Ask Our Lawyer August 2016

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

GARY SELLERS’ TIRE DOES NOT WORK WELL WITH ACID

Long time ABATE member and a mover and shaker with the MRF shares his tire acid story with us.  On May 25, Gary was riding on one of Ohio’s finest when he encountered a freshly Micro-Sealed road.  What happened next is troubling.  As he rolled into his garage he noticed that the tire was disintegrating – to such an extent that his motorcycle was un-ridable.  A friend examined evidence of his ride through the seal application and concluded that the tire was destroyed by contact with acid.  How can that be?  Well the Material Safety Data Sheets of the sealant used disclosed that potent acids are used.  Enough in Gary’s case to destroy his front tire almost as he watched.  What had happened?  Too much acid?  Improper mixture?  Improper spreading equipment?  Since the incident, the construction company that applied the Micro-Seal has offered to replace the tire.  Gary kept the damaged tire in case someone – anyone, wanted to examine the tire.  Significantly, Gary has had no takers – from anyone.  Do they know something we don’t?

If you have had a similar experience, please tell us about it.  Stay tuned for Chapter 2.

 

LEAD A RIDE OR HOW TO GET SUED WITHOUT REALLY TRYING-

THREE GOLDEN RULES

Q. I have been asked to lead a ride for the local veteran’s group charity. What should I say to the participants of this ride and can I get sued if something bad happens during the ride? I want to do this, but I would like to know how much trouble I can get into if things do not go as planned.

– ABATE of Ohio Member

A. The normal tendency of most experienced riders is to help those with less experience. Regarding the rules for a ride, the following is a good guideline to keep you out of the courthouse – and from getting sued. You should assume that all riders have been adequately trained by the state that has issued that rider a license to ride. We all know people who can’t walk well, don’t drive a car well and even more that do not ride well. Our instinct is to try and help the gyroscopically challenged. However, before a ride is exactly the wrong time to start giving instructions on how to ride. Remember, it is the state’s job to do that with trained instructors. There is a rule of law that places liability on your shoulders if you ASSUME a duty, a duty you may not have had under the law, and then fail to perform that ASSUMED duty properly. So, if you assume a duty of providing additional rules and riding instructions for the ride, you may have just set yourself up for a lawsuit, if they can claim your instructions were inadequate or just plain wrong. Remember all you need to get sued is a lawyer with very little to do with a client that has a filing fee.

HERE ARE THE THREE COMMANDMENTS FOR RIDE LEADERS THAT WILL BEST KEEP YOU OUT OF THE COURT HOUSE AND AWAY FROM THE PROCESS SERVER JOCKEY.

  1. RELY ON AND ASSUME THAT THE RIDERS ARE TRAINED AND SKILLED. AFTER ALL, THE STATE HAS SPRINKLED HOLY WATER ON THEM AND PROVIDED THEM A LICENSE/ENDORSEMENT TO RIDE A MOTORCYCLE.
  2. 2. REAFFIRM THE OBVIOUS — ALL RIDERS ARE TO FOLLOW THE RULES OF THE ROAD AND TO OBEY ALL LAWS. DON’T MAKE UP ANY NEW ONES. COMMON SENSE IS YOUR KEY TO SAFETY. THE RIDERS ON THE RIDE ARE THE ONES THAT HAVE TO USE IT.
  3. MAKE SURE ALL RIDERS KNOW THE ROAD THAT IS BEING TAKEN TO THE DESTINATION. MAPQUEST TAKES THE RESPONSIBILITY OFF YOU –USE IT. IF THE RIDE IS ESCORTED BY THE LAW, PUT IT IN THEIR HANDS AND OFF YOUR SHOULDERS.

P.S. Check your home owners insurance policy. You may have coverage under that policy as a volunteer for a not for profit organization like a veterans group. That may be nice to know, so call your agent.

 

WHEN A MOTORCYCLIST CAN RUN A RED LIGHT – AFTER 2 MINUTES OR TWO CYCLES?

Q. We have a stop light in our neighborhood that will not trip with a motorcycle. I have been doing a series of turns to avoid “running the light.” We also have a strict police officer in our area. Can I run the light if it will not trip, as doing the series of turns is not practical during rush hour? If I get a ticket, do I have a legal defense to the court? – ABATE of Ohio Member

A. We have received many similar questions over the years from motorcyclists that have have experienced a defective traffic sensing device while on their motorcycle. The law should not penalize anyone that is confronted with defective traffic signal equipment. Even the Magna Carta addressed the right to be free from unreasonable restraints of travel. This right is one of our most basic of rights and a defective signal device is an unreasonable restraint on our right to travel free and unfettered. My stock answer to a question of what to do in those situations of a defective signal is as follows: 1. Move over the sensor with your engine area and try disrupting the “Hall Effect.” That is the name of the signal field. Sometimes a magnet on your bike will help with disrupting the signal. 2. If that does not work, count through two cycles. The standard cycle is 60 seconds, SO OUR STANDARD IS 2 MINUTES. After two cycles, look for cops and if you do not see any — go cautiously through the intersection. Sounds simple, but what if you do get a ticket? Go back to the signal and see if you can duplicate your troubles to a witness. Time the actual cycle so you can give an accurate estimate of the time you waited through two cycles. Take that witness to court or better yet, visit the prosecutor with your evidence and request that he dismiss the charges. Pass the 2 minute standard on to your friends. This 2 minute standard has been passed by 16 states so far in the form of HB 1080.

 

PREVIOUS ADVICE FROM JAY – RED LIGHTS: DEAD TO THE RIGHT OR DEAD TO THE LEFT?

This question and answer comes courtesy of Jay Jackson, Executive Director of ABATE of Indiana:

Q. Do you know what Indiana’s stance is on the left on red is when the traffic sensor doesn’t work? I was on my bike the other day and the sensor didn’t detect me. After waiting through at least two cycles, I turned left on the red and got stopped by a cop. Is there a law that lets bikes turn left on red when the sensor doesn’t work? Or have I just heard it is generally acceptable?

– ABATE of Indiana Member

A. In 2014, Indiana passed House Bill 1080 otherwise known as the “Dead Red” law (IC 9-21-3-7(b)(3)(D). The provisions of this law allow you to wait for a period of 2 minutes, then proceed with caution treating the traffic control signal as a stop sign. If you end up getting pulled over even after adhering to the above code, you may revert to the above article for fighting a ticket referring to House Bill 1080. If you are in Ohio, Illinois or a state that has not yet passed the “Dead Red” law, please refer to the previous article.

 

CHIP AND SEAL – NOT A FRIEND TO BIKES 

Q. I live in Indiana. They just put down chip and seal pavement on the road near my house. It is a slippery mess and very dangerous to ride a motorcycle on. I called the Supervisor at INDOT to complain about there being no warning signs. This surface is hard on paint from the rocks being thrown. It is like trying to ride on marbles with a bike and I almost lost control of my truck going around a curve. Is there anything that ABATE can do about this junk being put down on state roads?

– ABATE of Indiana Member

A. Steven, our office has been in contact with the officials having jurisdiction over this state road. Chip and seal is not a friend of any vehicle, much less a two wheeler. If chip and seal is used, warning signs are a must for the traveling public. We have had some bad mishaps with chip and seal in both Ohio and Illinois. We have requested a formal response from Indiana, Illinois and Ohio regarding the procedures to be used by highway contractors when chip and seal is applied. I have requested ABATE lawyer George Tinkham, formerly a lawyer for the Illinois Department of Transportation, to weigh in on this one as well.

