Ask Our Lawyer – December 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

STATE FARM AGENT LIKES ABATE ARTICLES – HERE IS WHY

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

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

HOW TO DETER OR CONTROL STEALING BY THOSE HANDLING ABATE MONEY

This article is based on a conversation between Gino Johnson C.P.A. and Jay Jackson, Executive Director of ABATE of Indiana and Hardtail of the MRF, concerning  the security and accounting for checks written by the Motorcycle Riders Foundation (MRF).  For many companies the requirement of dual signatures is a solution and is what ABATE LEGAL has recommended to treasurers for ABATE organizations for years.  But Jay Jackson and Hardtail of the MRF asked Gino to discuss the situation where dual checks may not work.  Here is Jay’s question and Gino’s  excellent response.  All treasurers (and those responsible for money) for any organization should memorize this advice.

Q. (From Jay Jackson to Gino Jackson) Unfortunately, being a national organization, geographically (MRF) we are spread across the country. It is not efficient, or perhaps not even feasible, to bounce around for signatures. Do you have any suggestions as to how to accomplish the same results (double signature) without physical signatures?”

A. (Answer of Gino) If it is not feasible for there to be two signatures, then the person writing the checks could make a copy of the checks written along with the invoices and send those with a copy of the bank statement each month to the treasurer or other board member. At least there would be a check and balance to the disbursements. Even if the recipient did nothing with the information, it gives the appearance that a review process is in place.

The income (of the organization) is also at risk.  The same person is going to be receiving the checks and depositing them.  It would be easy (for that person) to not record a membership and redirect a check to a personal account.   It is difficult to systematically verify the income is being handled correctly.   I suppose a listing of all payments for membership and donations received each month could be mailed with the expense reports referenced above.  Or if it is accounted for in QuickBooks a report can be generated from there.

We have started to recommend using Quickbooks online version.  It allows multiple people to have access to the books at any given point in time.  The downside is that it is a software as a service, which means there is a monthly fee instead of a one time purchase.

From Rod— Following Gino’s advice and Jays needs will assistance MRO organizations throughout the county.  Along that line we set forth some previous articles on the subject of honesty and proper accounting within MRO’s.

RULES OF JULIE BACON (former) TREASURER OF A.B.A.T.E. OF ILLINOIS

Q.  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 (See Gino’s exception above). 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 your (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 prediction. She is good at saying, “I told you; just follow the rules.” 

JULIE’S SIMILAR QUESTIONS FROM YEARS AGO – DO YOU SEE A PATTERN HERE?

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 the 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. (SEE GINO EXCEPTION ABOVE)
  3. You should bond any money transactions over the amount you can’t afford to lose. 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 may 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.  The mistake should be evaluated. When in doubt, call us for advice. Many treasurers and I have been through this too many times, and we are here to help you through this tough situation. Usually the bonding company sends Luca to the prosecutor’s office and takes that job away from us.

What are the reasons for 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 worthiness of A.B.A.T.E. The world needs to have confidence in our business practices.

THANK YOU FOR UPDATING MY WILL

 Just a note to thank you for the service you provided me in updating my will.  As I previously explained, it will make things much easier on my surviving three cousins upon my passing.  Once again, thank you very much for your help, and to ABATE members.

Respectfully, D. Collins, South Bend Indiana

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com © 2019.

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Ask Our Lawyer – November 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

ROAHAZARD.ORG, IT WORKS.

 Please keep sending in those road hazards, we get things done when these notices are coming from a law office.  The following email was received the next morning after alerting INDOT of a dangerous roadway.

______________________________________

From: INDOT South West IN Communications

Sent: Tuesday, October 1, 2019 12:23 PM

Good Afternoon!

Thank you for contacting the Indiana Department of Transportation regarding State Road 66. This area is still under contract so I sent this over to our Project Engineer for this area for him to review.  Thank you for bringing this to our attention.

Have a Blessed Day!

Misty McCarter

DANGERS OF RIDING EAST THIS TIME OF YEAR – IT’S FIVE O’CLOCK SOMEWHERE

ABATE LEGAL passes on our observations of motorcycles getting hit while traveling east in late afternoon.  Numerous riders have been hit or nearly so by drivers heading west into the blinding sun.  Sounds like common sense, but the smaller you are, the harder it is to see you in the setting sun.  So much so that I say avoid traveling into or away from a blinding sun.  If you do, be prepared that the car/truck coming toward you or up behind you may be blinded by the suns rays.  We have had several members learn this the hard way.  Just passing this on.

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

– ABATE member

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

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

 

ABATE – SHOULD WE EAT OUR OWN?

  1. Our ABATE Chapter has been ripped off by one of our own. I have heard of other instances where an officer “borrows” ABATE monies and can’t pay it back. How can we protect ourselves? Should we sue the member? Can we collect? Do we prosecute? What do we do?
  2. Here is what we should do. All money handlers in any ABATE organization should be bonded.It is simple and cost effective. Here is how it works: a bonding company (like an insurance company) agrees to write a bond (an insurance policy for theft) up to a certain amount of theft (or “borrowing”). I recommend that at least 75% of the amount of money that will be handled.

If we have one of our own who “borrows” the money, we simply turn it over to the bonding company. They pay us for the loss just like an insurance company does when you have a fire loss. It is the bonding company that will go after (our hopefully) ex-ABATE member. In that way, ABATE is made whole and we do not have to eat our own.  Life is too short to start hanging our errant members.  Let the bonding company do the eating, and we have better things to do for motorcyclists.

BIKER PROVERBS

 I received the following in an email and need to share with you:

Four wheels move the body. Two wheels move the soul.

Never be afraid to slow down.

A bike on the road is worth two in the shed.

Young riders pick a destination and go… Old riders pick a direction and go.

People are like Motorcycles: each is customized a bit differently.

Everyone crashes. Some get back on. Some don’t. Some can’t.

Don’t argue with an 18-wheeler.

Never be ashamed to unlearn an old habit.

There are drunk riders. There are old riders. There are NO old, drunk riders.

Only a Biker knows why a dog sticks his head out of a car window.

There are two types of people in this world, people who ride motorcycles and people who wish they could.

MOTORCYCLE RUN RULES ILLINOIS, OHIO, INDIANA, MISSOURI

Q.  Is it legal in Illinois for outriders (with reflective vests) to stop traffic at intersections with or without local law enforcements permission during a motorcycle run?   Jon ‘Pilgrim’ Kersey, VP Eastern Il. ABATE chapter.

A.  Most states have statutes similar to the ones in Illinois. Section 11-1416 of Illinois Vehicle Code (625 ILCS 5/11-1416) (from Ch. 95 ½, par. 11-1416) reads:

Sec. 11-1416. Obstructing person in highways. No person shall wilfully and unnecessarily hinder, obstruct or delay, or wilfully and unnecessarily attempt to delay, hinder or obstruct any other person lawfully driving or traveling along or upon any highway within this State or offer for barter or sale merchandise on said highway so as to interfere with the effective movement of traffic.

(Source: P.A. 80-911.)

The “outriders” could be charged with violating this statute as well as a “local ordinance”.

The key word in §11-1416 is “unnecessarily.”  Although the “outriders” might argue that it was necessary for them to obstruct traffic, I doubt if a judge would make such a finding.  After all, the group could have accommodated local traffic if it had chosen to do so.

For some intersections the law is not clear.  If the ride was on a through street with no stop or yield signs or traffic signals and if traffic on intersecting streets were required to yield to traffic on the through street, then it would seem that the outriders did not obstruct traffic.  If this is what happened, then they did not stop vehicles.  Rather, they were protecting through traffic from illegal and dangerous interruption by vehicles that were required by law to stop.  But even this situation is less than clear.

If the ride was running red lights or stop signs, then they should be glad no one was arrested for such violations.  And if there are collisions, they probably will get sued.

The rule of thumb is that only persons with police powers are authorized to control traffic movement.  These persons would include all police officers and most laws allow flagmen to control traffic at construction sites.  Also, it may be necessary (note the key word discussed above) for individuals to guide traffic during emergencies when police are not available.  Other than these very few exceptions, individuals who interfere with traffic are in violation of 11-1416.

 

THIS SIGN HAS TO SAVE LIVES

IMG_3498

I saw this sign as I was riding back from Mt. Vernon.  It was located at a rest stop off of I-57  North of Salem, and South of Effingham, near the intersection with I-70 (just south of the huge cross).  It was placed perfectly for the traffic leaving the rest stop.  I salute the Department of Transportation and encourage all of us in the Midwest to intensify our efforts next Spring when we need to remind our cell phone using cagers that we are out there again.  Ride safe- Rod

 

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com © 2019.

 

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Ask Our Lawyer – October 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 KILLER I-70 – BIKERS BEWARE OF I-70 IN INDIANA, ILLINOIS AND OHIO

 Nationwide—Labor Day weekend was one of the busiest on the roads and was the final weekend in the Summer’s 100 Deadliest Days of Driving. Before you hit the road for any other motorcycle trips, check out this list of the deadliest highways in the US.

Indiana’s deadliest highway is I-70 with 17 fatalities (so far) during the summer months. I-70 and I-80 are both top three deadliest highways in six different states. Florida has the road with the highest number of traffic fatalities during this time period. There were 160 deaths on I-10 during summertime in 2015, 2016, and 2017. That’s the most on a single road on the entire list.

