Ask Our Lawyer – October 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

ROADHAZARD REPORT TO THE COUNTY RE: CHIP SEAL

Please be advised our law firm has been contacted regarding a dangerous roadway in your area.  It has been brought to our attention that 400 West nearest S.R. 10 is covered with loose gravel, presumably from chip sealing.   Chip Seal can be a nightmare for motorists and motorcyclists alike; slick conditions, tar on vehicles, vehicle damage, etc.  Please see that any areas that are scheduled for Chip Seal are swept of any excess rock in an expeditious manner.  

POTHOLES VS CHIP SEAL?

A bad day starts with reading a sign that says “fresh chip seal ahead”. You have two choices- maybe. Turn around or see how lucky you are, and head into asphalt hell.  As we know, chip seal is a bituminous treatment that is a coating of liquified asphalt (let’s call it oil) covered with sharp rock that can bust windshields, cut tires, puncture eye protection and cause hours of cleanup. No one likes chip seal other than the bureaucrats who seek re-election/reappointment. 

What about the dangers of loose chips which you cannot see that take you by surprise, especially on the curves.  Road rash due to chip seal is the worst. Besides flat tires and the balls of asphalt that spit up into your face on a hot day, what is there not to like about chip seal?  At least you can see potholes and maneuver around them. 

So do we vote for roads screwed up with total coverage of oil and rock, or go for a few potholes that we can deal with?  I know what works for most of us. In 2020 there has to be a better and safer way.  

ROAD NAZIS ON YOUR RIDE – HOW TO DEAL WITH THEM

Q.      Hi Rod and Brian, I have some questions on behalf of the Blackhawk chapter of ABATE of Illinois.  When a chapter has an event and other organized riding clubs join the ride and they decide to provide road guarding without our solicitation could our chapter be held responsible?

Could our chapter add a clause to the event release stating that all riders are to follow the traffic laws and posted traffic signals and we do not permit road guards and road blocking?

            This scenario recently happened on a ride that we hosted.  We received a letter from the city of Moline informing us that we must complete an application if we want to ride in a parade style.  I thank you for your consideration on this matter. – Carla Enburg, Newsletter Coordinator

A.     Carla, your Chapter and ride organization are in harms way if you allow/acquiesce in others  violating the law.  Your idea of adding a clause to the event release is a good one.  And I like your idea of advising that all ride attendees are to follow the traffic laws.  I would go so far as to post this information at the registration facility and at the beginning of the ride.

            While I appreciate that these errant participants were just trying to help, many do not recognize that vigilante road guards are illegal in most states – even if they are trying to do the right thing – in their mind. A common misconception is that the leaders of any motorcycle ride have the authority to stop traffic in the interest of safety.  The law prohibits this do-it-yourself ride control.

The reason for the draconian rules against vigilante road guards is that horrific crashes have been caused by well-meaning volunteers, who in most cases, have had no or inadequate training to perform such duties.

            A few years back at the Miracle Ride, we had an off duty, out of city, out of uniform police officer attempt to control traffic on a U.S. highway in Indianapolis.  A disgruntled person objecting to the off-duty and out of uniform officer’s attempt at traffic control, proceeded thru the intersection injuring two participants.  Certainly a showstopper for them, and the rest of the five thousand riders.

            Moral of the story?  Let the local police officers do what they are trained to do and leave the rest of the riding to us.  P.S.  We can help you with the language in your ride waiver.

POLICE OFFICER IN WILL COUNTY 0 – ABATE MEMBER 1

Sean McDonald was having a wonderful day on his bike until he reached the intersection of Bronk and Caton Farms Roads.  There he was confronted with a notorious traffic signal device from hell – well known around the Joliet area.  This type of signal delay problem is the reason a state law allowing bikers to proceed through a red signal after waiting a specified time, was passed.

            So much time elapsed for Sean, that he had time to get off his bike to adjust his saddle bags.  After he complied with state law, he proceeded as the red light still glared.  About the time he got into 3rd gear, he noticed one of Joliet’s finest in the rear-view mirror.  He had an inkling of the problem he was about to confront.

            The conversation went like this.  Officer. “May I see your driver’s license”.  Sean. “No, because I did nothing wrong”.  Officer.  “Are you resisting”.  Sean, (humorously) “Are you calling for backup”.  Sean knew she was stopping him for proceeding through the red light.  And he knew that he had waited the legally required amount of time, so he was like the Christian with four aces.  In defense of the officer, she was not a rider and had not been informed of the state law allowing a bike to proceed through a traffic signal under specified conditions.  Still, Sean couldn’t believe that the officer was citing him, despite his protests. And he couldn’t believe she was unaware of the law allowing him to “run the red”. He invited her to look up the statute on her computer.  Neither could find it (more on that later), so Sean was cited for running the red light.  He couldn’t believe it.

            At home that evening, he was surprised to see Officer Maureen drive up to his garage and exit her squad car – smiling.  Her first words were magnanimous, “ Sean, I am here to let you know that I am big enough to admit I was wrong and that you were right.  Give me the citation that I issued today as I have notified the department that the citation was incorrectly written”.  She had found the law authorizing Sean’s actions.

            I salute both of these citizens; Sean for sticking up for his rights and Officer Maureen for admitting a mistake.  And I predict that Maureen will be running the department one of these days, and Sean will still be sticking up for what is right – the epitome of the perfect ABATE member.

            Since this statute is so hard to find, I have provided the citation and summary of the Illinois law.  Clip this article and carry it with you as you may run into other non-riding officers that are unaware of the change.  Same goes for many other states that have a similar law.  And follow Maureen’s and Sean’s lead – keep it light and smile.  In short this law allows motorcyclists to proceed through a red light after waiting the required time.

(625 ILCS 5/11-306) (from Ch. 95 1/2, par. 11-306)

3.5. In municipalities with less than 2,000,000 inhabitants, after stopping as required by paragraph 1 or 2 of this subsection, the driver of a motorcycle or bicycle, facing a steady red signal which fails to change to a green signal within a reasonable period of time not less than 120 seconds because of a signal malfunction or because the signal has failed to detect the arrival of the motorcycle or bicycle due to the vehicle’s size or weight, shall have the right to proceed, after yielding the right of way to oncoming traffic facing a green signal, subject to the rules applicable after making a stop at a stop sign as required by Section 11-1204 of this Code.

WHEN HAS MY MOTORCYCLE TIRE TREAD WORN OUT ITS WELCOME? RICK CHUPP/CYCLE OUTFITTERS TELLS US TREAD HEIGHT AND COOLING IS THE SECRET .

Q.     How can you go from a motorcycle tire tread depth of 2/32″ (a supposedly safe motorcycle tire) to paper thin in less than 500 miles? I thought the tires were made better today. The tire was absolutely paper thin when it was replaced. If that tire had deflated while I was traveling down the interstate, would the manufacturer have any liability for personal injuries that I may have had because of the sudden wear of that tire? ABATE OF INDIANA MEMBER.

A.     According to Rick, the minimum safe tire tread is 2/32″ (or one millimeter for you metric guys). An easy rule of thumb is to take a penny and place it in a tire groove. If the tread is deep enough to reach the top of Lincoln’s head, you have approximately 2/32″. Another trick is to measure the wear bars with a ballpoint pen by running the pen through a groove until you hit the wear bar. (They are hard to see, hence the ballpoint pen.) If the tread is even with the wear mark–park it unless you are going to a shop to replace it, and then don’t ride any faster than you are comfortable with sliding down the road on your hide.

            As to the question on how the tire wore so quickly in the last 500 miles, Rick Chupp of Cycle Outfitters (one of the best motorcycle tire suppliers in the country), provides an answer.  He believes that the tire grooves provide significant cooling, hence, as the tire wears, less cooling. Remember, the hotter the tire–the faster the wear.

            We know of numerous cases of our fellow motorcyclists unknowingly riding on paper-thin tires only to incur a blowout at interstate speeds. The result can be devastating. You don’t just pull over on the side of the road and get off. It does not work that way. A deflation on a rear tire at 70 mph goes approximately as follows:

            You could get lucky and get to the shoulder without any problems. Unfortunately, you could notice a mushy handling characteristic, indicating a developing problem. By the time you have figured out what has happened, you are trying to slow from 70 mph, but the bike is becoming increasingly unstable. The rear end does not want to cooperate.

            If you have a passenger, that problem is tripled. If you are lucky/skilled, you may be able to maintain control and somehow get you and your passenger to the side of the road without catastrophe. In many cases, the motorcyclist loses control in the process of slowing the bike.

That control loss is occasioned by known and unknown gyroscopic forces that are forcing the

bike into odd aerodynamic postures and increasing forces from wind resistance. When all of

these forces, including gravity and friction, are competing for control of your bike, you lose.

The point of this story is that don’t even consider less than perfect tires and interstate speeds. While tires are more reliable today than ever, tire manufacturers demand air pressures be kept as specified and that the tire is not used beyond the wear specified for that tire. Do not be fooled by the wonderful tire experience you have on your automobile.

            Those tires may very well last 60,000 miles. Because of the nature of the manufacturer’s compounds of the motorcycle tire, and because of the extraordinary demand of a motorcycle tire, namely that it be flexible in almost all axis, rear motorcycle tires routinely need replaced at 10,000 miles. Again, use the Lincoln head penny or the wear marks as your guide. If your motorcycle is a Garage Queen (has not been ridden 10,000 miles in a 4 to 5 year period), I would replace the tire.

            As a final answer to your question, relating to facts that you pose, I find it hard to imagine that any jury would find fault with the tire manufacturer if the motorcyclist did not comply with the manufacturer’s recommendations on inflation and wear. Clearly, they could conclude that you misused the product in question, despite your claim that there was excessive and sudden wear the last 500 miles of the tire.

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com 

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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Ask Our Lawyer – September 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

UH-BATE IT IS

Hi Rod, first off I’d like to thank Brian Shadiow and yourself and your office for the preparation of my Will.  That’s a valuable service you provide and much appreciated!  In your column this month there was a question about the pronunciation of ABATE.  I know this is a trivial issue, especially in light of our Country’s current events.  Anyway, the dictionary pronunciation for the organization ABATE is abate (əˈbāt or uh-beit).  ABATE originally stood for A Brotherhood Against Totalitarian Enactments but has since stood for American Bikers Against Totalitarian Enactments; American Bikers for Awareness, Training and Education; A Brotherhood Aimed Towards Education; and American Bikers Aimed Towards Education.  In 1972 I was a sophomore in High School, working in a small truck stop when a driver left a well used copy of EasyRiders magazine with an article about the National Custom Cycle Association, but the membership application information was missing.  After two phone calls I got to speak to Lou Kimsey and was told the NCCA’s name was changed to ABATE and was told what the letters stood for, so I got the pronunciation right from the founders mouth. Hope this finds you well.

– M.E. Evans Jr., Canfield Ohio

STATE FARM AGENT LIKES ROD’S ARTICLES – HERE IS WHY

Rod -Thank you for the great articles every month.  As an Abate member, an avid motorcyclist, and insurance agent, I look forward with great interest to your article each month in the Hoosier Motorcyclist.  In my office, we work hard to educate our customers on the coverage’s you frequently write about.  I was rereading your article from July about uninsured/underinsured coverage and wanted to share an idea with you and ask you a question.  State Farm no longer offers uninsured/underinsured coverage on our Personal Liability Umbrella Policy.  However, you can still get 1MM of uninsured/underinsured on your individual motorcycle policy if you carry 1MM in BIPD.  Could I get your permission to reprint that article and share it with our customers that ride?  I know I’m preaching to the choir, but I’m trying to share this with all our customers that ride! Sincerely, David Wiese, State Farm Agent Attica, IN Phone: (765) 762-6151 

David, Hoosier Motorcyclist is ok with your reprinting the article referred to below.  Please give ABATE credit in your brochure.  We need all the members we can get.  And thanks for being an ABATE member and watching out for your insured motorcyclists.  I will be reprinting your email to me so we can all learn.  Ride safe. Rod  

SEE BELOW!

MUST READ MUST READ MUST READ

YOU NEVER NEED UN/UNDERINSURED MOTORIST COVERAGE – UNTIL YOU NEED IT. 

ALWAYS BUY AS MUCH AS YOU CAN GET TO PROTECT YOURSELF AND YOUR FAMILY. IT IS CHEAP!  

SOME SUPERSTITIOUS PEOPLE BELIEVE THAT IF YOU HAVE LIFE INSURANCE YOU WON’T DIE.  MAYBE THAT SAME WARPED THINKING WORKS WITH UN/UNDERINSURED COVERAGE?  THAT YOU WON’T GET RUN OVER BY A NEAR DO WELL IF YOU HAVE IT?  IT HURTS THE SAME WHEN YOU GET RUN OVER BY SOMEONE THAT HAS PLENTY OF INSURANCE, BUT IT HAS TO FEEL A LITTLE BETTER WHEN YOU HAVE PROTECTED YOU AND YOUR FAMILY.  BUY IT TODAY – TELL THEM ROD SENT YOU!

