Ask Our Lawyer – March 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

JOSH AND THE MOTORCYCLE BRAKE LEVER – YOU WON’T BELIEVE IT

This is one of the greatest motorcycle sagas ever. It was April 2015, that was the month Josh Witkowski almost lost his leg.  That month he started doing time in an external fixator (an orthopedic surgeon torture device).  Docs told him that he had a 50/50 shot of walking in a year.  He was wheelchair bound for three months and had to learn to walk again after that.  He beat the docs prediction and was riding a trike in 4 months and riding on two, 6 months after the crash.

Now get this – when the doc removed the plate and screws from his leg Josh wanted to keep them as parts for the Sportster he was rebuilding.  Where do you put a plate that was in your leg on a sportster?  You take those parts to a fabricator and have them pound the plate into a brake lever and the screws into a cross for the sissy bar.  This has to be a first.

Next time you walk by Josh’s Sportster take a look at the brake lever and marvel.  That lever is a testament to courage, discipline, and the love of motorcycling.

IT’S ALWAYS A GOOD IDEA TO CONSULT WITH ABATE LEGAL BEFORE ACCEPTING A CHECK FROM THE INSURANCE COMPANY

 If you are injured in an accident or have had your bike or car trashed, you should consult with us before accepting a check from the insurance company. Our consult is free. If the offer from the insurance company is fair, we will tell you so and send you on your way.  Even if it is a bit short the offer may still put more money in your pocket after fees, expenses and time for litigation.  With any settlement, all you should care about is how much money goes into your pocket.

On minor cases where the offer is close to fair, we advise our members to say the following to the insurance company, “I would like to get this matter concluded but you are low on the offer so how about increasing your offer before we go to Rod Taylor and have him help us with this case?”  That works a lot of the time when the insurance company is a little off the fair mark in its offer, and usually they will sweeten the offer to get the matter resolved quickly, and thereby cut out the middleman.   Remember, their job is to pay you as little as possible.

Some insurance companies will try and get a check to you immediately, usually for less money, hoping that you will accept a lower amount right away. They know you have bills to pay and money may be short. They try the old “bird in hand approach.” They are trained to do that – not fair but that is the way it is.  You should consult with us to evaluate whether the offer will be enough to cover your damages before accepting any checks.

Importantly you need to know the status of any liens held by your insurance company and medical providers for amounts paid/incurred because of your crash. And the V.A. and Medicaid/Medicare issues are nightmarish.  You definitely need us for those matters.   Usually your health and auto insurers have language in your policy that requires you to pay them back for the amounts they have paid to you or on your behalf.  The last situation you want to be in, is one where you accept a check from the insurance company only to find it does not cover your losses, leaving you stuck to pay the remaining bills and liens that should have been paid by the insurance company. And you don’t want all of the above lienholders knocking on your door trying to take away some of your settlement dough.

Remember, once you accept a check and sign a release to settle your claims, there is no turning back. Short of being crazy, drunk, incapacitated, gun to your head or blackmailed when you sign the release and accept the check – you are stuck – almost no matter how unfair the settlement or how many liens you have to pay.   So, call your lawyer or your ABATE Legal Services team and schedule a free consultation if you get the offer you think you can’t refuse.

HE GOT AN OFFER HE COULDN’T REFUSE FROM THE INSURANCE COMPANY

 A while back, an ABATE member was involved in a car/farm tractor crash.  A young girl crashed into the back of his farm tractor knocking him off the tractor and puncturing a main tire.  He was treated and released at the emergency room, incurring a bill for those services and a replacement tractor tire.  A New York minute hadn’t passed before the friendly insurance adjuster was knocking on his door offering him money for his loses. (They are my insurance company and we have a love – hate relationship.)  As the ABATE MEMBER was a stand-up American kind of guy – had never sued or been sued in his life – he thought the offer was fair and accepted it and signed a release – only days after the crash.  He thought he was ok physically, taking a “rub dirt on it approach.”

When I talked to him, he had just returned from his neurosurgeon’s office.  He needed back surgery, and probably would not be able to drive a farm tractor again.  I told him to send me the document that he signed and was hoping it was a release for the damages to his tractor tire only.  Some insurance companies will try and be a good guy and settle the property damage separately from the bodily injury.  Not in this case.

The adjuster did a great job for his company (that is what he is supposed to do) in obtaining a total and complete release for all damages – including the bodily injury damages. Remember it is you versus them. They are not your friend.  My heart sank when I reviewed the document. Yep – it was a document that fully released all of my client’s claims and would be held against him no matter how unfair. I suppressed a desire to say, “why didn’t you call me and have me look at the release before you signed it?” Now, my only choice was to contact the insurance company and argue that the settlement was unfair – grovel in other words.  And that is what I did.