Find the nationwide list here: https://www.asecurelife.com/most-dangerous-us-highways-for-summer/ 

I-70 POTHOLES FROM HELL KILLS A MOTORCYCLIST FATHER TO BE

A 28 year-old motorcyclist from Columbus would have liked to have had the above information about I-70 and warnings regarding road conditions before he hit the “potholes from Hell” just East of Indy.  He was riding a nearly new Honda Rebel – not exactly a high-powered motorcycle when he hit a series of potholes in the westbound “slow lane”.  This happened around noon on Aug. 1.  Those ‘hellholes” tore a gigantic gash in his front tire, severely bent his front forks causing loss of control and slamming him to the road.  The crash was so horrific that he lost his life.   A pregnant wife was waiting for him at home.  That slow lane was inherently dangerous for all who traveled it heading west bound toward Indy and clearly should have been closed for traffic, or at least warned about.  Guess what?  Those potholes from hell still have not been fixed over a month later.  Doesn’t anybody care anymore?

WHY IS POWER OF ATTORNEY NEEDED BY MOTORCYCLE DEALERSHIP

Dear ABATE Legal – On August 9th, 2019, my wife traded her (used) 2018 Indian Scout and took delivery of a (new) 2018 Suzuki Burgman from World of Powersports in Springfield, IL (WOPS). With exception of the owner’s manual missing from the new bike, we expected (and received copies) for all relevant documentation necessary to title & register the Burgman. On August 31st, my wife received in the mail from WOPS a blank document titled ‘Illinois Secure Power of Attorney’. There was no explanation and their only requirement was for us to affix signatures next to their ‘post-it’ arrow. We’re not accustomed to signing away power of attorney without explanation (or understanding). Is this something new or required for title and registration on new motorcycles purchased in Illinois? Why didn’t the WOPS business manager have this form completed when taking delivery on August 9th? I’m seeking your counsel and reassurance this step is necessary for a new untitled bike before contacting WOPS. Please note we signed over our lien free title on the Scout, leaving me to now question the title process on the new Burgman. Wouldn’t the manufacturer (Suzuki) provide title whereby the dealer simply submits it to Illinois so as to ultimately affirm our ownership and registration? I don’t recall needing to complete this form for prior vehicles and it caught me by surprise. However, I do have more ‘senior moments’ in my retirement.  I’ve tried to be brief, but will answer or provide documentation for questions you have. Your articles in the Newsletter are the best reading – Thank you for your commitment to motorcycling and ABATE. Sincere regards,  Terri & Duane Ladage.

  1. Suzuki does not provide a title, but merely a certificate of origin for a new vehicle.Traditionally, the dealer will submit that certificate to the Illinois Secretary of State and secure a title for the purchaser.This is the practice in most states and avoids a title being made in the dealer’s name and then being transferred to the purchaser.  The dealer will apply for the title as the purchaser’s agent with a power of attorney.  The cost of two titles is significant; so, the purchaser is better off paying for only one. This is why World of Powersports have requested the executed power of attorney.  They simply failed to have all the paperwork completed at the time of sale.  It was a minor error on their part.  Am uncertain if the purchaser can directly ask the Secretary of State to convert a certificate of origin to a title.  It may require a licensed and bonded dealer to do this, but you do not want or need to go through that hassle.

 

BILLBOARD WAR – ADVERTISING ON A MUNICIPAL BILLBOARD

Mayor Harry Jennings of South Jacksonville refuses to allow ABATE to post a motorcycle awareness message on the village’s billboard because the message constitutes “private use” of public property.  The proposed message identifies the chapter; shows the photos, names, & date of death of two young riders killed; and safety messages. Mayor Jennings apparently believes the proposed message constitutes “private use” for two reasons:

  1. The message advertises a private business.A.B.A.T.E. of Illinois and its chapters are not a private business.  Rather, it is a civic organization recognized as a §501(c)(4) entity by the Internal Revenue Service.  The organization’s primary goals are promoting motorcyclists’ rights and safety. This particular intended message relates solely to motorcycling safety and does not promote either A.B.A.T.E. or any monetary interest of that organization.

The mere fact that Tri-County is mentioned in the message has no more significance than showing Alzheimer’s Association on a specialty license plate.  In fact, Illinois recognizes many organizations on related specialty plates.  Illinois has no problems recognizing D.A.R. on the many monuments it has erected along the old Eighth Judicial Circuit that Abraham Lincoln rode as a lawyer.  These monuments are on public highway rights-of-way.

  1. The message is a memorial.  The State of Illinois and its political subdivisions frequently memorialize individuals whose lives (or deaths) contributed to the public interest.  If this were not so, then Jacksonville should remove the obelisk memorial to Morgan County’s civil war soldiers.  Also, the State should remove the statue of Martin Luther King, Jr by the State Capitol – as well as all the Abraham Lincoln statues and plaques throughout the State.  The proposed message does not memorialize the dead bikers as individuals, but as victims of carelessness that can be prevented if motorists would only be more aware, would look twice, and would “Start Seeing Motorcycles.”  Their images, names, and dates of death are given only to make the safety message more powerful.  This is a legitimate public purpose and use of public property.  The proposed message should be viewed as a “public service announcement” similar to what is required of radio and television broadcasters by the FCC.  Such announcements have long been recognized as serving legitimate public purposes.  The State of Illinois spends millions of dollars annually on traffic safety.  What ABATE (Tri-County) proposes to do with this billboard has the same public (cf., private) goal as that of the State when it comes to saving lives. (Springfield sage, George Tinkham contributed to this response)

 

RED LIGHT CAMERAS – DUE PROCESS CASE AFFECTING MOTORCYCLISTS

In Knutson v. Village of Lakemoor, The U.S. Court of Appeals for the 7th Circuit Affirmed a Federal Court holding that court did not err in dismissing the case for failure to state a valid cause of action.  Plaintiffs alleged that defendant-City violated due process rights by issuing notices of red-light camera violations that failed to cite specific reference to section of municipal code that plaintiff had allegedly violated.  Court held that defendant provided plaintiff with adequate due process, where permitted defenses in code allowed plaintiffs to refute or alleviate their culpability.  The court also rejected plaintiffs’ claim that notices were void due to failure to cite specific code violations, since any requirement for specific reference to code violation was merely directory, as opposed to mandatory. Moreover, plaintiffs had ample information to generate a defense, where notices had multiple pictures of plaintiffs’ registered vehicle, along with time, date and location of violation. Like it or not – Big Brother is here.

 Ride Safe & Free,

 Rod Taylor

 ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com © 2019.

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Ask Our Lawyer – September 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 TEN THINGS TO THINK ABOUT IF YOU’RE ARRESTED

 What do you do when the men and women in blue show up? What are your rights and what should happen? We get many inquiries from parents, neighbors, and concerned friends about their rights and what to expect. The following tips should help:

  1. When am I arrested? You are arrested (or considered under arrest) when officers deprive you of your freedom of movement in order to have you answer for an alleged crime.
  2. They want to question me – what are my rights? Just like in those TV shows, you have the right to remain silent. If you don’t keep silent, anything you say can be used in court against you. If you start answering questions, you can stop at any time. You have the right to speak with your lawyer and have them with you during questioning.
  3. The cops won’t let me go, but they haven’t arrested me. Can they do that? An officer can temporarily detain you in order to ask for identification and to get an explanation of your presence at a particular time. You can be subject to a limited pat-down search to ensure that you have no weapons if the officer believes you are armed. You have the right not to answer the questions, but if you refuse to give any identification, the officer may have grounds to arrest you. Once this temporary detention is over, the officer must either arrest you or let you proceed on your way.
  4. They want to arrest me, but don’t have a warrant. Officers can make an arrest without a warrant if they witness the offense being committed. They can also make an arrest if they receive information from a credible person that the suspect committed a felony and is about to escape.
  5. I got hurt when I was arrested. How much force can they use? An officer is entitled to use reasonable and necessary force to overcome resistance. These terms are relative, so the amount of force they can use depends on the situation.
  6. They want to search my house. Do I have to let them? An officer may conduct a limited search of the surroundings without a warrant. If you are in your home, they may seize contraband, stolen property, or evidence of a crime in plain sight. They may also check the residence for accomplices. If you are in your car, they can search for weapons that could be used against them. They may not conduct a broader search without a warrant, unless they reasonably believe that the vehicle has evidence of crime or contraband.
  7. I’ve been arrested. Now what? You are going to be taken to the detention facility, where you will be able to talk to an attorney. They should also tell you the charge being alleged. You can be required to participate in a lineup, give a handwriting sample, give a blood or urine sample, or perform certain other tasks.
  8. I want out! Bail may or may not be set for your case, depending on the seriousness of the charge. If the charge is relatively minor, you may be released on your own recognizance. You can also petition the court to reduce the amount of bail set.
  9. Where can I get a lawyer? If you don’t already know one, you can call your state or county bar association or us for a referral to criminal lawyers. If you can’t afford to hire an attorney, you should tell the judge, who will ask you questions to determine if you qualify for a public defender.
  10. My kid just called from jail. What rights do they have? Children have the same substantive rights as adults. In addition, they have the right to have a parent with them when being questioned. Also, the procedures in juvenile court are generally closed to the public.

