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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Ask Our Lawyer – March 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

WHAT NOT TO DO AND SAY AFTER YOU GET RUN OVER NO MATTER HOW BAD YOU WANT TO

 A little old Lady pulled into his path as he traveled down the highway.  The description of the collision is memorable.   Ground Hog (name changed to protect the innocent) (around 450 lbs.) was slowly ejected from his motorcycle by the impact (Isaac Newton is right).  He did a complete summersault.  Witnesses described Ground Hog’s contact with the pavement as painful sounding.  Surrounding witnesses were said to have groaned in unison.  Ground Hog arose from the ground and immediately entered the driver’s side of the elderly lady’s car to have a discussion.  You can imagine what was said.  Witnesses describe her leaving the scene of an accident running as amazing, since she was 82.  Several witnesses vividly recall her screams as shriek like.  Others tried to catch her and calm her – to no avail.   Her car, Ground Hog in it, was still there when the cops arrived to investigate.  The police report was one of the most humorous ever written. Moral of the story. Do the best you can to keep your anger and vocabulary to yourself, especially if the adverse is a little old lady.  Everything you say will be used by the adverse insurance company to portray you as somehow undeserving.  The facts and your injuries speak for themselves.  Let them.

TIS THE SEASON FOR CHARITY RUNS AND GETTING WAIVERS IS A PAIN

Q.   Rod. We are having a Charity Run in early spring. Each year we have more riders and handling the number of waiver documents is becoming more difficult. I have been to rides where they staple a waiver to the front of a legal pad. Participants are then handed the legal pad and are asked to read the waiver and sign on the next available line on the legal pad. This would save us a lot of work. We only need a few waivers and three or four legal size pads to get everyone’s signature. Can we do it this way?  ABATE MEMBER

A.   It would beat nothing, but here is what I fear would happen. Judges strictly construe the waiver of legal rights, as they should. Afterall, we are asking a fellow motorcyclist to give up his sacred right to go to court and sue us if we are negligent and cause him harm in exchange for our permission to allow him to go on our run. What I fear is that a participant on our run would say that he thought he was “merely signing a sign-in sheet” and did not see or notice there was a waiver attached to the front of the legal pad (it may have been honestly folded back so one could sign on the lines of the legal pad). I am not buying that argument but several courts have, and agreed that the waiver may have been overlooked. Since waivers are strictly construed, many courts would hold that the waiver was ineffective as it was not knowingly signed. In other words, the guy gets off the hook for the waiver he signed and we may get screwed. So the better way to accomplish getting a knowingly signed waiver is to have a separate waiver for each participant.  Remember – you do not need a waiver until you need a waiver.

WAIVER OVERSEERS ARE A MUST FOR RUNS

Q.   I was at your seminar presentation put on by ABATE. What is the best way to make sure waivers are properly signed? I have noticed that some people do not sign their true names or they sign it illegibly? ABATE MEMBER

A.   A waiver overseer should be appointed at all events for which you are requesting a waiver as a condition of participating. The only time we need the signed waiver is when there is an incident. When that occurs, we need someone to go through what may be numerous waivers in the hopes that the proper waiver can be identified and produced. Issues concerning legibility can be solved by requiring a printed name below the signature. But what do you do if a participant questions the signature? The solution is simple. A waiver overseer can initial each waiver that is signed during his “shift” and in his presence. That way, I can obtain an affidavit from the overseer that affirms that he saw the person sign the waiver. This may be critical if the validity of a waiver comes into question.

TRESPASSERS ON RIDES AND WHAT TO DO

Q.   Hi Rod – a question came up regarding liability waiver forms for our runs and activities. Question is this: What if a person jumps in on the run (seeing a buddy having fun), crashes the gate or just refuses to sign in? How does the law look at this if the person (God forbid) is harmed in some way during our activity? Is this person “trespassing?” Who’s got our back on this one? Or, how do we cover our backside?  ABATE OF OHIO MEMBER.

A.   A sign that declares that all participants in the ride must sign a waiver will help. Banding is the best way to mark those that have paid and signed the waiver. All others are not authorized (trespassers) and should be admonished to stay clear of the ride/activity. Rides should be escorted by police officers, so a simple gesture from them is usually all it takes. If they stay with the ride and are injured, evidence that all participants were required to sign a waiver will be significant to the court in deciding responsibility, and testimony from the escorting police officer will be helpful in establishing the unauthorized (trespassing) status of the interloper. Recently a California Appellate Court decided a case that may be a good precedent for us. In that case, a couple attended a poker run for several years and signed the required waiver.  One year they did not sign the waiver and were seriously injured in a crash on the run. Of course, they sued the run organizers for damages. Interestingly, the court held that there was an expectation of required waivers and held that the couple was bound by it and dismissed the case. While Ohio has not decided a case with those facts, you can bet ABATE LEGAL will be pointing at that California case and arguing that Ohio should adopt such a good rule. Same for Indiana, Illinois, Missouri, and New York as well.

