Ask Our Lawyer November 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

IN DELAWARE YOU NEED A HELMET FOR “HARVEY” THE RABBIT

AND SIZE DOESN’T MATTER

Q.  Mr. Taylor. 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 he 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 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 law there requires 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.

ABATE LEGAL WINS CLASS ACTION FOR RETIREES IN THE ILLINOIS SUPREME COURT

Q.  Mr. Taylor, I would like to thank you for bringing your class action lawsuit in regard to Illinois SB1313 (Diminishes retirees benefits).     Greg Ronsse – ABATE MEMBER.

A.  We are pleased that the Illinois Supreme Court ruled in favor of state retirees. The Court decided that the Illinois Constitution does not allow anyone, including the State of Illinois to diminish or impair retirement benefits. We argued that it is unfair to induce a person to work for decades on promises and then take those promises away at retirement. Not much chance of making up for lost benefits at age 70 or so. We did a good thing here.

THEY WON’T LET YOU DO WHAT YOU WANT IN JAIL – ARGUING WITH COPS

Q.  I was stopped by a cop on my motorcycle. When I tried to argue with him about the facts, he told me to shut up or I was going to jail. Do I have the constitutional right to argue with a police officer about an arrest? ABATE MEMBER.

A.  Many are under the assumption that once you are stopped and questioned by a police officer, you have no right to debate your position with the officer. Wrong. An Illinois Appellate Court (and many other states) has reaffirmed our basic right to argue our position with an investigating police officer. One needs to be mindful that an errant cop has the ability to charge you with resisting and obstructing.

In the Illinois case, the prosecution told the jury that the defendant had no right to argue with the police officer. On appeal, the Court held that this was a gross misstatement of the law and reversed the conviction. We have and should always have the right to call into question the facts of an officer’s arrest. Obviously, when you have made your point, it’s wise to clam up.

Are you resisting if you are on a cell phone? No, but it could become resisting if you persist in refusing to get off the phone when requested.

According to the Court, nothing in the law suggest that you can’t initially question the validity of the officer’s actions. Certainly, you can ask why you are being arrested, and you can point out the officer’s mistake(s), and protest and argue against the officer’s actions. That said, if there was ever a time to practice diplomacy, it is when you are being arrested. Some of us found out the hard way when we were young and inexperienced, that jail is not good – they won’t let you do what you want in jail.

INSURANCE COMPANY MISAPPLYING “NO CONTACT RULE”

Q.  Hello, My husband was in a wreck on Sunday. Someone pulled out in front of him and he could not stop in time, so he choose to lay the bike down instead of hitting an SUV. Now everyone, including our insurance, says we have to pay for the damages to our bike because we did not hit the other vehicle. We even had a witness saying it was the other car’s fault. It’s all in the police report. So I was wanting to know is there any law that would help us so we don’t have to pay the $500 deductible and the days of work he missed? Thank you, Becky W.

A.  Becky, the insurance companies are confused or are trying to pull a fast one. If the SUV driver caused your husband to take reasonable steps to avoid a crash and injury, the insurance company for the SUV should pay for damage to your bike and other losses. Call me and I will talk with you about your options. The no contact rule usually comes into play when you lay the bike down, get run off the road, and the adverse party leaves the scene and is never identified. Insurance companies say they have that rule in order to prevent fraud. Some enlightened and biker friendly insurance companies will at least let you try to prove the crash and run in “‘no contact” situations. In many cases there are independent witnesses who can confirm the cause of the crash and eliminate the insurance company’s fraud concerns.

Below I have reprinted the article I wrote regarding the origin of the “no contact rule.” Hopefully this will help you with your claim.

THE INSURANCE COMPANY’S UNFAIR WEAPON – NO CONTACT RULE

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 may also have uninsured/underinsured 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 your insurance policy 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 lay your bike down to avoid the accident and injury, and do not make contact with the other vehicle–close but no cigar. The insurance company with that language in its policy will not pay, even if you have ten neutral witnesses and a minister confirming your story. 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 and they do not want to take the time to look into your story.

For example, if we are riding on gravel and lose it through our own fault, the insurance companies worry that we could contrive a claim for damages and say that a mysterious vehicle driven by an old lady with blue hair caused the accident and left the scene. But that would be fraud. Criminal penalties and the facts should deter this kind of claim. What about when there are neutral, independent witnesses who observe the adverse vehicle driving erratically so as to cause us to lay our bike down, and that adverse vehicle leaves the scene? No fraud here. How do you suppose the leading motorcycle insurance companies apply the rule in that case? They deny the claim every chance they get and point out the “no contact rule language”. There are some biker friendly insurance companies will give you the benefit of the doubt and let you supply witnesses and facts that prove your claim. I will publish the names of those companies in a future column. You should buy from them and fire the others.

RIDER BEWARE – ROADHAZARD.ORG’S GUIDE TO DANGEROUS INTERSECTIONS

Each year since 1990 there have been more than 10,000,000 (ten million) crashes in the United States. While distracted driving and driver error account for a majority of these incidents, poorly designed and maintained intersections add to the problem.   Each month we will be highlighting these dangerous intersections from around the country based on fatalities and injuries and recommend you proceed through them with caution, or avoid altogether:

NUMBER 1. Indianapolis, Indiana – 79th & Michigan Road

NUMBER 2. Chicago, Illinois – Stony Island Ave. & 79th St.

NUMBER 3. Columbus, Ohio – Cleveland Avenue & Morse Road

Email us dangerous intersections in your area (brianshadiow@abatelegal.com) so that we can spread the news to get them fixed and help us all ride safer.

Ride Safe & Free,

Rod Taylor


ABATE Legal Services

abatelegal.com

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

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