RIDER SAFETY TRAINING EXPERIENCE – AN EYE-WITNESS ACCOUNT

A reader reports: I participated in the ABATE course in Indianapolis. I was hesitant to try something so new and extreme, but found it to be an amazing experience. I would like to share what I gained from this experience that you, so generously, support. Before taking this class, I had no experience riding motorcycles, but sought to become a safe rider. With energy, enthusiasm, and some anxious nerves, I opened myself up for a long and exciting weekend. From the very start, I knew my instructors would make this the best experience I could ask for. They were thorough, patient, and enthusiastic about everything they taught me and my fellow students. With every step we took and skill we practiced, the instructors were by our sides guiding us, but also letting us learn how to do things ourselves. I not only enhanced my skills and knowledge about safe riding, but my confidence grew, too. The instructors saw that growing confidence, and had me lead the group in activities to support it. I had such a wonderful weekend with my ABATE friends. I learned how to be a safe, efficient rider, but developed relationships and met friends, too. I cannot thank you enough for supporting such an amazing cause. Please continue to do whatever you can to keep the ABATE courses running so well. I would hate to see what would happen if the only means of learning safe riding was no longer in existence. Again, I thank you for your continued support!

Sincerely, an ABATE student

ABATE LEGAL is proud to be a sponsor of the ABATE Motorcycle Safety Training course and plan to be involved for many years to come. 

WEIRD WIND – BANE OF MOTORCYCLISTS

 Many bikers go off the road violently and do not make it. Many assume they just lost it. I have another theory – weird wind.  I have a friend who is a member of ABATE, and a biker’s biker – a motorcyclist perfected. He also happens to be a pilot – not just a pilot, but an airline transport commercial pilot. When it comes to wind, he knows all you need to know. Except a while back, Mother Nature threw him a new one – “weird wind.” It was a really hot, gusty day, on the flats of Illinois, just perfect for dust devils, wind shear – all the weird winds. Running with good speed down the state highway, he noticed the violent wind from the left and the front end climb up first, then the rear wheel oscillation, and finally, a violent high side to the right. He may have been shoved to the right and just lost it. Who knows?

Looks like he may be back to walking, riding and flying in a few, if he is lucky. What happened, and how do we learn from his experience?  Some blame the incident on a microburst that nailed

him. Whatever it was – it was invisible. Bikers and pilots suffer the same exposure. Years ago, I was flying with a buddy in a Cessna 140. He too is a hard core biker. I asked him about his greatest fear with flying. He said “weird wind.” What can you do to avoid it? Be aware of weather that causes wind shear and microbursts, but other than that, it is like getting hit by lightning. To avoid that, you have to stay home, but that is not like us, is it?

ANATOMY OF A SLIP AND FALL CASE

Cary Scott stayed at a hotel recently, La Quinta Inn.   He is a good customer and will be returning in a couple of weeks.  His job as a project engineer takes him all over the U.S., an ABATE member, and regularly reads this column.  He is a stand tall, pays his bills, supports his family, votes, never been sued or ever sued anyone kind of guy, and a pretty good pool player.  And he needed some help from ABATE LEGAL.

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

 

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

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

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

Postscript — Scott had to sue to get the matter resolved.

CAN I CUT THE BITCH/BASTARD OUT OF MY WILL? (LET’S TRY THAT AGAIN) CAN I DISINHERIT MY SPOUSE?

Q: I have been married for 22 years, but we are no longer getting along. She is my sole beneficiary under my Last Will and Testament – CAN I CUT HER OUT OF MY WILL?

A: Most states let you do what you want with your stuff [personal property and real estate] when you die. However, most states will not let you cut out your spouse completely unless they agree. In many states, including Ohio, Indiana and Illinois, a surviving spouse can renounce your Will if you have cut her out and elect to receive a percentage of your assets, regardless of what you provide for in your Will. And you thought you got rid of him/her!

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.

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

When you are ready to make a will, there are several things you will need to think about and come to a decision on:

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

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

And by the way, there are several requirements that have to be met to ensure that the will is valid. In general, the will has to be made by some 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, it is presented to the court, who will make sure it is valid and provide appropriate orders to make sure the instructions are carried out.

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

Ride Safe & Free,

 Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com © 2019.

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Ask Our Lawyer – August 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

CHRISTOPHER BLACKBURN NEEDS TO WEAR A ST. CHRISTOPHER MEDAL FOR THE REST OF HIS DAYS

Fourth of July is a “best day” of the year to ride to Attica, Indiana. After all this is Jay Jackson country and he picked to live in a good riding spot. And so thought Christopher.  He and his buddy John Montgomery chose U.S. 41 to ride north. Being from Rockville they know good riding country.  U.S.41 was a two lane lane road allowing great riding in the Wabash Valley, and riding a V Star Yamaha 1100 must be joy on that road.

U.S. 41 was designed in a day when traffic was intense, but no longer.

Christopher was point man and John was his wingman -perfectly staggered. All was good until it wasn’t. As they say, speed doesn’t kill, it is the sudden stop, so we watch out for the sudden stops.

Per the crash report, the adverse driver “advised she seen the motorcycle driving northbound and did not know why she turned into it.” AFTER YOU HAVE SWALLOWED THAT- here is more of what happened. Adverse driver drove into Christopher as she was making a left turn.  The speed limit is 55mph. At that speed Christopher was traveling almost 81 feet per second (80.667 to be exact).

Let’s talk about the sound of a V Star Yamaha 1100 coming apart at 55 mph.  And what about Christopher – just suspended in the air after being ejected from his bike and traveling around 55 mph?  The engine case had disintegrated from the g-forces – oil everywhere. Loose fenders and other parts are traveling with Christopher and Christopher is alongside John – but John is riding a motorcycle. Christopher is not. Must have been a curious feeling for Christopher watching John slowly pass him by as he was suspended in air but still going riding speed.

At some point Isaac Newton takes over and Christopher slows for the landing.  He recalls doing a complete flip in the air, but now is following John.  The landing is soon to follow – on his rear. Burning skin off the old fashion way by fire hurts enough, but rubbing skin off by road maybe worse.  After the road rashing is complete, Christopher lies there testing what works, what moves, any vehicles coming, and looking at the debris of the V Star scattered like granulated seed. Never was a thought that the bike was not totaled – or him for that matter.

The emergency folks did their thing. The trip to the hospital seemed long. Wondering what would become of him? Could he work?  What was busted? Legs? Hips? Rehab? How long? Would work still be there? Bills – how to pay?

Quick work with the diagnostic process at the hospital in Williamsport. Result- nothing broken. What the hell? How is that possible.

From here on out his patron saint should be St. Christopher or Evel Knievel. And I have on order a St. Christopher medal for him to wear for the rest of his days.

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 No. 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 No. 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.”

 

SHOT AT AND MISSED

When I lived in Wayne county Illinois about a thousand years ago I thought of riding the Pyrenees Mountains. That is generally where Hannibal traveled to fight the Romans – with elephants no less. No more thinking about it because I did it, and I would never ever think of doing it again.  And knowing what I know now I would have paid criminal amounts of money not to do it. And I would tell every friend of mine to never even think about especially with a passenger.

I went with two friends and Ann.  The bonds that formed as a result of surviving the ride can almost be described as like that of combatants having survived a battle. Here is why.  I am a motorcycle cruiser, not A MotoGP kind of rider. Ann and I have ridden nearly every major mountain range in the U.S. and we love it, especially the safety attention usually afforded roads in our country. But that experience did not come close to preparing us for the Pyrenees mountain pass from hell – Col de Au bisque – roads that only elephants feel good about. The motorcycle rental place only rented BMW’s – great motorcycle, but I had never ridden one. Am a Harley guy and that is the bike that I know well. It was a big mistake to take an unfamiliar bike to that pass, and with a passenger no less. I am a farm boy with a “how hard can it be attitude”.  I found out.

Here is what happened. In taking the roads up to the pass from hell, we encountered narrow roads – no big deal. That is until you take away guard rails, quit leveling them at about a 13 percent grade and throw in a menagerie of farm animals, all lose roaming around looking for handouts like a panhandler. Then there were the French tourists driving mini campers coming down the mountain seemingly always looking the wrong way and driving on your FIVE FEET of road.  Not sure if the middle finger was a universal sign before I rode there, but I am pretty sure it is now.

Cows with bells, sheep with bells, goats with bells and did I mention bulls with horns? And course throw in a horse with a cowbell – seen an embarrassed horse before.  In this open barnyard, I learned all about the coefficient of friction of manure, which is everywhere. Crudely put, cow shit is slicker than goat shit, which is slicker than sheep shit and horse shit is slicker than all of them. Am not sure about the bull shit. This is very important information to know with a two wheeler on steep roads.  We had just gone through Col de Portlet – get that portlet. Call me crazy, but I think the sheep, cow, goat and horse stuff on that mountain pass gave us a modern term, but I could not find anyone around there to own up to it.