HOW MUCH INSURANCE DO WE NEED ANYWAY?

Q.  We have a few questions regarding ABATE event insurance we are hoping you might be able to assist with. We of course get a Certificate of Insurance (COI) from the state office for our sanctioned events for the specific day and event location, but what should we be requiring, if anything, from vendors that might set up at our event? Should we be requesting COI’s (to CYA) from all vendors? Maybe for only food/alcohol/equipment vendors? We are looking for the best route that covers ABATE, the officers, the event itself, and of course the participants. However ,on the flip side of that we realize that not all vendors might be an established business (such as artsy/craftsy vendors) and might not be able to obtain a COI for the event if requested. If you could please provide any information and input on this, we would greatly appreciate it! Thank you. – ABATE MEMBER

A.  As much as we can reasonably get is the short answer.  Certificates of Insurance should be obtained from all food and alcohol vendors – always and no exceptions.  Also included in that compulsory list are those who provide unique services and items for entertainment.  Keep in mind that many of the arts and crafts-type vendors may not have insurance, so we are relying on the waiver/release that is required for admission for all attendees to cover us.  However, we should require an indemnification agreement from these vendors just in case our waiver for attendees is held unenforceable.  This means that if any of the vendors screw up and injure one of our attendees, and we get sued, we have a claim against that vendor.  Our required Waiver/Release, if enforceable, should get the vendor off the hook along with us, as they are generally identified in our waiver.  If our waiver is determined unenforceable for some reason, we may be able to hold that vendor responsible so that we are not paying for his sins.  But remember that the reason those vendors do not have insurance is because they do not have much money.  So good luck to us collecting from them.

AND I THOUGHT WE HAD THE RIGHT TO REMAIN SILENT – THE COWBOY CASE

Q.  My wife and I were pulled over by a local police officer for having a cracked windshield. My wife was driving and I was in the passenger seat. It was 8:30 AM and we were on our way home from working a midnight shift. The car is in my wife’s name. The officer asked for my wife’s license and proof of insurance which she handed to him. Then the officer looks at me and says he wants my ID also. I asked him what I did wrong, and he said to just give him my ID which I reluctantly did. He came back to the car and gave my wife a warning for the cracked windshield and didn’t say a word to me. Did I have to give the officer my ID even though I wasn’t driving, the car wasn’t in my name, and I committed no crime? All I was doing was sitting quietly in the passenger seat with my seatbelt on. – ABATE members

A.  Well, my worst angels would want to tell the officer to go pound sand, but I’m afraid the answer is that you’re most likely required to provide basic identification to the investigating officer. Since you were not driving, you had no obligation to carry a driver’s license, but if you had it in your billfold or access to it in your car, I believe the courts would rule against you if you failed to produce your driver’s license. The U. S. Supreme Court did not serve us well in what I call the “cowboy case.” In that case we had an independent-minded citizen from the West who thought he had the right to remain silent when asked by the local cops to give his name. He refused and was promptly charged, the case went all the way to the Supreme Court, and the rest is history as they say. In today’s climate of I.D. paranoia and hyper-surveillance, I believe the Courts would have ruled against you if you had refused to surrender your driver’s license. At the very least, I bet the cop would have given your wife a ticket–-with a fine–for the cracked windshield. You know, some folks are like that.

There are a few states that also have “stop and identify statutes,” which require individuals to comply with police requests for identification. In Ohio, Indiana, and Illinois, such cooperation is required when the officer has a reasonable suspicion that the person is committing, has committed, or is about to commit a criminal offense, or that the person witnessed an act of violence or an act which would create a risk of serious physical harm to another person or to property. In those cases, the person is required to give his or her name, address, and date of birth. The statute in Indiana is much broader, requiring that a person provide either his or her name, address, and date of birth or a driver’s license, if in the person’s possession. Illinois requires that if an officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense, he may demand the name and address of the person and an explanation of his actions. In Missouri, officers have the power “to stop any person abroad whenever there is reasonable ground to suspect that he is committing, has committed or is about to commit a crime and demand of him his name, address, business abroad, and whither he is going”(although it appears that this provision may only extend to officers in Kansas City – see Mo. Rev. Stat. §84.710(2).

For some interesting reading, check out the following US Supreme Court cases: INS v. Delgado, 466 U. S. 210, 216 (1984), Terry v. Ohio, 392 U. S. 1 (1968), United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975).

TRADEMARKING ABATE CHAPTER NAMES AND EVENTS

Q.  We have a chapter name that we are very proud of, along with chapter events that are very important fundraisers for our organization. Do we have to do anything legally to protect our interest in that name? – ABATE Member

A.  We receive inquiries about trademarking the names of regions/chapters and their events several times a year. Technically, a trade name is not considered a trademark or entitled to protection under trademark laws unless it is accompanied by a product or service. If a name is used to identify a service or event, the name will then be considered a trademark and entitled to protection if it is distinctive enough.