BLOW IT OUT YOUR PIPES? CAN THEY REALLY IMPOUND MY BIKE?

Q.  I was riding my bike the other day, when a local cop stopped me for not having a muffler on my bike. I have an expensive custom bike, and it has pipes, but no baffles. The cop and I got into it a little bit, and he threatened to have my bike impounded. I was afraid that if they impounded my bike, it would have been damaged, so I backed down. I’m still mad about it, though. Can they do that? A.B.A.T.E  member.

A.  As with most legal questions, the answer is, it depends. Mostly, it depends on where you live and what the law is there. In Indiana and Ohio, inappropriate mufflers are subject to citation and fine as misdemeanors.

The officer can stop you and give you a ticket, and you will more than likely be allowed to roll on down the road. In Illinois, however, the law is much more strictly written.

Under Illinois law, “ It is unlawful for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle . . . which is equipped in any manner in violation of this Code.” See the details of the circumstance where you can be towed in Illinois Vehicle Code 625 ILCS 5/11-1302.

The Illinois vehicle code requires that “Every motor vehicle driven or operated upon the highways of this State shall at all times be equipped with an adequate muffler or exhaust system in constant operation and properly maintained to prevent any excessive or unusual noise. No such muffler or exhaust system shall be equipped with a cutout, bypass or similar device.

No person shall modify the exhaust system of a motor vehicle in a manner which will amplify or increase the noise of such vehicle above that emitted by the muffler originally installed on the vehicle, and such original muffler shall comply with all the requirements of this Section.”

Since the statute declares that a vehicle in violation of the vehicle code shall not “be driven or moved on any highway,” the officer would be within his authority to impound the bike and have it towed.

Neither Indiana or Ohio have the same sort of language. Both of those states make it an infraction (Indiana) or minor misdemeanor (Ohio),but neither statute authorizes the officer to impound the bike. So if you feel like racking those pipes off (within reason) in Indiana and Ohio you can do so with some assurance that the cop won’t impound your bike unless you are really disturbing the peace.  In Illinois – go quietly as the little old lady that you awake could be the cop’s mom. 

NO FEET AT A STOP?  DID YOU RUN THE SIGN?

Q.  I have been an ABATE member and rider for more than 20 years. Last week I was riding and came up to a stop sign. I was able to stop without putting my feet down. The local town cop saw me and arrested me for “running the stop sign.” I thought all you had to do at a stop sign was stop. The cop laughed at me when I used that excuse. Should I fight this or let it go? P.S. I have a CDL license and this could affect my job.  ABATE MEMBER.

A.  FIGHT, FIGHT, FIGHT. You are a CDL holder and you have no choice but to fight. Serious points will be assessed against your CDL license if you don’t.  (It has always stuck in my craw that the points are assessed against your CDL licence when you are on your motorcycle – not your truck). The cop is just plain wrong and needs to be educated. This case reminded us of one in Springfield where a bicyclist was ticketed by a cop for running a stop sign when the two wheel operator failed to put his feet down at a stop sign. The cyclists argued with the cop that he merely balanced the bike at a full stop and then proceeded through the sign. The officer did not buy it nor did the judge, who could not believe that a cyclist can balance a bike at a full stop. The cyclist offered to demonstrate his ability to the court with the bike. To the judge’s surprise, the balance was shown and the case was ordered dismissed.

Many of us get very good at stopping with no feet. The slow ride at biker events allows most of us to practice this to perfection, but most cops are under the illusion that if you don’t put your feet down you did not stop. There is a presumption against us that there is motion unless one foot is on the ground. THAT IS NOT THE LAW. Usually there are two defenses to this type of allegation; 1. I had my foot down and the cop didn’t see it or the cop was lying (judges usually don’t go for the last one) or 2. I don’t have to put my foot down because I can balance the bike. WARNING: be prepared to demo your balance skill to the court. ADVICE: if you are short on time, it is easier to put a foot down.

PROVING THE VALUE OF YOUR CUSTOM BIKE TO THE INSURANCE GUYS

Q.  I have a bike that I bought stock five years ago and have made a number of improvements to it including a lot of chrome, custom paint, and other customized equipment. My bike was stolen last month, and the insurance company only wants to offer me book value for the bike. By my estimation, it’s worth about twice the book value of a stock bike. Is there any way I can convince the insurance company to re-evaluate their offer?

A.  There may be a way to do that, but it depends on how good your records are. Most insurance policies cover customization and items added to bikes, but the insurance company has to be assured that the customizations that you claim you added were actually added to the bike and became a part of the bike. There are a number of ways to do that. The easiest and best way is to document all the customizations done to the bike. This means keeping meticulous records of the modifications done to the bike, who did them, when they were done, how much they cost, and what effect those customizations had on the value of the bike. Oftentimes that requires hiring the services of an appraiser to evaluate the bike with and without the modifications.  And take lots of photos and send them to your insurance representative – before your bike gets stolen, of course.

Let’s assume you did a custom job with three distinct components: First, you did some body work – you put on a new fork, new handlebars, and new wheels. You did that during the course of one season and didn’t plan on doing any more work that season. It would be a good idea once that work was completed, to take pictures of the bike, put those together with all the receipts from the work done to the bike and send copies of that information to your insurance company.  At that point you should get an appraisal for the bike. Often, appraisers work at a motorcycle shop or dealer. You especially want an appraisal if the value of the bike together with the additions is more than what you paid for the bike plus the value of the additions. For example, you bought the bike for $5,000.00; you added $5,000.00 worth of additions, but those additions and your sweat equity caused the bike to be worth $15,000.00 rather than just the value of the bike plus the parts, which was $10,000.00. An appraisal will prove to the insurance company that the bike is worth more than the sum of its parts.

Now let’s assume it’s the next season, and you have added a lot of chrome to the bike. Again, you should take pictures of the bike, keep copies of the receipts, describe the work done, and submit that info to the insurance company for their files.  Suppose later on you decided to complete the customization and get a special paint job on it. Once that work is finished, you need an appraisal of the value of the bike to show the insurance company what it’s worth with all the customizations. With those documents, you will be in a good position to prove the value of the bike to the insurance company should you need to make a claim.

Remember, some insurance companies offer special coverage for customizations or for bikes with historic or antique value. If your bike has value for collectors beyond the book value for a stock bike, check with your insurance agent about modifying your insurance to make sure your investment is covered.  Some insurance companies offer coverage for a specific supported value.  This might be your best way to go.   Never forget that with insurance companies, if it is not in writing it doesn’t count.  Get email addresses of your insurance company reps and make book on them, because they are making book on you. Meaning, you should confirm every conversation and send them every doc and photo you have.  If that doesn’t work, call us.

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com 

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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Ask Our Lawyer – August 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

FLY AND RIDE:  IT USED TO BE TIE AND RIDE.

Long before Harley Davidson came up with the Fly and Ride Program that made motorcycling across the country so easy, others had an idea that made traveling the Natchez Trace workable.

Back in the 1820’s Midwesterners that wanted to haul the corn crop via whiskey down to New Orleans would build a flatboat and take the current of the Ohio and Mississippi all the way at about 4-5mph.  All they had to do was steer away from the shoals and other water hazards.  Once in New Orleans, the travelers would sell the flat boat for scrap and then what?  Some walked back to the Midwest taking the Natchez Trace, which runs from Natchez to Nashville Tn. and is still the perfect motorcycle run.  During the depression, the WPA tackled the road and turned it into a national treasure.  No large vehicles or semis are allowed.  Just passenger cars, small trucks and of course motorcycles.  It is one of those roads you need to ride before you die. 

Back to the story of “Tie and Ride”.  Rather than walking back to Illinois, Indiana or Ohio some would pony up for a mule or donkey and split the bill.  One would start out riding the mule/donkey and would soon be far ahead of the walker.  The deal was – at noon the rider would tie up the mule/donkey and start walking.  When the first walker reached the tied-up mule he would ride until he caught the walker that tied the mule.  At nightfall the travelers would camp for the night, have supper and start the “tie and ride” all over again the next day.  Hence the term “tie and ride”. 

Have wondered if one of the Harley execs knew this history of the Natchez Trace and just modernized it to ‘fly and ride”?

EVERY MOTORCYCLIST SHOULD RIDE THE NATCHEZ TRACE BEFORE THEY DIE

444 fabulous miles and no commercial traffic.  That means no semis, no billboards, no lawyer advertising, no power lines, no road alligators, no crossroads to get hit in –  just pure backroad riding for 10 hours at 50 mph. Plan on two days and if you are heading south, start in Nashville and if you are heading North start in Natchez.

If you want food or a hotel you have to get off the trace.  Some of the restaurants are wildly famous and good.  Print the list from the internet.  Fried chicken is the best ever and the barbeque is a close second.  You can visit a cypress swamp with real alligators – not the road kind. Windsor Ruins is a treat and the old town of French Camp is a step back in wonder. Stop in Tupelo and pay your respects to the birthplace of Elvis.  And stopping in Vicksburg is a must as it was a key battle during the Civil War.  The town reigns as a crown jewel for southern style cooking. If you are a biscuits and gravy person, you might not leave.  And once you get to Natchez you might as well head on down to New Orleans following the Great River Road.  Almost Heaven.

SAD ANNOUNCEMENT RE: MIRACLE RIDE 2020 – BUT WE WILL RIDE AGAIN

The Miracle Ride has been cancelled because of many uncertainties including, most importantly, the health of the Riley Kids who would sit in their wagons and wheelchairs outside the Riley Hospital supporting the thousands of motorcyclists that participate in the Ride.  That Ride has raised over $6,000,000 for Kids at Riley.  Mark this down – we will ride again for the kids next year.

RIDE INSURANCE FOR A CHARITABLE FOUNDATION

Q.  I am a board member of the Hartbauer/McBride Bikers Helping Bikers Foundation. We hold events to raise money to give bikers a helping hand.  Hartbauer is a 501C3 charitable organization, my question is when they have an event and someone were to be injured, would the board members be liable for damages if there wasn’t insurance for the event? We have a website if you would like to check it out for more information.  ABATE of Illinois S.W. Region Coordinator – Dennis Kinnikin

A.  Dennis. You ask a good question. Normally Board members would be immune from lawsuits concerning an incident involving the charitable corporation. But you must make sure that the charitable organization is acting like a corporation and complying with its legal requirements.  

Many states provide immunity to those who serve on charitable boards. Otherwise the fear of personal liability would deter many from serving worthwhile causes. 

As an aside many homeowner insurance policies provide coverage for when a board member is sued personally. So if you get sued, call your insurance agent to check for coverage.  Actually you should call your agent and inquire if you have coverage and if not can you get it?  It should be dirt cheap as there is little exposure to the insurance company.  – Rod

ED SCHETTER ASKS GOOD QUESTIONS

Abate of Ohio’s Ed Schetter, is good at covering our liability exposure.  Here was his concern and it is a good one: many ABATE/MRO’S own trailers that are used for ABATE/MRO business only, but many do not own towing vehicles.  Ed’s concern is, how ABATE should handle the potential liability where it is alleged that the trailer was a cause of an injury/crash.  Most MRO’s maintain trailer tires, lights, brakes and the like and are responsible if there is a failure of those items that causes a problem.  Which means that if there is a failure, your organization could get sued.   Usually the insurance policy of the volunteer towing vehicle for ABATE would provide primary coverage for any occurrence alleging a malfunction of the trailer, but a key issue is – how much coverage?  If the driver has the state minimum, that may be woefully inadequate to take care of serious injury/significant property damage.  You know – like the investment banker in a 300k Ferrari.

I recommend the following: 1. Maintain an ABATE/MRO policy that prohibits non ABATE/MRO use.  In other words, the trailer is not loaned out for use by others.  2.  Establish minimum limits of insurance policy coverage for those who tow the ABATE trailer and to provide evidence of this coverage (a copy of the Declaration Page of the policy is fine).  3. Make sure that the General Liability Policy of ABATE/MRO provides excess coverage above the limit of the towing vehicle.  If it doesn’t your MRO is exposed, and your MRO should investigate the cost of acquiring such a policy.  If you can’t afford one, then require higher limits for your volunteer tow vehicles.

PLUMB AND SQUARE AND LEVEL? – NOT IN THE WORLD OF MOTORCYCLING

WHAT TO DO WHEN YOU GET TO THE EDGE.