A smarter man would have turned around at Col du Tourmalet – the famous point of the Tour de France- and gone back home to Indiana.  Forrest was right, stupid is as stupid does. While there among the animals, I looked over towards the pass from hell. I said to my companions that surely that was not the road. It was chiseled into the side of the mountain which was maybe 16 feet wide in some places, and it was at least 2000 feet straight down – a sheer cliff – remember no guardrails. When I had passed the point of no return, I was thinking that my riding gear with state of the art body armor was not going to be much help with a slip and a wrong move . And what a horrible time to discover that you are a closet –  height fearer. Nothing scared me more than when Ann leaned over and whispered, ” whatever you do, don’t look down.” I and my stomach knew she meant it and I didn’t, even when we got to a safe point. Going up a steep grade in first gear wishing you had and even lower one and facing a 180 switch back on a blind turn was more than I could stomach (remember the French tourists in the mini campers looking in all the wrong directions and usually driving on my part of the road). The view of just sky ahead and not knowing if the road continued straight or hung a left out of sight was paralyzing, or was it a 13 percent grade, or a 180 degree switchback on a blind curve?  And by the way when does a BMW 1200 stall out ? I had never ridden so much in first or second gear in my life.

Here is how I put this ride up the pass from hell into perspective – hind sight of course.  Most large cities have a building that is 600 feet high. Pretend some idiot builds a ramp at a conservative 6-7 percent grade, three times higher than that; next he builds a wall on one side and makes the ramp 16 feet wide; then he leaves the other side wide open- not even a dandelion on the edge; then puts a herd of sheep, cattle, horses and goats spread along the way.  And don’t forget the French guys in the minivan he has invited to start down from the opposite direction, driving a lot on the not-their-side. Then he invites you to ride your Harley up the ramp so you can enjoy yourself and the view.  What do you say?

If someone ever tries to talk you into riding up through the pass from hell, call me and I will give you some of the best advice you will ever get.  As for me and Ann, we are left with the best feeling ever – the one of being shot at and missed.

 

DEAD MAN TALKING?

Q:  My father just died, and as personal representative, I have been working on collecting all of the estate assets – death benefits, retirement accounts and the like.  It turns out that my dad, who was divorced 10 years ago, had never changed the beneficiary of his retirement plan at work. Now, his ex-wife is going to get all of his retirement benefits.  Is there anything I can do?

A:  Probably not.  Only the employee can make changes to the retirement plan (including death benefits, investment accounts and pensions), so once the employee passes away, there is no way to make changes to those designations. Further, if your father was covered under a type of plan called an ERISA plan (named after the federal law that regulates those plans) only a specific type of order (called a QDRO) can automatically change the beneficiary upon entry of the divorce order.  If such an order was not entered and he took no steps to change the beneficiary, the retirement plan will pay the named beneficiary, even if it was obvious that your father did not want that to happen. Some states, including Indiana, have statutes which will by operation of law revoke all provisions in the will in favor of the divorced spouse, but you should consult with a lawyer to see what the law provides in your jurisdiction or whether the divorce order was sufficient to change the beneficiary.  Also, remember that other assets like life insurance, motor vehicle titles and bank accounts can have survivor rights attached to them, and they will also need to be reviewed to make sure that proper steps have been taken to change the beneficiaries.

Ride Safe & Free,

 

Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com © 2019.

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Ask Our Lawyer – July 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

BOGUS SUBPOENA FOR NYC FAILS AND ABATE MEMBER RELIEVED

Last month I wrote about ABATE Member Deanna Smith-Whittaker who received a bogus subpoena from the government trying to pull a fast one.  That ABATE member sent me this.  “So glad ABATE has you to help us out.  Thank you again for helping me!!!! PEO TAZ Chapter.  And I love article.” Deanna

After ABATE printed the article advising Deanna that the subpoena served on her by the government was ineffective, that office quickly withdrew its ineffective subpoena. (see the language of its letter below) That subpoena served no purpose as it was only good for 100 miles from downtown NYC – a long way from Peoria Il. And the government knew that when it sent it.  Ev Dirkson said it best, “if it won’t play in Peoria, it won’t play”.

Dear Mrs. Deanna Smith-Whitaker,

By this letter, the United States hereby withdraws the subpoena for your trial testimony in United States v. Novartis Pharmaceuticals Corporation that was previously served upon you.  To be clear, you are no longer under any obligation to testify, and should not report to the United States Courthouse on May 20, 2019.

 

Please do not hesitate to contact me if you have any questions.

Sincerely,

GEOFFREY S. BERMAN

United States Attorney

ABATE MEMBER AND LEADER OF A MOTORCYCLE CHURCH GROUP HAS A QUESTION

  1. Rod, I have a legal question. I am a leader of a motorcycle group at our church. Am I liable for the others safety and well-being on a group ride? – Barry Hines

 

  1. Barry. I have written extensively about this issue in our ABATE publications. If you are the organizer, get insurance and use my waivers. Check with your home insurer to see if you have coverage for the ride as you are a volunteer. Also, check with the church as to its insurance coverage for charity events off premises. If you or the church do not have insurance, then it is a matter of, how lucky do you feel?

At the very least, have only one rule for those on the ride – follow the state’s rules of the road and all laws relating to motorcycles.  Resist the temptation to become a ride expert and add extra rules of your making as the law will hold you to it if you screw it up.  And by all means use my waivers.

To protect yourself and the church, think about starting a non-profit to shoulder any potential liability that might come from the ride event. That entity could shield the church and organizers from personal liability.  Our office can assist you with that.

Always remember this:  You don’t need a waiver until you need a waiver.

Ride safe. Rod

  1. Rodney, Thank you for the response. That is what I was afraid of, and yes, I will follow up on your suggestions.
  2. PS from Rod – only my mother called me Rodney.

 

MIRACLE RIDE 26 – A QUARTER OF A MILLION TO RILEY HOSPITAL FOR CHILDREN

Perfect weather, wonderful volunteers and good-hearted bikers is all it took to make for a fabulous ride.

They were all there: radio talk show host Tom of Bob & Tom, Jay Jackson of ABATE of Indiana, Dennis Byron State Coordinator of ABATE of Illinois, and thousands of others. They all came together to support Riley Hospital for Children. Riley provides care for kids from all over the country and, in many instances, the world.  The hospital sets the bar for research on diseases that uniquely affect children. That Riley is located in the heart of the country is poetic, and says something wonderful about us mid-westerners. Many of you have heard me say that the measure of a society is how those in it – treat their children. By that definition, heartland citizens go to the head of the line.

The Ride would not be possible without scores of volunteers. I will highlight some, recognizing that many others need acknowledgment and I will catch up with the missed ones later. At the head of the list is Gino Johnson. Gino, the world’s best CPA and former IRS agent, keeps us all honest and straight as our money counter-in-chief. We could not do it without him. Kathy Schulteti and her whole wonderful family and South-Side Harley employees have been there from the beginning. Marc Falsetti, our advertising guru, gets thousands to participate every year. I am not sure how he does it, but he does.  John Barto feeds us and feeds us well. The McAtees, first family of law enforcement, do the impossible and lead 4-6,000 bikers through numerous intersections safely.  And ABATE LEGAL is very proud that the planning for this ride started in our office in 1993.  I knew this year would be good when Ann and I rode in and saw the Allison Transmission lot nearly full, so early.  Celebration was the mood and ABATE LEGAL once again served “Long’s” famous donuts and coffee – free.  In years past we have had donuts left over – not this year.  Brian ran out an hour before the Ride started.  But we’ll have that fixed for next year, so come join us on the 27th annual Miracle Ride, May 31, 2020 – same time – same place.

 

WEARY OF FAILING TO GET MY POINT ACROSS – AFTER 40 YEARS OF PREACHING, YOU WOULD THINK.

Uninsured/Underinsured motorcyclist coverage – how does it work?  The perfect explanation – I hope.

If the guy that runs over you HAS NO liability insurance, then the uninsured coverage under YOUR policy kicks in to cover your hospital bills, pain and suffering and other losses to the extent of the limits in your policy – THAT IS IF YOU BOUGHT UNINSURED MOTORIST COVERAGE.  SHAME ON YOU IF YOU DIDN’T.  AND GET THE HIGHEST LIABILITY LIMITS YOU CAN – as you will need them if you get hit by a Mack truck on your motorcycle.  (some states limit Um/UIM to be no higher than the liability limits of your policy)

If the other guy that runs over you has minimal limits (some state’s limits are stupid low) and your losses exceed those limits, the underinsured part of your insurance policy takes over and covers the losses above the bad guys minimal limits up to the underinsured limits of your policy.  And get the highest limits you can for this coverage – your family may need it.

At the risk of sounding redundant here is an example:  a biker is riding when a driver turns in front of him.  The biker suffers a fractured leg and a head injury from the crash.  He is air-lifted to the nearest hospital.  The driver of the automobile has minimal insurance.   As a result the biker is unable to work for several months.   The injured biker may be stuck with huge medical bills as a result if he does not have adequate health insurance.  We will talk about the other losses later..

That is where the biker’s underinsured coverage kicks in.  The few extra dollars a month for your higher uninsured/underinsured coverage (get the highest level you can afford), are a small drop in the bucket when talking about a couple hundred thousand dollars you may owe in medical bills, if you don’t have health insurance.  Even then you need it for your lost wages, pain, suffering and other losses.

Some estimate that over 25% of motorists on the road are without insurance – uninsured.  That means they usually have nothing to help pay your losses – zip, zero.   Folks that don’t have insurance usually don’t have money; that is the reason they don’t have insurance, so the no- blood- from-turnip-rule applies.  That means that if you have no uninsured motorist coverage on your motorcycle, you are out of luck!