A trademark includes any word, name, symbol, or device or any combination used or intended to be used, in business, to identify and distinguish an event or organization. One of the good things about trademarks as opposed to patents is that trademarks have protection forever, as long as they are being used.

 So, should our organization trademark an event and its name? The first question you should consider is: why do you want the trademark? Are you simply trying to determine whether anyone else can interfere with your ability to use the name in connection with your chapter events? Or are you interested in obtaining a federal trademark in order to have broader ability to prevent others from using it? Do you plan to have additional events in other geographic locations? The answers to these questions will help determine how important a federal trademark may be to your organization.

The common law provides for protection if you do nothing more than use the name and were the first to utilize the name in connection with a particular event. This common law protection would extend to the area of use, so in the case of an event, it would prohibit someone from having an event with the same name in the same area.  One is afforded greater legal protection when the name of the event is federally trademarked. The process for obtaining the federal trademark would also help you determine what other competing marks exist, if any, that may interfere with your claim to the name in connection with the event. However, obtaining a federal trademark can be expensive, especially if there are competing marks that may pose a barrier to getting your mark approved. To use my favorite lawyer hedge word, it really depends on your organizations’ goals regarding the use of the name in question.

ARGUING WITH COPS IS OK IN ILLINOIS, OHIO, INDIANA AND MAYBE EVERYWHERE ELSE

Q.   I was stopped by the police on my motorcycle. When I tried to argue with him about the facts, he told me to shut up or I was going to jail. Do I have the constitutional right to argue with a police officer about an arrest? – ABATE Member.

A.   Many are under the assumption that once you are stopped and questioned by a police officer, you have no right to debate your position with the officer. Wrong. An Illinois Appellate Court, along with courts in Indiana and Illinois, has reaffirmed our basic right to argue our position with an investigating police officer. However, one needs to be mindful that an errant cop has the ability to charge you with resisting and obstruction. In the Illinois case, the prosecution told the jury that the defendant had no right to argue with the police officer. On appeal, the Court held that this was a gross misstatement of the law and reversed the conviction. We have and should always have the right to call into question the facts of an officer’s arrest. This probably goes without saying, but once you’ve made your point, it’s wise to clam up. Now, are you resisting if you are on a cell phone? No, but it could become resisting if you persist in refusing to get off the phone when requested.

So to sum up, according to the Court, nothing in the law suggests that you can’t initially question the validity of the officer’s actions. Certainly you can ask why you are being arrested, and you can point out the officer’s mistake(s) and protest and argue against the officer’s actions. That said, if there was ever a time to practice diplomacy, it is when interacting with a police officer. Some of us have found out the hard way that jail is not good. They won’t let you do what you want in jail.

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 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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Ask Our Lawyer – February 2020

 Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 SO YOU WANT TO POP A WHEELIE?  ARE THERE LAWS?

While it is true that Indiana and Ohio may not have specific laws outlawing a wheelie, most states give police the discretion to cite a motorcyclist doing a wheelie with reckless “riding”.  Illinois has gone specific.  In Illinois pop two wheelies and you might go to jail as the law assesses a fine after one wheelie, but gives a judge the right to put you away for 6 months after two.  Maine is another state that disallows raising the front wheel off the ground intentionally (Section 2062), but does not use the word “wheelie”, but we get the idea.

As an aside, Guinness World Records claims that Patrick Furstenhof has the speed record while popping a wheeling – 191.3 mph.  That puts my wheelie efforts in perspective.

HOW ARE WE GOING TO DIE? 

 See list below.  Motorcyclists are 15th – right after pedestrians on the street-14th, and cancer, stroke, obesity, smoking, drinking & falling.  This is my perspective from a while ago, so don’t let statistics lessen your riding joy.

Cause of

death

Annual #

of deaths

Lifetime

odds

Heart disease 631,636 1 in 6
Cancer 562,875 1 in 7
Smoking-related deaths 433,000 1 in 9
Stroke 135,952 1 in 28
Obesity-related 112,000 1 in 35
Heavy drinking 79,000 1 in 49
Breast cancer 40,598 1 in 95
Prostate cancer 29,093 1 in 133
Fall 22,631 1 in 171
Assault 18,361 1 in 211
Brain tumor 13,000 1 in 298
Car accident 12,772 1 in 303
Skin cancer 8,461 1 in 457
Pedestrian accident 5,958 1 in 649
Motorcycle accident 5,024 1 in 770
Bicycle accident 820 1 in 4,717
Airplane accident 550 1 in 7,032
Flu 411 1 in 9,410
Lightning 46 1 in 84,079
Legal execution 40 1 in 96,691
Earthquake 26 1 in 148,756
Fireworks discharge 10 1 in 386,76