The other day a semi came up behind me and passed me a little too close for comfort. The wind blast pushed me off the road onto the shoulder. Normally, that wouldn’t be a problem, and since I had taken the Motorcycle Safety course, I was ready for the change in pavement. What I wasn’t ready for was the sharp drop-off between the highway and the shoulder. It seems the highway department had been replacing the pavement and had milled off the top layer of the shoulder. As a result, there was a three to four-inch drop from the highway surface to the shoulder. When I attempted to climb back onto the roadway, the bike got caught on the lip and spilled me. What is the best way to climb uneven pavement on a motorcycle? ABATE OF INDIANA member.

You’ve already done a good thing, which is to take a Motorcycle Safety course. There’s no doubt that trying to get over a raised pavement is very difficult. Often the best thing is to stop, wait until there’s a break in the traffic, and slowly bring the bike back onto the roadway.  Come at it at as close to a 90 degree angle as possible. The closer you are to going straight at it, the better the bike will climb the drop-off. Conversely, the closer you are to parallel the drop-off, the more likely you are to catch the wheel on the drop-off and dump the bike.

Jay Jackson, Executive Director – ABATE OF INDIANA, suggests some good ways to handle similar situations. He notes that the Motorcycle Safety Foundation recommends a process for going over objects that we are unable to avoid by stopping or going around. You must determine if it is possible to surmount the obstacle. You should be able to ride over a two by four from a contractor’s truck, but obviously that won’t work with a sofa that fell off of a furniture truck. You want to approach the object at an angle as close to 90 degrees as possible. If you don’t have your protractor handy, just try to contact it close to square. Control your path of travel by looking to where you want to go. Look well ahead and toward your escape route, don’t look down or at the obstacle. If it is that important, go back and look at it after you’ve gotten over it and parked.

Jay also says to use a specific method to surmount the obstacles. Rise slightly off the seat. Keep your knees bent and against the tank. Bending your knees has them working like shock absorbers and allows the motorcycle to move beneath you without bouncing your feet off the pegs. Roll on the throttle. A slight bit of acceleration just before the obstacle, combined with shifting your weight to the rear, will lighten the front wheel to provide for more travel in the suspension. When the front tire contacts the obstacle, roll off the throttle. Now you can breathe again.

Once you’ve gotten back on the road, you should do a couple of more things. The first is to inspect your bike and then contact your ABATE Legal Services team and report the hazard. As you know by now, the Legal Service team maintains a website, http://www.roadhazard.org, to track these problems and report them to the proper authorities.  Our experience has been that once the government entity is on notice, the hazard gets corrected quickly.

GOOD HEARTED NEIGHBORS? FINAGLING FOR MY INHERITANCE – REMEDY

Q.  My mother lives out of state and has been assisted in her activities by the next-door neighbors. My mother has a will that leaves her estate (not large, but a nice chunk of change) to her children and grandchildren, but I recently found out that she may be attempting to change her will to leave the estate to the next-door neighbors. What can I do to prevent her from doing that?  ABATE OF OHIO MEMBER.

A.  Unless you want to take drastic measures, there’s not much you can do to prevent someone from changing a will. Any competent person can execute a will, so unless you can have your mother declared legally incompetent, you can’t prevent the execution of a new will.

However, there are alternatives. A will can be disregarded by the court if there has been “undue influence” on your mother during the drafting of the “new” will. That is, if your mother was being manipulated or coerced into changing the terms of the will or the beneficiaries of the will. If you can produce evidence that your mother was being unduly influenced by her neighbors to change her will, then the court can throw out the “new” will and probate your mother’s “old” will.

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com 

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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Ask Our Lawyer – July 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

CAN A PARENT SIGN AWAY A CHILD’S RIGHTS? 

Can a parent sign away a child’s rights?  Good question.  Let’s start by saying if a parent can’t, who can?  Interestingly, a judge must sign off and approve “minor settlements” over a certain amount, as a minor’s settlement is required by most states.  But what about a waiver?  The general rule has been that a parent can sign a waiver, but is that waiver valid, especially since the Supreme Courts of many states, including Indiana, have not ruled on that question.  One could say that the parents have waived their right to contest the waiver that they signed, but what about the minor?  Especially the minor who has serious injuries?  Case law in most states cloaks parents with significant authority to sign for a child.  Common law allowed that.  By law a parent is a guardian of the child. So my answer to the above question is still yes until some Supreme Court says, “ hold up a minute”.  And for now it is the best we can do.

Your second question:  How do you prove signature and the facts of parental authority?  A notary requirement would give the process a formal element and perhaps quell any thought that the signature was a mere formality and didn’t amount to much – hence the rationale for a misrepresentation.  Language on the waiver that requires the parent to swear that he has the authority to sign the waiver would give most a pause before swearing to something that is not true.  Notice that I said “most”. 

Your third question:  The minor signs the waiver, lies about his age and presents himself as an adult misleading, thereby us.  Do we take that chance? If not, how do we fix it?.  Requiring a driver’s license or other photo ID verifying age should solve this problem along with keeping a copy of the ID presented for our files should cover us.  If we have been presented with a fake ID, the law may cover us and hold that against the minor.  Maybe.

Your fourth question:  Do we accept a signed waiver of the parent without proof of parental authority other than their implied say so?  Remember the old adage -” you don’t need a waiver until you need a waiver”.  So thinking that we could hold the signer/misrepresenter to some penalty set forth in the waiver for falsely signing may not work against a claim from a minor who has suffered quadriplegia caused by ABATE negligence.  So should we think about requiring proof of parental authority to sign?  But what proof and how far do we go?  Photo ID from parents?  Copy of birth cert.?  The latter should work.  But at what cost?  And are we requiring much for a minor possibility?

As to the legal theories, Indiana has always recognized that when a child is injured there are two claims. The parents have a claim for loss of services for the child and other expenses.  And the child has a separate claim for his personal injuries.  So you can see the rub here.

UNPERMITTED RIDES MAKE US LOOK BAD

Q.  I just have a question.  Last Sunday, I was on the way to the hospital to see a terminally ill family member.  We were told we had very little time to see them before passing.  On my route I was caught in what appeared to be a poker run of bikes.  I have NO problem with this but what got me was …there was no police escort and they (were) blocking traffic.  I could not get around them for about 10 miles.  Is this legal?  If so, where do I file complaints because (it) isn’t fair! I’m thankful for the good theses runs do, but I should have had the right to pass them and get to the hospital in a timely manner….thanks for your time!

A.  I understand your complaint.  All rides organized by ABATE are permitted rides and are police escorted.  In other words, they have the blessing of the powers that be.  Special consideration is given to traffic patterns to minimize the delay caused by the ride, especially around emergency facilities.  In your case,  had that been a legally permitted ABATE ride you would have been escorted around the ride so that you could reach the hospital with as little delay as possible.  I have written about the need to make sure all organized rides conform to the law  for safety sake and the concerns you have expressed.  We are passing on your sentiments as an example of what all of us in the motorcycle community should strive to prevent.

YELLOWSTONE, US 14, AND THE BIGHORN MOUNTAINS

The Road To Paradise – Ride It Before You Die

While out in Sturgis, I had the chance to ride from there to Yellowstone and took U.S. 14.  That road was built in 1926 to get the hordes of Ford Model A’s there in good style. It goes from Chicago and follows I-90. I call it the road to paradise. If it ever had an Indian name, that has to be it.

I used to suffer under the illusion that all U.S. highways could have no more than an 8% grade. Not so! If you want a riding experience that will test your skills, ride U.S. 14 into Yellowstone. Coming from the East, cut through Sheridan, Wyoming and head to Burgess Junction. A few miles out of the Junction, you will be treated to some of the best riding and scenery God ever made as you are smack dab in the center of the Bighorn Mountains. Once you get to the top and start the down-hill slide, stop at the only rest area on the way down and take a moment to collect your skills – you will need it as old U.S. 14 gets narrower and the switchbacks get scarier. Some folks say that the Bighorn Basin was possibly the site of the greatest mammal explosion the world has ever seen eons ago. This is riding with knowledge, folks.

As you shoot into Cody on the way to Yellowstone, beaucoup campsites are reasonable and fit the bill for bikers. If you like guns, take in Buffalo Bill’s Museum. And if you don’t take in the Cody rodeo, you will be sorry. People from all over the world flock to see this All-American experience. Sitting behind us were Germans, to our left – French, and to our right were a bunch of Scandinavians. The world comes to see us there as this event underscores our American image. But if anyone would have yelled “fire” few would have understood.

As you come out of the rodeo, hang a right. It takes you straight to the Yellowstone gate. What will strike you is the size of the park. It is at least 60×70 miles so calling it a “park” is misleading as it is bigger than some states. Call ahead for campsites (I was not so smart) and live in paradise. You can be just like Jim Bridger, Kit Carson and Jeremiah Johnson for at least one night.

You can’t get enough of “Old Faithful.” It is more impressive than I imagined. Some say that it is part of a super volcano that will erupt like no other volcano has in the last few million years. When it does, they claim that ash from the volcano will go all the way to Delaware Street in Indianapolis. But don’t fret, as that is not supposed to happen for a few more million. As you leave paradise, you are joining the likes of Teddy Roosevelt and just about anybody that was somebody in the world. And they and you will say there is no other place like it. Do it and do it again, before you die.

DEALING WITH PERSONALITY DISORDERS (BULLYING) IN THE ORGANIZATION AND WHAT EVERY SMRO SHOULD KNOW ABOUT IT

Q.  Our local ABATE organization has been successful until recently. Before, all of us got along well and made a difference in achieving ABATE’s goals. Now we have a person in the organization  that is tearing the place apart with his bullying. At first, this individual seems like he is your friend: flattering, well-spoken and energetic. Then he turns one by one on his “friends” by dividing and conquering us, seemingly to get his own way. He is a master manipulator. He spreads falsehoods about those he wants to get rid of (usually those who disagree with him). Many have quit because of his “bullying.” He spreads falsehoods and when upset sets off a flurry of emails cutting his target. As volunteers, there is just so much stuff most of us are willing to take. I am concerned for our organization. To make matters worse, there are some financial irregularities that he has created. What can we do? I know there are legal remedies for libel and slander, and he can be prosecuted for theft if that is the case, but that is not the direction we want to go. Help!

– ABATE member

A.  Sounds like you may be dealing with a person who the medical professionals say is afflicted with a personality disorder. The American Psychiatric Association lists ten types (see DSM-IV-12).These types flock to not-for-profit organizations like ABATE. They are confusing and misleading in that they are usually very talented, but you should not ignore the serious disruptive effects that they can cause in your organization. Impulsive behavior, wild emotions and calculated divisiveness contribute to discord and disunity of our ABATE organizations. Disruptions by this kind of personality can be very confusing, especially in a volunteer organization.

Daily contact in not-for-profits is usually infrequent, which makes catching on to and stopping them especially difficult. Persons with this disorder usually get to where they are – by conning those above them and exploiting those below them. Typically they don’t give a damn about anybody. Their by-line is “I don’t give a f____.” This disorder is usually signaled by a history of unstable relationships outside the family and abusive relationships within the family. Usually the person has a checkered employment past as they do not make good traditional employees. Almost always the person that suffers from this type of disorder goes from treating his targets as best friends to declaring them hated enemies, bewildering and confusing those that work with the affected person.

Accompanying these types of symptoms are always extreme angry reactions and impulsiveness. Misappropriation, fiddling with the books, fiddling with expenses, pilfering, embezzlement, fraud, deception, awarding benefits to family and accusing others of doing the same are also common indicators of the bullying personality disorder.

ABATE should be on the look-out for this type of person when they join our organization. After all, we provide the perfect breeding ground where this personality type can create self-promoting turmoil. It is difficult to catch on to their ways when there is no daily contact and as such, they can comfortably ply their manipulative techniques. Usually, in the normal business situation, management catches on and the situation dies a natural death with firing. But what do we do in not-for-profit organizations like ABATE, with the person who has managed to hang on and continues to wreak havoc in the organization?

Here are some of the non-legal recommendations that I have passed on to others dealing with this issue.

Unfortunately, we are a volunteer organization, so it is tough to fire these types. If you can, you should. We are not in the mental health treatment business. Since we cannot fire, I recommend that you educate yourself and the organization as to “personality disorder” symptoms. Your description of the person touches on the classic characteristics of that disorder, so be familiar with the usual pattern of conduct that these afflicted persons exhibit. Share your knowledge with others. In recent years, many business organizations have had to develop plans to deal with this personality type. By educating your organization, everyone will have been clued into what is going on and the techniques used by this person. That takes the fun out of it for the afflicted trouble maker. Once the news is out and exposed, it is highly likely the person will leave, taking the problem along with them.

