Ask Our Lawyer – May 2021

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

NO ONE STOPS TO ASK FOR DIRECTIONS ANYMORE -JUST ASK ED

            When riding around the country I remember the simple joy of stopping and asking for directions.  That stop was part of the journey.  I looked forward to asking for help from someone who wanted to give it.  More likely than not I would be handed more information than I ever thought I needed, but did.  Asking for the best way to get somewhere -what a perfect way to start a conversation with a stranger.  Friendly is the middle name of people in this part of the country.  More often than not, you get so much more than you ask for.  When you ask, time would pass and pass.  You would learn – important stuff.   I miss that.  Nowadays with a GPS you have that person that you don’t know with the pleasant voice telling you where to go.  She never tells you about the best barbeque or about the shortcut that is not on the map, or about the road commissioner that just put that black sticky stuff with chat on the main drag to the place where you wanted to go.  And she doesn’t tell you about how business has been or about the FLH that was ridden to Santa Monica on Route 66, or the speed trap two miles down the road waiting for yankees  – you know, important stuff.  And she never mentions the spot where Lincoln broke up with his law partner just as you go over the Mackinaw River bridge – north of Delavan.  And there is never a thought about telling you about where to get the best, cheap, good gas without ethanol, or the best biscuits and gravy.  Miss those days, so I am making a point of doing something different – stopping and asking a real person for directions and listening to everything else they want to tell me, and as Ed Schetter, a friend of mine in Ohio says, “Enjoying the freedom of the Ride’.”  Who needs a GPS?

PLAYING MOTORCYCLE ROULETTE – THE MOST IMPORTANT ARTICLE YOU WILL READ REGARDING YOUR MOTORCYCLE/AUTOMOBILE INSURANCE POLICIES.

Like playing Russian Roulette? How about for $100 bucks a year? Worth it? Absolutely not. But that’s what you’re doing if you don’t buy adequate uninsured/underinsured motorist coverage for all of your motor vehicles, but especially for your motorcycle. Studies by the Insurance Research Council indicate that up to 14 percent of drivers do not carry any sort of coverage. And I bet they make up the worst drivers. That is one in eight. And some say that figure is going higher. Even more have inadequate coverage – 25k is not insurance.  That is just enough to piss a guy off if you are lying in the hospital with a 100k hospital bill and still more bills to go. Then how do you pay your medical bills, mortgage/rent payments and living expenses? What about pain, suffering, temporary and permanent impairment? The answer is having adequate uninsured/underinsured motorist coverages that you buy. Without it, you may be out of luck – financially.  

If you don’t have significant uninsured motorist/underinsured motorist coverages (UM/UIM coverage), you are unprotected against the driver with no insurance or inadequate insurance. If you carry the legal minimum coverage, you may be in compliance with the law, but you are woefully underinsured if you are seriously injured. In other words the roulette game is on for you.

Let’s say you get injured in a crash that is the other guy’s fault. You have medical bills, lost wages, pain and suffering of $200,000.00. The other guy has minimal coverage of $25,000. His insurance company pays you the $25,000.00 as that is all he has, leaving you with $175,000.00 of uncompensated damages. If you do as I say, you can claim money for your additional losses from your own insurance company under your UM/UIM coverage. But you can only make a claim for your losses to the extent that your UM/UIM coverage exceeds the coverage of the other guy. Of course, the higher your uninsured/uninsured limits, the better your protection.  So just do it.  Be easy on me when you call and tell me you are in the hospital and that the adverse has no insurance, and that you did not follow my “I told you so” advice.  I will keep my thoughts to myself.

MOTORCYCLISTS ARE SCREWED AGAIN?

TOWING PROTECTION IN INDIANA, ILLINOIS AND OHIO

Q.      I recently met with an official at the Illinois Commerce Commission to talk about the legality of towing cars from an apartment complex. I am a tenant and was looking to find out under what circumstances the owner’s association can tow someone’s car. While talking to the official I asked about motorcycles being towed. She told me that the I.C.C. does not regulate motorcycles being towed like they do with cars. Does this mean that my motorcycle can be towed away much easier than a car then be charged higher rates because they aren’t regulated. After speaking with an officer from the Illinois Commerce Commission, he advised me that motorcycles are, in fact, exempt from regulation from the ICC. This is due to the fact that special equipment is needed to tow a motorcycle so towing companies are allowed to charge as they see fit. (Which leads me to believe it is more difficult to tow a motorcycle) The exemptions are found under 625 ILCS 5/18, which states that “this Chapter shall not apply to the relocation of motorcycles. Such relocation shall be governed by the provisions of Section 4-203 of this Code.” Section 4-203 does not impose any cost restrictions on towing motorcycles.

A.      Ron, it looks like we motorcyclists were left off the list of protected species in Illinois where the legislature saw fit to protect autos from gouging rates. The protecting statute limits the tow bill for cars but does not apply to motorcycles. It seems the same pirates gouging cars would want to gouge us as well. Now the tow companies in Illinois can do it with a vengeance by saying that the legislature allows them to charge what they want. Ohio also has legislation on maximum tow charges, but does not exclude motorcycles. Indiana has not enacted any protections against gouging tow bill rates (maybe the towing companies are kinder and gentler there). Also, some local cities and towns may have ordinances that regulate tow fees. Keep me 

posted – we may need a law.