 

INSURANCE WOES FOR A MOTORCYCLE SHOP

Q. I’m looking for some advice on insurance and I’m reaching out to you as an ABATE Region 1 member. I’m trying to start a small, one-man motorcycle service and repair shop in northern Indiana. I’m getting quotes on insurance that are all over the board, so to speak.  I’ve had one for $3 grand that is quite comprehensive (and not affordable) and another for half that with garage liability and garage keepers included.  I don’t expect you to be an insurance professional, but should I not be covered for things like personal injury due to my negligence? What I mean is, say I work on a guy’s bike, putting on a back tire and rear brake pads. He leaves my shop and two days later is injured. They blame me for my brake job and sues.  Would the general “garage liability” policy cover that? Or would I need an additional E&O coverage?  The agents I’ve talked to seem to be unclear on the coverage I am wanting.  – Scott Wickens, ABATE of Indiana Member

A. Scott, get quotes in writing from the agents. Remember to expressly set out in an email the questions you asked me. Some agents try to get off the hook by saying everything is in the policy.  But don’t let them.  Ask your specific questions in a 1,2,3 etc format and get an answer.  And get a response in WRITING (EMAIL).  Remember that it may not count if you do not get a written response.  It is then a he said – she said deal.   If they won’t reply by email , and some won’t, move on.  As a matter of principle I will not do business with an insurance agent that does not do business by email.  It usually means they are hiding from something and do not want to be called out on a representation they have made to you verbally.

 

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your 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  © 2016.

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Ask Our Lawyer July 2016

 

RETREADS – ALLIGATOR ALLEY – OBSERVATIONS OF A MOTORCYCLIST

Q.  Over the years we have received many questions from ABATE members inquiring as to the safety of “retread” truck tires. Some of us have had to dodge retread tire materials and have narrowly avoided crashes.  Interestingly in the age of almost perfect communication, retreads seemingly have missed scrutiny.  Is it because the problem is only a motorcyclist problem?  What follows is our first stab at answering this question.

A.  Let’s get to the point. Are there safety issues with retread tires?  We have studied the problem and there are some  questions that just don’t add up.  So let’s start  our inquiry with information as to exactly what is a retread or capped tire.

The general definition is that a retread, also known as “recap,” or a “remold” is a remanufacturing process for tires that replaces the tread on worn tires.  Essentially retreading is a process that saves money by shaving down old tires to the casing and gluing on a new tread.  (Years ago I worked at General Tire in Indianapolis where we glued retreads to used casings.) Sound safe?   Some of us have witnessed a delaminating retread.  My experience was spectacular. The semi just ahead of me had a trailer tire delaminate at about 60 mph.   The tire delaminated violently and showered tire debris over me and my FLH.  I still have a crack in my windshield caused by tire shrapnel.  To avoid catastrophe  I slalomed around the larger chunks of tire material some of which was large enough to derail a motorcyclist.   I now collect photos of retread debris in an effort to shed light on a hazard to motorcyclists.

Now for the other side’s story – the retreaders.  According to Tire Retread & Repair Information Bureau aka TRIB, retread tires are a good deal and are safely used by trucking fleets and others all over the country.  But regulations disallow retreads in certain applications.  So why is it that retreads cannot be legally used on the steering axle of a bus if they are safe?  Some companies have a private policy of no retreads on a steering axle.  Why?  No one provides a clear answer to that one, but I have a pretty good guess.

IF retreads are truly safe then what about all the retread debris you see on the side of the highways aka – roadside alligators?  Most of us know those to be leftovers of a delaminated retread tire.  But the retread groups claim that the rubber pieces you see on the road come from both new “virgin” and retreaded tires in equal proportions to their usage on roads (They have not shared the data).   That claim does not fit with my past experience as a commercial truck driver.   Those lobbying groups claim to have additional studies indicating that the main cause of the roadside debris is from tires being improperly maintained, under/over inflated, road hazards, potholes, and driver operational error.   My experience begs to differ especially when I see long strips of retread materials along the roadway that have become unglued.

If retreads are a safety hazard, why do many trucking companies use retreads?  Is it because they are better and safer?  The real answer is: retreads are cheaper.  You can get a retread for 30-50 percent less than a new tire.  Retread supporters claim that retreading truck tires saves the trucking industry over $3 billion each year, but at what expense?

Let us know about your experiences.

 

GRASS CLIPPINGS – JUST LIKE GREASE TO MOTORCYCLE TIRES?

Q.  Is it illegal for people to blow their grass clippings onto the roads in Indiana? Thank you, Brian Russell – ABATE MEMBER.

A.  While no state law directly prohibits blowing grass clippings onto public roadways, there maybe city and county ordinances barring the practise. Keep in mind that grass clippings blown onto roads are not only an eyesore but also a hazard to motorcyclists. Engineers have calculated the coefficient of friction of fresh grass clippings – almost as slick as grease. So while you may not be in violation of a law, you may have created a condition that could cause you to be liable for injuries caused  by your clippings.  Here is why.

Lawsuits have been filed against property owners claiming that covering the roadway with grass clippings creates a dangerous situation.   Especially dangerous are wet grass clippings.  Some say they are akin to riding over a sheet of ice.  And a swirling vortex of grass in the eyes creates its own problem, especially if you are a motorcyclist.  A lawsuit filed in Plainfield, IL by a woman passenger on a motorcycle claims the motorcyclist lost control after they hit a patch of grass clippings blown into the street by a homeowner.  The passenger sued the homeowner for negligence.  See the attached case. http://patch.com/illinois/joliet/plainfield-woman-injured-motorcycle-wreck-claims-discarded-grass-clippings-caused-crash-lawsuit

So even if no city or county ordinance bars the practise of blowing grass clippings onto the road, the lawyers will be waiting for you if you do and someone is injured.   I can almost guarantee that you will get sued if a motorcyclist is injured because of your grass clippings.

 

UNINTENTIONAL BRIBE FROM A MOTORCYCLIST?

Q.  While riding my motorcycle, I got a ticket in northern Michigan. The cop asked for a cash payment of $50.00 on the spot. When I informed the officer that I didn’t have $50.00 cash, the cop asked if I had any money at all. I only had a couple of bucks with me, so the cop took my license and told me I would get the license back after the ticket was paid. I think that sounds bogus. Have you heard of this? ABATE MEMBER.

A.  Surprisingly, that’s the law. Most states are members of an interstate compact for enforcement of traffic tickets. That is fancy lawyer talk for let’s collect more money for the state. If you don’t appear in court and pay the fine, your home state will be notified and will suspend your license until you deal with the out-of-state ticket. The Driver License Compact (DLC) also provides that the home state treat the offense as if it had been committed in your state, applying your state laws to the out-of-state offense. The action taken includes points assessed on a minor offense such as speeding and suspension of license or a major violation such as DWI/DUI. Not included are non-moving violations like parking tickets, tinted windows, loud exhaust, etc. All states are members except for Georgia, Michigan, Wisconsin, and Tennessee. Nevada repealed the authorizing legislation, though it still generally conforms to the agreement through regulations.

Even though Michigan is not a member of the interstate compact, the officer is authorized to receive from the alleged offender a cash bond to secure the appearance in court to answer for the ticket. If the offender cannot post the bond (in cash, on the roadside) the officer is empowered to retain the offender’s license to guarantee appearance. The cash bond cannot exceed $100.00. The officer must then issue a receipt for this payment and the cash bond will be returned after the ticket is satisfied.  Payment of the bond is not an admission of the offense, and you are free to return to the county of the infraction to contest the ticket at the time of the scheduled hearing.  Some officers will even accompany you to the nearest U.S. Postal Box and mail the bond and in some cases the fine.

I got a speeding ticket in Southern Illinois once and had the cash for the fine, which I gave to the officer per his request.  I was then directed to follow the officer to the nearest mailbox while he allegedly put my cash into an envelope and mailed the fine.  But the cynical me always wondered, did he really put my cash in the envelope? I will never know.  Interestingly, no points were ever put on my record – hmmm.

 

ROADHAZARD.ORG – WINTER REPAIR, ROADS AND MORE ROADS

 

With the winter behind us we are starting to see our roadways under repair. Thankfully the mild winter was  nice to us this year, but there are still areas that need to be reported to our local Street Departments and action centers.  Please take the time to report these hazards to RoadHazard.org and we will do all the legwork. We have been receiving feedback that the distressed areas we report are generally fixed within a two week time period.  Do yourself and your fellow riders a favor and report any roadway, intersection, transition, bridge etc. you deem unsafe or hazardous to RoadHazard.org and let us help us help you.