And just because the bad guy says he has insurance does not mean he really has insurance.  I remember a case where the adverse driver told a Member (who had lost a leg), “I have insurance”.  She had 25k which complied with the law.  Some states allow you to drive with only 10k of liability insurance.  MY FRIENDS AND FELLOW RIDERS – THAT IS NOT INSURANCE, even though the law calls it insurance.  So the rule is – make sure you have as much underinsured insurance coverage you can for the other guy, just in case he only carries 10k.  Understood?!

Ride Safe & Free,

 

Rod Taylor

ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com  © 2019.

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Ask Our Lawyer – June 2019

by Rod Taylor – ABATE Legal Services

THE U.S. JUSTICE DEPARTMENT SERVES YOU WITH A SUBPOENA “COMMANDING” YOUR ATTENDANCE AT A TRIAL NEARLY 800 MILES AWAY – WHAT DO YOU DO?

You’re sitting on your front porch minding your business when you get a subpoena from a federal court in New York City.  And not any federal court but the United States District Court for the Southern District of New York.  That is where a lot of heavy stuff happens – Yikes.  That subpoena is “commanding” (IT DIDN’T SAY PRETTY PLEASE) your appearance for a trial that may last 4-5 weeks, but you live in Peoria, Fairfield or wherever in Illinois.  The government “claims” it will pay your travel and lodging expenses, but what about your job?  Your family? Your life?  The case involves alleged bad acts by doctors and a drug company.

You are patriotic and want to help your country and its system of justice, but there are limits.  What do you do – pack your bags – bid adieu to your family?  This happened to ABATE member Deanna Whittaker.

Her call to us was unsettling.  She was concerned beyond belief that she would be stuck in NYC for what could exceed a month or more.  Her big question to ABATE LEGAL: “Does she have to go?”

In the pages of the papers that were served on Deanna was Federal Rule 45 regarding how far a citizen in this country could be subpoenaed for trial. The answer generally is that a federal subpoena is only good for 100 miles from your residence or employment to the court house or place of deposition.  So the answer is “hell no she does not have to go”. But her Subpoena from the Federal District Court in NYC ” Commanded” her presence at 40 Centre Street in that city.  No exceptions found in the subpoena.  I repeat – she was “commanded to appear”.  Well Rule 45 limits a federal court’s power to interfere with a citizen’s life;  but shouldn’t a U.S. Attorney be upfront and advise a citizen of the limits of Rule 45. That lawyer should not be able to send a bunch of legal small print mumbo jumbo in a subpoena package that arguably takes the government off the hook for misleading a subpoena requirement. How dare the government send a subpoena that on its face “commands attendance of Deanna” when they know full well that the subpoena was unenforceable 100 miles from downtown NYC. I am thinking that federal subpoena was shooting blanks somewhere around Harrisburg Pa. or about 600 miles short of Peoria.  Shame on government people that are less than candid.

What a good public servant would have said is as follows: “Deana, the U.S. Government needs you for this trial.  The subpoena we sent you is only good for 100 miles from the court.  You are outside that limit and you do not have to come to NYC, but if you wish to voluntarily travel to NYC that would assist the government”.   The government should also advise that if your personal circumstances disallow you from being away from your family and job, the Justice Department can come to Peoria and take your deposition which can be used in the NYC court as if you were there and that deposition can be videotaped so the jury can see and hear you.

Sometimes I wonder what kind of guys are chasing the bad guys.

Note- Deana wanted this published so others will be aware of their rights concerning a federal subpoena.

WEARY OF FAILING TO GET MY POINT ACROSS – AFTER 40 YEARS OF PREACHING, YOU WOULD THINK.

Uninsured/Underinsured motorcyclist coverage – how does it work? The perfect explanation – I hope.

If the guy that runs over you HAS NO liability insurance, then the uninsured coverage under YOUR policy kicks in to cover your hospital bills, pain and suffering and other losses to the extent of the limits in your policy – THAT IS IF YOU BOUGHT UNINSURED MOTORIST COVERAGE.  SHAME ON YOU IF YOU DIDN’T.  AND GET THE HIGHEST LIMITS YOU CAN as you will need them if you get hit by the Mack truck on your motorcycle.

If the other guy that runs over you has minimal limits (and some states limits are stupid low) and your losses exceed those limits, the underinsured part of your insurance policy takes over and covers the losses above the bad guys minimal limits up to the underinsured limits of your policy.  And get the highest limits you can for this coverage – your family may need it.

At the risk of sounding redundant here is an example:  a biker is riding on a country lane when a farmer pulls out from a field directly into the path of the biker.  The biker attempts to avoid the tractor but loses control and hits a tree and is seriously injured.  Fortunately, the farmer is wealthy and has insurance limits high enough to pay for biker’s losses.

But what if he did not?  That is where the bikers underinsured coverage kicks in.

Some estimate that over 25% of motorists on the road are without insurance – uninsured.  That means they usually have nothing to help pay your losses – zip zero.  Folks that don’t have insurance usually don’t have money; that is the reason they don’t have insurance, so the blood from turnip rule applies.  That means that if you have no uninsured motorist coverage on your motorcycle, you are out of luck!

And just because the bad guy says he has insurance does not mean he really has insurance.  Some states allow you to drive with only 10k of liability insurance.  MY FRIENDS AND FELLOW RIDERS – THAT IS NOT INSURANCE, even though the law calls it minimal insurance.  So the rule is – make sure you have as much underinsured insurance coverage for the other guy just in case he has only 10k.  Understood?

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

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

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

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

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

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

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

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

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

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

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

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

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

SHOULD THE MULE BE THE OFFICIAL MASCOT FOR ABATE/MOTORCYCLISTS?

 A mule is an independent animal.  A few years ago in Wayne County, Illinois, Pure Oil Company leased a pair of matched mules to help retrieve oil field equipment in flooded areas.  Not much time is needed to discover the great qualities of the mule. Sorry, horse lovers; there is no comparison. Some say the mule is stubborn; I say he is principled.  Some say a mule does what he believes is right, correct and proper; regardless of what anyone thinks.  A mule takes the proper path, chooses the best footing and is reliable.  Sounds like a good motorcyclist?  Mules don’t like people that take the wrong path.

And mules talk. They have a word for “right”.  It is “gee”. When you hear a mule go “gee – haw”, the first word is “gee”, not “hee” (some have been getting that wrong for years). So it is “gee haw”, not “hee haw”.  Many people, and horse loving people in particular, have been mishearing mules for years. Teamsters, when handling mule teams adopted the mule words – “GEE” FOR RIGHT AND “HAW” FOR LEFT.  Both terms are defined in Webster’s Dictionary.  Look them up – notice the “origin unknown” part. That dictionary claims that the origin of “gee and haw” is “unknown”. Mules know better. As far as I can tell, these mule words are the only animal words in the ENGLISH language that are defined in Webster’s.  I have requested that Webster’s change the origin of the words “gee and “haw” from “unknown” to “early mule speak”.   I have not received a response – as yet.

If you want to test my mule theory, next time you visit a mule, just whisper “gee” in his “right” ear. I predict you will have an immediate MULE friend. His ears will perk up; he will look at you like you just bonded.

If I ever start a motorcycle club, I am thinking about naming it the IRON MULEMEN. That’s my story and I’m sticking to it.

Ride Safe & Free,

 Rod Taylor

ABATE Legal Services

abatelegal.com

 All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com  © 2019.

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Ask Our Lawyer – May 2019

by Rod Taylor – ABATE Legal Services

MIRACLE RIDE DAY – MILLIONS FOR THE KIDS – 6.5 MILLION SO FAR THE LARGEST CHARITY RIDE IN THE MIDWEST

 They will come from everywhere.  Three thousand to five thousand bikes will roll into Indy from

Illinois, Ohio, Missouri, Kentucky, Indiana, Michigan and Iowa. Bill Kingery, Executive Director of the Miracle Ride Foundation says it best: “What a great day to give away some motorcycles, ride around the Indianapolis Motor Speedway and raise a bunch of money for Riley Hospital for Children!”

Join us for the 26th anniversary Miracle Ride on June 1-2, 2019. You’ll be in good company! Riders include some big wigs like radio personality Tom Griswold of the Bob & Tom Show®, Jay Jackson, Executive Director of ABATE of Indiana, Ed Schetter, Executive Director of ABATE of Ohio, Dennis Byron, State Coordinator of ABATE of Illinois, and many of the officers of the MROs of Illinois, Indiana, and Ohio.  Bill Kingery, Executive Director of the Miracle Ride Foundation, Marc Falsetti, Editor of the Hoosier Motorcyclist and other luminaries for a ride around the world-famous Indianapolis Motor Speedway (IMS). The event includes lunch, a bike show, a huge motorcycle giveaway and several Poker Runs all culminating at the Indy 500 track.

Recall the many supporters that have made previous rides. Governors Daniels and former Governor and now V.P. Pence, several Colts players, Jeff Saturday, Ryan Diem, Jake Scott, Tony Castonzo, Chad Bratske, Ellis Johnson, Ryan Lilja, as well as offensive line coach Howard Mudd. Forrest and Charlotte Lucas were there as was former AMA President Ed Youngblood and of course comedian Tim Cavanagh.