Another method is to try the straight-on approach. Control and security issues drive the person afflicted with these issues, so meet with the person and review honestly his concerns. Compliment his work where warranted. You should have others with you for these meetings. Keep it positive. If the person is salvageable, keep him with the strings you attach. If not, get rid of him ASAP. He is poisoning your ABATE well. If you cannot get rid of him, at the very least separate and assign him projects that lessen his involvement with others. Have him report to a “committee” so he cannot turn on an individual. Never let this type of person handle money for ABATE. Almost always, they steal.

If the “bully” does not get the hint, confrontation may be in order. Typically, the disordered person leaves a trail of inconsistent emails, false allegations/conversations, inflammatory accusations, bad books and puzzling math. Keep records and make “book” so that you can back up what you say. When the “bully” realizes that his methods are known, the fun runs out of his approach and the problem goes away when you have done a “HIGH NOON” on him.

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com 

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020. 

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Ask Our Lawyer – June 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

YOUR NEVER KNOW WHO YOU’RE GOING TO MEET THAT RIDES – YOUR HONOR?

Got a call from an ABATE of Illinois member wanting to talk about the law concerning grass clippings on roadways. And in our talk mentioned that I had written an article about the laws governing the same.  Namely that Illinois was one of the few states that had a law prohibiting property owners from blowing grass onto the public roadways.  Other states may not have a specific statute barring such practice, but they have appellate court cases holding that such a practice may be deemed negligence if, for example, a motorcyclist went down after losing control on a patch of newly mowed Jimson weeds or the like, and that can have a coefficient of friction comparable to 10w30.

We also talked about the Antique Motorcycle Association and its founder George Tinkham. Nearing the end of the conversation, I learned he had been run over by an 18-wheeler – get this – on a1950’s era Vincent motorcycle.  Talk about bragging rights – well maybe not exactly.  Also learned that he is the owner of not one but two Broughs.  I did not know anything about that bike, including how to pronounce the name (pronounced bruff).   Did not know it then but know it now, those bikes are some of the best ever built and one of the rarest in the world – only about 3k ever built from the 20’s to the beginning of WW2. Learned that Lawrence of Arabia had the dubious distinction of being killed on one of the eight that he owned.

As to some history, George Brough was the perfect motorcycle engineer and his father William E. Brough started making motorcycles in Nottingham England in 1908.

Each Brough was assembled twice. The first assembly was for a fit of the components then disassembled when all the parts were painted or plated as needed. Then the finished parts were assembled a second time. Each motorcycle was test ridden to ensure that it performed as designed, and was personally certified by George Brough. The SS100 model was ridden at 100 mph or more before delivery. The SS80 model was ridden at 80 mph or more before delivery. If any motorcycle did not meet specification, it was returned to the works for rework until it performed properly.

They claim the fit and finish is comparable to a Rolls-Royce car with a price to match. Brough Superior motorcycles have always been rare and expensive as only the wealthy could afford them. Until he died in 1972 you could still send a part back to George and he would fix or remake it for you. That is what you call a warranty.

In 1940, World War II brought an end to production as the factory was engaged with war work, making crankshafts for Rolls Royce Merlin engines which powered the Spitfire and the P-51 fighters. After hostilities had ceased there were no suitable engines available, so the company was dissolved. In 2004, only 1,000 Brough Superior motorcycles still existed. 

Remember the title to this piece above?  Well, the caller turned out to be the newly elected Circuit Court Judge of the 8thIllinois Circuit , Tad Brenner. Judge Brenner: Ride safe, good luck and best wishes on your new position in life from one motorcyclist to another.

 “IT IS NOT MY DOG” DOESN’T WORK IN MANY STATES

Q.   Rod, while riding in Kentucky, out of nowhere a stray dog jumped in front of my bike. I went down hard, was injured and my bike sustained considerable damage. While waiting for medical attention, I learned that the local preacher was feeding and caring for the stray, but was not otherwise securing the dog. He made a big point of saying that he did not own the dog and denied legal responsibility (just like Peter Sellers did), but he did admit to feeding and caring for it. What is the law in this situation?

A.   In my experience, injuries caused by loose dogs are some of the more devastating – hence the reason that many states and counties have enacted laws/ordinances that protect the public. Many riders do not appreciate the dangers of loose dogs running into the path of a motorcycle. I didn’t until I got into the lawyering business. My technique of dog avoidance was to speed around them or nudge them away with my boot – both are bad ideas. Isaac Newton is right, “whatever you hit” hit it as slow as possible.   Here is what you can expect when you hit a dog, even at low speeds of 30 or 40 mph and god forbid you hit one at 50 or 60 mph. Your front tire instantly turns sideways even though you are traveling at lower speeds, and it does this – without a hint of warning, unless you are so good that you hit the dog – dead center. And that almost never happens with the usual collision causing your bike to go head over heels, with you somewhere in the mix. Not good. Most bikers that have not hit a dog assume that you just run over the top of the dog and go on. Not so, unless you’re that one in a thousand and happen to hit the dog with equal pressures on the front tire.

Laws have been enacted in many jurisdictions to protect the public from the dangers of stray dogs on roadways which include responsibility for feeding, caring for and otherwise harboring a stray dog. Even though the intentions are pure, once you undertake the care of a stray, there is a duty in many jurisdictions to make sure the dog does not run loose. In other words, if you start caring for a stray dog, you have to do it right and make sure that the stray you feed does not cause harm to others. Legally it becomes your dog to keep out of the public’s way. Interestingly, cats are off the hook in Illinois – must have had a good lobbyist.

Regulation 90.02 in Kentucky, 510 ILCS 5/2.16 in Illinois, Sec. 955.28 in Ohio and other similar laws around the country, defines the owner of an animal as one “who keeps or harbors an animal or dog, has it in his care, or permits it to remain on or about the premises owned or occupied by him ….” as such “is liable for all damages caused by such animal….” This is so even if a person just cared for the stray dog. No ownership is required. Common sense and lawmakers do not want folks harboring a dog without the legal responsibilities. Accordingly, most communities disallow the Pink Panther, “it’s not my dog defense.

In most cases, home/business insurance policies may provide coverage for your personal injury and property damage to your bike. So if you get hurt by a dog when it runs out in front of you, and the person standing over you seems to know all about the dog but does not want to own up to the responsibility for your injuries, I know a lawyer that knows all about your rights.

TIS THE SEASON FOR POKER RUNS AND GETTING WAIVERS IS A PAIN

Q.   Rod. We are having a Poker Run in the spring. Each year we have more riders and handling the number of waiver documents is becoming more difficult. I have been to rides where they staple a waiver to the front of a legal pad. Participants are then handed the legal pad and are asked to read the waiver and sign on the next available line on the legal pad. This would save us a lot of work. We only need a few waivers and three or four legal size pads to get everyone’s signature. Can we do it this way? P.L.- A.B.A.T.E. of Illinois member

A.   It would beat nothing, but here is what I fear would happen. Judges strictly construe the waiver of legal rights, as they should. Afterall, we are asking a fellow motorcyclist to give up his sacred right to go to court and sue us if we are negligent and cause him harm in exchange for our permission to allow him to go on our poker run. What I fear is that a participant on our poker run would say that he thought he was “merely signing a sign-in sheet” and did not see or notice there was a waiver attached to the front of the legal pad (it may have been honestly folded back so one could sign on the lines of the legal pad). I am not buying that argument but several courts have, and have agreed that the waiver may have been overlooked. Since waivers are strictly construed, many courts would hold that the waiver was ineffective as it was not knowingly signed. In other words, the guy gets off the hook for the waiver he signed, and we may get screwed in any claim/lawsuit. So the better way to accomplish getting a knowingly signed waiver is to have a separate waiver for each participant.

WAIVER OVERSEERS ARE A MUST FOR RUNS

Q.   I was at your seminar presentation put on by A.B.A.T.E. OF Illinois. What is the best way to make sure waivers are properly signed? I have noticed that some people do not sign their true names or they sign it illegibly? A.B.A.T.E. of Illinois member

A.   A waiver overseer should be appointed at all events for which you are requesting a waiver as a condition of participating. The only time we need the signed waiver is when there is an incident. When that occurs, we need someone to go through what may be several hundred/thousand waivers in the hopes that the proper waiver can be identified and produced. Issues concerning legibility can be solved by requiring a printed name below the signature. But what do you do if a participant questions the signature? The solution is simple. A waiver overseer can initial each waiver that is signed during his “shift” and in his presence. That way, I can obtain an affidavit from the overseer that affirms that he saw the person sign the waiver. This is critical to have, in case the validity of a waiver comes into question.

TRESPASSERS ON RIDES AND WHAT TO DO

Q.   Hi Rod, a question came up regarding liability waiver forms for our runs and activities. Question is this: What if a person jumps in on the run (seeing a buddy having fun), crashes the gate or just refuses to sign in? How does the law look at this if the person (God forbid) is harmed in some way during our activity? Is this person “Not trespassing?” Who’s got our back on this one? Or , how do we cover our backside? James Blevins, ABATE of Ohio member

A.   A sign that declares that all participants in the ride must sign a waiver works. Banding is the best way to mark those that have paid and signed the waiver. All others are not authorized (trespassers) and should be admonished to stay clear of the ride/activity. Rides should be escorted by police officers, so a simple gesture from them is usually all it takes. If they stay with the ride and are injured, evidence that all participants were required to sign a waiver will be significant to the court in deciding responsibility, and testimony from the escorting police officer will be helpful in establishing the unauthorized (trespassing) status of the interloper. Recently a California Appellate Court decided a case that may be a good precedent for us. In that case, a couple attended a poker run for several years and signed the required waiver. Then one year, they did not sign the waiver and were seriously injured in a crash on the run. Of course, they sued the run organizers for damages. Interestingly, the court held that there was an expectation of required waivers and held that the couple was bound by it and dismissed the case. While Ohio has not decided a case with those facts, you can bet ABATE LEGAL will be pointing at that California case and arguing that Ohio should adopt such a good rule. Same for Indiana, Illinois, Missouri, and New York as well.

IS IT A-BATE, a-BATE OR UH-BATE?

Q.  We were at an ABATE meeting the other day and the conversation turned to ABATE. Specifically, we were trying to figure out the correct pronunciation of “ABATE.” Do you have any thoughts?

A.  I’ve always wondered about that myself. As I found out when I did the column on what the letters of ABATE stand for, there appear to be as many “official” pronunciations as there are ways to say ABATE. I heard three different pronunciations: A-bate, aBATE, and UH-bate.

However, no matter how you pronounce it, it means brotherhood and community. Take your choice – it’s a Mason-Dixon/north-south kind of thing. My poll says that if you’re south of I-70, you say A-bate; if you are north of I-70, you say uh-BATE, and if you are a pure Yankee blue blood, you say a-BATE.

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com 

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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Ask Our Lawyer – May 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

ABATE MEMBER’S COVID-19 EMPLOYMENT ISSUES

Craig Horton called with an employer problem related to the Coronavirus.  He drives a truck but is not a member of the union nor does he have a contract.  In other words, an employee fireable at will except for the usual constitutional prohibitions. His doctor advises he is in the risk group regarding the virus.  His employer says he can leave but may not have a job when he returns.  Must he comply with the Governors Ex. Orders?  His job requires him to obtain signatures from customers.  What are his options?  Any other members having similar issues?  Send me an email which will remain confidential unless you advise otherwise. 

SBA LOAN PROGRAMS FOR SMALL BUSINESSES

by Hilary Barnes, ABATE Legal Lawyer

Own a small business and wonder how to make it through these tough times? The SBA has a couple loan programs that may be right for your business. The first is the Paycheck Protection Program (PPP), and the second is the Economic Injury Disaster Loan (EIDL). 

Paycheck Protection Program (PPP) 

This loan covers payroll and approved operating expenses. No collateral is required and the loan is up to 100% forgivable with approval. The amount of loan is determined by taking the average monthly payroll for the prior twelve months and multiplying it by 2.5. Interest rate on the note is .5% on any unforgiven portion on a 2-year fixed note with no payments for the first 6 months. This loan applies to all for-profits and to private non-profits. Applicants may apply at any SBA approved bank.  

Economic Injury Disaster Loan (EIDL)

This loan covers needed working capital. No collateral required on loans under $25,000, and SBA will take the best lien available (excluding real estate) on loans over $25,000. This loan is not eligible for forgiveness, meaning the loan must be repaid. The loan amount is up to 6 months of operating expenses not to exceed $2 million. The interest rate is 3.75% for small businesses and 2.75% for non-profits, on a 30-year fixed note. There are no payments for the first 12 months. Eligible entities include sole proprietors, LLC’s, & corporations, small agriculture coops and aquaculture, and private non-profits. Applicants may apply at SBA.GOV/DISASTER.

More information on these loans may be found on the SBA website at https://disasterloan.sba.gov/ela/ Another helpful resource is America’s Small Business Development Centers at https://americassbdc.org/coronavirus-information/.  America’s Small Business Development Centers is a taxpayer funded partner of the SBA and offers consultations with businesses and nonprofits to help determine their best path forward. Small businesses should definitely take advantage of the specialized resources ASBDC has to offer. 

