Ask Our Lawyer – June 2019

by Rod Taylor – ABATE Legal Services

THE U.S. JUSTICE DEPARTMENT SERVES YOU WITH A SUBPOENA “COMMANDING” YOUR ATTENDANCE AT A TRIAL NEARLY 800 MILES AWAY – WHAT DO YOU DO?

You’re sitting on your front porch minding your business when you get a subpoena from a federal court in New York City.  And not any federal court but the United States District Court for the Southern District of New York.  That is where a lot of heavy stuff happens – Yikes.  That subpoena is “commanding” (IT DIDN’T SAY PRETTY PLEASE) your appearance for a trial that may last 4-5 weeks, but you live in Peoria, Fairfield or wherever in Illinois.  The government “claims” it will pay your travel and lodging expenses, but what about your job?  Your family? Your life?  The case involves alleged bad acts by doctors and a drug company.

You are patriotic and want to help your country and its system of justice, but there are limits.  What do you do – pack your bags – bid adieu to your family?  This happened to ABATE member Deanna Whittaker.

Her call to us was unsettling.  She was concerned beyond belief that she would be stuck in NYC for what could exceed a month or more.  Her big question to ABATE LEGAL: “Does she have to go?”

In the pages of the papers that were served on Deanna was Federal Rule 45 regarding how far a citizen in this country could be subpoenaed for trial. The answer generally is that a federal subpoena is only good for 100 miles from your residence or employment to the court house or place of deposition.  So the answer is “hell no she does not have to go”. But her Subpoena from the Federal District Court in NYC ” Commanded” her presence at 40 Centre Street in that city.  No exceptions found in the subpoena.  I repeat – she was “commanded to appear”.  Well Rule 45 limits a federal court’s power to interfere with a citizen’s life;  but shouldn’t a U.S. Attorney be upfront and advise a citizen of the limits of Rule 45. That lawyer should not be able to send a bunch of legal small print mumbo jumbo in a subpoena package that arguably takes the government off the hook for misleading a subpoena requirement. How dare the government send a subpoena that on its face “commands attendance of Deanna” when they know full well that the subpoena was unenforceable 100 miles from downtown NYC. I am thinking that federal subpoena was shooting blanks somewhere around Harrisburg Pa. or about 600 miles short of Peoria.  Shame on government people that are less than candid.

What a good public servant would have said is as follows: “Deana, the U.S. Government needs you for this trial.  The subpoena we sent you is only good for 100 miles from the court.  You are outside that limit and you do not have to come to NYC, but if you wish to voluntarily travel to NYC that would assist the government”.   The government should also advise that if your personal circumstances disallow you from being away from your family and job, the Justice Department can come to Peoria and take your deposition which can be used in the NYC court as if you were there and that deposition can be videotaped so the jury can see and hear you.

Sometimes I wonder what kind of guys are chasing the bad guys.

Note- Deana wanted this published so others will be aware of their rights concerning a federal subpoena.

WEARY OF FAILING TO GET MY POINT ACROSS – AFTER 40 YEARS OF PREACHING, YOU WOULD THINK.

Uninsured/Underinsured motorcyclist coverage – how does it work? The perfect explanation – I hope.

If the guy that runs over you HAS NO liability insurance, then the uninsured coverage under YOUR policy kicks in to cover your hospital bills, pain and suffering and other losses to the extent of the limits in your policy – THAT IS IF YOU BOUGHT UNINSURED MOTORIST COVERAGE.  SHAME ON YOU IF YOU DIDN’T.  AND GET THE HIGHEST LIMITS YOU CAN as you will need them if you get hit by the Mack truck on your motorcycle.

If the other guy that runs over you has minimal limits (and some states limits are stupid low) and your losses exceed those limits, the underinsured part of your insurance policy takes over and covers the losses above the bad guys minimal limits up to the underinsured limits of your policy.  And get the highest limits you can for this coverage – your family may need it.

At the risk of sounding redundant here is an example:  a biker is riding on a country lane when a farmer pulls out from a field directly into the path of the biker.  The biker attempts to avoid the tractor but loses control and hits a tree and is seriously injured.  Fortunately, the farmer is wealthy and has insurance limits high enough to pay for biker’s losses.

But what if he did not?  That is where the bikers underinsured coverage kicks in.

Some estimate that over 25% of motorists on the road are without insurance – uninsured.  That means they usually have nothing to help pay your losses – zip zero.  Folks that don’t have insurance usually don’t have money; that is the reason they don’t have insurance, so the blood from turnip rule applies.  That means that if you have no uninsured motorist coverage on your motorcycle, you are out of luck!

And just because the bad guy says he has insurance does not mean he really has insurance.  Some states allow you to drive with only 10k of liability insurance.  MY FRIENDS AND FELLOW RIDERS – THAT IS NOT INSURANCE, even though the law calls it minimal insurance.  So the rule is – make sure you have as much underinsured insurance coverage for the other guy just in case he has only 10k.  Understood?

TIS THE SEASON OR WHEN HAS MY MOTORCYCLE TIRE TREAD WORN OUT ITS WELCOME? RICK CHUPP/CYCLE OUTFITTERS TELLS US TREAD HEIGHT AND COOLING IS THE SECRET.