 

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your 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  © 2016.

 

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Ask Our Lawyer March 2016

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 

COULD ISAAC NEWTON HAVE BEEN WRONG? TRAVELING UPHILL ON YOUR HARLEY IN NEUTRAL

 

I constantly find myself searching for a new riding experience and recently found one from my collection good enough to share.  On one of those wonderful warm early winter days this year that begs you to ride, I headed off to Mooresville Indiana in search of Gravity Hill on my side/hack shovel.  Heard about it for years, but just couldn’t believe the tale.  Namely that you can put your bike in neutral and it will roll uphill.  No way and dubious all the way there as I am an Isaac Newton disciple.  How can you put your motorcycle in neutral and watch it coast uphill without power?  I did and so can you.  It is an amusing and confusing experience. (to get there MapQuest 705 Keller Hill Road Mooresville In.)  Here is what I did.  I followed IN 42 out of Mooresville until I hit Keller Hill Road, just a few outside of town.  I turned onto Keller Hill Road and traveled a ways; stopped and put my shovel into neutral.  And then it happened – I actually started rolling backwards – uphill.  Uncomfortable with that I did a U-turn and tried going uphill with no power facing forward.  Slowly at first, but then faster and faster getting  up to 20 mph before I got back to IN 42 .  Like a little kid I did it over and over till I had to get back to the office.  Isaac should be scratching his head on that one!

 

 

 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 January 2016 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.]

 

DOGGONE DOG LAWS OR PINK PANTHER’S “IT IS NOT MY DOG DEFENSE” DOESN’T WORK IN SOME STATES

  1. 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? ABATE MEMBER.
  2. 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 (then) 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 – absolute dead center. And that almost never happens.  The usual collision causes your bike to go head over heals, 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 cat 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 searching for the law on responsibilities of “dog harborers” don’t stop with state laws (statutes). Counties in some states have enacted ordinances that provide legal responsibilities to the owner of the property, even where the dog is owned by a tenant.  It some states it is sufficient that the property owner knows that a dog is running loose and could be a problem. The idea is that the land owner has control of his property and can make sure the renter’s dog is secured.  Other states, like Indiana,  work hard to protect dog harborers and nearly require dog ownership before liability is imposed.

The good news is that in most cases, home/business insurance policies, provide coverage for your personal injury and property damage to your bike as a result of a loose dog. 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 about the dog, I know a lawyer that knows all about your rights.

 

MOTORCYCLE POSTTRAUMATIC STRESS DISORDER – ANOTHER STORY

A while back, I wrote a story about a good friend of mine who had a traumatic experience while riding and gave it up, which was stunning to me and his other fellow riders. Here is the story: while on his weekly ride, his good friend was killed by a couple of racing drivers. My friend is a guy that had more miles on a motorcycle than just about anyone I know – including me. I concluded that  more is going on with him than meets the eye. Motorcycling was his life. How could he quit and so suddenly? And what would cause such a drastic decision in his life?. Using the experiences of clients I have had over the years, I suspected the root of the evil was a form of posttraumatic stress disorder -( Dr. Taylor here). My experience is that many of these riders return to riding at some point in their lives, but not until, they, on their own or with the help of others, work out the “stress issues” with losing a good friend while riding.  We all have to realize that the meteorite can get us – unlikely, but it still can happen – same with riding a motorcycle.  As Forrest says, “it happens”.

Interestingly, I have observed others who seem impervious to the “stress disorder” and go about putting their life back together even better than it was before. “Ron” is the poster biker for a fellow that gets hit on his motorcycle, and honestly believes that his life has become better for it. He was run over by a person who was not paying attention. Many surgeries and infections later, his right leg was removed below the knee. Now he is living life with the gusto of a man many years younger having become heavily involved in his church and the needs of his family. He has been an empty nester for many years now, and has replaced the requirements of his graduate engineer daughter with seven dogs. I think it is fair to say they are having a hoot. And did I mention that he continues to ride? Why is he and those like him different than the others? I wish I knew so that I could bottle his attitude and pass it on to those of us that need it desperately.

 

AFTERMATH — INSURING A BIKE YOU ARE RESTORING

  1. Rod, I read your article about the person who lost a bike in a garage fire only to discover that he did not have coverage for that bike under his homeowner’s policy. In that case, the insurance company pointed to an exclusion in the policy that disallowed coverage for loss of the motorcycle in a fire. The insurance company took the position that even though the bike was being restored, that it was excluded under the homeowner’s policy and needed a separate policy as a functioning vehicle. You advised us to request that the bike be placed on an additional schedule much like other valuables out of the ordinary, e.g. gold coins, valuable jewelry, rare guns etc – especially if the bike was in pieces or in the process of being assembled. Guess what? When I tried to do that my insurance company insisted that they would only cover the bike we are restoring if we insured it as an operating motorcycle. What gives and what can we do?

– ABATE of OHIO member.

  1. We need to educate the insurance companies much like we did with Farm Bureau. It makes no sense that when we have a bike in the process of being assembled or put together from swap meet parts, that we can’t get coverage for parts that we obtain over a period of time. Certainly we can’t plate a bike like that until it meets state standards. For bikes that are ineligible for plating, consider scheduling the most valuable parts i.e. transmission, engine, tanks and frame on your homeowner’s policy. If the insurance company is dug in on insuring the bike as a motor vehicle, consider a company with seasonal insurance, so you do not have to pay for liability coverage while the bike is in an un-restored condition. Some insurance companies will assign a value to the bike especially if it is a vintage bike and insure it for that value regardless of ridability and plating. Let me know if this works.

 

ABATE LEGAL ON FACEBOOK

If you missed out on last month’s Gas Card Giveaway don’t fret, we will be doing similar Facebook related promotions throughout the year.  Congratulations to Jean Norris of Indianapolis, IN and Mike Walter of Owaneco, IL on each winning a $25 gas card this month!  In addition we would like to thank Monica, Abate of Illinois, for her kind FB post regarding our article and services:

“When my ABATE newsletter arrives in the mail each month I always read the Ask Our Lawyer column by Rod Taylor first. Love the straight forward answers and professional advice he provides for questions he receives. I am excited that you have a Facebook page now and I am sure I will enjoy it as well. KNOWLEDGE IS POWER!!”

 

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your 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  © 2016.

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Ask Our Lawyer February 2016

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 

MARVELS OF MARVEL MYSTERY OIL – A SECRET MUST FOR MOTORCYCLE WINTER STORAGE

 

When it gets so cold out you know you will not be riding for a few weeks, stop by an auto parts store or a Walmart and get a quart can of Marvel Mystery Oil. Pour almost the whole can in the gas tank (save about 4-6 tablespoons for later), and then fill the tank up completely with fuel. The Marvel Mystery Oil will act as an upper cylinder lubricant. (This stuff has been around since the 30s, and I still don’t know how it works. Air cooled air plane engines love the stuff. And we all know that the airplane guys got the idea for aircraft engines from us motorcycle guys.   If you want to unstick some valves or lubricate sticking valves, this stuff works like magic.   Paul Romine, the guy who remanufactured Ford engines for Ford in the midwest and a NHRA Champion, swears by the stuff, and that’s enough for me.  -Rod)

Remember that 4-6 tablespoons of Marvel Mystery Oil we held in reserve? Now comes the time to use it. Pull the spark plugs out of the engine, pour a tablespoon of Marvel Mystery Oil in each cylinder, and turn the engine over by hand several revolutions in order to spread the Marvel Mystery Oil around the cylinder walls. Reinstall the spark plugs. Simple steps like these will keep your bike ready for this spring and many more to come! Especially if you own a shovel.

 

ABATE LEGAL ON FACEBOOK

 

ABATE Legal is getting with the times as we recently set up a Facebook page.  Come find us and get registered in our gas card giveaway this month!  We will be giving away two $25 gas cards, and all you have to do to get registered in the drawing is “Like” our ABATE Legal page.  Don’t worry, we will also submit an entry for anyone who was on the ball and liked us before this promotion.  Also, please feel free to share any motorcycle articles, videos, etc. you think we should take a look at. Thanks and good luck in the drawing.