Rupert Boneham of the TV show “Survivor” fame joined us, as has Medal of Honor recipient Sammy L Davis. IndyCar legend Parnelli Jones made the 500 lap with us. Tony George, then President and CEO of the IMS, rode from Harley Davidson headquarters in Milwaukee to join the ride. And how could we ever forget Ruth Buzzy and Troy Donahue?  By the way Marc Falsetti has a great photo of her and long-time MR supporter, Deb Farabaugh – a classic.

Let us remember these friends and contributors to the Miracle Ride: Doc Jones, former A.B.A.T.E of Illinois State Coordinator was a main stay volunteer, and Mike Meyer.  Andre Lacy was a financial contributor and fellow Miracle Rider, and Balls was a longtime Executive Director.  All of them are gone.

To date, the Miracle Ride has raised over $6,500,000. That’s right—we’re heading toward $7 million for the kids. All of this is being done by a bunch of bikers—go figure! Keep the tradition going and weatherman Rod Taylor promises good weather, record breaking attendance, clear skies and 78 degrees. That is his story and he is sticking to it.

For you first timers, riding into the backlot of Allison Transmission (God love those folks at Allison for all they do for Riley), here is what to expect: The start of the Ride is exhilarating.  By 9a.m. thousands of bikers are present. Celebration mood is in high gear and ABATE LEGAL will be once again serving Long’s Bakery famous donuts and coffee—FREE while they last! The Indianapolis Motorcycle Drill Team will entertain us and the Gordon Pipers will inspire us.

A little before 11a.m. the tension is there. By then we have received the all-important safety briefing by Chief Instructor and Executive Director of ABATE of Indiana Jay Jackson who has a perfect safety briefing record.  Music to a biker is hearing thousands of motorcycles fire up all at once. That sound alone is worth the price of admission.

After the start, there is the ride to Riley Hospital for Children. The route takes us past the kids, their nurses, doctors, parents and families. They’re standing outside of the hospital, lined up, cheering the riders on. Some of the kids are in wheelchairs, some are in the Riley red wagons. Some are on crutches, some are not. But they all wouldn’t be receiving top-notch care without donors like you.

You get the point – a very special moment for all of us.

After we pass Riley, it is off to the World-Famous Indianapolis Motor Speedway.  Love it when we head into the first of four turns and keeping slow is more than the mind can bear. (IMS track monitors know this too, so beware!)

Riley isn’t just a local hospital; it truly is one of the best pediatric hospitals in the world with most of the kids coming from Illinois, Indiana and Ohio. The Miracle Ride is Riley Hospital’s largest community fundraiser and we couldn’t be able to donate the money we do without the incredible support of bikers throughout the country. This is a fabulous experience and I hope you will join us.

See the Miracle Ride website for more details:WWW.MIRACLERIDE.NET or WWW.ABATELEGAL.COM a proud founder of the Ride.  Also, a special thanks to the Board of Directors of the Miracle Ride who help make this event a success year after year:  Jay Jackson, Gino Johnson, Lori Combs, Gary Schwebach, John Barto.

 NO FAULT INSURANCE CAN BE A PROBLEM SAYS COOP FROM INDIANA

Hi Rod – If nothing ever becomes of my wreck in Canada, maybe you could place an information warning in — Hoosier Motorcyclist Magazine article advising riders that a relatively inexpensive “Collision Coverage” clause could protect them in the frequently occurring “No-Fault” States & Countries.  I read your articles thoroughly each month and I guarantee you that if I had read a warning from you about the IMPORTANCE of COLLISION coverage, even on old vehicles, driven in No-Fault States, that I would have taken immediate action with my own insurance.

Yours in ABATE,  COOP

ps: thanks for the TIP on the:  LUCAS OIL STABILIZER

COOP – When your case concludes I will write an article about your situation.  Your situation is interesting and thanks for giving me permission to write about it. You are correct in that others may learn from your experience.  And I will include your comment in the ABATE OF OHIO OUTSPOKEN and the A.B.A.T.E. OF ILLINOIS NEWS.  Rod

RIDING/DRIVING WHILE INTOXICATED

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

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

That brings us to your case. In many states, courts have ruled that once a chemical test is refused, a judge can order a blood sample. Once a warrant is issued, the police can have blood drawn for a chemical test to determine intoxication. From your description, it appears that is what happened. The United States Supreme Court has held that drawing blood and deriving evidence from that blood sample does not violate the self-incrimination protections of the Fifth Amendment.  State courts are bound by that ruling.

A BIKER’S ODE

 Four wheels move the body. Two wheels move the soul.

Never be afraid to slow down.

A bike on the road is worth two in the shed.

Young riders pick a destination and go… Old riders pick a direction and go.

People are like Motorcycles: each is customized a bit differently.

Everyone crashes. Some get back on. Some don’t. Some can’t.

Don’t argue with an 18-wheeler.

Never be ashamed to unlearn an old habit.

There are drunk riders. There are old riders. There are NO old, drunk riders.

Only a Biker knows why a dog sticks his head out of a car window.

There are two types of people in this world, people who ride motorcycles and people who wish they could.  Author unknown.

 

PLUMB AND SQUARE AND LEVEL? – NOT IN THE WORLD OF MOTORCYCLING WHAT TO DO WHEN YOU GET TO THE EDGE.

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

A:  You’ve already done the best thing possible, which is to take the ABATE course. No doubt that trying to get over a raised pavement can be treacherous.  If traffic permits, the best thing is to stop, and slowly bring the bike back onto the roadway.  Come at it at as close to a 90 degree angle as possible. The closer you are to going straight at it, the better the bike will climb the drop-off. Conversely, the closer you are to parallel the drop-off, the more likely you are to catch the wheel on the drop-off and dump the bike.

Jay Jackson, Executive Director – ABATE of Indiana, suggests good ways to handle when you confront objects/defects on the roadway. The Motorcycle Safety Foundation recommends a process for going over objects that we are unable to avoid by stopping or going around. First, determine if it is possible to surmount the obstacle. While you should be able to ride over a two by four from a contractor’s truck, that won’t work with a sofa off of a furniture truck. Approach the object at an angle as close to 90 degrees as possible. If you don’t happen to have your protractor handy, just try to go at it close to square. Control your path of travel by looking to where you want to go – not at the object/defect.  Look well ahead and toward your escape route.  Repeat – don’t look down or at the obstacle. If it is that important to see what it is, go back and look at it after you’ve gotten over it and parked.

Jay advises using a method to go over obstacles if you can’t go around. Rise slightly off the seat. Keep your knees bent and against the tank. Bending your knees has them working like shock absorbers and allows the motorcycle to move beneath you without bouncing your feet off the pegs. Roll on the throttle. A slight bit of acceleration just before the obstacle, combined with shifting your weight to the rear, will lighten the front wheel to provide for more travel in the suspension. When the front tire contacts the obstacle, roll off the throttle. Now you can breathe again.

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

FACEBOOK POST FROM LIBERTY ABATE CHAPTER

(From ABATE OF ILLINOIS – LIBERTY CHAPTER) HELMET LAWS.. Well as here in Illinois we bikers are trying to hold on to FREEDOM OF CHOICE. OUR CHOICE to wear a Helmet.. Could we end up LIKE Delaware Helmet law… Lets hope not!!

READ your State ABATE OF ILLINOIS paper page 7, article put in from Rod Taylor ABATE Legal Service, regarding the Delaware Helmet law as is.

ABATE membership is important.. Bikers need to join the ABATE chapter of your choice. CONTINUE YOUR RENEWALS.WEARING A HELMET OR NOT IS OUR CHOICE, .not the lawmakers… Lets not end up like Delaware.

Well said Rod.

Ride Safe & Free,

 Rod Taylor

ABATE Legal Services

abatelegal.com

 All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com  © 2019.

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Ask Our Lawyer – April 2019

by Rod Taylor – ABATE Legal Services

MIDWESTERN ROULETTE – UNMARKED INTERSECTIONS AND 12 FOOT CORN -RULES

While riding in the middle of nowhere in Indiana or Illinois or Ohio, you approach an intersection in mid-July.  What can be 12 feet tall, dense, thrives even in drought and you can’t see thru it?  – Hybrid corn!  You have the right of way for anyone approaching from your left.

There are no stop signs as each cost $250 installed. Rules of the road apply, so no need- right?  The farmer owns to the middle of the road, but the county or township has had the right of way (usually 50’ – 25’per side) since Davy Crockett died.  The farmer pays no taxes on the right of way portion of his property, but he still owns it. (Reminds me of a Rodney Dangerfield joke -later.)  Many plant to the very edge of the right-of-way, some even down into the ditch and into the right-of-way.  Is that legal for them to do that? Maybe? Maybe not?  Are they being careless if they obstruct the intersection? Maybe? Maybe not? It is their property – right?

Usually nothing out there.  Usually, maybe and probably are words lawyers learn in law school and used to cover their ass. This is the way it happens. Putting along toward the corn canyon intersection, you neither see nor hear anything but your motorcycle.  Rain has dampened the road.  Not a cloud in the sky.  Life is good – up to the point that it isn’t.  “Isn’t” happens in less than a second.  Remember “thousand one”?   A flash of color, not corn green, but big red truck catches the corner of your left eye.  No time to say your last words – you just get hit.  You don’t even hear it.  Not really sure of what you are thinking about, if you are conscious.