BILL HOWARD, FORMER INVESTIGATOR FOR ABATE LEGAL DIES IN FLA.  

I wrote the following note about Bill when he stopped by the ABATE LEGAL office.  We offer our condolences to his family.  He will be missed. 

REMEMBER BILL HOWARD OF ABATE LEGAL?  LIFE IS GOOD FOR HIM

(written a few years ago) 

It’s been almost ten years since Bill hung up his ABATE LEGAL investigators spurs and headed off to Florida.  Many remember him as the tough talking insurance claims manager that jumped ship to come over to our side – and right his past wrongs on the insurance side of life.  Bill stopped by ABATE LEGAL to check on us.  He has not rusted out, is tough as ever and retirement treats him well.  He misses the passion of ABATE.  But his fire has been transferred to golf, grand kids and go-kart fast lawn mowers. A couple of operations got him fired from motorcycling. He says, “never say never”, but his doctor and wife may. If you get to Florida, give him a call as he would like to hear from you. 

(Bill – Rest in Peace) 

ANATOMY OF A SLIP AND FALL CASE

An ABATE OF ILLINOIS member stayed at a local chain hotel.   He is a good customer and would be returning in a couple of weeks.  His job as a project engineer takes him all over the U.S., but he is originally from Flora, Illinois, and regularly reads this column.  He is a stand tall, pays his bills, supports his family, voter, never been sued or ever sued anyone kind of guy, and a pretty good pool player.  And he needed some help from ABATE LEGAL. Here is the problem.  He was seriously injured in a fall at this hotel.  I reminded him that slip and fall cases are tough in the Midwest.  There is a general finding among most juries that you should watch where you are going.  So unless you are elderly, impaired/disabled, or the little old lady with grey hair that slips on the long laying bing cherry in the produce department, those cases have to be perfectly presented with all of the evidence to the cause of the fall.  For example, being able to prove the coefficient of friction caused by the contaminant on the floor.  You need the incident report with video – they should always have a video. When I first started my practice, I defended slip and fall cases for big companies.  I never lost a case and I wasn’t that good.  So I remember how tough they can be to win for an injured party.  

In early December, he was leaving the Inn, minding his own business, watching where he was going and slipped on the wet tile at the exit door, all the while wearing Wolverine boots with one of the best non slip soles God ever made.  (Defendants always hone in on the shoes the plaintiff was wearing.) Partially catching himself in the fall, Scott injured himself and tore an expensive leather coat. The staff at the hotel quickly placed a weather mat at the entry of the hotel to take care of the slippery nature of the tile. ADMISSION NUMBER ONE. There was also a video camera at the entrance area proving the problem.  ADMISSION NUMBER TWO.  After the treating doc examined him, a prescription for pain pills was given and he went about his way.  Hopefully he just got shot at and missed and would be ok in a few.   He communicated this medical info to the folks at the hotel and they promised that they would get with him regarding his medical bills and damaged coat – over a month passed. ADMISSION NUMBER THREE. 

After getting no response from the Inn, he called ABATE LEGAL as he suspected they were ignoring him.  Even though we do not usually handle slip and fall cases, we wanted to assist our fellow ABATE member.  In today’s world many companies pass their responsibilities to companies with names like “risk pool managers, risk assessment evaluators, risk adjustment bureaus” etc.  You get the idea.  Just like in a John Wayne movie – “they went that away. “  My experience is that delay, avoidance and the like are part of the strategy – “if we don’t call them back maybe THEY will go away and we don’t have to pay THEM.”  “Let’s make it too hard to deal with us.”  Hopefully that will not be the case with this hotel – but we shall see. 

Scott is a straight shooter and only wants to be reimbursed for his losses.  He has read my previous article on signing releases and so he knows that nothing should be signed that would waive any right to claims he may have for permanent injuries.  He needs to continue with his medical treatment to make sure that his problems are not permanent and that he will not need surgery in the future.  Nothing worse than having signed a full and complete release for a few hundred bucks, only to find out a couple of months later that you need shoulder surgery and may not be able to do your job – or worse. 

Meanwhile, Scott will copy me on all correspondence to the hotel and their “risk pool manager.”  Hopefully that will help; and hopefully his injuries are temporary; and hopefully the hotel will do the right thing.  We are prepared to help him to the next step because it is the right thing to do.  And he wants his experience published so that others can benefit from his efforts.  Remember that America is one of the safest countries in the world according to my theory.  First, we don’t want to get hurt ourselves. Second, we don’t want to hurt others, and finally, if you have to pay for what you break you are that much more careful.  It is that simple. 

BIKE THEFT COVERAGE – BIG CHAIN, BAD DOG NEEDED

Q.  My husband had a bad crash on his motorcycle, and is recovering. The insurance company has agreed to pay us for the damage to his bike and will allow us to keep it less the salvage value. We are paying a fair price for a wrecked bike (salvage) and can fix it for a reasonable amount. Is that normal for an insurance company to do that? Also, the insurance premium is due soon. Is it ok to cancel the policy? Is there any downside to canceling? We need to save all the dollars we can until my husband recovers from his injuries and gets back to work, but we do not want to jeopardize the settlement funds and the deal for the bike. Rod, we need your advice. 

– ABATE member 

A.  Most insurance companies allow their insureds to “buy” the salvage, so buying the salvage is routine. This means that when a company totals your motorcycle, they are obligated to pay you the “value” of the motorcycle. At that point, the insurance company owns the wrecked and totaled motorcycle (salvage). You then can negotiate with your insurance company as to the value of the salvage. If you are mechanically inclined, this may be an opportunity to get a “good deal” if the motorcycle is repairable. The insurance company will deduct this salvage amount from the value of your motorcycle and send you a check for the balance. 

As to your other question, you can cancel your policy and it will not affect your motorcycle settlement or the other obligations of the policy in effect at the time of the crash. The greater portion of the premium you pay on your policy goes toward liability coverage for the other person if you are involved in a crash. Since your bike is not road-worthy, that part of the coverage is a waste. However, your policy does have theft coverage and you will lose that coverage when you cancel. Check with your homeowner’s/renter’s insurance company to see if they will provide theft coverage for the bike since it may be considered personal property and not a “vehicle.” If they say “yes,” send a confirming email to them with a cc to RodTaylor@ABATELEGAL.COM  Some policies provide coverage for a stored bike in damaged condition – some don’t. If you do not have theft coverage, get a big chain and a bad dog because your kind of bike is a theft target. 

WHERE THERE’S A WAY, THERE SHOULD BE A WILL – AND YOU DON’T HAVE TO LEAVE HOME TO MAKE ONE AT ABATE LEGAL.

Q.  I want to do my will, but I’m not sure what I should put in it or what I need to consider when I’m doing my will. 

A.  Anybody who’s ever heard me speak at one of the state seminars knows that I think everybody should have a will. They don’t have to be complex, and they don’t have to be expensive. We do wills for ABATE members for free! 

When you are ready to make a will, there are several things to think about: 

  •                    Who should receive my property? 
  •                    Who should take care of my minor children? 
  •                    Do I need to create a trust for my spouse or minor/adult children? 
  •                    Do I want to make any charitable gifts? 
  •                    Should my life insurance go to a trustee or directly to the beneficiaries? 
  •                    Who do I want to administer my will? 
  •                    What about taxes? 

If you already have a will, you should review it to make sure it is up to date and reflects changes in your marital status or changes in the beneficiaries you named. 

And by the way, there are several requirements that must be met to ensure that the will is valid. In general, the will has to be made by a person 18 and of sound mind and memory. Also, it must be in writing, signed by the maker, and witnessed (with signatures) of two disinterested persons (not anyone who would benefit from or is named in the will). Upon the death of the person who made the will, it is presented to the court, who will make sure it is valid and provide appropriate orders to make sure the instructions are carried out. 

If you don’t have will, or want to make changes to your will, call ABATE LEGAL SERVICES. We will do your will for you, free of charge, as part of your membership benefits! 

ROAD HAZARD REPORT

by Brian Shadiow, ABATE Legal Investigator

In late March we received notice of a road hazard from Janice, an Illinois ABATE Member.  She contacted us with concerns over a bridge that was being repaired in her area.  While we receive numerous road hazard submissions, this is one of the first times we have received one for an area that was currently under construction for repair.  It seems that this bridge was over 60 years old and had deteriorated badly.  The bridge, now under repair, had been closed down to just the southbound lane for  traffic, in order to start repairs on the northbound lane.  The problem is that the southbound lane was in extremely poor condition, made up of almost nothing but small potholes throughout the entire lane.  A few holes were so bad that the state laid down a board or road plate over them.  Janice’s concern was that this bridge was not only bad, but it was getting worse now that all of the traffic was reduced to just one lane.  And it was early, the state had only just started construction on this bridge and it was nearly unnavigable.  Well, long story short, Janice took a video of her traveling over the bridge which clearly showed the poor condition and disrepair.  We were able to forward this, and other information she provided throughout our emails, to the IDOT engineer overseeing this area. With Janice’s detail and good work, she helped get those potholes filled – and the state even added a layer of blacktop to the entire southbound lane.  Thanks for helping to keep our roads safe Janice!

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com 

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020. 

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Ask Our Lawyer – April 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

MOTORCYCLE BRAKE FAILURES?  LIFE OR DEATH IN THE OFFING?

Received a call from a long time ABATE member who just purchased a 2019 BMW R1250 with a leak failure in the Hayes brake caliper.  He suffers from unanswered questions that should have been answered by the dealership and the manufacturer, especially after repeated repair attempts to fix the new motorcycle, or so they said.  Making matters worse he has experienced the close down of the dealership where he purchased the motorcycle and then was directed to an out of state location for warranty work.  Sadly, his brand-new motorcycle still drips brake fluid from the caliper and the dealership that is handling his problems is a hundred miles away. I reminded him that Indiana is still one of those Cro-Mangnon states that does not have a lemon-law for motorcycles.  In the age of motorcycles costing as much as autos, I do not understand that lapse of motorcycle protection by the legislature.

If you learn of other such failures, please call ABATE LEGAL at 317-635-9000 and ask for Rod.  This could be a matter of life or death.

HELPFUL BIG NOSES ARE WELCOME!

 Q.  Rod, I don’t wish to stick my big nose in where it doesn’t belong, but I thought I might have some information that could be helpful to the individual (Rod wrote about him in November’s column “Turnup Blood” article) battling the medical bills from his accident.  I was an insurance agent/broker for 40 years during my working career and became fairly familiar with the terms and conditions of auto insurance policies in this country.  One of the things which I did not see mentioned in your article is the Underinsured Motorist coverage on almost all auto insurance policies today.  It is almost always purchased and can carry limits from $25,000 to $1,000,000 or more.  This coverage is an optional coverage, but I cannot imagine a motorcycle rider who would opt not to carry this coverage.  This coverage would cover his medical expenses up to the limit he selected when he purchased his policy.  Although I am not familiar with Indiana law, it is also possible that he might have two policies covering this occurrence.  One would be his motorcycle policy and the other his automobile policy, if they are insured on separate policies.

I would assume that this avenue has already been explored, but since it was not mentioned, I thought it might be worth mentioning just in case this young man and his legal counsel had overlooked this possibility. Sincerely, Thomas J. Alfrey FORR – Missouri

A.  Tom, I could not have said it better.  I liked the way you emphasized “I cannot imagine a motorcycle rider who would opt not to carry this coverage.”   Thank you for raising awareness of the dark secret of many riders who sabotage themselves for the sake of a few dollars.  Even though most car owners buy the optional coverage, many bikers do not.   Unfortunately, many riders ride naked – without un/underinsured motorist coverage.   Below I have set forth articles from a previous column that may help us in dealing with this “dark secret.”  Thank you – ride safe and insured.  Rod

RUN OVER?  WHAT TO DO WHEN THE LITTLE OLD LADY WITH BLUE HAIR DOESN’T HAVE ENOUGH MONEY TO PAY YOU?

Q.  Rod, I was run over by a person with low insurance limits.  Do I have to settle for those limits?  The insurance company says the person who hit me does not have any more money.  What do I do? A.B.A.T.E of ILLINOIS MEMBER.

A.   Believe it or not, Mrs. Smith can drive down the highways of this country and is only required to have minimal insurance limits.  Even though she may not be able to hear, see or think, as long as she has a driver’s license and the state required minimum insurance, she is free to run over you- as long as she doesn’t do it on purpose.  Some minimum state insurance requirements can be as little as $10,000.00.  Try to get a broken leg fixed for that.  But even if the insurance limits are $100,000.00, what do you do when your hospital bills are over $100,000.00, your lost wages are over $25,000.00 and you have a permanent limp and other disabilities that adversely impact your life?

