Ask Our Lawyer – March 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

RIDER EDUCATION  – 1000 LIVES AND A BILLION DOLLARS SAVED!

 

  1. Since the ABATE Rider Education Program began in 1987, is there any information on how many lives/dollars the ABATE Safety Program have saved the citizens of Indiana? ABATE OF INDIANA member and Rider Ed Instructor.
  2. A. It is estimated that through the Indiana Department of Education-Division of School Traffic Safety and the Indiana Motorcycle Safety Program, that 1000 Hoosier lives have been saved as a result of motorcycle/rider education and training courses. If you use the (out of date) NHTSA estimates that the average traffic fatality costs society approximately one million dollars – then applying that standard, the ABATE Safety Training Program has saved the State of Indiana one billion dollars ($1,000,000,000) since 1987.  Obviously, anyone who has had a hand in rider education in Indiana, particularly ABATE of Indiana and its many volunteers, should be unbelievably proud of this remarkable accomplishment.  We need a billboard that properly thanks you folks.


LADY GODIVA MAY BE MORE THAN YOU BARGAINED FOR

 

  1. My local ABATE chapter is going to have a costume party on our property, and we have some concerns about what might happen at the party. Last year, we had a great party, and some of the guests decided they would dress like Lady Godiva. Some of the neighbors complained, but nothing came of it. This year, I have heard that the neighbors have already notified the police, and I expect that they might show up. The major concerns I have are: what gives the police the authority to come on my property, and what would happen if they found some of the (dressed like Lady Godiva and drunk) guests were under 18?  ABATE OF ILLINOIS members.
  2.  Big problems can happen – that’s what, and our response applies to any party including St. Patrick’s day coming up. Let’s deal with the questions in the order you asked them. If a neighbor calls the police because of a breach of the peace, such as loud music, people running around outdoors naked in public view, then the police that respond to the call would be justified in entering onto the property.  They call that probable cause.  If, however, there is no visible evidence of violations (everyone is inside being quiet and the shades are pulled), then the officers would need a search warrant to enter the property.



No one should be admitted to the party if they are under age, but if some underage revelers slipped in, there are additional concerns that affect both the owner (you) and maybe even the host (ABATE). Both could be charged with the local criminal equivalent of “contributing to the delinquency of a minor” and possibly other crimes as well. So in your case, criminal charges could be assessed against not only the property owners (you), but also ABATE, so we need to discuss the rules of admission for this party and ABATE’s involvement.

 

Additionally, there are concerns about civil liability. The presence of under-aged guests raises the stakes for a lawsuit if one of those kids gets in a car and kills themselves or someone else on the way home. The general rule of thumb? Getting drunk and Godiva-like at a private party is not illegal so long as there are no minors involved and the public is not able to witness what is happening or is disturbed by over the top noise.  Adding teenagers and public nudity, and you and the host could be in for quite a scare. Please see the latest form of the authorized WAIVER, RELEASE, INDEMNIFICATION AND HOLD HARMLESS AGREEMENT posted on the web site.  You will need it, so don’t leave home without it – AND BY THE WAY LET’S TALK.

PROVING THE VALUE OF YOUR CUSTOM BIKE TO THE INSURANCE GUYS

 

  1. I have a bike that I bought stock five years ago and have made a number of improvements to it including a lot of chrome, custom paint, and other customized equipment. My bike was stolen last month, and the insurance company only wants to offer me book value for the bike. By my estimation, it’s worth about twice the book value of a stock bike. Is there any way I can convince the insurance company to re-evaluate their offer?
  2.  There may be a way to do that, but it depends on how good your records are. Most insurance policies cover customization and items added to bikes, but the insurance company has to be assured that the customizations that you claim you added were actually added to the bike and became a part of the bike. There are a number of ways to do that. The easiest and best way is to document all the customizations done to the bike. This means keeping meticulous records of the modifications done to the bike, who did them, when they were done, how much they cost, and what effect those customizations had on the value of the bike. Oftentimes that requires hiring the services of an appraiser to evaluate the bike with and without the modifications.  And take lots of photos and send them to your insurance representative – before your bike gets stolen, of course.



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

 

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

 

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

 

HOW ABOUT SAVING A LIFE – YOUR OWN?

 

  1. I recently read an article in my local paper about the increasing number of fatalities involving motorcycles. I’m thinking of taking the Rider Education course, but it doesn’t sound like it would do much good. Why should I take a Rider Education course?
  2.  Because you don’t want to die? That’s always been a good reason for me. Recent numbers show that MOST motorcycle accidents involve untrained or self-taught riders. MOST! If that doesn’t convince you that you should take a rider education course, then nothing will.  Don’t forget some of the other things that contribute to motorcycle injuries and fatalities. Significant numbers of all fatalities involve alcohol and involve riders without motorcycle endorsements. These are risk factors we can either control or be aware of when we ride.



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

WHAT TO DO WHEN YOU GET TO THE EDGE.

 

  1.  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.
  2. You’ve already done the best thing possible, which is to take the Abate Motorcycle Safety course. There’s no doubt that trying to get over a raised pavement is very difficult to do. Often the best thing is to stop, wait until there’s a break in the traffic, and slowly bring the bike back onto the roadway.  Come at it at as close to a 90 degree angle as possible. The closer you are to going straight at it, the better the bike will climb the drop-off. Conversely, the closer you are to parallel the drop-off, the more likely you are to catch the wheel on the drop-off and dump the bike.



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

 

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

 

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

 

GOOD HEARTED NEIGHBORS? FINAGLING FOR MY INHERITANCE – REMEDY

 

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

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

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

 

TAKE THIS JOB AND SHOVE IT OR AGREE TO A NON-COMPETE ?

 

  1. I’m a mechanic in a local bike shop, and my employer recently told me I need to sign an agreement that I won’t work for another shop within a ten mile radius if I leave my current job. I don’t think that’s fair. There are a number of bike shops around here, and almost all of them are within ten miles from my current employer. Can they really enforce that agreement against me? ABATE OF OHIO member.
  2. Probably, but we need to review it to make sure. What they have asked you to sign is called a non-compete agreement. It used to be that non-compete agreements were used only with managers or sales personnel. However, they are becoming more common with service personnel who develop relationships with customers and can entice customers to follow them if they move to a new employer.



Even though non-compete agreements are not favored by the law, if they follow the rules, those agreements are generally enforceable, provided the employer can show a reasonable belief that a departing employee could create unfair competition.  However, non-compete agreements have to be reasonable in their restrictions. They can restrict a person from working in the same field, but only for a reasonable time period and within a reasonable distance from the employer’s service area.  What is “reasonable” is the magic question.

 

If your employer makes a “non-compete agreement” a condition of your employment and you work in an “employment-at-will” state, you may have no choice but to sign the agreement if you want to keep working there. If you sign the agreement and leave the job later, the employer can ask a court to prevent you from working for a competitor. If the court finds that the agreement contains reasonable restrictions, and doesn’t unfairly limit your rights to find a new job, the court could enter an order preventing you from working for the competitor and/or assess damages against you.

 

Ride Safe and Free,

Rod Taylor


ABATE Legal Services

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