Even though I knew and had gone to school with its general counsel and pulled out all the stops I could think of – there was no joy.  I had tried. Their lawyer told me what I was hoping not to hear – “your client signed a full and complete release and we are holding him to it.” Damn.  So, I had the un-high honor of calling my client and saying what I have said too many times before, “short of being crazy, drunk, incapacitated, gun to his head when he signed, or otherwise blackmailed, he was screwed.” Moral of the story?  Always call us or any lawyer worth half his salt when you get an offer that seems like you can’t refuse.  It will save me from groveling before the insurance company and giving my “gun to the head speech” to you.

B.S. DELAY TACTICS BY THE INSURANCE COMPANY

Q:Rod, I have a question:  My neighbor parked her car and went into the house.  Unknowingly she left it in gear and running. My son’s car was parked across the street….  I looked outside to see what was going on … and saw my neighbor’s car had hit my son’s parked car. There was significant damage.  Apparently, the neighbor’s car drove itself across the street and hit my son’s car. The neighbor’s car was still running and in gear with no one around it.  We called the East Alton PD and they inspected the damage and left after we exchanged insurance information. Now they tell us they don’t make out accident reports for accidents like this.  (Here is the problem.) The neighbor’s insurance company wants an accident report before they will pay the claim, my question is shouldn’t the EAPD make out an accident report?  – Dennis Kinnikin, ABATE MEMBER.

A:Dennis, the East Alton PD were not witnesses to the event – just the damage.  All they could do is report on all that was said by each person.  They should have made a report, but probably just did not want to go thru the paperwork thing for a property damage case only. Your son should press on with his claim against the neighbor’s insurance company as their insured – your neighbor – was clearly at fault. He (you) should not be deterred by the insurance company’s insistence on a report that was not done. That simply delays payment for the damage to your son’s car, and maybe that is part of their plan.  That insurance company is clearly blowing you off, so your son should be persistent with presenting this claim.  Confirm every conversation with the insurance company in writing (email) and feel free to show a cc to me as your lawyer.  That could encourage them to do the right thing.  Give the insurance company the names of the investigating police officers so they can get the investigation information direct.  Help them help you. That way they have a report – a verbal report from the officers counts.  Then the insurance should pay promptly for the damage caused by your neighbor.  By the way, what is the name of the insurance company?  I would like to expose their delay tactics.  Rod

Postscript: Dennis reported that the Chief of Police prepared an official report in light of the insurance company insistence.  Now the insurance company is left without any excuse to avoid/delay payment for damages cause by the neighbor’s failures, and which are clearly owed.

REVENGE FIRING – IS IT LEGAL?

Q:I work at a local manufacturing shop. I got hurt on the job recently and filed a worker’s comp claim. Shortly after I returned to work, I got fired, and I don’t think they had any reason. Also, when they fired me, they didn’t pay me my accrued vacation pay. What can I do?

A:Maybe quite a lot. One of the first issues to consider is the reason or reasons you were fired. Generally, employers will give some explanation as to why an employee was being fired. Most states, including Ohio, Indiana, and Illinois, have provisions in their statutes that forbid so-called “retaliatory discharge,” or being fired for filing a worker’s compensation claim. While it may be obvious to us to make the connection between the worker’s comp claim and the firing, the employers will often attempt to justify the discharge with evidence that there were other reasons for the discharge. Good record-keeping and sympathetic witnesses can help overcome this hurdle. Penalties for retaliatory discharge can include back pay, reinstatement, and attorney’s fees. In addition, the wage claim statutes in Indiana and Illinois also require that, upon discharge, employees are compensated for accrued vacation time, usually by the next scheduled payday. Failure to do so may lead to additional penalties and an award of attorney’s fees. The answer is much less clear under Ohio law and may depend on whether the employee is covered by a collective bargaining agreement or employed by a state or municipal agency. There may be disagreements, however, over whether the time has been accrued or not, or how much has been accrued. It is important that you speak to someone about these issues as soon as possible to determine your rights and remedies.

CRAZY IS AS CRAZY DOES – LOANING YOUR MOTORCYCLE

Q:My buddy wants to borrow my bike for a ride to Florida. He lost his license a couple of years ago and says he just got it back. Although he’s been riding for years, he’s never gotten his motorcycle endorsement and has had several accidents. He told me his insurance would cover the bike, but I’m kind of nervous about letting him on my bike.

A:And you should be. As we all know, most riders are extremely safety conscious, taking care to make sure that their bikes are in tip-top shape and that their skills remain sharp and focused. Unfortunately, there are those who don’t take those responsibilities seriously. While we are generally not our brother’s keeper, if we allow someone who shouldn’t be riding on our bike, his problem could become our problem.

Generally, a vehicle owner is not responsible for the actions a person who is operating the vehicle. However, most states allow a claim of negligent entrustment, which happens when an owner allows someone to operate the owner’s vehicle when that person is not qualified to do so. Allowing your buddy to take your bike may make you responsible for any accident he causes, if it turns out that he was unqualified and that you should have known that he was unqualified.  Tell him that if he wants to borrow your motorcycle, get a motorcycle endorsement. Then request a copy of the declarations page (summary of his coverages) from his insurance policy.

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. 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  © 2019.

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