 AVOID GETTING CUT OUT OF THE PARENT’S WILL AND BEING A GOOD CHILD

Rod,

Always enjoy reading your column in the state Abate paper, always my favorite part to read. I read the Q & A on “Being nice for a reason” in the ABATE news and have a suggestion. Instead of waiting until the parent dies and challenging the will;

  • why not call the parent once every week to see how they are doing, if they need something, or just want to talk with their child. At some point you could even discuss the will.
  • if the parent resides far away, spend your vacation time from work visiting the parent. Let them know you are coming, plan outings or plan for work that needs to be done around the house. Plan the vacation with major doctor appointments or hospital stays in mind. If they live close, visit every week.
  • if you are out of vacation days, use the Family Leave Act. You can stay a month or more helping Your parents, if you can afford to do this. These days you can manage or attend meetings via phone from anywhere. Bring your work notes with you and keep up by using the computer at the local library. Redundant tasks will get along with or without you. Almost anything can be done via the internet, so there are no excuses for not spending time with parents.
  • if you are not employed, tell the parent you want to come for a visit, to help them out with the above mentioned tasks, and ask if they can assist with the trip expenses. After spending time with the parent, believe me you will be discussing the parents finances and other end of life issues. this will give you a chance to discuss the will and how the family is involved.
  • finally, you help your parents out and communicate with them often because you love them. They took care of you when you could not take care of yourself.

Steven W. Farmer

ABATE member since 1985  [From Rod –  Steven, wonderful advice to us all.]

MAKING THE MOST OF YOUR MINUTES

(We have had a series of questions about minutes of board meetings.  What follows is a discussion of the issues confronted by boards and board secretaries.  Let us have your comments and feedback. -Rod)

Q.  Our local ABATE chapter has had some discussion recently over how we should take minutes. Someone told me they had to make verbatim transcripts of the board meetings, but others say they only have to reflect the actions of the board.

A. First, look to your bylaws for guidance. Often times, the bylaws will specify what type of minutes to use. If you have a choice, there are two choices a board secretary can make regarding minutes.  They can either record every word, or record summaries of the conversations.  Each has its benefits and drawbacks.

Robert’s Rules generally favors a show-all, tell-all approach to Board Minutes.  Certainly that makes life easy when all that is done is to record exactly every comment and then show the struck language that is not part of the approved minutes. Only Board members should be privy to the “draft minutes” and then when the “draft minutes are approved,”  those minutes are published and made available to the members.  These rules regarding minutes are simple and easy to enforce.  However, these kinds of recordings may chill candid ramblings that would be inappropriate for publication – even if shown as stricken – and may contain legal issues that need to be protected.  For example, what if libel, slander or politically sensitive remarks, etc. are recorded with no way to edit or redact the comments?  Those types of comments could come back to haunt the organization in the future or cause divisions within the organizations.

The summary approach also has considerations which recommend it.  It allows brutally honest exchanges between board members, – even inappropriate exchanges – without chilling what some folks really think.  It makes the lawyers sleep better without worrying about libel and slander suits.  It allows ABATE  to put its best foot forward in the final minutes as approved by the Board.  Since we as an organization are somewhat political this may be the best choice, unless we want to run the risk of causing divisions within the organization.

Because the summary approach does not record perfectly the words and expressions involved during a board meeting, board members can be accused of inappropriate editing.  In other words, the Board is reserving the right to “clean up” irrelevant comments that may or may not be appropriate.  It then becomes important for the secretary to be judicious in deciding how the board discussions are to be summarized.

In general, given the sue-everybody mentality that seems to be running amok these days, it may be that adopting summary minutes may afford the best for ABATE boards and their members.

COPS AND THE ROAD

Q.  A friend of mine at work was going north on Route 57 from Kankakee, IL. Right before the Manteno exit, a State trooper had someone pulled over. My friend didn’t change lanes when approaching the trooper. All of a sudden, the trooper pulled out right in front of him and gave him a citation for violating the “Scott’s Law.” What is this law, and is there any defense? A.B.A.T.E. of Illinois Member

A.  The law definitely exists, and can be found for Illinois at 625 ILCS 5/11-907. Other states have similar provisions (Indiana at IC 9-21-8-35 and Ohio at ORC 4511.213). The Illinois statute requires that:

(c)        Upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights or amber or yellow warning lights, a person who drives an approaching vehicle shall:

  1. proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least 4 lanes with not less than 2 lanes proceeding in the same direction as the approaching vehicle; or
  2. proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions, if changing lanes would be impossible or unsafe.

(d) A person who violates subsection (c) of this Section commits a business offense punishable by a fine of not less than $100 or more than $10,000. (emphasis added)

The statute is less than clear as to when a motorist is required to move over. It is clear that the statute requires that a motorist either change lanes or slow down. It’s still up to the officer to decide if the motorist exercised “due caution,” but the police officer is only one-half of the story. The charged person may have believed that a lane change was unsafe. A judge or jury would be the final word.

