Ask Our Lawyer – November 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

BMW RECALLS MOTORCYCLES WITH DEFECTIVE BRAKES

ABATE LEGAL previously warned members about BMW motorcycles with potentially defective and dangerous brakes.  BMW has done right by motorcyclists who have purchased the affected models by issuing a non-compliance recall and stop sale which is set forth below.

BMW Motorrad is announcing a recall and stop sale for the K50, K51, K52, K67 and K69. The recall is related to a potential leak of the front brake calipers in vehicles produced from 8/27/2018 up to 2/28/2020. A process is currently being developed to inspect the affected vehicles and repair if necessary. The affected VIN’s have been marked with a stop sale flag “STOP340006.” Bikes in dealer inventory with this stop flag cannot be sold until further notice.  More information will be communicated through Dealer Direct as it becomes available.

August 13, 2020 NHTSA CAMPAIGN NUMBER: 20V476000

Front Brake Calipers May Leak/FMVSS 122

Overtime, a leaking front brake caliper can reduce the amount of brake fluid in the reservoir. Low volume could affect brake performance, increasing the risk of crash.

Summary:

BMW of North America, LLC is recalling certain 2019-2020 R 1250 GS, GS Adventure and R 1250 RT, 2020 S 1000 RR and S 1000 XR motorcycles. The front brake calipers may leak brake fluid when parked. As such, these motorcycles fail to comply with the requirements of the Federal Motor Vehicle Safety Standard number 122, “Motorcycle Brake Systems.”

Remedy:

BMW will notify owners, and dealers will inspect and if necessary, replace the front brake calipers with an improved version, free of charge. The recall is expected to begin October 6, 2020. Owners may contact BMW customer service at 1-800-525-7417.

MOTORCYCLE BRAKE FAILURES?  LIFE OR DEATH IN THE OFFING?

 [Article written last April warning of the problem.]

Received a call from a long time ABATE member who 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.  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-Magnon 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.

ALL QUIET ON THE WESTERN FRONT (OR EASTERN FRONT)?

I attended this year’s Meeting of the Minds in Indy which was one of the best ever.  Jay Jackson and his crew of invincibles pulled that one off and gave us perfect weather to boot.  At the Meeting I had a chance to catch up with our gallant leader of the MRF.  No one works harder, or smarter, or travels farther for the MRF than Kirk “Hardtail” Willard.  He is truly the unsung hero of motorcyclists in this country, and probably worldwide. He can claim some Hoosier – Illini heritage as his job takes him to the facilities of Clabber-Girl – located in Terre Haute.

I remembered a previous conversation with Hardtail that occurred in Sturgis years ago. I brought up the subject of the State of the Union as far as we bikers were concerned.  I suggested that I had not heard about pressing issues in Congress or of scary legislation being rolled about on Capitol Hill.   With his intense focus, he cut me to the quick and posed the following, “do you have any idea how much work it takes to keep Washington D.C. and its collection of do-gooders “quiet” concerning proposed bills affecting motorcycle rights?”  With that response he made his point.  I had become so hardened to expect one adverse motorcycle piece of legislation after another being proposed that I had lost track of the point.  That we did not want any bills out there being kicked around that impact us adversely – period.  The moral of the story is, that because it is “Quiet on the Western Front”, it is also no time to relax.  “Quiet” is hard work.  Thank you Hardtail and all of the folks at the MRF for what you do.

“BUCKNERED” IS A NEW VERB

Had a chance to catch up with Mark Buckner at the Meeting of the Minds, a long-time mover and shaker of the MRF.  Time usually causes most of us to rust out, but not with Mark.  He looks the same. 

 And it was great to hear stories from others of how he could cleverly entice an unsuspecting motorcyclist into a conversation as to how badly that person was needed to support the “cause”.  Mark is described as having the skills of an encyclopedia salesman in that at the end of the conversation the “unsuspecting’ had a new task assigned to him by Buckner without realizing it.  This happened so many times to so many “volunteers” that Jay Jackson coined a new word in the English language for the occurrence – “Bucknered.” Here is the meaning of this new word that I have sent to “Webster’s International Dictionary to consider for inclusion in the next edition of that dictionary.  

