Ask Our Lawyer January 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

HELPFUL BIG NOSES ARE WELCOME!

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

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

Sincerely, Thomas J. Alfrey

FORR – Missouri

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

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

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

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

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

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

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

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

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

ENCOURAGEMENT FROM IMRE

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

Imre F. Szauter, Government Affairs Manager – On-Highway

American Motorcyclist Association

GUNS, AMMO AND LAWYERS ARE FINE, BUT DON’T FORGET THE WAIVERS

Q.  Hi Rod, My wife Tony and I have a 10 acre farm on the Tippecanoe river and are getting more and more visitors. Per your advice at the Seminar, we need a waiver for accidents /lost or stolen items/ and if possible requiring litigants against us to be responsible for all our attorney fees – just like you discussed at the seminar. Thanks, Harold Kleckner

A.  Waivers are on the way, good luck and thanks for all you do for ABATE. Rod

STONEY LONESOME MOTORCYCLE CLUB – HOW TO LIVE ANOTHER 60

Q.  Rod, Stoney Lonesome Motorcycle Club has been around since the 50’s. We own around 300 acres in Brown County that we operate as a private club for off-road motorcycle events, many of which are sponsored by the AMA. The AMA events usually involve minors.   Having dodged a few lawyers/lawsuits involving minors in the past, what do we need to do to make sure that we are not cleaned out by a lawsuit that could exceed our insurance limits? And can you help us? Roy Garrett – ABATE/Dirt Off- Road Director.

A.  We will do our best to prepare waivers that will help protect your organization against lawsuits. In today’s litigation world, courts are routinely recognizing the validity of waivers and are exforcing them so long as they are clearly written and are fair.

Imre Sauter of the AMA sent a letter (printed above) referring to a lawsuit filed by an 18 year old alleging negligence against a ski operation. Sadly, that 18 year old was severely injured. Although he was 17 at the time of signing the waiver and 18 at the time of the injury, the court held that the waiver was clear, fair and that he had reaffirmed that waiver by subsequent use of the ski facility. I cite this case as an example of how the courts will work with us and enforce waivers, it they are done properly.

My greatest fear is an injured minor who was accompanied by an adult that arguably did not have the authority to sign the waiver for the minor.I also recommend that the Club form an independant company to lease your facility for all the AMA events involving minors. That company would have complete control and responsibility for the activities on race days and would include requirements to inspect for safety.

Stoney Lonesome’s responsibility should be limited to the leasing of the facility and the complete delegation of the AMA event activities to this new leasing entity. That company should endeavor to obtained the signatures of the custodial parents of the minor’s involved in the AMA event. This should be done on site at registration, or in advance if possible. In a pinch, a waiver could be sent to the custodial parent by email (iPhone and the like) with a text consent and acknowledgment. This would be better than nothing and I believe the courts would uphold such a waiver.

And don’t forget my “YOU ARE A TRESPASSER IF YOU DIDN’T SIGN A VALID WAIVER” sign, that should be posted prominently on the property at the registration point and other high traffic areas. I know that does not look very neighborly, but you and yours want to be around for another 60 and those signs will help me help you with that.

A SWEET RIDE FOR YOUR BIKE AND FOOD FOR YOUR SOUL

Q.  Hello Mr. Taylor, I have been looking at the back of the ABATE magazine (Hoosier Motorcyclist Magazine) and was wondering where that 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, Dorr County, Wisconsin – a wonderful place to ride. Michael Farabaugh, as you may know, is 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

ROADHAZARD.ORG SAFETY

RoadHazard.org promotes safety, encourages governmental agencies to make road improvements and holds them accountable when they fail to do what is required for the safety of all motorists. In Indiana, Kentucky, Ohio, Illinois, Missouri and most other states, governmental agencies are not usually responsible for an accident, even if the accident resulted from their faulty roads, unless they were put on notice. So keep those reports coming and help prevent motorcycle crash victims.

Ride Safe and Free,

Rod Taylor


ABATE Legal Services

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegalcom. © 2014.

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