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 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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Ask Our Lawyer – January 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 SEAT BELT HELL FOR TRUCKERS?

Have you ever noticed a State Trooper standing on an overpass with binoculars aiming to tag those not wearing seat belts?  Here is a case that shouldn’t be.  Rick Nickols, a 40 plus year trucker with nary a traffic citation in over 7 million miles got one recently for not wearing a seatbelt.  The officer gave him a choice – low cost fine ($25) if he accepted the ticket or high cost fine ($180) if he wanted to contest it.  What’s with that?  Always thought requiring seat belts for truckers would be like requiring railroad engineers to wear seat belts.

And Rick did want to contest it as he was wearing his seatbelt.  Didn’t seem to matter to the officer that the seat belt was orange and the high visibility safety vest Rick was wearing (required by his employer) was orange,  or that from the officer’s point of view (on the overpass) he could not see the upper seat belt attach point because of the windshield tint and visor in the top part of the truck window.  If he could have, he would have noticed the belt was being used.

The officer’s parting comment was “who is the judge going to believe?  Me or you?  He knows me but he doesn’t know you.”  I really don’t like people that say things like that.  Rick maybe going to trial on this one and he wants to request a jury.  And he will bring with him a copy of his 40 year plus perfect driving record, and an enlarged photo of the seat belt with him wearing his orange safety vest.  And a photo from the overpass showing that it is impossible to distinguish the orange seat belt from the orange safety vest especially thru a sun visor.  Case over if there is justice in that court.

Will keep you posted as to how this goes.

WHY BIKERS LOVE DOGS AND VICE VERSA

We all have been greeted by a dog that would rather lick our face than eat.  A new study suggests that dogs became dogs because of a genetic condition in them that is also found in humans – the Williams-Beuren syndrome.  This syndrome causes intense friendliness with strangers.  As we know dogs were once wolves according to the experts, but this latest finding suggests that a human gene that causes Williams-Beuren has been found in dogs.  Williams-Beuren is described as having an unnatural willingness to befriend those that we do not know – the extroverted life of a party so to speak.  Scientists point out that the “Darwin survival of the fittest idea” would favor those who are suspicious of those we do not know.  So it is very natural for wolves to stay within their own pack for survival and not go socializing with other packs or species.

Dogs socialize with everything and everyone, whether dogs or not.  Growing up we had a pet pig, sheep and pony.  Our dogs adopted them.  When a neighbor came to visit, all of them would run to the gate as greeters as if they were one pack.

So, scientists conclude that long ago, wolves with the Williams-Beuren syndrome approached campfires of humans with tails wagging, tongues licking, looking for leftovers and became dogs by mating with wolves that felt the same way – and had the syndrome. Some say that we humans probably had better leftovers than the pack did.

After studying this idea, I am beginning to wonder if most bikers have the Williams – Beuren syndrome. No wonder we get along with dogs, turtles, hamsters, rabbits, pigs, horses and even cats – and most humans.  And are the most generous group of humans I know.

MOTORCYCLE NATION

 The year 1909 was a time when there were no cars, generally speaking.  Just trains, horses, bicycles and most significantly motorcycles.   For a biker that meant almost nothing to watch out for.   It was August of that year and a guy by the name of Fisher (famous as the founder of the Indianapolis 500, Miami Beach and Presto-Lite) was holding the first race at the Indy 500; it was a motorcycle race.  William Harley and Walter Davidson were there along with their chief line foreman, and everybody that was anybody in motorcycling.

How do I know this?  While at the Indy Motorcycle Expo, I took in the Old Timers area.  There, the old flat trackers, hill climbers, and Daytona veterans were in force.  Some bring artifacts from the glory days, like Kenny Staughton.  For the last several decades the equivalent of the painting of the signing of the Declaration of Independence for motorcyclists has hung above Kenny’s living room couch.  It is one of those seven foot long – one foot high brown-toned photographs of old.  The photograph looks North on Meridian Street from the base of the Monument Circle.  (The site of the Motorcycles on Meridian that happens each summer) Positioned on about a third of the Circle are 250 motorcycles.  I can identify two-cylinder Indians and one-cylinder Harleys.  In those days Harley was not into speed, but endurance.  Indian was into speed.  So, two races were to happen.  One was the speed race at the Indy 500 and the other was an endurance race starting in Cleveland, down to Columbus, over to Dayton, then Richmond, just below Sky Castle Airport, Rushville and finally Indy.  Bill Harley and Walter Davidson won the endurance race and came together with the Indy racers for the photograph.  I can identify William Harley and Walter Davidson and the Harley Davidson factory foreman – I think.  Or at least that is my story and I’m sticking to it.  I thought about having a contest and naming it “Looking for Walter” after the kid game.