 Q:  How can you go from a motorcycle tire tread depth of 2/32″ (a supposedly safe motorcycle tire) to paper thin in less than 500 miles? I thought the tires were made better today. The tire was absolutely paper thin when it was replaced. If that tire had deflated while I was traveling down the interstate, would the manufacturer have any liability for personal injuries that I may have had because of the sudden wear of that tire? ABATE OF INDIANA MEMBER.

 A:  According to Rick, the minimum safe tire tread is 2/32″ (or one millimeter for you metric guys). An easy rule of thumb is to take a penny and place it in a tire groove. If the tread is deep enough to reach the top of Lincoln’s head, you have approximately 2/32″. Another trick is to measure the wear bars with a ballpoint pen by running the pen through a groove until you hit the wear bar. (They are hard to see, hence the ballpoint pen.) If the tread is even with the wear mark–park it unless you are going to a shop to replace it, and then don’t ride any faster than you are comfortable with in sliding down the road on your hide.

As to the question on how the tire wore so quickly in the last 500 miles, Rick Chupp of Cycle Outfitters (one of the best motorcycle tire suppliers in the country), provides an answer. He believes that the tire grooves provide significant cooling, hence, as the tire wears, less cooling. Remember, the hotter the tire–the faster the wear.

We know of numerous cases of our fellow motorcyclists unknowingly riding on paper-thin tires only to incur a blowout at interstate speeds. The result can be devastating. You don’t just pull over on the side of the road and get off. It does not work that way.  Deflation of a rear tire at 70 mph goes as follows:

You could get lucky and get to the shoulder without any problems. Unfortunately, you could notice a mushy handling characteristic, indicating a developing problem. By the time you have figured out what has happened, you are trying to slow from 70 mph, but the bike is becoming increasingly unstable. The rear end does not want to cooperate.

If you have a passenger, that problem is tripled. If you are lucky/skilled, you may be able to maintain control and somehow get you and your passenger to the side of the road without catastrophe. In many cases, the motorcyclist loses control in the process of slowing the bike.

That control loss is occasioned by known and unknown gyroscopic forces that are forcing the

bike into odd aerodynamic postures and increasing forces from wind resistance. When all of

these forces, including gravity and friction, are competing for control of your bike, you usually lose.

The point of this story is that don’t even consider less than perfect tires and interstate speeds. While tires are more reliable today than ever, tire manufacturers demand air pressures be kept as specified and that the tire is not used beyond the wear specified for that tire. Do not be fooled by the wonderful tire experience you have on your automobile.

Those tires may very well last 60,000 miles. Because of the nature of the manufacturer’s compounds of the motorcycle tire, and because of the extraordinary demand of a motorcycle tire, namely that it be flexible in almost all axis, rear motorcycle tires routinely need replaced at 10,000 miles. Again, use the Lincoln head penny or the wear marks as your guide. If your motorcycle is a Garage Queen (has not been ridden 10,000 miles in a 4 – 5 year period), I would replace the tire.

I find it hard to imagine that any jury would find fault with the tire manufacturer if the motorcyclist did not comply with the manufacturer’s recommendations on inflation and wear. Clearly, they could conclude that you misused the product in question, despite your claim that there was excessive and sudden wear over the last 500 miles of the tire.

SHOULD THE MULE BE THE OFFICIAL MASCOT FOR ABATE/MOTORCYCLISTS?

 A mule is an independent animal.  A few years ago in Wayne County, Illinois, Pure Oil Company leased a pair of matched mules to help retrieve oil field equipment in flooded areas.  Not much time is needed to discover the great qualities of the mule. Sorry, horse lovers; there is no comparison. Some say the mule is stubborn; I say he is principled.  Some say a mule does what he believes is right, correct and proper; regardless of what anyone thinks.  A mule takes the proper path, chooses the best footing and is reliable.  Sounds like a good motorcyclist?  Mules don’t like people that take the wrong path.

And mules talk. They have a word for “right”.  It is “gee”. When you hear a mule go “gee – haw”, the first word is “gee”, not “hee” (some have been getting that wrong for years). So it is “gee haw”, not “hee haw”.  Many people, and horse loving people in particular, have been mishearing mules for years. Teamsters, when handling mule teams adopted the mule words – “GEE” FOR RIGHT AND “HAW” FOR LEFT.  Both terms are defined in Webster’s Dictionary.  Look them up – notice the “origin unknown” part. That dictionary claims that the origin of “gee and haw” is “unknown”. Mules know better. As far as I can tell, these mule words are the only animal words in the ENGLISH language that are defined in Webster’s.  I have requested that Webster’s change the origin of the words “gee and “haw” from “unknown” to “early mule speak”.   I have not received a response – as yet.

If you want to test my mule theory, next time you visit a mule, just whisper “gee” in his “right” ear. I predict you will have an immediate MULE friend. His ears will perk up; he will look at you like you just bonded.

If I ever start a motorcycle club, I am thinking about naming it the IRON MULEMEN. That’s my story and I’m sticking to it.

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 motorcycle crash cases, and expenses as approved by client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their 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  © 2019.

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