Ask Our Lawyer – April 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

MOTORCYCLE BRAKE FAILURES?  LIFE OR DEATH IN THE OFFING?

Received a call from a long time ABATE member who just purchased a 2019 BMW R1250 with a leak failure in the Hayes brake caliper.  He suffers from unanswered questions that should have been answered by the dealership and the manufacturer, especially after repeated repair attempts to fix the new motorcycle, or so they said.  Making matters worse he has experienced the close down of the dealership where he purchased the motorcycle and then was directed to an out of state location for warranty work.  Sadly, his brand-new motorcycle still drips brake fluid from the caliper and the dealership that is handling his problems is a hundred miles away. I reminded him that Indiana is still one of those Cro-Mangnon states that does not have a lemon-law for motorcycles.  In the age of motorcycles costing as much as autos, I do not understand that lapse of motorcycle protection by the legislature.

If you learn of other such failures, please call ABATE LEGAL at 317-635-9000 and ask for Rod.  This could be a matter of life or death.

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.  Some 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 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.  In other words you win!

ENCOURAGEMENT FROM IMRE

Rod, it was great to see you.  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, was formerly the Government Affairs Manager – On-Highway – For the American Motorcyclist Association.  He and his wife Debbie are now retired in New Hampshire – within eyeshot of Mount Washington – the end of the Appalachian Trail.

Imre attaches an article about waivers that I will write about next month.  Very important reading for all of you who own property and allow others to use it for off road, ABATE and other events.

NOTE FROM LONG TIME ABATE MEMBER – MIKE SUMNER FROM KOKOMO WHO SENT A PHOTO OF HIS GOOD LIFE

Rod Taylor you made this picture happen. Thank you for your excellent lawyerly efforts. I am forever grateful to you. P.S. I still have your number in my phone…lol  Mike Sumner, ABATE MEMBER

NOTE FROM RICK AND DEB CARROLL LONG TIME MEMBERS – THEY JUST BOUGHT A NEW INDIAN DRESSER – BEAUTIFUL MOTORCYCLE – INSURANCE QUESTION

Rick and Deb called and wanted to know if the current insurance policy with only 100k/300k un/underinsured coverage was adequate to protect them.  Here is what i said:

Deb and Rick – The current amount is not enough.  As discussed, you need to bump your uninsured/underinsured coverage to at least 250/500 (the limits that company offered). Of course, you have to get those same limits as to liability, but that is the law.  And if you can find another company to issue more – get it.  It is the cheapest insurance you will ever buy!  

Ride that new Indian down and visit with me as it has been too long. Rod

MUST READ MUST READ MUST READ

YOU NEVER NEED UN/UNDERINSURED MOTORIST COVERAGE – UNTIL YOU NEED IT. 

ALWAYS BUY AS MUCH AS YOU CAN GET TO PROTECT YOURSELF AND YOUR FAMILY. IT IS CHEAP!  

SOME SUPERSTITIOUS PEOPLE BELIEVE THAT IF YOU HAVE LIFE INSURANCE YOU WON’T DIE.  MAYBE THAT SAME WARPED THINKING WORKS WITH UN/UNDERINSURED COVERAGE?  THAT YOU WON’T GET RUN OVER BY A NEAR DO WELL IF YOU HAVE IT?  IT HURTS THE SAME WHEN YOU GET RUN OVER BY SOMEONE THAT HAS PLENTY OF INSURANCE, BUT IT HAS TO FEEL A LITTLE BETTER WHEN YOU HAVE PROTECTED YOU AND YOUR FAMILY.  BUY IT TODAY – TELL THEM ROD SENT YOU!

RIDER EDUCATION HAS SAVED OVER 826 LIVES IN INDIANA – WOW – PRAISE BE TO THOSE THAT TEACH

[I REQUESTED THAT JOHN BODEKER, A MOTORCYCLE SAFETY GURU, STUDY HOW MANY LIVES HAVE BEEN SAVED BY RIDER EDUCATION IN INDIANA.  I WILL MAKE THE SAME REQUEST OF THOSE RESPONSIBLE FOR ILLINOIS AND OHIO.  JOHN’S STUDY OF LIVES SAVED FOLLOWS:]

Q.  To John Bodeker. Thank you for your role in motorcycle safety education.   Most of us just have jobs.  U had and have far more than that. Please provide your estimate as to the lives saved by rider education.   We will use your response to applaud you and the many instructors for this safety program.  Ride safe. Rod

A.  Rod, I put together the numbers you requested on the lives potentially saved by rider education in the State. I say potential for reasons we have discussed before. I’m not a statistician. I took statistic classes as part of my graduate work and completed published research projects as part of that training. If I learned anything, it’s that good statistical research is one of the toughest critters you can try to get your hands on. The myriad of variables that need to be considered for even the most basic research is a herculean task. To properly measure, collect, decipher and report on those variables is even a greater task. 

However, as we have discussed often in the past, since the inception of the rider education program, there have been no major changes in the variables surrounding motorcycle fatalities outside of the impact of the rider education program itself. No laws of any consequence have been passed affecting motorcycle fatalities (i.e. a helmet law). No changes in the roadway, the environment, the vehicles themselves, or the operators (other than the increasing number of people completing rider training) have occurred. So, it can be inferred that any change in the motorcycle fatality rate (I used rate due to the increase in total registrations and the raw number of fatalities in the past 20 years) can be directly attributed to anything other than rider training. Having said that, here is the methodology I used.

 I took the fatality rate per 10,000 registrations over the first 10 years of the program’s existence (1986 – 1995 numbers trained were just starting to ramp up during that period and did not yet represent a significant percentage of the general riding population) and averaged that rate over that 10-year period. That turned out to be 7.8 fatalities per 10,000 registrations. I then did the same for the next 23 years for which we have data. I used ABATE data from their fact sheet which they got from Criminal Justice Institute data from IU’s Public Policy Institute for all of these computations.  That number turned out to be 5.8 fatalities per 10,00 registrations. That means that for every 10,000 registrations from 1996 through 2018, two lives were saved. I then took the number of registrations for each year (1996-2018), divided that by 10,000 which gave me the number of units by 10,000 (i.e. for 1996 there were 96,710 registrations which  divided by 10 gives 9.7) which represents one half of the number of lives saved that year. By doing the same calculation for each year and multiplying by 2 (the difference between the 7.8 fatalities in the first 10 years and the 5.8 fatalities per 10,000 registrations in the last 23 years), I derived a total number of lives potentially saved by rider education at 834. 

That is of itself an impressive number, but I thought that the average of 36 lives saved per year over the past 23 years to be just as impressive. If I were to look at the fatality rate change from 1986 to present and the 10 years preceding that, the number would be significantly higher, but the confidence that those lives saved solely by the rider education program would drop dramatically and would be open to easy dismissal by the most casual numbers person. 

After you read this, if you would like for me to look at some other options on reviewing this data, I would be happy to do so. However, of all the possible approaches I considered, I felt most comfortable with this approach. Final Report to Date: 834 lives saved over the past 23 years – 36 lives saved each year over the past 23 years. Thanks,John

[John Bodeker has recently retired from public service as a traffic safety expert with a career spanning nearly 45 years. John was the first Program Coordinator when Indiana created a state legislated rider education program in 1987. When he arrived, hundreds of riders were being trained each year and that grew to more than 6,000 annually before John left. In addition to motorcycle safety, John has worked in driver education, traffic records and countermeasures for impairment at the Indiana Department of Education, Indiana Bureau of Motor Vehicles and the Indiana Criminal Justice Institute.]   

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 on 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. © 2020.

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