Ask Our Lawyer – December 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

RETURNING VETERAN FROM IRAQ – HIS RIGHT TO RIDE

Q.   Our son is returning from active duty in Iraq.  He has a new motorcycle and wants to ride it as soon as he gets home, but his driver’s license/MC endorsement has expired.  How long does he have to renew his license and the MC endorsement?  A.B.A.T.E. OF ILLINOIS MEMBER.

A.  Usually military personnel on duty out of the United States have a reasonable period of time to renew their driver’s license.  In most states in the Midwest, returning vets have up to 45 days to renew.  Since you are in Illinois, tell him to get on his scoot and ride because he has two score and five days to enjoy his bike.  And thank him for his service for us.

ELECTRIC SCOOTERS AND HARLEY LOOK-A-LIKES

Q.  My daughter wants an electric Harley Look – A- Like.  She is 12 and we live in the city.  Can she legally ride it on the sidewalk? ABATE of Ohio member.

A.  Most cities and towns have laws that bar these “vehicles” from sidewalk use and probably she would only be allowed to ride it on private property.  Several legislatures have introduced legislation that would have made the use of such vehicles illegal on streets and sidewalks.  And there are laws that tend to treat electric scooters as a motor vehicle in most jurisdictions.  Check your homeowners insurance policy to make sure you have coverage in case your daughter runs over the little old lady with blue hair.

PLACES TO RIDE BEFORE YOU DIE – HELLS’ ANGELS 1942 STYLE

    Next year on your way to Daytona tooling down I-16 or I-95 near Savannah, you may want to stop and pay homage to the Hell’s Angels of the 8th Air Force.  There you will find a museum dedicated to the Mighty 8th of the Army Air Corps.  It was in Savannah that the 303rd Bombardment Group (H) was formed to fight the Germans during WWII.  The Hell’s Angels, as that group called themselves, often fought the “Abbeville Kids”, the German yellow-nosed FW 190s.  On January 11, 1944, the 303rd made a devastating strike that took out much of the German Air Force.  For this, the Hell’s Angels were awarded a Distinguished Unit Citation for bravery against the enemy.  At the Mighty 8th Museum you will learn all about those who sacrificed their lives for ours.  Did not know that the 8th suffered more casualties than the entire Marine Corps during WWI?.  And both suffered so much for our way of life.

    If you want to get on the lighter side of things, ride into Savannah to Chippewa Square. (Savannah is laid out in a series of squares with the houses on the outside and a park in the center.  They say much of London is laid out the same way). It was there that Forrest Gump told his life story – feather and all.

SPRING ROAD WORK GUIDELINES – LOOKING AHEAD TO WARM WEATHER

            These notes come from the Missouri DOT, but apply to all of the places we ride. -Rod

    The spring pavement striping program will begin after the first of the year, and drivers will see slow-moving caravans of trucks painting roadways throughout the state.  Crisp, easy-to-see striping is a significant safety feature on roadways. The paint contains glass beads that reflect light from headlights in the dark.  The “striping trains” move between 8 mph and 12 mph when workers are painting white and yellow lines on the highways. The trucks have flashing lights, boards with flashing arrows and signs that say “Wet Paint.”

    Many striping crews are working 12-hour days Monday through Saturday.  Although most of the striping is done during daylight hours, some nighttime work will be scheduled when traffic volumes are lighter. Rain or very damp conditions will cancel or cut short any striping work that is scheduled.

Safety Tips

Motorists should use caution in and around the striping equipment and crew workers. Here are riding tips to remember when coming upon a striping project:

– Stay behind the last truck in the work train. This will keep you from tracking fresh paint across the lanes and damaging the new stripes. It also will prevent paint from getting onto your bike.

– On four-lane highways, pull around the striping train by merging carefully into the open lane.  

– On two-lane highways, stay behind the last truck in the striping train, a place well behind the striping truck. This will give the new paint the few minutes it needs to dry. If traffic backs up behind the striping train, crews will pull out of the way where it is safe to do so and let congestion clear.  

– If you drive through wet paint, which is water-based, clean your  bike as quickly as possible with a high-powered water hose such as those used in car washes.

ABATE, though many know it not, is one of the greatest rights organizations ever;

but what it reaches for by far exceeds what it has achieved,

and what it has achieved is magnificent.

BEHOLD: THE TEN COMMANDMENTS OF WAIVERS, RELEASES AND HOLD HARMLESS AGREEMENTS

1.         Be familiar with every point in the waiver.

2.         Appoint a waiver overseer to direct the process of signing and processing the waivers.

3.         Examine photo identification and compare signatures (this may be discretionary in some instances).

4.         Then Waiver Overseer shall initial properly executed waivers at the time of execution (this is so you are able to obtain an affidavit verifying the authenticity of the signature should that become necessary after an incident).