            Since we have had many questions about towing laws here is the towing law in Indiana and Ohio is remarkably the same in that they skip motorcycles. In Indian it shall be unlawful to charge any fee associated in any way with the towing and storage of a vehicle under this chapter, except as follows: For the towing of a vehicle, the maximum fee shall be one hundred and fifty dollars ($150.00); For the storage of a towed vehicle, the maximum fee for each twenty-four-hour period of storage shall be thirty dollars ($30.00); provided, however, that a storage fee may not begin to accrue until twenty-four (24) hours have passed since the vehicle arrived at the vehicle storage facility with a limit of ($2000); A tow business is permitted to require proof of insurance for the vehicle if the owner wishes to drive the vehicle from the storage facility. A tow business is prohibited from denying release of the vehicle based on proof of insurance but may charge a set out fee not to exceed twenty-five dollars ($25.00) for removing the vehicle from the storage facility.  ….(T)he fee limitation does not apply to a towed vehicle having a gross vehicle weight of thirteen thousand (13,000) lbs. or greater.  If it is determined that a vehicle is towed in violation of this chapter, towing and storage fees which have been paid may be recovered by the vehicle’s owner. Liability for damage to a towed vehicle is not limited by the provisions of this chapter. When the vehicle’s owner is present and desires to remove the vehicle from a parking lot before it is towed, the vehicle shall not be towed nor a fee charged; however, if a tow truck is attached to the offending vehicle and at least two (2) tires have been lifted off the ground at the time the vehicle’s owner arrives, the vehicle shall not be towed but shall be released to the owner upon cash payment of a reasonable fee, not to exceed one half of the regular towing fee in lieu of  towing the vehicle. PLEASE NOTE THE PRECEDING!

STONEY LONESOME MOTORCYCLE CLUB – HOW TO LIVE ANOTHER 60

(A PREVIOUSLY ASKED QUESTION FROM ROY GARRETT OF DIRT AND WORTH REPEATING)

Q.  Rod, Stoney Lonesome Motorcycle Club has been around since the 50’s.  We own around 300 acres in Brown County that we operate as a private club for off-road motorcycle events, many of which are sponsored by the AMA. The AMA events usually involve minors.   Having dodged a few lawyers/lawsuits involving minors in the past, what do we need to do to make sure that we are not cleaned out by a lawsuit that could exceed our insurance limits?  And can you help us? Roy Garrett – ABATE/Dirt Off- Road Director. 

A.  We will do our best to prepare waivers that will help protect your organization against lawsuits.  In today’s litigation world, courts are routinely recognizing the validity of waivers and are enforcing them so long as they are clearly written and are fair.  

A few years back, Imre Sauter of the AMA sent a letter referring to a lawsuit filed by an 18 year-old alleging negligence against a ski operation.  Sadly, that 18 year-old was severely injured. Although he was 17 at the time of signing the waiver and 18 at the time of the injury, the court held that the waiver was clear, fair and that he had reaffirmed that waiver by subsequent use of the ski facility.  I cite this case as an example of how the courts will work with us and enforce waivers, if they are done properly.

My greatest fear is an injured minor who was accompanied by an adult that arguably did not have the authority to sign the waiver for the minor. I also recommend that the Club form an independent company to lease your facility for all the AMA events involving minors.  That company would have complete control and responsibility for the activities on race days and would include requirements to inspect for safety.  

Stoney Lonesome’s responsibility should be limited to the leasing of the facility and the complete delegation of the AMA event activities to this new leasing entity.  That company should obtain the signatures of the custodial parents of the minors involved in the AMA event.  This should be done on site at registration, or in advance if possible.  In a pinch, a waiver could be sent to the custodial parent by email (cell phone and the like) with a text consent and acknowledgment.  This is not perfect but beats nothing and I believe the courts would uphold such a waiver. 

And don’t forget my “YOU ARE A TRESPASSER IF YOU AND ANY MINOR WITH YOU DIDN’T SIGN A VALID WAIVER” sign, that should be posted prominently on the property at the registration point and other high traffic areas.  I know that does not look very neighborly, but you and yours want to be around for another 60 and those signs will help me help you with that.

LAID OFF WHEN TIMES ARE TOUGH

Q.      My employer is letting me go. I have been there several years and feel that I have done a great job. This has taken me by surprise and I do not feel he has given me a fair chance. He has offered me severance pay for a few months and basically says take it or leave it. Can the company do this to me?

– ABATE member.

A.      If you do not have an employment contract or union protection, you are basically screwed. Ohio and Indiana are right to work states, meaning that if your employer comes in one day and does not like the color of your shoes, he can fire you. The law will protect you from the various types of discrimination that are prohibited i.e. race, sex, age, religion etc., and I understand that you have no complaints in those areas. Accordingly, your employer’s offer to give you severance pay for a few months may be a gift horse. Take the money and run. Do not forget to look into your rights regarding your health insurance.

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. © 2021.

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