“High Low” Agreements in Bicycle Accident Litigation

All attorneys in California who represent injured cyclists should consider whether the use of a “high low” agreement would be beneficial in a particular case. Unfortunately many California attorneys are completely unaware of the availability of these agreements.

If you have been injured in a bicycle collision and are represented by an attorney, it is important that your attorney consider whether the use of a “high low” agreement would be helpful.  It is appropriate for you to discuss this with your attorney.

In California, a plaintiff and a defendant involved in a bicycle-accident lawsuit will sometimes enter into what is called a “high low” agreement prior to the time of trial.  While the specific terms of these agreements do vary, they almost always provide that, in the event that the defendant is the victor at trial, the plaintiff will still receive a minimum monetary amount.  This amount is typically set just high enough to cover the plaintiff’s out-of-pocket expenses (including legal fees and court costs).  This eliminates the financial risk to the plaintiff and the plaintiff’s attorneys.

So what is in it for the defendant?  The flipside of these agreements is that the plaintiff will agree that, in the event the plaintiff is victorious at trial, the amount of compensation to be paid by the defendant will be capped at a certain amount, regardless of the amount of the verdict.

For example, in a case where both the plaintiff cyclist and the defendant driver are not entirely confident about their chances at trial, they might make an agreement as follows:

• “If the jury decides a verdict in favor of the Defendant, or decides a verdict in favor of Plaintiff for less than $50,000, Defendant will nevertheless pay Plaintiff $50,000.”
• “If the jury decides a verdict in favor of Plaintiff that is in excess of $250,000, Defendant will nevertheless only be required to pay Plaintiff $250,000, not more.”

Thus, under this agreement, if the jury decides that the defendant driver was not negligent, the driver’s insurance company will still be required to pay $50,000 to the cyclist.  Likewise, under this agreement, if the jury decides that the driver was negligent and that the driver should pay the cyclist $550,000, the insurance company will still only be required to be the cyclist $250,000.

Obviously, the exact numbers and terms of these agreements depend on the specific facts of each bicycle-accident case.  If the facts and evidence are more favorable to the cyclist, the terms of the high/low agreement will likewise be more favorable to the cyclist.

Good luck,

Michael Stephenson, Esq.