What is striking about the photo is there are almost no cars in the photo – maybe a lonely handmade Buick, but that is about it.  Around the sea of motorcycles are horse and carriages and a bicycle or two.  In 1909 we were truly a motorcycle nation.  Not till 1912 when Henry Ford implemented the assembly line in Detroit City did that change.  Bob Schulteti of Harley South-Side believes that Motorcycle Nation existed into the late teens before there were enough cars to make a difference.

While admiring Kenny’s wonderful photograph, I wondered aloud where the motorcyclists got gas, since there were no cars- no gas stations.  Bob Schulteti knew the answer – drug stores.  Imagine – a land before gas stations and no place to get a Big Gulp.

Kenny allowed us to get copies of his living room treasure.  I gave one of the copies to a friend and then a Board Member of the Indy 500 operation.  When the folks at the Indy 500 discovered they did not have that photo – of the first race at the Indy 500, and never knew it existed, by friend’s copy was requisitioned.  Next time you are in my office, take the time to gaze at a photograph that captured a time when America was a “motorcycle nation” – with not one gas station.

 MEDICAL BILL HELL

 *DID YOU KNOW THAT SOME HOSPITALS AND MEDICAL CARE PROVIDERS HAVE THREE PRICES? ONE FOR MEDICARE/MEDICAID – ONE FOR INSURANCE COMPANIES AND FINALLY ONE FOR THE UNFORTUNATES THAT HAVE NO INSURANCE.  GUESS WHICH ONE GETS THE BIGGEST BILL? IT ISN’T THE FIRST TWO.

 YOUR INSURANCE COMPANY SHOULD PAY THE MEDICAL BILLS – WHY?

Q.  I was in a motorcycle accident recently, and the medical bills are starting to pile up.The other guy’s insurance company won’t pay the bills, even though the accident was clearly his fault.   I believe it is unfair that my insurance company should have to pay.  What should I do about all of these bills?  ABATE of OHIO MEMBER.

A.  There are several things you can do to protect your credit rating while you convalesce and try to maintain your household.Of course, you could let ABATE Legal Services team deal with the insurance company for you!  First, notify your motorcycle insurance carrier of the accident, and ask if you have medical payments coverage.  If you have this coverage, the insurance company will pay your medical provider if you are injured in an accident, regardless of who was at fault – up to the limits of your coverage.  Also, you should notify your health insurance carrier, so that they can pay the balance of the bills for your care.

Many people are reluctant to have their own medical/health insurance cover the bills, especially when it was the other person’s fault.  Don’t let that stop you! You paid insurance premiums for a reason, usually an hour at a time – so use it!

Most insurance companies have policy language requiring reimbursement for your medical bills caused by someone else’s fault.  If you are involved in an accident, your insurance carrier will send you a letter asserting a “right of subrogation.”  That is lawyer talk for the right to be repaid from any money you get from the wrongdoer or his insurance company.  Basically, the insurance company will pay your bills now in exchange for the right to be repaid from the proceeds of a settlement or judgment against the guy who caused the accident.  Almost certainly your contract/policy with the insurance company obligates you to reimburse them for the money they paid for your medical bills from the proceeds of your settlement.

This can work to your advantage, and here’s how.  Most settlements and judgments are based on the amount of the medical bills the accident victim incurred.  And insurance companies understand that the amount of the medical bills is a reflection, however imperfect, of the severity of the injury and factor settlements accordingly.

You should know that insurance companies have previously negotiated rates with health care providers that permit them to pay less than the billed amount for services rendered.  While the bill for the hospital may be $10,000, your insurance company may have only paid $6,000.  In that case, all you are obligated to pay back is the amount actually paid to the medical provider.

And ABATE Legal Services can help.  We have had success in negotiating with insurance carriers to minimize or eliminate subrogation repayments, so that $6,000 subrogation obligation described above could be significantly reduced depending on the facts of your case.

Don’t forget, you can always call the ABATE Legal Services team if you have any questions about your legal rights.

 

RIDING/DRIVING WHILE INTOXICATED

Q.  I was recently stopped for operating a motor vehicle while intoxicated. I refused the chemical test. After I refused the chemical test, a judge issued a court order to take my blood. Can you explain to me how the law can circumvent the Bill of Rights? To me this is a constitutional issue. ABATE MEMBER.

A.  From the information you provided, it sounds like the police may have acted within the requirements of the law. First, some background: most states have enacted “implied consent” laws into their statutes relating to drivers’ licenses. Crazy as it sounds, the courts have held that driving is a privilege, not a right, and not subject to the usual protections. In effect, by obtaining a license, you have consented to submit to a chemical test if you are stopped on suspicion of operating a motor vehicle while intoxicated. If you refuse the chemical test, your license will be suspended.