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 type 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 (Also remember last month’s article about a similar situation involving David Hendy, long time ABATE 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.

 

WHERE THERE’S A WAY, THERE SHOULD BE A WILL

 

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.  ABATE of Indiana Member.

 

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. And remember, we do wills for ABATE members for free!

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

  • – 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 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 have to be met to ensure that the will is valid. In general, the will has to be made by someone over 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, the court will make sure it is valid and provide appropriate orders to insure the will’s instructions are carried out.

If you don’t have a will, or want to make changes to your will, call ABATE Legal at 1-800-25-RIDER or submit via the ABATE Legal website, abatelegal.com.

 

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your 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  © 2016.

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Ask Our Lawyer January 2016

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 

HOW TO DEAL WITH A TRAFFIC TICKET THAT IS WRONG

 

David Hendy, long time ABATE member, got a ticket on his 94 Dyna Glide.  He called for advice and here is his story.  While heading down a Chicago street with three travel lanes but two of which were not marked,  David notice a police officer writing a ticket up ahead and off to his right. He was aware of the rule to make way for the police officer.  He slowed to a safe speed, moving as far left as he could safely, to give the officer more room.  That officer stopped writing the ticket and stepped out in front of him  and cited him for not moving into the unmarked adjacent lane which was occupied by another vehicle.  David believed that the ticket was wrongfully issued as he did all he could do safely to give way to the officer (I wonder if louder pipes had anything to do with it?)  David requested our advice as to how to defend the ticket as he did not want to plead guilty since he believed he was in the right and did not want points assessed against his license.  Even though he protested vigorously at the scene, the officer did not accept his explanation, but did seem somewhat perplexed when the non marking of lanes was raised as an issue.

Even though you may not have time to screw with it, my stock advice to all is to never, ever pay a wrongfully issued ticket for a lot of reasons – principles, points, adverse impact on CDL holders etc. Same here, even though David could have paid it or sought deferral which would have nixed any points and saved him a lot of time and trouble. Dealing with the court system in downtown Chicago is not for the faint of heart.  David wanted to fight it and good for him.  We armed him with the basics; list the facts chronologically for the court, bring photos of the area and tell your story to the judge. And if you have a perfect driving record bring a copy of it to parade before the court. It is usually thought not to be relevant, but most judges will let you have your say.   He went to traffic court fully armed with a defense to the citation, but the police officer failed to show, which happens in cases where the police officer facts are thin.  When the officer failed to show the judge threw ticket out.  Many officers will not show up for trial regarding questionable traffic citations.  In those cases the court will almost always dismiss the ticket as they can usually read between the lines.  In this case, the day was won by David, his principles and the facts.

 

BEING NICE FOR A REASON – UNDUE INFLUENCE AND A PARENT’S WILL

 

Q: My mother lives out of state and has been assisted in her day to day 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 changing her will to leave the estate to the next-door neighbors who have been helping her. What can I do to prevent her from doing that? ABATE 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 your mother is declared legally incompetent, you can’t prevent her from changing her will.

However, there are alternatives. A will can be disregarded by the Courts in probate proceeding if there had been “undue influence” on the testatrix during the drafting of the will. That is, if the writer of the will was being manipulated or coerced into changing the terms of the will or the beneficiaries of the will, then the will can be challenged in court. If you can produce evidence that you mother was being unduly influenced by her neighbors to change her will, then the new will may be thrown out and you may be able to use the previous will.

 

COPS JUST DOING THEIR JOB – THE BAD IS YOUR EX

 

Q: I’m being investigated by the local cops. The allegations are bogus, but they won’t tell me who made the charge. [ex-girlfriends and ex-boyfriends are notorious ill-informants] The police will only say it was confidential information. Is there anything I can do? ABATE MEMBER.

 

A: Probably not. In most cases, the identity of informants can be kept confidential unless and until formal charges have been brought and that informant is identified as a witness. Until then, it is difficult, if not impossible, to learn the identify of that person.

That does not mean, however, that there are no limits on what an informer can do. If the identity of the informant is known, and the information given to the police is false, the informant can be sued for defamation.  And if the informant is lying, the prosecutor can bring charges against the informant for providing false information to the police.

 

 

DOGS HAVE SEARCH LIMITS TOO

 

Q:        I’ve seen on several occasions that a police officer will use a dog to sniff a car or bike that has been stopped for a traffic stop to see if there are any drugs. I would like to know if there is any research determining if drug sniffing dogs employed by police during traffic stops are actually detecting drugs or whether they are doing what their handlers want them to do.  Do you have any thoughts?  ABATE MEMBER

 

A:        You’ve raised an interesting issue. I haven’t seen any cases on this question lately but if a person has been arrested on a drug possession charge in a case like that, they could file a request to see the training records for the dog that did the sniffing. Records of training for the dogs should be available to see if we have a real drug dog or a plant.

Some cases have held that the police can use a dog during a traffic stop, but cannot prolong a stop just to bring a dog in. In other words, the police have to have a reasonable cause to detain you past the period necessary to deal with a traffic stop, and so would have to have probable cause before the dogs can be brought in. However, if the dog is already on the scene, the officer can have the dog sniff the car while the traffic stop is in progress.  That is if he is really a drug sniffer.

 

TOP REASONS A.B.A.T.E. LEGAL WAS CREATED BY THE BOARD

 

ABATE LAWYERS really ride. They are motorcyclists representing motorcyclists. They know and understand the issues involved in motorcycle cases.

They are staffed by experienced expert trial lawyers who have handled thousands of serious cases in the United States and Canada. Experienced investigators and former insurance company claim managers fill their ranks. They know how the other side thinks. That gives A.B.A.T.E. Legal the experience needed to be successful in handling your case. The more information about the adverse, the better.

A.B.A.T.E. Legal lawyers have the highest ratings and respect of their peers.

A.B.A.T.E. Legal is the lawyer for A.B.A.T.E. and serves as general counsel for its officers, directors and volunteers. In that role, it serves without pay – just like the rest of the A.B.A.T.E. volunteers. And all ABATE officers and clients have Rod’s cell number.  If he does not call you back right away, you can assume he died. How many of you have a lawyer’s cell number?

A.B.A.T.E. Legal has drafted hundreds of wills for A.B.A.T.E. members FREE OF CHARGE.

A.B.A.T.E. Legal gives legal advice on personal legal issues experienced by its members – FREE OF CHARGE.

A.B.A.T.E. Legal created Roadhazard.org, which has saved countless injuries to bikers and damage to their bikes.

AND BEST OF ALL, as a member of A.B.A.T.E. you and your family pay only 28-1/2 percent of the recovery for personal injury or less. Most other lawyers will charge you 33-1/3 percent to 40 percent or more.   We notice that often times the adverse party to a crash does not have adequate insurance to pay for our members losses.  In that case our lawyers need to be even more flexible and charge even less to get the job done.  Try that with the other lawyers who won’t give you their cell number.  Many times our members have mistakenly hired other lawyers who they thought were ABATE lawyers working for ABATE reduced rates.  They found out too late that they were not ABATE lawyers and would charge a higher rate. Just try to get the non ABATE lawyer to reduce his rate to the ABATE rate.  Hire the lawyer that works best for you, and why pay more?

 

 

 

 

 

WHERE THERE’S A WILL, THERE’S A WAY – HENRY GELDMEIER PASSED AWAY AND GAVE TO ABATE

 

Henry Geldmeier took the ABATE RIDER COURSE many years ago.  Did not know him well but knew that he was an owner of a grain elevator.  He lived alone, with his motorcycles.  And he saved his money – more money that most.  And he was good hearted to those that made a difference in his life .  Henry’s will directed that five thousand dollars of his estate be set aside to ABATE in remembrance of the good they do.

So do you want to remember your favorite motorcycle rights organization like Henry did?

When you make out your will, you can include a gift to your favorite MRO. Whether it’s your state ABATE organization or some other MRO, your support in your will ensure that your love of motorcycling is carried

  1. So set aside an amount that you can afford. Even if it is  a  $100.00 or $1,000.00 or just your favorite bike, you help insure the future of motorcycling in America.

