and clubs, and not really think about the realities of whether you can safely ride while intoxicated.
We think the scooter companies have some responsibility here, simply because they station their scooters in these areas.
Scooters can be locked at any time by scooter companies. There’s geofence technology — a GPS barrier around an area where riders cannot travel, where scooters do not work. Scooter companies have easy access to scooters’ locations, which they can monitor that. They can police where their scooters go.
A scooter company can argue, “We didn’t leave the scooter in front of the bar, the last rider did. The last rider brought it into the off-limits zone.” We disagree with this. The scooter company has the technology to simply disable that scooter, and you have to walk it within a geofenced area. Further, they have the capability to lock all the scooters at 10 p.m., midnight, or 2 a.m., to prevent rides involving users who have been drinking.
It’s an argument that we’ve used in the past. You can access the technology through discovery. You can depose engineers, project managers, and decision makers. They will admit on the record that they have the technology to prevent scooters from being parked outside of bars. They’ll make excuses why they don’t do these things. Regardless, they have the technology to do these things.
Part Three in This Series: Evidence Collection
In the upcoming third — and final — installment of our series on pursuing electric scooter accident claims, we’ll review methods that attorneys can employ for collecting evidence.
If your law firm has questions about scooter law, give Negretti & Associates a call at (602) 531-3911. We’ll talk through what we’ve dealt with in the past and give you our playbook to help you. At the same time, if you want to get us involved to try to help you and your client, we’re happy to do that, as well.