That brings us to your case. In many states, courts have ruled that once a chemical test is refused, the police can obtain an order from a judge to obtain a blood sample. Once that warrant has been obtained, the police can have blood drawn for a chemical test to determine intoxication. From your description, it appears that is what happened. The United States Supreme Court has held that drawing blood and deriving evidence from that blood sample does not violate the self-incrimination protections of the Fifth Amendment. State courts, building on that holding, have stated that blood drawn as a result of a search warrant cannot be excluded unless there is a specific provision in the implied consent statute to the contrary.

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 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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Ask Our Lawyer – December 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

STATE FARM AGENT LIKES ABATE ARTICLES – HERE IS WHY

Rod -Thank you for the great articles every month.  As an Abate member, an avid motorcyclist, and insurance agent, I look forward with great interest to your article each month in the Hoosier Motorcyclist.  In my office, we work hard to educate our customers on the coverage’s you frequently write about.  I was rereading your article from July about uninsured/underinsured coverage and wanted to share an idea with you and ask you a question.  State Farm no longer offers uninsured/underinsured coverage on our Personal Liability Umbrella Policy.  However, you can still get 1MM of uninsured/underinsured on your individual motorcycle policy if you carry 1MM in BIPD.  Could I get your permission to reprint that article and share it with our customers that ride?  I know I’m preaching to the choir, but I’m trying to share this with all our customers that ride! Sincerely, David Wiese, State Farm Agent Attica, IN Phone: (765) 762-6151.

David, Hoosier Motorcyclist is ok with your reprinting the article referred to below.  Please give ABATE and Hoosier Motorcyclist  credit in your brochure.  We need all the members we can get.  And thanks for being an ABATE member and watching out for your insured motorcyclists.  I will be reprinting your email to me in Hoosier Motorcyclists so we can all learn.  Ride safe, Rod

HOW TO DETER OR CONTROL STEALING BY THOSE HANDLING ABATE MONEY

This article is based on a conversation between Gino Johnson C.P.A. and Jay Jackson, Executive Director of ABATE of Indiana and Hardtail of the MRF, concerning  the security and accounting for checks written by the Motorcycle Riders Foundation (MRF).  For many companies the requirement of dual signatures is a solution and is what ABATE LEGAL has recommended to treasurers for ABATE organizations for years.  But Jay Jackson and Hardtail of the MRF asked Gino to discuss the situation where dual checks may not work.  Here is Jay’s question and Gino’s  excellent response.  All treasurers (and those responsible for money) for any organization should memorize this advice.

Q. (From Jay Jackson to Gino Jackson) Unfortunately, being a national organization, geographically (MRF) we are spread across the country. It is not efficient, or perhaps not even feasible, to bounce around for signatures. Do you have any suggestions as to how to accomplish the same results (double signature) without physical signatures?”

A. (Answer of Gino) If it is not feasible for there to be two signatures, then the person writing the checks could make a copy of the checks written along with the invoices and send those with a copy of the bank statement each month to the treasurer or other board member. At least there would be a check and balance to the disbursements. Even if the recipient did nothing with the information, it gives the appearance that a review process is in place.

The income (of the organization) is also at risk.  The same person is going to be receiving the checks and depositing them.  It would be easy (for that person) to not record a membership and redirect a check to a personal account.   It is difficult to systematically verify the income is being handled correctly.   I suppose a listing of all payments for membership and donations received each month could be mailed with the expense reports referenced above.  Or if it is accounted for in QuickBooks a report can be generated from there.

We have started to recommend using Quickbooks online version.  It allows multiple people to have access to the books at any given point in time.  The downside is that it is a software as a service, which means there is a monthly fee instead of a one time purchase.

From Rod— Following Gino’s advice and Jays needs will assistance MRO organizations throughout the county.  Along that line we set forth some previous articles on the subject of honesty and proper accounting within MRO’s.

RULES OF JULIE BACON (former) TREASURER OF A.B.A.T.E. OF ILLINOIS

Q.  Julie and I had the following conversation. “Rod, what can we do to eliminate calls from our Chapters (Regions in other states) that complain that a local treasurer/assistant has “borrowed” money from their local ABATE account.

A.  The problem is that “honest people are trusting people” and as such we are vulnerable unless we strictly follow the rules implemented by most not for profit corporations. As Julie and I discussed, the solution is very simple. RULE 1: Follow the rules. RULE 2: Require dual signatures on all ABATE checking accounts (See Gino’s exception above). RULE 3: Require bonding for accounts that will have balances over $5k. Bonding is cheap and it spares us of having to eat our own. If you have a loss, simply report it to the bonding company. They will send your (Chapter or Region) the money lost and will collect the amount “borrowed” from our errant money caretakers. Believe me, those folks are brutally efficient at collecting amounts taken. People like “Luca Brasi” work for them and some of them are lawyers. The only problem is that bonding companies are particular as to the individuals they will agree to bond, as they like making money. Come to think of it, a rejection by a bonding company may be a good way to delegate the asking of and receiving answers to embarrassing questions of one of our fellow members. RULE 4: If the member can’t get bonding, should they be handling our money? I don’t think so, unless you are willing to suffer Julie’s prediction. She is good at saying, “I told you; just follow the rules.” 