 

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your 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  © 2016.

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Ask Our Lawyer March 2013

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

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

Q.   Rod. We are having a Poker 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? P.L. ABATE 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 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.

JULIE BACON TREASURER OF A.B.A.T.E. OF ILLINOIS – BOSSY PANTS?

I don’t think so. As a matter of fact she is right on and doing her job, and no one has ever done it better.

Q.   Last week Julie and I had the following conversation. “Rod, what can we do to eliminate calls from our Chapters (Regions in other states) that complain that a local treasurer/assistant has “borrowed” money from their local ABATE account.

A.   The problem is that “honest people are trusting people” and as such we are vulnerable unless we strictly follow the rules implemented by most not for profit corporations. As Julie and I discussed, the solution is very simple. RULE 1: Follow the rules. RULE 2: Require dual signatures on all ABATE checking accounts. RULE 3: Require bonding for accounts that will have balances over $5k. Bonding is cheap and it spares us of having to eat our own. If you have a loss, simply report it to the bonding company. They will send you (Chapter or Region) the money lost and will collect the amount “borrowed” from our errant money caretakers. Believe me, those folks are brutally efficient at collecting amounts taken. People like “Luca Brasi” work for them and some of them are lawyers. The only problem is that bonding companies are particular as to the individuals they will agree to bond, as they like making money. Come to think of it, a rejection by a bonding company may be a good way to delegate the asking of and receiving answers to embarrassing questions of one of our fellow members. RULE 4: If the member can’t get bonding, should they be handling our money? I don’t think so, unless you are willing to suffer Julie’s wrath when you call her to report the loss. She is getting good at saying, “I told you; just follow the rules.”

JULIE’S SIMILAR QUESTIONS FROM YEARS AGO

Q. We have been hit by yet another round of misappropriations in our A.B.A.T.E. local organization by someone we trusted. What can we do to make sure this does not happen in the future? Julie Bacon, Treasurer, A.B.A.T.E. OF ILLINOIS

A. Probably nothing to guarantee that it never happens, but there are several things we can do to minimize the chances and the amounts at risk. Here are some simple rules.

  1. Don’t let people who desperately need money handle the money. Get a credit check from those handling the funds. There should be no privacy issues when it comes to those handling our life blood of the organization – dollars.
  2. Even if you get a good person to handle the money – get two of them for a check and balance. Always require dual signatures on any checks.
  3. You should bond any money transactions over the amount you can’tafford to use. Bonding is cheap compared to the risk. The local A.B.A.T.E. organization should decide the threshold of its pain – namely what amount can it afford to lose through misappropriation and then bond over that amount. The good part about bonding is that the bonding company will get a credit history from these persons and will be responsible for getting the money back if there is a theft. The bonding company will ask the questions that we are usually embarrassed to ask. In short, they will screen our people for us. Of course, they will pay us up front if we have a loss. Bonding is cheap compared to the alternative.
  1. The reason for number 3 above is that A.B.A.T.E. does not have to be the bad guy. In other words, we do not have to eat our own if we have someone that betrays our trust.
  2. What do you do when you think we have been had by a person entrusted with our funds? Nip it in the bud. Worst case is that you embarrass yourself by asking the “who, what, when and where” questions. If you have done your job with A.B.A.T.E., you will have followed our loss procedures and the theft will be minimal. If you have required dual signatures and one signature was forged, the bank will be responsible for the loss, and you have done a good job for A.B.A.T.E.
  3. What do we do when we find a theft? Do we hang/prosecute them or? A policy should be followed that takes into account our legal requirements, but also should allow for explanations for the failure of trust. Remorse, mistakes etc., should be evaluated. When in doubt, call us for advice. Julie and I have been through this too many times, and we are here to help you through this tough situation.

What are the reasons for the going through all of this? A.B.A.T.E. needs the money – that is our life-blood for what we do. But most importantly – to protect, preserve, and defend the integrity and credit the worthiness of A.B.A.T.E. The world needs to have confidence in our business practices.

BIKER CHICK

Once upon a time, there was a bantam rooster. Since it looked different than the regal all white Leghorns, about a third of their size and brownish, it pretty much lived a life outside the chicken world being that he was the only one of his tribe in that flock. I think he decided that since he was not one of them he would hang with us – the need to belong somewhere must be universal. And he even had a name – Chicken George. An amazing thing was that he had learned to ride on a platform in front of the handlebars of a bicycle. So it didn’t take much for it/him to transfer the bicycle perching skills to motorcycle perching skills. Here is how that happened. One summer, a neighbor had some friends visit from the Chicago area. They brought with them motorcycles that needed stored “for a while”. I didn’t know then, what I probably do know now, about those motorcycles. Just guessing but I am reasonably sure, now, that then, there was some confusion as to ownership. So for one good part of a summer we had to make sure that these motorcycles were properly exercised – for the rightful owners of course. And so did the biker chick. Nothing more amusing than watching this biker chick perched at the top of a buddy seat on an old knuckle going down the road at about 50 mph. Something about the wind I guess, especially when you have small or no wings.

Ride Safe and Free,

Rod Taylor
ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegalcom. © 2013.

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Ask Our Lawyer February 2013

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

DOGGONE DOG LAWS OR PINK PANTHER’S “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 heals, 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 searching for the law on responsibilities of “dog harborers” don’t stop with state laws (statutes). Counties in some states have enacted ordinances that provide legal responsibilities to the owner of the property, even where the dog is owned by the tenant. For example, an Ordinance in Howard County, Indiana provides for liability of the owner of business property, when that owner permits a dog to roam free on the property even when that dog is owned by another.   It is sufficient that the property owner knows that a dog is running loose and could be a problem. The idea is that the land owner has control of his property and can make sure the renter’s dog is secured.

In most cases, home/business insurance policies, 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.

MOTORCYCLE POSTTRAUMATIC STRESS DISORDER – ANOTHER STORY

A while back, I wrote a story about a good friend of mine who had a traumatic experience while riding and gave it up. While on his weekly ride, his good friend was killed by a couple of racing drivers. My friend is a guy that had more miles on a bike than just about anyone I know – including me. Doctor Taylor here, concluded that surely more is going on with him than meets the eye. Motorcycling was his life. How could he quit? And what would cause such a drastic decision in his life. Using the experiences of clients I have had over the years, I suspected the root of the evil was posttraumatic stress disorder. My experience is that many of these riders return to riding at some point in their lives, but not until, they, on their own or with the help of others, work out the “stress issues”. And “we” have to realize that the meteorite can get us – unlikely, but it still can happen.

Interestingly, I have observed others who seem impervious to the “stress disorder” and go about putting their life back together even better than it was before. “Ron” is the poster biker for a fellow that gets hit on his motorcycle, and honestly believes that his life has become better for it. He was run over by a person who was not paying attention. Many surgeries and infections later, his right leg was removed below the knee. Now he is living life with the gusto of a man many years younger having become heavily involved in his church and the needs of his family. He has been an empty nester for many years now, and has replaced the requirements of his graduate engineer daughter with seven dogs. I think it is fair to say they are having a hoot. And did I mention that he continues to ride? Why is he and those like him different than the others? I wish I knew so that I could bottle his attitude and pass it on to those of us that need it desperately.

MISSOURI SENATE BILL 897 – NO MORE MOTORCYCLE ONLY CHECKPOINTS

Since ABATE, MRF, AMA and other motorcycle rights organizations have gotten involved, 5 states have outlawed the practice of federally funded motorcycle only checkpoints. I have written about this practice in the past when it first started showing up in New York, Illinois and other states. What better way to ruin your day of riding than a federally funded police officer getting federal funds for his overtime gig to cause you delay or deter you from attending your favorite motorcycle event? Now Missouri has introduced legislation to join the other “outlaw” well thinking states. Looks like we have only 44 more to go if Missouri does as the other five. If you need help in your state getting legislation introduced to eliminate this unwarranted practice let us know.

