Ask Our Lawyer – May 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 

MIRACLE RIDE 2014 – FOR THE KIDS

 

Join the Governor, radio personalities Bob and Tom, Colts players, Jay Jackson Ex. Director of ABATE of Indiana, Ed Schetter Ex. Director of ABATE of Ohio, Jim Elgin Chairman of the Board of ABATE of Ohio, Terry Reilly Ex. Director of the Miracle Ride, Officers and Directors of ABATE of Illinois, Indiana, Ohio, MRF, AMA (Imre Sauter) Freedom of the Road Riders (Missouri ) and other luminaries for the world famous ride around the Indy 500 track, lunch, bike show, and huge motorcycle give away afterwards.  See our website for more details (WWW.MIRACLERIDE.COM)  To date, this Ride has raised over $4,000,000. That’s right – over 4 million for the kids by a bunch of bikers.  Keep the tradition going.  We promise good weather and record breaking attendance.  And Doc Jones (former head of ABATE of Illinois) will be with us again, even though he suffers from Lou Gehrig’s disease.

 

ABATE – SHOULD WE EAT OUR OWN?

 

Q: 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?  ABATE MEMBER

A: 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.

RIDING/DRIVING WHILE INTOXICATED

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

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

 

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

WHY DID ABATE START ITS OWN LEGAL SERVICE PROGRAM?

 

  1. As we all know, the ABATE Legal Services Plan was established to provide its members access to lawyers who are experienced in motorcycle-related rights and well-regarded in the legal community. The cornerstone of this plan is to provide Members with a discounted rate on most contingency fee cases and better services. That rate is 28.5%. Many lawyers are charging at least 33 1/3% with a proviso that the fee could increase to 40%, and with an appeal up to 50%. ABATE stopped all of that to assist its members.  It is another value to membership in ABATE.

 

Some members have gone to non-ABATE lawyers who charge more than the current ABATE plan allows, which is 28.5%. In the past, our members have seen an ad in other ABATE publications and assume they are getting the best rate and good ABATE lawyers – wrong. Those lawyers almost always charge more. That fact, along with lawyer lien rights, played a prominent role to the disadvantage of an ABATE member who lost her leg in a motorcycle accident. Remember, lawyers belong to the best union in the country (it is called the supreme court) and their fees are well protected. This ABATE member had mistakenly hired the “other lawyers” and then quickly fired them when she discovered she had been misled by an ad in a local ABATE publication. She then hired ABATE lawyers (who finalized her case), but her previous non-ABATE lawyers claimed a lien [even though they did little work] on the settlement proceeds. The end result was the ABATE lawyers waived their fee, but the other lawyer had to be sued to get his fee reduced.

 

That ad cost her a lot of money [thousands of dollars] which should have been in her pocket. She could have used that money for a state of the art prosthesis which would have made a difference in her life.

 

It is no coincidence that the ABATE organizations which are the best in this country have their own LEGAL SERVICES PROGRAM which are OWNED AND CONTROLLED by that ABATE organization for ABATE MEMBERS and their families.  That way, those lawyers are accountable times ten.

THE INSURANCE COMPANY’S UNFAIR WEAPON- NO CONTACT RULE “JUMPS HIGHER”

 

Here is how the insurance company’s no contact rule works and why it was created. In general terms, the motorcycle insurance coverage you have meets the state legal requirements on the other guy in case you are at fault. You also have coverage when the other guy is at fault, but either does not have insurance or not enough insurance to take care of your losses. In the fine print of most insurance policies is language that says “if you do not make contact with the other vehicle that was at fault, and that unidentified vehicle leaves the scene, you do not have coverage for that loss.” In other words, if you miss the other guy in an attempt to save yourself, and do not make contact with the other vehicle–close but no cigar. In that case, the insurance company will not pay for damages you incur (i.e. run off the road, injured and trashed your bike). However, if you make contact with the vehicle at fault, your policy provides for payment of your losses.

 

Here is what the insurance companies have to say for themselves. They worry that if there is no contact with the adverse vehicle, they could be subject to fraudulent claims. For example, if we are riding on gravel and lose it through our own fault, some insurance companies say we could contrive a claim for damages and claim that a mysterious vehicle driven by an old lady with blue hair caused the accident and left the scene. But that would be fraud, with criminal penalties so that should deter this kind of claim.

 

But what about the case where there are neutral independent witnesses who see the adverse vehicle run us off the road and leave the scene? No fraud here and evidence to back it up. Further, what if we do not get the license number of that vehicle, but we and others can identify that vehicle in general terms? How do you suppose our motorcycle friendly insurance companies apply the rule in that instance? They deny the claim every chance they get, and say “no contact – no coverage”.

 

Let me give you an example as to how extreme this no contact rule has become. Long time ABATE members were heading south on 231. An old fart, who probably can’t hear, see or drive very well, pulls out in front of them.  Our ABATE MEMBERS made a  motorcycle maneuver that would have made Evel Knievel, Jay Jackson, and John Bodecker proud. They survived by avoiding the car, but sustained injuries and trashed their bike.

 

Old fart leaves the scene, no license number or name, just a description of the adverse vehicle that left them laying on the road bleeding and broken. Independent witnesses  confirmed the above. So what does the darling of motorcycle insurance companies say to them when they submitted a claim under their insurance policy? There was no contact, so no coverage.

 

Motorcycle insurers should do the right thing and pay our members for their loss. They did a great job of missing the old fart and should not be punished for their excellent avoidance skills, and there are confirming independant witnesses to assure the insurance company that no fraud is involved.  Ironically, if they had hit the old fart – just even a touch – there would have been coverage.  So check your policy.

 

INSURANCE LANGUAGE IN ILLINOIS MAY BE ACCEPTABLE REGARDING NO CONTACT RULE

 

Q: I just read your article about the No Contact Rule in many motorcycle insurance policies. I had American Family Insurance on my motorcycle. My policy says the facts of the “no hit and run” accident have to be proved. Am I ok with this policy or do I need to get another insurance company?  Member, A.B.A.T.E. of Illinois, Dukane Chapter.

 

A: Good question. I think this provision is passable, certainly better than the traditional rule. At least it is not an outright exclusion under the “NO HIT, NO COVERAGE” rule of many motorcycle insurance policies. I urge all of you to read your insurance policy and determine whether or not it requires contact with the adverse vehicle for you to have coverage for a No Hit and Runner. If you have that provision, fire that company and get a motorcycle friendly insurance carrier. The reason is that if someone runs you off the road, and there is no contact, that insurance company will deny your claim under your uninsured motorist coverage provision.

 

BIKER PROVERBS

 

I received these in an email 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.

 

Ride Safe & Free,

 

Rod Taylor


ABATE Legal Services

abatelegal.com

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