At tall corn intersections good folks die, Cessna Park, one in Champaign County, two in Douglas County, and another in Daviess County.  These tall corn intersections are located in Indiana, Illinois and Ohio.  This happens in Iowa, Nebraska and other corn growing states.  For most of the year, you can see forever at these intersections, but for about four months – not so much.  And we all know that the odds of getting hit are slim.  Nothing out there but corn and cows.

It is ok to use the “don’t need to stop” rules of the road before the corn is higher than the basketball rim at Hinkle Fieldhouse. But from July till harvest forget that you have the right of way over those to your left.  Give it up. Just pretend that at every intersection you have an invisible stop sign. Let’s call it a “tall corn stop sign”.  Do it and we can stop writing about this hazard.

What if you don’t? After they put dirt on you, we will have to measure the field to see if the farmer planted corn in the right-of-way.  Or try to make a case of negligence against him for obstructing visibility at the intersection. Just stop at all “tall corn signs” even though the law says you have the right-of-way, because every so often there is a red truck waiting for your number to be called.  And the farmer says that it is his land and that he can plant corn on it if he wants. Can he?

BONDING ABATE OFFICERS WHO HANDLE OUR CASH

 Bonding officers who handle ABATE cash is an absolute must.  Here is how it works.  This insurance, called a fidelity bond, helps you protect ABATE against theft and reduce our risk of loss. Employee bonds are a common part of an overall business insurance package.

With a fidelity bond on money handlers we are covered for theft of these funds.

A fidelity bond is insurance that you can buy through the company that handles your business insurance policies. The cost varies greatly depending on the type of business you operate and the amount of cash or other assets that are handled by the bonded employees. If an employee steals from ABATE, the insurance covers the loss.  Then the insurance/bonding company gets to chase ourex-memberfor the money.

IN DELAWARE DO YOU REALLY  NEED A HELMET FOR A PASSENGER WHEN YOU DON’T HAVE A PASSENGER – AND SIZE DOESN’T MATTER

 

Q.  Rod, yesterday while riding on a limited access highway in Delaware, in heavy shore traffic, a stationary state trooper entered the road behind me. He navigated through many cars and positioned himself behind me and immediately illuminated his lights and pulled me over. I was at a loss for a reason as I had broken no laws and my bike was in order.

Upon encountering me, he immediately stated that he wanted to make sure I was in possession of an approved helmet. I stated that my helmet was stowed in my luggage and he demanded to see it.  I produced a helmet, he in turn inspected it and told me it was not approved. He issued me a $94 ticket and drove off.

Is this legal? I had no passenger so … he had no reasonable suspicion to stop me. Was I profiled? Does the law mandate that I display a helmet? I am thinking of fighting this spot check helmet possession thing. They say I can drive to Delaware with a DOT helmet and get out of it, but I think that really sucks. They shouldn’t be able to stop you and make you open your luggage for no good reason. Thanks Bill Burke. Quakertown, Pa.

 

 

A.  Bill. I agree. We have reviewed many helmet laws in our time, but I think that the Delaware law leads the unusual. Even though Delaware is helmet free for those 19 and older, oddly the lawrequires you to always carry a helmet – even when you have no passenger.   I guess just in case you pick up a passenger under 19. But what size helmet do you carry? One size fits all? Do you have to carry all sizes just in case? How many helmets? 5? 10? 20? Silly, but that would follow logically. Maybe it is ok if the helmet doesn’t fit correctly – you just have to have one and size doesn’t matter? Here is the text of the law:

“Every person operating or riding on a motorcycle shall have in that person’s possession a safety helmet approved by the Secretary of Safety and Homeland Security (hereinafter “Secretary”) through the Office of Highway Safety and shall wear eye protection approved by the Secretary; provided, however, that every person up to 19 years of age operating or riding on a motorcycle shall wear a safety helmet and eye protection approved by the Secretary”.

I say the officer did not have probable cause to stop you and search your luggage, and certainly did not have reason to search for a helmet when you had no passenger. Sadly, you will now have to invest a lot of your time to fight this improper citation. I applaud your efforts. Keep us posted. I would like to write a follow up as to your experience in court.

A SWEET RIDE FOR YOUR BIKE AND FOOD FOR YOUR SOUL

Q.  Hello Mr. Taylor, I have been looking at the back of Hoosier Motorcyclist Magazine and was wondering where that (winding) road is located. If you know, please tell me the location? Thank you, Todd Stipp.

A.  Todd, Marc Falsetti, Editor Supreme of Hoosier Motorcyclist Magazine, tells us this photo was taken by Michael Farabaugh on Highway 42, Door County, Wisconsin – a wonderful place to ride. Michael Farabaugh, as you may know, was renowned for his incredible photography. His work can be seen in most motorcycle magazines, including Easy Rider, Super Cycle, American Iron etc. Thank you for noticing and the next time I ride that way I will give you the GPS coordinates. It is a sweet ride for your bike and food for your soul. Rod

BREAKING AND ENTERING BY MY LANDLORD

Q.  I live in an apartment complex that has a lockable garage where I store my custom motorcycle.  The other day, I saw the manager leaving my garage and I confronted him about trespassing. He said he had the right to “inspect the premises” and make sure all was well.  I said it was my rental space and he had no right to come into my locked garage area unless there was a problem.  Can I keep the manager away or at least require him to give me notice of the dates and times he intends to inspect my garage?  ABATE MEMBER.

A.  Review your written lease if you have one. Most leases allow inspections for emergencies only.  If the landlord is violating the lease, you may have grounds for trespass/invasion of privacy.  Probably a threat of this will cause him to provide you notice in advance of the need for an inspection – if he has a right to make an inspection under the lease. If there is no lease, tell him to stay out of your garage. 

CHECKING ON THE LAWYERS

Q.  I have called a lawyer from a motorcycle publication about my motorcycle crash.  I am not sure where his offices are located and I am not sure he is licensed in my state.  How can I be sure that he is a licensed lawyer in my state?

A.  Most states have an Attorney Registration and Disciplinary Commission that makes book on lawyers.  That commission compiles an annual list of lawyers authorized to practice law in your state.  You can also view records of any disciplinary actions that have been taken against that lawyer.  If the lawyer in not licensed to practice in your state, that information should be reported to the Attorney Registration and Disciplinary Commission.  And for good reason, that lawyer may not be a lawyer in any state.

RADAR GUNS THAT SHOOT 2 AT A TIME – WHEN TO PULL OVER – HOW LONG TO WAIT?

Q.  If I am in my truck and law enforcement “hits the rollers” behind me, I pull over. However, if the cop pulls over the guy behind me (or two or three), I would not expect to stop. If I am on my bike riding in a group, if the same situation occurs, who is expected to stop? Is there code or policy that covers this?  (A previous question by Jay Jackson, ABATE of Indiana with an update).

A.  I’ve spoken with law enforcement friends of mine. In general, if you believe an officer is trying to pull you over, you should stop and let the officer tell you whether he was intending to stop you or not. Since the question is what the officer intended to do, it would be difficult to convince a judge that you weren’t expected to pull over. Besides, most bikers want to stop and help their fellow riders in any event, even if only to be a witness? Of course, you should take care not to interfere with the officer, so you don’t end up with an obstruction of justice charge.

My law enforcement buddies tell me that it is highly unusual for an officer to stop multiple vehicles at the same time because it is dangerous, difficult to manage, and invariably leads to a ton of paperwork that the officer will not want to do. However, some of the newer radar guns can track speeds of multiple vehicles.  If the gun only tracks one vehicle, the officer usually tracks the slower vehicle and tickets the faster vehicle as traveling in excess of the speed of the slower vehicle, so say my police officer friends.  A former Director of Alcohol Countermeasures for the Indiana Criminal Justice Institute and police officer, said “Honest mistakes happen when the officer is not as clear as he should be about “Who” he wants stopped out of a group.”  Sadly, he claimed that stopping a group of bikes is a little more commonplace. Apparently, it is hard to single out one bike from the pack. So here is the rub – there is no statute or code that covers this other than the one requiring you to pullover if directed.

Honest mistakes happen when the officer is not as clear as he should be about who he wants stopped out of a group. It may be better to be safe rather than sorry.  If the officer signals you to pull over and wait while he chases another vehicle, how long do you wait?  Ten minutes? Twenty minutes? Half an hour? That is a tough one to answer and is compounded by being in harm’s way along an interstate. Keep track of the time by a cell phone photo of the officer going after the other vehicle if you are safely stopped on the side of the road and can still see the officer.  If you decide to leave after a reasonable time, you can prove that it was reasonable.  You can explain that perhaps you misinterpreted the officer’s direction and that twenty minutes was long enough to be in a dangerous spot.  But I will leave that to you to explain to the judge, and smile a lot.

Most states require you to pull over to the right and stop when indicated by an officer’s flashing lights. Of course, if you are with a group of riders and everyone is over the speed limit, so be it. But if the last guy on the ride has a problem with his tail light, it’s hard to see how the officer had probable cause to stop anyone but the guy with his light out. To do otherwise is to violate the non-offender’s Fourth Amendment rights. If you have an abusive cop in your area, that is constantly stopping groups of riders without probable cause for the group, you should call our office immediately. This is an important issue that needs to be addressed with the chief of police, as soon as possible.