ROADHAZARD REPORTS

With the freeze and thaw, there will be numerous potholes and dangerous riding conditions. Take a moment out of your day to report these adverse conditions to RoadHazard.org. Looking out for others on the open road might just come back and look out for you!

From time to time we will commend people and companies that are proactive in helping to keep our roadways safe. This month we thank BNSF Railway for its quick action in repairing a very dangerous railroad crossing. The crossing, located on Somonauk Road/DeKalb County had a huge pothole 18 inches wide by 3-4 inches deep. Rebar was visible in the bottom of this small canyon – waiting on you to show up! After notifying BNSF Regional Director of Public Affairs, Amy McBeth, we were kept up to speed as to the improvement of this crossing which was completed in less than two weeks. Impressive! Thanks again to BNSF and Amy for their very timely and responsible actions!

ON THE LIGHTER SIDE

In a trial, a small-town prosecuting attorney called his first witness, a grandmotherly, elderly woman to the stand. He approached her and asked, ‘Mrs. Jones, do you know me?’ She responded, ‘Why, yes, I do know you, Mr. Williams. I’ve known you since you were a boy, and frankly, you’ve been a big disappointment to me. You lie, you cheat on your wife, and you manipulate people and talk about them behind their backs. You think you’re a big shot when you haven’t the brains to realize you’ll never amount to anything more than a two-bit paper pusher. Yes, I know you.’

The lawyer was stunned. Not knowing what else to do, he pointed across the room and asked, ‘Mrs. Jones, do you know the defense attorney?’

She again replied, ‘Why yes, I do. I’ve known Mr. Bradley since he was a

youngster, too. He’s lazy, bigoted, and he has a drinking problem. He can’t build a normal relationship with anyone, and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes, I know him.’

The defense attorney nearly died.

The judge asked both counselors to approach the bench and, in a very quiet voice, said, ‘If either of you idiots asks her if she knows me, I’ll send you both to the electric chair.’

Ride Safe and Free,

Rod Taylor
ABATE Legal Services

ABATE, though many know it not, is one of the greatest rights organizations ever; but what it reaches for, by far exceeds what it has achieved,

and what it has achieved is magnificent.

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegalcom. © 2013.

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Ask Our Lawyer January 2013

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

ALL BIKERS SHOULD BE “ROADS” SCHOLARS

ROADS SCHOLAR LESSON NO. 1 – It was bikers that returned glory to the Old National Road that cuts across the country, also known as U.S. 40. Its heyday was 1840, but by the middle of that century, the railroads had put it out of business. The traffic/business was so bad that the Feds turned the highway back to the counties to maintain their portion. That is until some unknown designed and built a new form of transportation – the safety bicycle. And it was Harley Davidson that made a myriad of those, before they figured out how to put a motor on that cycle and become part of transportation history and lore.

ROADS SCHOLAR LESSON N0. 2 –   The outcry of cyclists (without motors) in 1891 gave rise to better roads. Cycling clubs sprang up all over the U.S. resulting in the creation of state highway departments in the 1890’s.

ROADS SCHOLAR LESSON N0. 3 – Roads started simply – with ditches on the side and with varying sizes of gravel laid down with a “high” portion in the middle. The new style road was called a “high-way”. When concrete and asphalt came along, there also came a new road name, “the hard road”.

ROADS SCHOLAR LESSON NO. 4 – Farmers joined “cyclists” with a get the farmer out of the mud mantra”. Organizations such as the “Good Roads” movement joined with the legislators responsible for the U.S. Post Office. Post Roads were created, and so on it goes, but let’s never forget that it was us “two wheel” riders that started it all. So if you are ever asked “if you motorcyclists think you own the roads,” you might “think” to yourself, yeah, as a matter of fact.

SO YOU GOT A JUDGMENT IN SMALL CLAIMS COURT AGAINST THE BIKE SHOP THAT RIPPED YOU OFF – NOW WHAT?

Q.   Rod, I took your advice and filed suit on my case where the bike shop failed to fix my bike properly, leaving me with a big repair bill at another shop. I got a judgment, but have been getting the runaround on collecting the amount I am owed. What do I do now? ABATE OF INDIANA member.

A.   As lawyers are known to say, “ A judgment is only a piece of paper”. And they are right. So you now have a judgment, but that is only half the battle. Now you need to collect it. Generally, you can seize money from bank accounts, but in order to do that you need the court to order the debtor to answer questions about his assets including his bank accounts. By far the easiest way to collect your judgment is a wage garnishment – if the debtor has a job. Typically you can collect 25% of his wages until your judgment is paid. There are limitations on garnishments especially if another garnishment has been ordered. Remember to be nice to the court’s clerk. That person can make your collection life so much easier, and they usually know more than the lawyers.

Another way to collect your money is to talk with the debtor and try to work out a payment schedule. You might even consider compromising your judgment to save time and expense. And it may be that the debtor has some stuff you could trade for satisfaction in whole or part for your judgment. Let us know how this turns out for you and the lessons that you can share with us. If you take all or part of your judgment in trade, get the debtor to sign off on the deal or at least have him send you a confirming email/text and save it.

U.S. 66 – THE MOTHER ROAD FOR BIKERS AND PROBABLY FOR THE OTHERS TOO

After the advent of cycles in the 1890’s and the “motorized” Harleys in 1904, we had to get out and ride (after all the Model T’s did not come around until 1908). Where better than to follow the Old Santa Fe Trail, Jedediah Smith’s footsteps across California, and Beale’s wagon road across the South West? Later we poured concrete on it and called it Route 66, and now some of us call it the “Mother Road”. You can hear me say that no one should be allowed to die until they have ridden this road from Chicago to California – every mile of it. Nothing gives you motorcycle road fever more than being at the corner of Jackson Blvd. and Michigan Ave. in Chicago (the beginning of Route 66) for your start to California. And nothing feels better than to arrive at the Santa Monica Pier (the end of Route 66) after a whole bunch of wonderful riding miles. A celebratory option is to take a leak off the Santa Monica Pier in celebration of the best road trip ever. That celebration should be a defense to any charges under California law, especially if you are discrete. Tell them I said so. In future articles, I will write about portions of the road and why that road is so important to us bikers.

ROADHAZARD.ORG GOES MOBILE

ABATE Legal is developing a mobile app for reporting road hazards.

This app will allow you to take pictures, use your GPS location, and report needed information. With the availability of reporting dangerous roads at your fingertips, we hope to make our roadways smoother, safer, and hazard-free.

FROM BRIAN SHADIOW – ABATE LEGAL.

COMING SUMMER of 2013!

EXPUNGING UNCLE FRED’S CRIMINAL RECORD IN OH., IN. AND IL. – CAN YOU?

Q.   My uncle had a criminal conviction prior to being drafted into the U.S. Army back in the late 60’s. He was only 18 at the time of conviction. Since returning from the service, he has raised a wonderful family and led a good life and wants to get rid of this stain on his record. What can we help him do to get this straightened out? ABATE OF OHIO member.

A.   Most criminal records of arrest will never be expunged. However there are some instances where the law allows a unique and harmless criminal arrest experience to be silenced – forever. That process is called sealing of records. In other words, sealing is hiding the records from the public and expungement is permanent destruction of arrest records. That is the general difference between expungement and sealing. Why is this allowed, you ask? Because the stain of the alleged offense is often more painful than punishment for the offense and that is thought to be unfair to a good citizen that had a youthful moment. Adding to the confusion, it seems that each state has a unique rule regarding this process.

Let’s start with Illinois.   Here the legislature allows a process for erasure of some arrests so the accused can go about life as if the arrest never occurred. But no convictions in Illinois can be expunged – only non-conviction records like arrests. Even then any prior convictions for just about anything other than traffic offenses are show stoppers. So what can be erased in Illinois?

