Ask Our Lawyer August 2016

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

GARY SELLERS’ TIRE DOES NOT WORK WELL WITH ACID

Long time ABATE member and a mover and shaker with the MRF shares his tire acid story with us.  On May 25, Gary was riding on one of Ohio’s finest when he encountered a freshly Micro-Sealed road.  What happened next is troubling.  As he rolled into his garage he noticed that the tire was disintegrating – to such an extent that his motorcycle was un-ridable.  A friend examined evidence of his ride through the seal application and concluded that the tire was destroyed by contact with acid.  How can that be?  Well the Material Safety Data Sheets of the sealant used disclosed that potent acids are used.  Enough in Gary’s case to destroy his front tire almost as he watched.  What had happened?  Too much acid?  Improper mixture?  Improper spreading equipment?  Since the incident, the construction company that applied the Micro-Seal has offered to replace the tire.  Gary kept the damaged tire in case someone – anyone, wanted to examine the tire.  Significantly, Gary has had no takers – from anyone.  Do they know something we don’t?

If you have had a similar experience, please tell us about it.  Stay tuned for Chapter 2.

 

LEAD A RIDE OR HOW TO GET SUED WITHOUT REALLY TRYING-

THREE GOLDEN RULES

Q. I have been asked to lead a ride for the local veteran’s group charity. What should I say to the participants of this ride and can I get sued if something bad happens during the ride? I want to do this, but I would like to know how much trouble I can get into if things do not go as planned.

– ABATE of Ohio Member

A. The normal tendency of most experienced riders is to help those with less experience. Regarding the rules for a ride, the following is a good guideline to keep you out of the courthouse – and from getting sued. You should assume that all riders have been adequately trained by the state that has issued that rider a license to ride. We all know people who can’t walk well, don’t drive a car well and even more that do not ride well. Our instinct is to try and help the gyroscopically challenged. However, before a ride is exactly the wrong time to start giving instructions on how to ride. Remember, it is the state’s job to do that with trained instructors. There is a rule of law that places liability on your shoulders if you ASSUME a duty, a duty you may not have had under the law, and then fail to perform that ASSUMED duty properly. So, if you assume a duty of providing additional rules and riding instructions for the ride, you may have just set yourself up for a lawsuit, if they can claim your instructions were inadequate or just plain wrong. Remember all you need to get sued is a lawyer with very little to do with a client that has a filing fee.

HERE ARE THE THREE COMMANDMENTS FOR RIDE LEADERS THAT WILL BEST KEEP YOU OUT OF THE COURT HOUSE AND AWAY FROM THE PROCESS SERVER JOCKEY.

  1. RELY ON AND ASSUME THAT THE RIDERS ARE TRAINED AND SKILLED. AFTER ALL, THE STATE HAS SPRINKLED HOLY WATER ON THEM AND PROVIDED THEM A LICENSE/ENDORSEMENT TO RIDE A MOTORCYCLE.
  2. 2. REAFFIRM THE OBVIOUS — ALL RIDERS ARE TO FOLLOW THE RULES OF THE ROAD AND TO OBEY ALL LAWS. DON’T MAKE UP ANY NEW ONES. COMMON SENSE IS YOUR KEY TO SAFETY. THE RIDERS ON THE RIDE ARE THE ONES THAT HAVE TO USE IT.
  3. MAKE SURE ALL RIDERS KNOW THE ROAD THAT IS BEING TAKEN TO THE DESTINATION. MAPQUEST TAKES THE RESPONSIBILITY OFF YOU –USE IT. IF THE RIDE IS ESCORTED BY THE LAW, PUT IT IN THEIR HANDS AND OFF YOUR SHOULDERS.

P.S. Check your home owners insurance policy. You may have coverage under that policy as a volunteer for a not for profit organization like a veterans group. That may be nice to know, so call your agent.

 

WHEN A MOTORCYCLIST CAN RUN A RED LIGHT – AFTER 2 MINUTES OR TWO CYCLES?