One of our ABATE lawyers actually has some experience with this situation. Many years ago, when he worked for the State, he and some friends were heading down US 41 to do some camping. There were two cars in their caravan heading down 41 at a speed that was perhaps in excess of the posted limits. Of course, a trooper in an unmarked car hits the lights behind him and motioned him off the roadway, along with his buddy, and a third vehicle that was traveling in front of them. The trooper came back to our lawyer’s car and asked for ID, whereon our intrepid traveler produced his state ID and badge. The officer took a couple of looks at the badge, asked which of the other cars he had stopped were part of the camping party, and sent them on their way with an admonishment to keep the speed down. As he drove away, he could see the trooper begin writing a ticket for the poor guy who wasn’t going camping. The moral? It’s helpful to travel with someone who has a badge.

GETTING SUED FOR A BIKE I DON’T OWN?

Q.  My ex-wife and I both ride.  In the divorce she was awarded the motorcycle and the court required her to pay the loan. She has fallen behind on the payments and the bank is calling me.  Can they hold me responsible for paying for a motorcycle I no longer own?

A.  It’s possible. It depends on what happened in the divorce and if the loan you took out for the motorcycle was redone to remove you.  If you were not removed then you may still have liability. Check the loan documents carefully to see what obligations you have on the loan agreement. If you are still obligated, you should talk to your divorce lawyer about what can be done.   I am sure he will address this issue with your ex and the court that granted your divorce.

COMMENTS FROM ROD SHAW ABOUT ABATE LEGAL

Hey Rod, Rod Shaw here.Thank you for your service. Michael Beason  was a pleasure to work with. Very competent and well prepared.  I think you should give him a raise.  Take care, and may the wind be at your back.

Ride Safe & Free,

 Rod Taylor

ABATE Legal Services

abatelegal.com

 The information provided in the above articles is not intended to substitute for legal advice and is given to the person referred to in the article.  All information, content and responses are for general informational purposes only.  Please consult an attorney to obtain advice with regard to your specific legal question.

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. 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  © 2019.

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Ask Our Lawyer – March 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

JOSH AND THE MOTORCYCLE BRAKE LEVER – YOU WON’T BELIEVE IT

This is one of the greatest motorcycle sagas ever. It was April 2015, that was the month Josh Witkowski almost lost his leg.  That month he started doing time in an external fixator (an orthopedic surgeon torture device).  Docs told him that he had a 50/50 shot of walking in a year.  He was wheelchair bound for three months and had to learn to walk again after that.  He beat the docs prediction and was riding a trike in 4 months and riding on two, 6 months after the crash.

Now get this – when the doc removed the plate and screws from his leg Josh wanted to keep them as parts for the Sportster he was rebuilding.  Where do you put a plate that was in your leg on a sportster?  You take those parts to a fabricator and have them pound the plate into a brake lever and the screws into a cross for the sissy bar.  This has to be a first.

Next time you walk by Josh’s Sportster take a look at the brake lever and marvel.  That lever is a testament to courage, discipline, and the love of motorcycling.

IT’S ALWAYS A GOOD IDEA TO CONSULT WITH ABATE LEGAL BEFORE ACCEPTING A CHECK FROM THE INSURANCE COMPANY

 If you are injured in an accident or have had your bike or car trashed, you should consult with us before accepting a check from the insurance company. Our consult is free. If the offer from the insurance company is fair, we will tell you so and send you on your way.  Even if it is a bit short the offer may still put more money in your pocket after fees, expenses and time for litigation.  With any settlement, all you should care about is how much money goes into your pocket.

On minor cases where the offer is close to fair, we advise our members to say the following to the insurance company, “I would like to get this matter concluded but you are low on the offer so how about increasing your offer before we go to Rod Taylor and have him help us with this case?”  That works a lot of the time when the insurance company is a little off the fair mark in its offer, and usually they will sweeten the offer to get the matter resolved quickly, and thereby cut out the middleman.   Remember, their job is to pay you as little as possible.

Some insurance companies will try and get a check to you immediately, usually for less money, hoping that you will accept a lower amount right away. They know you have bills to pay and money may be short. They try the old “bird in hand approach.” They are trained to do that – not fair but that is the way it is.  You should consult with us to evaluate whether the offer will be enough to cover your damages before accepting any checks.

Importantly you need to know the status of any liens held by your insurance company and medical providers for amounts paid/incurred because of your crash. And the V.A. and Medicaid/Medicare issues are nightmarish.  You definitely need us for those matters.   Usually your health and auto insurers have language in your policy that requires you to pay them back for the amounts they have paid to you or on your behalf.  The last situation you want to be in, is one where you accept a check from the insurance company only to find it does not cover your losses, leaving you stuck to pay the remaining bills and liens that should have been paid by the insurance company. And you don’t want all of the above lienholders knocking on your door trying to take away some of your settlement dough.

Remember, once you accept a check and sign a release to settle your claims, there is no turning back. Short of being crazy, drunk, incapacitated, gun to your head or blackmailed when you sign the release and accept the check – you are stuck – almost no matter how unfair the settlement or how many liens you have to pay.   So, call your lawyer or your ABATE Legal Services team and schedule a free consultation if you get the offer you think you can’t refuse.

HE GOT AN OFFER HE COULDN’T REFUSE FROM THE INSURANCE COMPANY

 A while back, an ABATE member was involved in a car/farm tractor crash.  A young girl crashed into the back of his farm tractor knocking him off the tractor and puncturing a main tire.  He was treated and released at the emergency room, incurring a bill for those services and a replacement tractor tire.  A New York minute hadn’t passed before the friendly insurance adjuster was knocking on his door offering him money for his loses. (They are my insurance company and we have a love – hate relationship.)  As the ABATE MEMBER was a stand-up American kind of guy – had never sued or been sued in his life – he thought the offer was fair and accepted it and signed a release – only days after the crash.  He thought he was ok physically, taking a “rub dirt on it approach.”

When I talked to him, he had just returned from his neurosurgeon’s office.  He needed back surgery, and probably would not be able to drive a farm tractor again.  I told him to send me the document that he signed and was hoping it was a release for the damages to his tractor tire only.  Some insurance companies will try and be a good guy and settle the property damage separately from the bodily injury.  Not in this case.

The adjuster did a great job for his company (that is what he is supposed to do) in obtaining a total and complete release for all damages – including the bodily injury damages. Remember it is you versus them. They are not your friend.  My heart sank when I reviewed the document. Yep – it was a document that fully released all of my client’s claims and would be held against him no matter how unfair. I suppressed a desire to say, “why didn’t you call me and have me look at the release before you signed it?” Now, my only choice was to contact the insurance company and argue that the settlement was unfair – grovel in other words.  And that is what I did.

Even though I knew and had gone to school with its general counsel and pulled out all the stops I could think of – there was no joy.  I had tried. Their lawyer told me what I was hoping not to hear – “your client signed a full and complete release and we are holding him to it.” Damn.  So, I had the un-high honor of calling my client and saying what I have said too many times before, “short of being crazy, drunk, incapacitated, gun to his head when he signed, or otherwise blackmailed, he was screwed.” Moral of the story?  Always call us or any lawyer worth half his salt when you get an offer that seems like you can’t refuse.  It will save me from groveling before the insurance company and giving my “gun to the head speech” to you.

B.S. DELAY TACTICS BY THE INSURANCE COMPANY

Q:Rod, I have a question:  My neighbor parked her car and went into the house.  Unknowingly she left it in gear and running. My son’s car was parked across the street….  I looked outside to see what was going on … and saw my neighbor’s car had hit my son’s parked car. There was significant damage.  Apparently, the neighbor’s car drove itself across the street and hit my son’s car. The neighbor’s car was still running and in gear with no one around it.  We called the East Alton PD and they inspected the damage and left after we exchanged insurance information. Now they tell us they don’t make out accident reports for accidents like this.  (Here is the problem.) The neighbor’s insurance company wants an accident report before they will pay the claim, my question is shouldn’t the EAPD make out an accident report?  – Dennis Kinnikin, ABATE MEMBER.

A:Dennis, the East Alton PD were not witnesses to the event – just the damage.  All they could do is report on all that was said by each person.  They should have made a report, but probably just did not want to go thru the paperwork thing for a property damage case only. Your son should press on with his claim against the neighbor’s insurance company as their insured – your neighbor – was clearly at fault. He (you) should not be deterred by the insurance company’s insistence on a report that was not done. That simply delays payment for the damage to your son’s car, and maybe that is part of their plan.  That insurance company is clearly blowing you off, so your son should be persistent with presenting this claim.  Confirm every conversation with the insurance company in writing (email) and feel free to show a cc to me as your lawyer.  That could encourage them to do the right thing.  Give the insurance company the names of the investigating police officers so they can get the investigation information direct.  Help them help you. That way they have a report – a verbal report from the officers counts.  Then the insurance should pay promptly for the damage caused by your neighbor.  By the way, what is the name of the insurance company?  I would like to expose their delay tactics.  Rod

Postscript: Dennis reported that the Chief of Police prepared an official report in light of the insurance company insistence.  Now the insurance company is left without any excuse to avoid/delay payment for damages cause by the neighbor’s failures, and which are clearly owed.

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.

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. 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 could become our problem.

Generally, a vehicle owner is not responsible for the actions a person who is operating the vehicle. However, most states allow a claim 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 you should have known that he was unqualified.  Tell him that if he wants to borrow your motorcycle, get a motorcycle endorsement. Then request a copy of the declarations page (summary of his coverages) from his insurance policy.

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. 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  © 2019.

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