1. Arrests with no formal charges; 2. Cases that were dismissed or for which you were acquitted; 3. Cases in which you were convicted, but the conviction was later reversed; 3. Cases of successful court supervision and first offender programs and the like. With expungement, the records are destroyed or returned to the arrested person. In Illinois sealing is a different deal. In that case the records are not destroyed but merely hidden from the public, the cops can still see those records and use them against you in later sentencing hearings. The differences in sealing are that records of convictions can be sealed so long as those crimes were non-violent. As in most states, the last hope for serious convictions ia a pardon from the governor, who can order expungement of the records (destruction). The expungement process usually involves filing a petition in the circuit court where the case started.

In Ohio there is no such thing as expungement. The best you can do is to get your records “sealed”, and that will occur if you did not have any prior convictions. This means that most employers, landlords, and the general public will usually not be able to see your arrest and conviction records. The exceptions are law enforcement personnel and professional licensing boards. Usually no records of first or second degree felonies, offenses with a prison sentence or any violent offense can be sealed. Interestingly, no traffic offense can be sealed – thanks to the insurance industry.

In Indiana, there are only two ways (short of the governor’s help) to get an expungement of an arrest record. 1. You were busted but no charges were ever filed against you (this protects you from the cop whose ex-wife your were dating and who took exception). 2. You were busted and charges were filed, but all charges were dropped because; you were the wrong guy; no offense was committed; or there was no probable cause. This means that even if you were found not guilty, you are not eligible for expungement of your arrest/trial record because you do not fit into 1. or 2. above. Then what can you do? After 15 years, you can petition for limitation of access of your records to criminal justice agencies. For more, you are going to need a pardon from the governor, and for that, you better have done some very good things for your state, and have been a model citizen before and after your conviction. Indiana also allows restricted disclosure of arrest records usually where no prosecution occurs or a conviction is vacated/found innocent. The restricted disclosure rules are more lax than the harsh rules of expungement (destruction) of arrest records.

In most states there are specific rules for juveniles that have had a delinquent/criminal history. I will address this complicated area of the law in a later article.

THE END OF THE RIDE – WILL IT HAPPEN TO US?

This is about Dave Pedersen, a riding budding of mine for over a quarter of a century and a retired bank tycoon. He has given new joy to the concept of motorcycling . I wanted to write this piece for a while now, but I didn’t; read on and you will understand why. Dave has owned and ridden Harley Davidson motorcycles most of his life, and now he doesn’t. I will get into that later. He is/was not just a rider; he is/was hard core. With over 400,000 miles on a series of cycles, few people can best him in the iron butte category, and he has never had so much as a scratch. In his words, nothing but heavenly pleasure. His riding marked him. It was nothing for him to ride out to a HOG event in Washington state and then ride across the county to New Hampshire, within two weeks. In essence, his life was motorcycling and how. We have ridden lots of miles together and through everything. Rain, sun, more rain, lightning, lots of lightning, more sun – and in the middle of nowhere. Not even a tree to get electrocuted under. His son is still hard core into the passion of his father. So what is with the quitting thing? David is 68 years old and has decided that all good/wonderful things come to an end. He has concerns about his age and ability to keep it perpendicular. Maybe it doesn’t help that last spring he and his buddy were riding the mountains near Flagstaff when an errant individual decided to race down the mountain, lost control and hit/crashed with Dave and his buddy. The buddy died at the scene and Dave was lifelined to a hospital in Flagstaff. When Dave called to tell me of his bad luck, I was stunned to learn that he had sold everyone of his motorcycles and had retired from riding. I did not know what to say then and do not understand now. I know that posttraumatic stress disorder gets a lot of us, but not Dave, so I wonder if that is causing his exit from one of life’s pure joys. He is a rub dirt on it – norwegian type of guy. Stuff like that does not get in his way. As long as I can hold one leg up, I cannot ever see me doing what Dave has done – ever. But Dave did say in our closing conversation, “your time will come”. I didn’t respond as I am saving that for another time and my thoughts as to posttraumatic stress. If anybody has it, Dave does, but that outwardly tough guy is not buying it; and enough of that from me – Dr. Taylor.   But I wonder how many of us have experienced this problem? I will write about that another time.

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegalcom. © 2013.

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Ask Our Lawyer July 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

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 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, 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 am 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 Andre Lacy, a fellow motorcyclist, friend, owner of Tucker Rocky, Biker’s Choice and 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, Andre’s copy was repositioned.  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.

MIRACLE RIDE 2015 IN THE RAIN  – AND WOW THEY CAME ANYWAY

On ride day, we were anxiety ridden when the clouds and rain were predicted.  That is an almost new experience because for the last 20 plus years the no-rain gods have smiled upon the Miracle Ride.   This time, for the Sunday ride to Riley Hospital for Children and around the famous Indy 500, we were expecting the worst.  Not many my age, venture out into rain storms on purpose. We only do it when we are caught in it, or it is for a wonderful cause – like the kids at Riley.  Coincidently, my wife, Ann, has stopped calling me Weatherman Rod based on my lack of reliable weather predictions recently.  I had predicted clear skies.

Coming in to the back lot of Allison Transmission for the start of the Ride, only a couple hundred bikes were spotted – not a good sign.  Usually by that time, thousands would be present.  Celebration was the mood, and ABATE LEGAL would once again be serving  “Long’s”  famous donuts – free.  Life would be good and usually the kids at Riley Hospital would pack them in.  Not today, or so it seemed.  I started practicing the consolation speech that you give when things go badly.

Then, when barely enough time to  get lined up for the start remained, they started coming.  A few at first, then scores, then hundreds.  Before long, Tom of the Bob & Tom Show fame was entertaining his usual thousands.  They had come to help the kids at Riley – even in the rain.  I believe that is all you need to know about bikers and where their hearts rest.  We may not have set a Miracle Ride record this year, but we did for the Miracle Ride in the rain.

STATE REQUIREMENT OF MINIMUM INSURANCE –  IS NOT INSURANCE!

Roulette is what you should call the next time you ride to Mardi Gras or Bike week and  travel through Mississippi, where it is estimated almost a third of the vehicles in that state are uninsured.  Meaning that you are on your own if you get hit by one of those.  It boils down to –  how lucky do you feel?  And we have discovered that of those who are insured in Mississippi, almost 50% of those have the state minimum of 25k.  Some states have the nerve to call 25k insurance.  By any definition that is not insurance.  With a left turn in front of you,  a helicopter ride to the hospital, surgery for injury repair, lost wages, pain – suffering, and temporary impairment, 25k from the adverse driver is just enough to piss you off.  And to make matters worse, all of health insurers will have a priority lien on those proceeds.  So if your hospital bills exceed 25k guess who doesn’t get the money – you.

For any state to claim that 25k  (some states have even less) meets a minimum liability requirement based on potential damage caused is terribly misleading.  That state minimum goes back decades.  Shouldn’t it be updated to at least keep up with increasing medical costs, wages etc.?  An air-vac ride to the hospital can cost over 25k.  Since the state and insurance companies are not looking out for you, you have to look out for you by buying adequate uninsured/underinsured motorist coverage.  What is adequate?  As much as you can buy is my answer.  The costs to upgrade is cheap, cheap and wonderfully cheap.  I maintain that you should not ride in Mississippi, Florida and many other states where the numbers of uninsured/underinsured are breathtaking, unless you have adequate uninsured/ underinsured coverage.

There should be a law that disallows anyone to call insurance “insurance” unless the insurance amount is sufficient to pay for the harm caused.  After all, in most civilized countries, the rule is “if you break it – you should pay for it.”  And if you can not pay for the harm to the biker/motorist that you just ran over – you should not be allowed to drive.

Lets take a typical state insurance requirement where the state minimum is $25k per individual, $50k for all claimants, and $10k for property damage.  The average premium for this policy is

$48.20 per month, but without uninsured/underinsured coverage.  If you add that coverage, it costs only a little less than 4 bucks more or $51.93  per month.  On average it costs only about 10% more of your monthly payment to carry uninsured/underinsured coverage for the lower limits.

Significantly, the  cost to go from state minimum insurance to upgrade to the most popular coverage of $100K- $300K,  is less than $5.00 more per month.  And the cost to go from state minimum insurance to upgrade to the usual highest coverage of $500k was less than $12.00 more per month than the basic liability policy –  which is roughly 25% of your monthly payment.  And that is with uninsured/underinsured coverage.  By any definition – a good deal, especially when the little old lady (or man) that can’t see or hear – gets you.