Bucknered \buck-nurd\v – a crafty procedure to entice good hearted people to work hard for the rights of motorcyclists.  Likely involves the transfer of funds from the good hearted person to the bank account of the Motorcycle Riders Foundation.  And usually occurs while that person does not realize that he is being had by the “great proselytizer” of the MRF.  After the process some of these volunteers are heard to have exclaimed, “I have been Bucknered”.

ESCORTING UNESCORTED RIDES

Q:        We have tried to get our police department to help us as escorts for our bike runs and as road guards, but they claim they are too busy and that we need to find off-duty officers who will volunteer.  We haven’t had any luck.  We inquired about being able to take a course to train us to be certified road guards to take pressure off cops and free them for more important things. There is no class in New Mexico, but we were told if we establish a curriculum the state will help us establish a class.  My question is: are there any other states that have such a class and if so, could you share that information with me?  –  Annette, NM

A:        [This response is from Jay Jackson Executive Director of ABATE of INDIANA]  I am not aware of any state that allows for anyone other than law enforcement to escort a procession that can disregard traffic control. Even parades can get a little weird. Some states have a provision in their code that allows for funerals, but are usually pretty specific with regard to who can conduct the escort. In addition, in some states, it is a felony to block traffic at an intersection to allow the ride to pass through. 

What you have been told is pretty common across the country, especially in larger cities. Police departments used to conduct funeral escorts and they also used to help people that locked their keys in their car. Hardly any departments (maybe a few small towns) do either of these anymore. Most of the larger rides are forced to “hire” off-duty law enforcement to organize escorts. The going rate is about $100 per officer (that’s per intersection if they are blocked for any real length of time) and generally about $500 for someone to perform administration (apply for permits and schedule the individual cops). 

I hate to be saying this, but I would suggest seeking legal counsel before having your members “play cop” either with, or without, any sort of training. If there is an “incident” and anyone other than recognized law enforcement is “in charge” the whole event or organization could be liable. I was part of an event that had an off-duty cop, out of his jurisdiction, on his own bike that was helping us out. After about 10 minutes at this particular intersection a car got tired of waiting, pulled around two other cars and drove into the intersection collecting three bikes in the process resulting in serious injury to several riders. All kinds of people got named in that lawsuit and it was indeed a learning experience. 

Except for the biggest rides where we bite the bullet and pay as much as $5000 – $10000 for off-duty cops, we’ve taken to having destination rides where people travel in small groups (3-8) obeying traffic laws and just meet at the end rather than have one massive group. Life sure was a lot easier in the old days. Good Luck. 

DEAD MAN TALKING?

Q:        My father just died, and as the personal representative, I have been working on collecting all of the estate assets – death benefits, retirement accounts and the like.  It turns out that my dad, who was divorced 10 years ago, had never changed the beneficiary of his retirement plan at work.  Now, his ex-wife is going to get all of his retirement benefits.  Is there anything I can do?

A:        Unfortunately, probably not.  Only the employee can make changes to the retirement plan (including death benefits, investment accounts and pensions), so once the employee passes away, there is no way to make changes to those designations.  Further, if your father was covered under a type of plan called an ERISA plan (named after the federal law that regulates those plans) only a specific type of order (called a QDRO) can automatically change the beneficiary upon entry of the divorce order.  If such an order was not entered and he took no steps to change the beneficiary, the retirement plan will pay the named beneficiary, even if it was obvious that your father did not want that to happen.  Some states, including Indiana, have statutes which will by operation of law revoke all provisions in the will in favor of the spouse, but you should consult with a lawyer to see what the law provides in your jurisdiction or whether the divorce order was sufficient to change the beneficiary.  Also, remember that other assets like life insurance, motor vehicle titles and bank accounts can have survivor rights attached to them, and they will also need to be reviewed to make sure that proper steps have been taken to change the beneficiaries.

Ride Safe.

Rod Taylor

ABATE Legal Services

http://www.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 the 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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