You have a serious case so you should have legal counsel as you have entered the big league of legal issues.  A good lawyer will learn the amount of insurance limits of the car that Mrs. Smith was driving.  ABATE LEGAL requires the insurance company to certify the amount of those limits.

If the limits are inadequate, what options do you have?  If Mrs. Smith is underinsured, we need to determine whether you have underinsured coverage with your insurance policy that could pay for your losses, including medical bills, lost wages, pain/suffering, temporary and permanent impairment, loss of enjoyment of life and your spouse’s loss of consortium.

If you do not have enough underinsured coverage under your own insurance policy to pay for your losses, and Mrs. Smith has insufficient insurance coverage to pay for your losses, what choices do you have?  The obvious first choice is to take the limits of Mrs. Smith’s insurance policy, but can you take those limits and also go after Mrs. Smith’s assets?  Usually not.  The insurance company has a duty to resolve all the claims you have against Mrs. Smith and not leave her exposed to your additional claims.  If Mrs. Smith has considerable assets that would pay for your losses, you could pursue those assets.  But what if she does not have assets other than the insurance company’s limits?  And how do you determine the amount of her personal assets?  Good question; because in most states you are not able to subpoena/request personal asset information until you have a judgment- which usually means you have to go to the expense of a trial to get a judgment.  That adds insult to injury in that you do not want to incur the cost of a trial in an inadequate asset/insurance situation.

What can you do in order to maximize your recovery and stop the futile chase of a no asset person for more dollars?  A search of public records is a must.  You should look for exempt and attachable real estate, vehicles and other property.  The internet is a valuable source for this information.  After you or your lawyer have conducted a search of Mrs. Smith’s assets and learned that she does not have any assets (or at least she says she has no assets), how do you protect yourself if she misrepresents the truth or hides her assets?

Here is our advice.  Prior to accepting Mrs. Smith’s insurance limits as a complete release for your losses, demand that Mrs. Smith provide a statement under oath affirming the extent and value of her assets.  If she has very little, that is one case.  If she owns 500 acres of good farmland or just hit the lottery, that is another.  Armed with the statement under oath, you can now rest assured that if Mrs. Smith lies to you about the lottery she won or the farm she owns, you should be able to set aside the Release you signed based on her misrepresentations to you.  The theory being: if she would have told you the truth about her assets you wouldn’t have accepted only the limits of her insurance policy.  You would have insisted that she part with some of her lottery winnings and/or some of the farm.  In other words you win!

ENCOURAGEMENT FROM IMRE

Rod, it was great to see you.  I’ve attached an article (brought to our attention by a member) I thought you might enjoy (original at http://www.oregonlive.com/hillsboro/index.ssf/2013/11/skiers_beware_recreational_lia.html).  It reaffirms your strong position that liability waivers are essential to protect organizations and individuals.  Your presentations on why we should take waivers seriously are among the most important of the SMRO state seminars.

Imre F. Szauter, was formerly the Government Affairs Manager – On-Highway – For the American Motorcyclist Association.  He and his wife Debbie are now retired in New Hampshire – within eyeshot of Mount Washington – the end of the Appalachian Trail.

Imre attaches an article about waivers that I will write about next month.  Very important reading for all of you who own property and allow others to use it for off road, ABATE and other events.

NOTE FROM LONG TIME ABATE MEMBER – MIKE SUMNER FROM KOKOMO WHO SENT A PHOTO OF HIS GOOD LIFE

Rod Taylor you made this picture happen. Thank you for your excellent lawyerly efforts. I am forever grateful to you. P.S. I still have your number in my phone…lol  Mike Sumner, ABATE MEMBER

NOTE FROM RICK AND DEB CARROLL LONG TIME MEMBERS – THEY JUST BOUGHT A NEW INDIAN DRESSER – BEAUTIFUL MOTORCYCLE – INSURANCE QUESTION

Rick and Deb called and wanted to know if the current insurance policy with only 100k/300k un/underinsured coverage was adequate to protect them.  Here is what i said:

Deb and Rick – The current amount is not enough.  As discussed, you need to bump your uninsured/underinsured coverage to at least 250/500 (the limits that company offered). Of course, you have to get those same limits as to liability, but that is the law.  And if you can find another company to issue more – get it.  It is the cheapest insurance you will ever buy!  

Ride that new Indian down and visit with me as it has been too long. Rod

MUST READ MUST READ MUST READ

YOU NEVER NEED UN/UNDERINSURED MOTORIST COVERAGE – UNTIL YOU NEED IT. 

ALWAYS BUY AS MUCH AS YOU CAN GET TO PROTECT YOURSELF AND YOUR FAMILY. IT IS CHEAP!  

SOME SUPERSTITIOUS PEOPLE BELIEVE THAT IF YOU HAVE LIFE INSURANCE YOU WON’T DIE.  MAYBE THAT SAME WARPED THINKING WORKS WITH UN/UNDERINSURED COVERAGE?  THAT YOU WON’T GET RUN OVER BY A NEAR DO WELL IF YOU HAVE IT?  IT HURTS THE SAME WHEN YOU GET RUN OVER BY SOMEONE THAT HAS PLENTY OF INSURANCE, BUT IT HAS TO FEEL A LITTLE BETTER WHEN YOU HAVE PROTECTED YOU AND YOUR FAMILY.  BUY IT TODAY – TELL THEM ROD SENT YOU!

RIDER EDUCATION HAS SAVED OVER 826 LIVES IN INDIANA – WOW – PRAISE BE TO THOSE THAT TEACH

[I REQUESTED THAT JOHN BODEKER, A MOTORCYCLE SAFETY GURU, STUDY HOW MANY LIVES HAVE BEEN SAVED BY RIDER EDUCATION IN INDIANA.  I WILL MAKE THE SAME REQUEST OF THOSE RESPONSIBLE FOR ILLINOIS AND OHIO.  JOHN’S STUDY OF LIVES SAVED FOLLOWS:]

Q.  To John Bodeker. Thank you for your role in motorcycle safety education.   Most of us just have jobs.  U had and have far more than that. Please provide your estimate as to the lives saved by rider education.   We will use your response to applaud you and the many instructors for this safety program.  Ride safe. Rod

A.  Rod, I put together the numbers you requested on the lives potentially saved by rider education in the State. I say potential for reasons we have discussed before. I’m not a statistician. I took statistic classes as part of my graduate work and completed published research projects as part of that training. If I learned anything, it’s that good statistical research is one of the toughest critters you can try to get your hands on. The myriad of variables that need to be considered for even the most basic research is a herculean task. To properly measure, collect, decipher and report on those variables is even a greater task. 

However, as we have discussed often in the past, since the inception of the rider education program, there have been no major changes in the variables surrounding motorcycle fatalities outside of the impact of the rider education program itself. No laws of any consequence have been passed affecting motorcycle fatalities (i.e. a helmet law). No changes in the roadway, the environment, the vehicles themselves, or the operators (other than the increasing number of people completing rider training) have occurred. So, it can be inferred that any change in the motorcycle fatality rate (I used rate due to the increase in total registrations and the raw number of fatalities in the past 20 years) can be directly attributed to anything other than rider training. Having said that, here is the methodology I used.

 I took the fatality rate per 10,000 registrations over the first 10 years of the program’s existence (1986 – 1995 numbers trained were just starting to ramp up during that period and did not yet represent a significant percentage of the general riding population) and averaged that rate over that 10-year period. That turned out to be 7.8 fatalities per 10,000 registrations. I then did the same for the next 23 years for which we have data. I used ABATE data from their fact sheet which they got from Criminal Justice Institute data from IU’s Public Policy Institute for all of these computations.  That number turned out to be 5.8 fatalities per 10,00 registrations. That means that for every 10,000 registrations from 1996 through 2018, two lives were saved. I then took the number of registrations for each year (1996-2018), divided that by 10,000 which gave me the number of units by 10,000 (i.e. for 1996 there were 96,710 registrations which  divided by 10 gives 9.7) which represents one half of the number of lives saved that year. By doing the same calculation for each year and multiplying by 2 (the difference between the 7.8 fatalities in the first 10 years and the 5.8 fatalities per 10,000 registrations in the last 23 years), I derived a total number of lives potentially saved by rider education at 834. 

That is of itself an impressive number, but I thought that the average of 36 lives saved per year over the past 23 years to be just as impressive. If I were to look at the fatality rate change from 1986 to present and the 10 years preceding that, the number would be significantly higher, but the confidence that those lives saved solely by the rider education program would drop dramatically and would be open to easy dismissal by the most casual numbers person. 

After you read this, if you would like for me to look at some other options on reviewing this data, I would be happy to do so. However, of all the possible approaches I considered, I felt most comfortable with this approach. Final Report to Date: 834 lives saved over the past 23 years – 36 lives saved each year over the past 23 years. Thanks,John

[John Bodeker has recently retired from public service as a traffic safety expert with a career spanning nearly 45 years. John was the first Program Coordinator when Indiana created a state legislated rider education program in 1987. When he arrived, hundreds of riders were being trained each year and that grew to more than 6,000 annually before John left. In addition to motorcycle safety, John has worked in driver education, traffic records and countermeasures for impairment at the Indiana Department of Education, Indiana Bureau of Motor Vehicles and the Indiana Criminal Justice Institute.]   

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery on motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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Ask Our Lawyer – March 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

WHAT NOT TO DO AND SAY AFTER YOU GET RUN OVER NO MATTER HOW BAD YOU WANT TO

 A little old Lady pulled into his path as he traveled down the highway.  The description of the collision is memorable.   Ground Hog (name changed to protect the innocent) (around 450 lbs.) was slowly ejected from his motorcycle by the impact (Isaac Newton is right).  He did a complete summersault.  Witnesses described Ground Hog’s contact with the pavement as painful sounding.  Surrounding witnesses were said to have groaned in unison.  Ground Hog arose from the ground and immediately entered the driver’s side of the elderly lady’s car to have a discussion.  You can imagine what was said.  Witnesses describe her leaving the scene of an accident running as amazing, since she was 82.  Several witnesses vividly recall her screams as shriek like.  Others tried to catch her and calm her – to no avail.   Her car, Ground Hog in it, was still there when the cops arrived to investigate.  The police report was one of the most humorous ever written. Moral of the story. Do the best you can to keep your anger and vocabulary to yourself, especially if the adverse is a little old lady.  Everything you say will be used by the adverse insurance company to portray you as somehow undeserving.  The facts and your injuries speak for themselves.  Let them.

TIS THE SEASON FOR CHARITY RUNS AND GETTING WAIVERS IS A PAIN

Q.   Rod. We are having a Charity Run in early spring. Each year we have more riders and handling the number of waiver documents is becoming more difficult. I have been to rides where they staple a waiver to the front of a legal pad. Participants are then handed the legal pad and are asked to read the waiver and sign on the next available line on the legal pad. This would save us a lot of work. We only need a few waivers and three or four legal size pads to get everyone’s signature. Can we do it this way?  ABATE MEMBER

A.   It would beat nothing, but here is what I fear would happen. Judges strictly construe the waiver of legal rights, as they should. Afterall, we are asking a fellow motorcyclist to give up his sacred right to go to court and sue us if we are negligent and cause him harm in exchange for our permission to allow him to go on our run. What I fear is that a participant on our run would say that he thought he was “merely signing a sign-in sheet” and did not see or notice there was a waiver attached to the front of the legal pad (it may have been honestly folded back so one could sign on the lines of the legal pad). I am not buying that argument but several courts have, and agreed that the waiver may have been overlooked. Since waivers are strictly construed, many courts would hold that the waiver was ineffective as it was not knowingly signed. In other words, the guy gets off the hook for the waiver he signed and we may get screwed. So the better way to accomplish getting a knowingly signed waiver is to have a separate waiver for each participant.  Remember – you do not need a waiver until you need a waiver.

WAIVER OVERSEERS ARE A MUST FOR RUNS

Q.   I was at your seminar presentation put on by ABATE. What is the best way to make sure waivers are properly signed? I have noticed that some people do not sign their true names or they sign it illegibly? ABATE MEMBER

A.   A waiver overseer should be appointed at all events for which you are requesting a waiver as a condition of participating. The only time we need the signed waiver is when there is an incident. When that occurs, we need someone to go through what may be numerous waivers in the hopes that the proper waiver can be identified and produced. Issues concerning legibility can be solved by requiring a printed name below the signature. But what do you do if a participant questions the signature? The solution is simple. A waiver overseer can initial each waiver that is signed during his “shift” and in his presence. That way, I can obtain an affidavit from the overseer that affirms that he saw the person sign the waiver. This may be critical if the validity of a waiver comes into question.