MEDICAL BILL HELL

Q.  I was in an 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? O 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 medical bills  paid for you 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.  Basically, the insurance company will pay your bills now in exchange for the right to be paid from the proceeds of a settlement or judgment against the guy who caused the accident.  Almost certainly, your contract with the insurance company obligates you to reimburse them for the money they paid 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 great 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.

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com  © 2015.

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Ask Our Lawyer June 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

GOING TO A JURY

I get a lot of calls from people who have been summoned to jury service. Here are some thoughts on what to expect.

Why is jury service so important?

When you are called to be a juror, you become the most important person in our legal system. In the United States, our justice system is based on the belief that a just and fair result in court comes from having disputes settled by our fellow citizens. We have an obligation to our fellow citizens to honor the summons and appear at court. Some cases may be more important than others, but to the parties involved, their case is very important, and they deserve to have it decided by honest and impartial jurors.

How are jurors selected?

Usually, persons are called at random for jury service from the list of registered voters in a court’s geographical area. In some counties and in federal courts, the list of registered automobile drivers also may be used. Jury trials are held in the United States district courts, the county circuit or superior courts, common pleas court, the municipal courts, or county courts.

What are the different types of juries?

Most jurors will be selected to serve on a petit jury, one that is selected to hear and decide a particular case. If the case is a criminal trial involving a felony (a more serious type of crime), the law requires 12 jurors. In a civil case, a smaller number of jurors (usually six or eight jurors) are selected.

Unlike the petit jury, a grand jury hears evidence about alleged crimes, usually felonies, and only decides whether or not a person should be indicted and tried for committing a crime. Also, unlike the petit jury, the grand jury does not decide guilt or innocence. If you are summoned to court to be selected for service on a grand jury, you will probably serve for a longer period of time than if you serve on a petit jury, although in most smaller counties, grand jury duty may only be once or twice a month for a three or four-month period.

What happens when I appear for jury service?

When you arrive at the court, you are directed to a particular courtroom or to an assembly area. Some courts provide a brief orientation talk or video to help acquaint you with the system. All prospective jurors take an oath or affirm that they will answer truthfully and fully questions posed to them by the judge and the attorneys during the selection process.

You are also told a little bit about case so that it can be determined if any past experience or bias might make it hard for you to be fair. You also have an opportunity to tell the court about anything else that might impact your ability to sit as a juror, including health problems, employment situations, and other obligations in your life. You have the right to respond to questions confidentially to the judge and attorneys, if you wish.

Generally, each side in a case has the right to ask that a certain limited number of jurors be excused without giving a reason. This is called a peremptory challenge. Each side also can make an unlimited number of challenges for cause, or for good reason. When attorneys make these challenges, it is not their intent to personally embarrass potential jurors, but to ensure that they engage jurors they believe will evaluate the case as fairly as possible for their clients.

Can I get out of jury service?

Where there is a will, there is a way, as they say. However, serving will give you an “up close and personal” view of the judicial system. Most states provide exemptions for certain occupations or conditions that would interfere with a juror’s ability to serve. If you don’t meet one of the exemptions, you will have to show up for duty and participate in the process.

It should be noted that serving on a jury will be one of the most patriotic events of your life and with representative participation in jury service by the populace having declined over the last several decades, jury service is more important than ever.

CRAZY IS AS CRAZY DOES – LOANING YOUR MOTORCYCLE

Q: My buddy wants to borrow my bike for a ride to Florida. He lost his license a couple of years ago and says he just got it back. Although he’s been riding for years, he’s never gotten his motorcycle endorsement and has had several accidents. He told me his insurance would cover the bike, but I’m kind of nervous about letting him on my bike.

A: And you should be, too. As we all know, most riders are extremely safety conscious, taking care to make sure that their bikes are in tip-top shape and that their skills remain sharp and focused. Unfortunately, there are those who don’t take those responsibilities seriously. While we are generally not our brother’s keeper, if we allow someone who shouldn’t be riding on our bike, his problem becomes our problem.

Generally, a vehicle owner is not responsible for the actions a person who is operating the vehicle. However, most states also recognize cases of negligent entrustment, which happens when an owner allows someone to operate the owner’s vehicle when that person is not qualified to do so. Allowing your buddy to take your bike may make you responsible for any accident he causes, if it turns out that he was unqualified and that we should have known that he was unqualified.

REVENGE FIRING – IS IT LEGAL?

Q: I work at a local manufacturing shop. I got hurt on the job recently, and filed a worker’s comp claim. Shortly after I returned to work, I got fired, and I don’t think they had any reason. Also, when they fired me, they didn’t pay me my accrued vacation pay. What can I do?

A: Maybe quite a lot. One of the first issues to consider is the reason or reasons you were fired. Generally, employers will give some explanation as to why an employee was being fired. Most states, including Ohio, Indiana, and Illinois, have provisions in their statutes that forbid so-called “retaliatory discharge,” or being fired for filing a worker’s compensation claim. While it may be obvious to us to make the connection between the worker’s comp claim and the firing, the employers will often attempt to justify the discharge with evidence that there were other reasons for the discharge. Good record-keeping and sympathetic witnesses can help overcome this hurdle. Penalties for retaliatory discharge can include back pay, reinstatement, and attorney’s fees. In addition, the wage claim statutes in Indiana and Illinois also require that, upon discharge, employees are compensated for accrued vacation time, usually by the next scheduled payday. Failure to do so may lead to additional penalties and an award of attorney’s fees. The answer is much less clear under Ohio law and may depend on whether the employee is covered by a collective bargaining agreement or employed by a state or municipal agency. There may be disagreements, however, over whether the time has been accrued or not, or how much has been accrued. It is important that you speak to someone about these issues as soon as possible to determine your rights and remedies.

LITIGATION FUNDING, OR HOW DOES AN INJURED BIKER PAY THE MORTGAGE WHILE THE CASE IS PENDING?

Everyone knows that litigation can be expensive… very expensive. Often, plaintiffs with a strapped budget have a much harder time riding out the storm until a settlement is reached, potentially causing them to settle for less than their case is really worth. Plaintiffs that have sustained injuries and are now disabled may very well need money to live on during the interim period before they receive their settlement. Moreover, an insurance company, or other wealthy litigant, will probably be in no hurry to settle until they reach an agreement more in their favor, regardless of how long that may take. Regretfully, this is where litigation funding may be of service.

Litigation funding companies may advance a plaintiff money for living expenses, medical care, or for whatever else the money is needed, for a stake in the final settlement. This type of lending is non-recourse, meaning that in the case the plaintiff loses, they owe nothing to the funding company. They are only liable for repayment from the settlement money they receive. Of course, this is not all bliss, and should only be used as a LAST RESORT. The interest a client will owe on the advancement will reach what feels like adding insult to injury, as the interest rate can exceed 100% with no cap.

These companies decide interest rates and the amount they are willing to advance based on the merits of the case. So the stronger the case, the better deal the plaintiff will receive. The longer the case takes to settle, the higher the effective interest rate is going reach, which begs the question, “does this really level the playing field?” Well, maybe in some cases, and maybe not in others. The industry now lends plaintiffs over $100 million a year and remains unregulated in most states. Litigation funding companies are free to ignore laws that protect consumers who borrow from lenders and assert that they are not lenders, but investors. This argument seems to have persuaded regulators in many states. The biggest issue with legal financing is a general lack of transparency in transactions and providing full disclosure to plaintiffs. The industry has recently taken steps to demystify their respective businesses by volunteering to be regulated—albeit on their own terms.

For now, we think the verdict is still out on litigation funding. In the meantime, here are a few pointers if this seems like an option you might want to pursue:

  • Talk with your attorney and discuss options before making any decisions.
  • Exhaust all other means of financing first, as this should be a last resort.
  • Make sure the lender is a licensed financial institution.

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com © 2015.

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