5.         Secure waivers after confirmation (should be kept a minimum of two years).

6.         Transfer the signed waivers to the event person assigned to hold waivers from the event.

7.         In the event of an incident (however slight), notify the head of the event and your organization’s attorney.

8.         Secure waiver of the alleged injured person and make copies to be faxed and emailed to your attorney.

9.         Original waiver is to be retained by waiver overseer until further instructions from your attorney. Do not mail the waiver anywhere, and guard it with your life, as it may be your organization’s silver bullet etc. to avoid litigation.

10.       Get names, addresses and telephone numbers of all witnesses. Remember that long ago Gen. Forrest said it best – the firstest with the mostest wins.

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 veterans 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 don’t 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 courthouse 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.         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.  Map quest takes it 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 homeowners 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.

TOWNS PASSING HELMET LAWS IN STATES THAT ARE HELMET FREE

IS THE TAIL WAGGING THE DOG?  

Q.  A member of ABATE was riding through Portage and was stopped by a cop for not having a helmet.  When the biker produced a motorcycle endorsement and advised the police officer that Indiana was helmet free.  That officer advised the biker – good try but in Portage, the city had an ordinance requiring a helmet.  How can this be when Indiana is a helmet free state?  ABATE of Indiana member.

A.  The officer is wrong.  It only makes sense that we have uniform laws throughout the states.  To hold otherwise would be to require bikers in helmet free states to map a path of travel in order to avoid helmet requiring towns.  Those cities and towns are not being practical, or good citizens. They may mean well, but they are off the rail.  Recall that Myrtle Beach in South Carolina tried to pull that one a few years back.  The Supreme Court of that state slapped Myrtle Beach and held the ordinance unconstitutional.  Likewise in Cleveland, where the city passed a stronger law on gun possession than the state required.  The Ohio Supreme Court ruled “no way” on the more restrictive ordinance, and held Cleveland’s ordinance unconstitutional by saying that in areas where the state has laws, cities and towns need to back off where the state has already decided to regulate.  The lawyers call that preemption.  One way to cure aggressive tactics of wayward cities and towns that violate our rights by stopping us based on bogus laws, is to require those towns to pay damages to the biker for the unconstitutional stop.  If they can fine us, we should be able to fine them.

PROGRESSIVE INSURANCE COMPANY DENIES PAYMENT TO BIKER FOR LOSS OF USE OF MOTORCYCLE

ARE THEY TAKING ADVANTAGE OF BIKERS?

Q.   Rod:  A fellow motorcyclist that was not paying attention crashed into the rear of  my brand new 2012 Street Glide that still had the paper tags on it.  I am sick about it as I only had it for two weeks.  The guy that hit me admits it was his fault and Progressive, his insurance company, has accepted responsibility for the damage to my rear fender, but are not willing to pay for my loss of use of the bike.  The dealership says that they can not get me a new fender in 6-8 weeks. It does not seem fair that Progressive can get off the hook by paying only for the fix of the fender.  Don’t they owe me something for loss of use of my motorcycle? After all, it is riding season!  That way I could rent another bike until my bike is repaired.  ABATE MEMBER.

A.   Hold your ground; they owe you.  Progressive Insurance Company touts itself as user-friendly for motorcyclists, so I am sure they are not trying to pull a fast one – at least you should give them the benefit of the doubt on that one for the time being until we give them a chance to overrule the adjuster handling your claim.  

    You have a duty to lessen (mitigate) your damages, but you also have a right to be put in the position you were in prior to the crash.  Just because an insurance company says they don’t do something doesn’t make it so.  Most states in the midwest, including Illinois, Indiana and Ohio allow loss of use damages which is payment for loss of use of your motorcycle.  This loss is measured by the reasonable rental value of your motorcycle and will vary depending on the value of the vehicle/motorcycle involved.

    In most states, it doesn’t even matter if you rented a replacement vehicle, you still get the value of your loss of use.  Indiana and Illinois courts have said that to decide otherwise would be to favor those who could afford to rent a replacement vehicle over those who could not.  Those that can’t afford to rent a replacement vehicle still have a loss of use which can be measured by the loss of the reasonable rental value.

   Despite the law, some insurance companies still try to take advantage of motorcyclists by saying you have other vehicles you can drive, so you don’t have a loss.  This is false.  Surely a company which seeks motorcyclists’ business would not take this approach.  Share this article with that adjuster.  It might help.  And send the adjuster the communication that you received from the Harley dealer that is doing the repair confirming the 6-8 weeks delay in getting the parts for repair.  Then get a figure from Harley as the to reasonable rental value for a motorcycle comparable to yours.  Armed with this information, you should “educate” the agent as to the facts and the law.   I predict they will send you a check for your loss.  If they don’t,  I will call them for you. 

Ride safe,  Rod  

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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