Q. We have a stop light in our neighborhood that will not trip with a motorcycle. I have been doing a series of turns to avoid “running the light.” We also have a strict police officer in our area. Can I run the light if it will not trip, as doing the series of turns is not practical during rush hour? If I get a ticket, do I have a legal defense to the court? – ABATE of Ohio Member

A. We have received many similar questions over the years from motorcyclists that have have experienced a defective traffic sensing device while on their motorcycle. The law should not penalize anyone that is confronted with defective traffic signal equipment. Even the Magna Carta addressed the right to be free from unreasonable restraints of travel. This right is one of our most basic of rights and a defective signal device is an unreasonable restraint on our right to travel free and unfettered. My stock answer to a question of what to do in those situations of a defective signal is as follows: 1. Move over the sensor with your engine area and try disrupting the “Hall Effect.” That is the name of the signal field. Sometimes a magnet on your bike will help with disrupting the signal. 2. If that does not work, count through two cycles. The standard cycle is 60 seconds, SO OUR STANDARD IS 2 MINUTES. After two cycles, look for cops and if you do not see any — go cautiously through the intersection. Sounds simple, but what if you do get a ticket? Go back to the signal and see if you can duplicate your troubles to a witness. Time the actual cycle so you can give an accurate estimate of the time you waited through two cycles. Take that witness to court or better yet, visit the prosecutor with your evidence and request that he dismiss the charges. Pass the 2 minute standard on to your friends. This 2 minute standard has been passed by 16 states so far in the form of HB 1080.

 

PREVIOUS ADVICE FROM JAY – RED LIGHTS: DEAD TO THE RIGHT OR DEAD TO THE LEFT?

This question and answer comes courtesy of Jay Jackson, Executive Director of ABATE of Indiana:

Q. Do you know what Indiana’s stance is on the left on red is when the traffic sensor doesn’t work? I was on my bike the other day and the sensor didn’t detect me. After waiting through at least two cycles, I turned left on the red and got stopped by a cop. Is there a law that lets bikes turn left on red when the sensor doesn’t work? Or have I just heard it is generally acceptable?

– ABATE of Indiana Member

A. In 2014, Indiana passed House Bill 1080 otherwise known as the “Dead Red” law (IC 9-21-3-7(b)(3)(D). The provisions of this law allow you to wait for a period of 2 minutes, then proceed with caution treating the traffic control signal as a stop sign. If you end up getting pulled over even after adhering to the above code, you may revert to the above article for fighting a ticket referring to House Bill 1080. If you are in Ohio, Illinois or a state that has not yet passed the “Dead Red” law, please refer to the previous article.

 

CHIP AND SEAL – NOT A FRIEND TO BIKES 

Q. I live in Indiana. They just put down chip and seal pavement on the road near my house. It is a slippery mess and very dangerous to ride a motorcycle on. I called the Supervisor at INDOT to complain about there being no warning signs. This surface is hard on paint from the rocks being thrown. It is like trying to ride on marbles with a bike and I almost lost control of my truck going around a curve. Is there anything that ABATE can do about this junk being put down on state roads?

– ABATE of Indiana Member

A. Steven, our office has been in contact with the officials having jurisdiction over this state road. Chip and seal is not a friend of any vehicle, much less a two wheeler. If chip and seal is used, warning signs are a must for the traveling public. We have had some bad mishaps with chip and seal in both Ohio and Illinois. We have requested a formal response from Indiana, Illinois and Ohio regarding the procedures to be used by highway contractors when chip and seal is applied. I have requested ABATE lawyer George Tinkham, formerly a lawyer for the Illinois Department of Transportation, to weigh in on this one as well.

 

INSURANCE WOES FOR A MOTORCYCLE SHOP

Q. I’m looking for some advice on insurance and I’m reaching out to you as an ABATE Region 1 member. I’m trying to start a small, one-man motorcycle service and repair shop in northern Indiana. I’m getting quotes on insurance that are all over the board, so to speak.  I’ve had one for $3 grand that is quite comprehensive (and not affordable) and another for half that with garage liability and garage keepers included.  I don’t expect you to be an insurance professional, but should I not be covered for things like personal injury due to my negligence? What I mean is, say I work on a guy’s bike, putting on a back tire and rear brake pads. He leaves my shop and two days later is injured. They blame me for my brake job and sues.  Would the general “garage liability” policy cover that? Or would I need an additional E&O coverage?  The agents I’ve talked to seem to be unclear on the coverage I am wanting.  – Scott Wickens, ABATE of Indiana Member

A. Scott, get quotes in writing from the agents. Remember to expressly set out in an email the questions you asked me. Some agents try to get off the hook by saying everything is in the policy.  But don’t let them.  Ask your specific questions in a 1,2,3 etc format and get an answer.  And get a response in WRITING (EMAIL).  Remember that it may not count if you do not get a written response.  It is then a he said – she said deal.   If they won’t reply by email , and some won’t, move on.  As a matter of principle I will not do business with an insurance agent that does not do business by email.  It usually means they are hiding from something and do not want to be called out on a representation they have made to you verbally.

 

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 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com  © 2016.

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