TRESPASSERS ON RIDES AND WHAT TO DO

Q.   Hi Rod – a question came up regarding liability waiver forms for our runs and activities. Question is this: What if a person jumps in on the run (seeing a buddy having fun), crashes the gate or just refuses to sign in? How does the law look at this if the person (God forbid) is harmed in some way during our activity? Is this person “trespassing?” Who’s got our back on this one? Or, how do we cover our backside?  ABATE OF OHIO MEMBER.

A.   A sign that declares that all participants in the ride must sign a waiver will help. Banding is the best way to mark those that have paid and signed the waiver. All others are not authorized (trespassers) and should be admonished to stay clear of the ride/activity. Rides should be escorted by police officers, so a simple gesture from them is usually all it takes. If they stay with the ride and are injured, evidence that all participants were required to sign a waiver will be significant to the court in deciding responsibility, and testimony from the escorting police officer will be helpful in establishing the unauthorized (trespassing) status of the interloper. Recently a California Appellate Court decided a case that may be a good precedent for us. In that case, a couple attended a poker run for several years and signed the required waiver.  One year they did not sign the waiver and were seriously injured in a crash on the run. Of course, they sued the run organizers for damages. Interestingly, the court held that there was an expectation of required waivers and held that the couple was bound by it and dismissed the case. While Ohio has not decided a case with those facts, you can bet ABATE LEGAL will be pointing at that California case and arguing that Ohio should adopt such a good rule. Same for Indiana, Illinois, Missouri, and New York as well.

HOW MUCH INSURANCE DO WE NEED ANYWAY?

Q.  We have a few questions regarding ABATE event insurance we are hoping you might be able to assist with. We of course get a Certificate of Insurance (COI) from the state office for our sanctioned events for the specific day and event location, but what should we be requiring, if anything, from vendors that might set up at our event? Should we be requesting COI’s (to CYA) from all vendors? Maybe for only food/alcohol/equipment vendors? We are looking for the best route that covers ABATE, the officers, the event itself, and of course the participants. However ,on the flip side of that we realize that not all vendors might be an established business (such as artsy/craftsy vendors) and might not be able to obtain a COI for the event if requested. If you could please provide any information and input on this, we would greatly appreciate it! Thank you. – ABATE MEMBER

A.  As much as we can reasonably get is the short answer.  Certificates of Insurance should be obtained from all food and alcohol vendors – always and no exceptions.  Also included in that compulsory list are those who provide unique services and items for entertainment.  Keep in mind that many of the arts and crafts-type vendors may not have insurance, so we are relying on the waiver/release that is required for admission for all attendees to cover us.  However, we should require an indemnification agreement from these vendors just in case our waiver for attendees is held unenforceable.  This means that if any of the vendors screw up and injure one of our attendees, and we get sued, we have a claim against that vendor.  Our required Waiver/Release, if enforceable, should get the vendor off the hook along with us, as they are generally identified in our waiver.  If our waiver is determined unenforceable for some reason, we may be able to hold that vendor responsible so that we are not paying for his sins.  But remember that the reason those vendors do not have insurance is because they do not have much money.  So good luck to us collecting from them.

AND I THOUGHT WE HAD THE RIGHT TO REMAIN SILENT – THE COWBOY CASE

Q.  My wife and I were pulled over by a local police officer for having a cracked windshield. My wife was driving and I was in the passenger seat. It was 8:30 AM and we were on our way home from working a midnight shift. The car is in my wife’s name. The officer asked for my wife’s license and proof of insurance which she handed to him. Then the officer looks at me and says he wants my ID also. I asked him what I did wrong, and he said to just give him my ID which I reluctantly did. He came back to the car and gave my wife a warning for the cracked windshield and didn’t say a word to me. Did I have to give the officer my ID even though I wasn’t driving, the car wasn’t in my name, and I committed no crime? All I was doing was sitting quietly in the passenger seat with my seatbelt on. – ABATE members

A.  Well, my worst angels would want to tell the officer to go pound sand, but I’m afraid the answer is that you’re most likely required to provide basic identification to the investigating officer. Since you were not driving, you had no obligation to carry a driver’s license, but if you had it in your billfold or access to it in your car, I believe the courts would rule against you if you failed to produce your driver’s license. The U. S. Supreme Court did not serve us well in what I call the “cowboy case.” In that case we had an independent-minded citizen from the West who thought he had the right to remain silent when asked by the local cops to give his name. He refused and was promptly charged, the case went all the way to the Supreme Court, and the rest is history as they say. In today’s climate of I.D. paranoia and hyper-surveillance, I believe the Courts would have ruled against you if you had refused to surrender your driver’s license. At the very least, I bet the cop would have given your wife a ticket–-with a fine–for the cracked windshield. You know, some folks are like that.

There are a few states that also have “stop and identify statutes,” which require individuals to comply with police requests for identification. In Ohio, Indiana, and Illinois, such cooperation is required when the officer has a reasonable suspicion that the person is committing, has committed, or is about to commit a criminal offense, or that the person witnessed an act of violence or an act which would create a risk of serious physical harm to another person or to property. In those cases, the person is required to give his or her name, address, and date of birth. The statute in Indiana is much broader, requiring that a person provide either his or her name, address, and date of birth or a driver’s license, if in the person’s possession. Illinois requires that if an officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense, he may demand the name and address of the person and an explanation of his actions. In Missouri, officers have the power “to stop any person abroad whenever there is reasonable ground to suspect that he is committing, has committed or is about to commit a crime and demand of him his name, address, business abroad, and whither he is going”(although it appears that this provision may only extend to officers in Kansas City – see Mo. Rev. Stat. §84.710(2).

For some interesting reading, check out the following US Supreme Court cases: INS v. Delgado, 466 U. S. 210, 216 (1984), Terry v. Ohio, 392 U. S. 1 (1968), United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975).

TRADEMARKING ABATE CHAPTER NAMES AND EVENTS

Q.  We have a chapter name that we are very proud of, along with chapter events that are very important fundraisers for our organization. Do we have to do anything legally to protect our interest in that name? – ABATE Member

A.  We receive inquiries about trademarking the names of regions/chapters and their events several times a year. Technically, a trade name is not considered a trademark or entitled to protection under trademark laws unless it is accompanied by a product or service. If a name is used to identify a service or event, the name will then be considered a trademark and entitled to protection if it is distinctive enough.

A trademark includes any word, name, symbol, or device or any combination used or intended to be used, in business, to identify and distinguish an event or organization. One of the good things about trademarks as opposed to patents is that trademarks have protection forever, as long as they are being used.

 So, should our organization trademark an event and its name? The first question you should consider is: why do you want the trademark? Are you simply trying to determine whether anyone else can interfere with your ability to use the name in connection with your chapter events? Or are you interested in obtaining a federal trademark in order to have broader ability to prevent others from using it? Do you plan to have additional events in other geographic locations? The answers to these questions will help determine how important a federal trademark may be to your organization.

The common law provides for protection if you do nothing more than use the name and were the first to utilize the name in connection with a particular event. This common law protection would extend to the area of use, so in the case of an event, it would prohibit someone from having an event with the same name in the same area.  One is afforded greater legal protection when the name of the event is federally trademarked. The process for obtaining the federal trademark would also help you determine what other competing marks exist, if any, that may interfere with your claim to the name in connection with the event. However, obtaining a federal trademark can be expensive, especially if there are competing marks that may pose a barrier to getting your mark approved. To use my favorite lawyer hedge word, it really depends on your organizations’ goals regarding the use of the name in question.

ARGUING WITH COPS IS OK IN ILLINOIS, OHIO, INDIANA AND MAYBE EVERYWHERE ELSE

Q.   I was stopped by the police on my motorcycle. When I tried to argue with him about the facts, he told me to shut up or I was going to jail. Do I have the constitutional right to argue with a police officer about an arrest? – ABATE Member.

A.   Many are under the assumption that once you are stopped and questioned by a police officer, you have no right to debate your position with the officer. Wrong. An Illinois Appellate Court, along with courts in Indiana and Illinois, has reaffirmed our basic right to argue our position with an investigating police officer. However, one needs to be mindful that an errant cop has the ability to charge you with resisting and obstruction. In the Illinois case, the prosecution told the jury that the defendant had no right to argue with the police officer. On appeal, the Court held that this was a gross misstatement of the law and reversed the conviction. We have and should always have the right to call into question the facts of an officer’s arrest. This probably goes without saying, but once you’ve made your point, it’s wise to clam up. Now, are you resisting if you are on a cell phone? No, but it could become resisting if you persist in refusing to get off the phone when requested.

So to sum up, according to the Court, nothing in the law suggests that you can’t initially question the validity of the officer’s actions. Certainly you can ask why you are being arrested, and you can point out the officer’s mistake(s) and protest and argue against the officer’s actions. That said, if there was ever a time to practice diplomacy, it is when interacting with a police officer. Some of us have found out the hard way that jail is not good. They won’t let you do what you want in jail.

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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Ask Our Lawyer – February 2020

 Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 SO YOU WANT TO POP A WHEELIE?  ARE THERE LAWS?

While it is true that Indiana and Ohio may not have specific laws outlawing a wheelie, most states give police the discretion to cite a motorcyclist doing a wheelie with reckless “riding”.  Illinois has gone specific.  In Illinois pop two wheelies and you might go to jail as the law assesses a fine after one wheelie, but gives a judge the right to put you away for 6 months after two.  Maine is another state that disallows raising the front wheel off the ground intentionally (Section 2062), but does not use the word “wheelie”, but we get the idea.

As an aside, Guinness World Records claims that Patrick Furstenhof has the speed record while popping a wheeling – 191.3 mph.  That puts my wheelie efforts in perspective.

HOW ARE WE GOING TO DIE? 

 See list below.  Motorcyclists are 15th – right after pedestrians on the street-14th, and cancer, stroke, obesity, smoking, drinking & falling.  This is my perspective from a while ago, so don’t let statistics lessen your riding joy.

Cause of

death

Annual #

of deaths

Lifetime

odds

Heart disease 631,636 1 in 6
Cancer 562,875 1 in 7
Smoking-related deaths 433,000 1 in 9
Stroke 135,952 1 in 28
Obesity-related 112,000 1 in 35
Heavy drinking 79,000 1 in 49
Breast cancer 40,598 1 in 95
Prostate cancer 29,093 1 in 133
Fall 22,631 1 in 171
Assault 18,361 1 in 211
Brain tumor 13,000 1 in 298
Car accident 12,772 1 in 303
Skin cancer 8,461 1 in 457
Pedestrian accident 5,958 1 in 649
Motorcycle accident 5,024 1 in 770
Bicycle accident 820 1 in 4,717
Airplane accident 550 1 in 7,032
Flu 411 1 in 9,410
Lightning 46 1 in 84,079
Legal execution 40 1 in 96,691
Earthquake 26 1 in 148,756
Fireworks discharge 10 1 in 386,76

 AVOID GETTING CUT OUT OF THE PARENT’S WILL AND BEING A GOOD CHILD

Rod,

Always enjoy reading your column in the state Abate paper, always my favorite part to read. I read the Q & A on “Being nice for a reason” in the ABATE news and have a suggestion. Instead of waiting until the parent dies and challenging the will;

  • why not call the parent once every week to see how they are doing, if they need something, or just want to talk with their child. At some point you could even discuss the will.
  • if the parent resides far away, spend your vacation time from work visiting the parent. Let them know you are coming, plan outings or plan for work that needs to be done around the house. Plan the vacation with major doctor appointments or hospital stays in mind. If they live close, visit every week.
  • if you are out of vacation days, use the Family Leave Act. You can stay a month or more helping Your parents, if you can afford to do this. These days you can manage or attend meetings via phone from anywhere. Bring your work notes with you and keep up by using the computer at the local library. Redundant tasks will get along with or without you. Almost anything can be done via the internet, so there are no excuses for not spending time with parents.
  • if you are not employed, tell the parent you want to come for a visit, to help them out with the above mentioned tasks, and ask if they can assist with the trip expenses. After spending time with the parent, believe me you will be discussing the parents finances and other end of life issues. this will give you a chance to discuss the will and how the family is involved.
  • finally, you help your parents out and communicate with them often because you love them. They took care of you when you could not take care of yourself.

Steven W. Farmer

ABATE member since 1985  [From Rod –  Steven, wonderful advice to us all.]

MAKING THE MOST OF YOUR MINUTES

(We have had a series of questions about minutes of board meetings.  What follows is a discussion of the issues confronted by boards and board secretaries.  Let us have your comments and feedback. -Rod)

Q.  Our local ABATE chapter has had some discussion recently over how we should take minutes. Someone told me they had to make verbatim transcripts of the board meetings, but others say they only have to reflect the actions of the board.

A. First, look to your bylaws for guidance. Often times, the bylaws will specify what type of minutes to use. If you have a choice, there are two choices a board secretary can make regarding minutes.  They can either record every word, or record summaries of the conversations.  Each has its benefits and drawbacks.

Robert’s Rules generally favors a show-all, tell-all approach to Board Minutes.  Certainly that makes life easy when all that is done is to record exactly every comment and then show the struck language that is not part of the approved minutes. Only Board members should be privy to the “draft minutes” and then when the “draft minutes are approved,”  those minutes are published and made available to the members.  These rules regarding minutes are simple and easy to enforce.  However, these kinds of recordings may chill candid ramblings that would be inappropriate for publication – even if shown as stricken – and may contain legal issues that need to be protected.  For example, what if libel, slander or politically sensitive remarks, etc. are recorded with no way to edit or redact the comments?  Those types of comments could come back to haunt the organization in the future or cause divisions within the organizations.

The summary approach also has considerations which recommend it.  It allows brutally honest exchanges between board members, – even inappropriate exchanges – without chilling what some folks really think.  It makes the lawyers sleep better without worrying about libel and slander suits.  It allows ABATE  to put its best foot forward in the final minutes as approved by the Board.  Since we as an organization are somewhat political this may be the best choice, unless we want to run the risk of causing divisions within the organization.

Because the summary approach does not record perfectly the words and expressions involved during a board meeting, board members can be accused of inappropriate editing.  In other words, the Board is reserving the right to “clean up” irrelevant comments that may or may not be appropriate.  It then becomes important for the secretary to be judicious in deciding how the board discussions are to be summarized.

In general, given the sue-everybody mentality that seems to be running amok these days, it may be that adopting summary minutes may afford the best for ABATE boards and their members.

COPS AND THE ROAD

Q.  A friend of mine at work was going north on Route 57 from Kankakee, IL. Right before the Manteno exit, a State trooper had someone pulled over. My friend didn’t change lanes when approaching the trooper. All of a sudden, the trooper pulled out right in front of him and gave him a citation for violating the “Scott’s Law.” What is this law, and is there any defense? A.B.A.T.E. of Illinois Member

A.  The law definitely exists, and can be found for Illinois at 625 ILCS 5/11-907. Other states have similar provisions (Indiana at IC 9-21-8-35 and Ohio at ORC 4511.213). The Illinois statute requires that:

(c)        Upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights or amber or yellow warning lights, a person who drives an approaching vehicle shall:

  1. proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least 4 lanes with not less than 2 lanes proceeding in the same direction as the approaching vehicle; or
  2. proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions, if changing lanes would be impossible or unsafe.

(d) A person who violates subsection (c) of this Section commits a business offense punishable by a fine of not less than $100 or more than $10,000. (emphasis added)

The statute is less than clear as to when a motorist is required to move over. It is clear that the statute requires that a motorist either change lanes or slow down. It’s still up to the officer to decide if the motorist exercised “due caution,” but the police officer is only one-half of the story. The charged person may have believed that a lane change was unsafe. A judge or jury would be the final word.

Ride Safe & Free,

 Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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Ask Our Lawyer – January 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 SEAT BELT HELL FOR TRUCKERS?

Have you ever noticed a State Trooper standing on an overpass with binoculars aiming to tag those not wearing seat belts?  Here is a case that shouldn’t be.  Rick Nickols, a 40 plus year trucker with nary a traffic citation in over 7 million miles got one recently for not wearing a seatbelt.  The officer gave him a choice – low cost fine ($25) if he accepted the ticket or high cost fine ($180) if he wanted to contest it.  What’s with that?  Always thought requiring seat belts for truckers would be like requiring railroad engineers to wear seat belts.

And Rick did want to contest it as he was wearing his seatbelt.  Didn’t seem to matter to the officer that the seat belt was orange and the high visibility safety vest Rick was wearing (required by his employer) was orange,  or that from the officer’s point of view (on the overpass) he could not see the upper seat belt attach point because of the windshield tint and visor in the top part of the truck window.  If he could have, he would have noticed the belt was being used.

The officer’s parting comment was “who is the judge going to believe?  Me or you?  He knows me but he doesn’t know you.”  I really don’t like people that say things like that.  Rick maybe going to trial on this one and he wants to request a jury.  And he will bring with him a copy of his 40 year plus perfect driving record, and an enlarged photo of the seat belt with him wearing his orange safety vest.  And a photo from the overpass showing that it is impossible to distinguish the orange seat belt from the orange safety vest especially thru a sun visor.  Case over if there is justice in that court.

Will keep you posted as to how this goes.

WHY BIKERS LOVE DOGS AND VICE VERSA

We all have been greeted by a dog that would rather lick our face than eat.  A new study suggests that dogs became dogs because of a genetic condition in them that is also found in humans – the Williams-Beuren syndrome.  This syndrome causes intense friendliness with strangers.  As we know dogs were once wolves according to the experts, but this latest finding suggests that a human gene that causes Williams-Beuren has been found in dogs.  Williams-Beuren is described as having an unnatural willingness to befriend those that we do not know – the extroverted life of a party so to speak.  Scientists point out that the “Darwin survival of the fittest idea” would favor those who are suspicious of those we do not know.  So it is very natural for wolves to stay within their own pack for survival and not go socializing with other packs or species.

Dogs socialize with everything and everyone, whether dogs or not.  Growing up we had a pet pig, sheep and pony.  Our dogs adopted them.  When a neighbor came to visit, all of them would run to the gate as greeters as if they were one pack.

So, scientists conclude that long ago, wolves with the Williams-Beuren syndrome approached campfires of humans with tails wagging, tongues licking, looking for leftovers and became dogs by mating with wolves that felt the same way – and had the syndrome. Some say that we humans probably had better leftovers than the pack did.

After studying this idea, I am beginning to wonder if most bikers have the Williams – Beuren syndrome. No wonder we get along with dogs, turtles, hamsters, rabbits, pigs, horses and even cats – and most humans.  And are the most generous group of humans I know.

MOTORCYCLE NATION

 The year 1909 was a time when there were no cars, generally speaking.  Just trains, horses, bicycles and most significantly motorcycles.   For a biker that meant almost nothing to watch out for.   It was August of that year and a guy by the name of Fisher (famous as the founder of the Indianapolis 500, Miami Beach and Presto-Lite) was holding the first race at the Indy 500; it was a motorcycle race.  William Harley and Walter Davidson were there along with their chief line foreman, and everybody that was anybody in motorcycling.

How do I know this?  While at the Indy Motorcycle Expo, I took in the Old Timers area.  There, the old flat trackers, hill climbers, and Daytona veterans were in force.  Some bring artifacts from the glory days, like Kenny Staughton.  For the last several decades the equivalent of the painting of the signing of the Declaration of Independence for motorcyclists has hung above Kenny’s living room couch.  It is one of those seven foot long – one foot high brown-toned photographs of old.  The photograph looks North on Meridian Street from the base of the Monument Circle.  (The site of the Motorcycles on Meridian that happens each summer) Positioned on about a third of the Circle are 250 motorcycles.  I can identify two-cylinder Indians and one-cylinder Harleys.  In those days Harley was not into speed, but endurance.  Indian was into speed.  So, two races were to happen.  One was the speed race at the Indy 500 and the other was an endurance race starting in Cleveland, down to Columbus, over to Dayton, then Richmond, just below Sky Castle Airport, Rushville and finally Indy.  Bill Harley and Walter Davidson won the endurance race and came together with the Indy racers for the photograph.  I can identify William Harley and Walter Davidson and the Harley Davidson factory foreman – I think.  Or at least that is my story and I’m sticking to it.  I thought about having a contest and naming it “Looking for Walter” after the kid game.

What is striking about the photo is there are almost no cars in the photo – maybe a lonely handmade Buick, but that is about it.  Around the sea of motorcycles are horse and carriages and a bicycle or two.  In 1909 we were truly a motorcycle nation.  Not till 1912 when Henry Ford implemented the assembly line in Detroit City did that change.  Bob Schulteti of Harley South-Side believes that Motorcycle Nation existed into the late teens before there were enough cars to make a difference.

While admiring Kenny’s wonderful photograph, I wondered aloud where the motorcyclists got gas, since there were no cars- no gas stations.  Bob Schulteti knew the answer – drug stores.  Imagine – a land before gas stations and no place to get a Big Gulp.

Kenny allowed us to get copies of his living room treasure.  I gave one of the copies to a friend and then a Board Member of the Indy 500 operation.  When the folks at the Indy 500 discovered they did not have that photo – of the first race at the Indy 500, and never knew it existed, by friend’s copy was requisitioned.  Next time you are in my office, take the time to gaze at a photograph that captured a time when America was a “motorcycle nation” – with not one gas station.

 MEDICAL BILL HELL

 *DID YOU KNOW THAT SOME HOSPITALS AND MEDICAL CARE PROVIDERS HAVE THREE PRICES? ONE FOR MEDICARE/MEDICAID – ONE FOR INSURANCE COMPANIES AND FINALLY ONE FOR THE UNFORTUNATES THAT HAVE NO INSURANCE.  GUESS WHICH ONE GETS THE BIGGEST BILL? IT ISN’T THE FIRST TWO.

 YOUR INSURANCE COMPANY SHOULD PAY THE MEDICAL BILLS – WHY?

Q.  I was in a motorcycle accident recently, and the medical bills are starting to pile up.The other guy’s insurance company won’t pay the bills, even though the accident was clearly his fault.   I believe it is unfair that my insurance company should have to pay.  What should I do about all of these bills?  ABATE of OHIO MEMBER.

A.  There are several things you can do to protect your credit rating while you convalesce and try to maintain your household.Of course, you could let ABATE Legal Services team deal with the insurance company for you!  First, notify your motorcycle insurance carrier of the accident, and ask if you have medical payments coverage.  If you have this coverage, the insurance company will pay your medical provider if you are injured in an accident, regardless of who was at fault – up to the limits of your coverage.  Also, you should notify your health insurance carrier, so that they can pay the balance of the bills for your care.

Many people are reluctant to have their own medical/health insurance cover the bills, especially when it was the other person’s fault.  Don’t let that stop you! You paid insurance premiums for a reason, usually an hour at a time – so use it!

Most insurance companies have policy language requiring reimbursement for your medical bills caused by someone else’s fault.  If you are involved in an accident, your insurance carrier will send you a letter asserting a “right of subrogation.”  That is lawyer talk for the right to be repaid from any money you get from the wrongdoer or his insurance company.  Basically, the insurance company will pay your bills now in exchange for the right to be repaid from the proceeds of a settlement or judgment against the guy who caused the accident.  Almost certainly your contract/policy with the insurance company obligates you to reimburse them for the money they paid for your medical bills from the proceeds of your settlement.

This can work to your advantage, and here’s how.  Most settlements and judgments are based on the amount of the medical bills the accident victim incurred.  And insurance companies understand that the amount of the medical bills is a reflection, however imperfect, of the severity of the injury and factor settlements accordingly.

You should know that insurance companies have previously negotiated rates with health care providers that permit them to pay less than the billed amount for services rendered.  While the bill for the hospital may be $10,000, your insurance company may have only paid $6,000.  In that case, all you are obligated to pay back is the amount actually paid to the medical provider.

And ABATE Legal Services can help.  We have had success in negotiating with insurance carriers to minimize or eliminate subrogation repayments, so that $6,000 subrogation obligation described above could be significantly reduced depending on the facts of your case.

Don’t forget, you can always call the ABATE Legal Services team if you have any questions about your legal rights.

 

RIDING/DRIVING WHILE INTOXICATED

Q.  I was recently stopped for operating a motor vehicle while intoxicated. I refused the chemical test. After I refused the chemical test, a judge issued a court order to take my blood. Can you explain to me how the law can circumvent the Bill of Rights? To me this is a constitutional issue. ABATE MEMBER.

A.  From the information you provided, it sounds like the police may have acted within the requirements of the law. First, some background: most states have enacted “implied consent” laws into their statutes relating to drivers’ licenses. Crazy as it sounds, the courts have held that driving is a privilege, not a right, and not subject to the usual protections. In effect, by obtaining a license, you have consented to submit to a chemical test if you are stopped on suspicion of operating a motor vehicle while intoxicated. If you refuse the chemical test, your license will be suspended.

That brings us to your case. In many states, courts have ruled that once a chemical test is refused, the police can obtain an order from a judge to obtain a blood sample. Once that warrant has been obtained, the police can have blood drawn for a chemical test to determine intoxication. From your description, it appears that is what happened. The United States Supreme Court has held that drawing blood and deriving evidence from that blood sample does not violate the self-incrimination protections of the Fifth Amendment. State courts, building on that holding, have stated that blood drawn as a result of a search warrant cannot be excluded unless there is a specific provision in the implied consent statute to the contrary.

Ride Safe & Free,

 Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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