JULIE’S SIMILAR QUESTIONS FROM YEARS AGO – DO YOU SEE A PATTERN HERE?

Q. We have been hit by yet another round of misappropriations in our A.B.A.T.E. local organization by someone we trusted. What can we do to make sure this does not happen in the future? Julie Bacon, Treasurer, A.B.A.T.E. OF ILLINOIS

A. Probably nothing to guarantee that it never happens, but there are several things we can do to minimize the chances and the amounts at risk. Here are some simple rules.

  1. Don’t let people who desperately need money, handle the money. Get a credit check from those handling the funds. There should be no privacy issues when it comes to those handling the life blood of the organization – dollars.
  2. Even if you get a good person to handle the money – get two of them for a check and balance. Always require dual signatures on any checks. (SEE GINO EXCEPTION ABOVE)
  3. You should bond any money transactions over the amount you can’t afford to lose. Bonding is cheap compared to the risk. The local A.B.A.T.E. organization should decide the threshold of its pain – namely what amount can it afford to lose through misappropriation and then bond over that amount. The good part about bonding is that the bonding company will get a credit history from these persons and will be responsible for getting the money back if there is a theft. The bonding company will ask the questions that we are usually embarrassed to ask. In short, they will screen our people for us. Of course, they will pay us up front if we have a loss. Bonding is cheap compared to the alternative.
  1. The reason for number 3 above is that A.B.A.T.E. does not have to be the bad guy. In other words, we do not have to eat our own if we have someone that betrays our trust.
  2. What do you do when you think we have been had by a person entrusted with our funds? Nip it in the bud. Worst case is that you embarrass yourself by asking the “who, what, when and where” questions. If you have done your job with A.B.A.T.E., you will have followed our loss procedures and the theft will be minimal. If you have required dual signatures and one signature was forged, the bank may be responsible for the loss, and you have done a good job for A.B.A.T.E.
  3. What do we do when we find a theft? Do we hang/prosecute them or? A policy should be followed that takes into account our legal requirements, but also should allow for explanations for the failure of trust.  The mistake should be evaluated. When in doubt, call us for advice. Many treasurers and I have been through this too many times, and we are here to help you through this tough situation. Usually the bonding company sends Luca to the prosecutor’s office and takes that job away from us.

What are the reasons for going through all of this? A.B.A.T.E. needs the money – that is our life-blood for what we do. But most importantly – to protect, preserve, and defend the integrity and credit worthiness of A.B.A.T.E. The world needs to have confidence in our business practices.

THANK YOU FOR UPDATING MY WILL

 Just a note to thank you for the service you provided me in updating my will.  As I previously explained, it will make things much easier on my surviving three cousins upon my passing.  Once again, thank you very much for your help, and to ABATE members.

Respectfully, D. Collins, South Bend Indiana

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 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 © 2019.

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Ask Our Lawyer – November 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

ROAHAZARD.ORG, IT WORKS.

 Please keep sending in those road hazards, we get things done when these notices are coming from a law office.  The following email was received the next morning after alerting INDOT of a dangerous roadway.

______________________________________

From: INDOT South West IN Communications

Sent: Tuesday, October 1, 2019 12:23 PM

Good Afternoon!

Thank you for contacting the Indiana Department of Transportation regarding State Road 66. This area is still under contract so I sent this over to our Project Engineer for this area for him to review.  Thank you for bringing this to our attention.

Have a Blessed Day!

Misty McCarter

DANGERS OF RIDING EAST THIS TIME OF YEAR – IT’S FIVE O’CLOCK SOMEWHERE

ABATE LEGAL passes on our observations of motorcycles getting hit while traveling east in late afternoon.  Numerous riders have been hit or nearly so by drivers heading west into the blinding sun.  Sounds like common sense, but the smaller you are, the harder it is to see you in the setting sun.  So much so that I say avoid traveling into or away from a blinding sun.  If you do, be prepared that the car/truck coming toward you or up behind you may be blinded by the suns rays.  We have had several members learn this the hard way.  Just passing this on.

Q.  My husband had a bad crash on his motorcycle, but is recovering. The insurance company has agreed to pay us for the damage to his bike and allow us to keep it less the salvage value. We are paying a fair price for wrecked bike (salvage) and can fix it for a reasonable amount. Is that normal for an insurance company to do that? Also, the insurance premium is due soon. Is it ok to cancel the policy? Is there any downside to canceling? We need to save all the dollars we can until my husband recovers from his injuries and gets back to work, but we do not want to jeopardize the settlement funds and the deal for the bike. Rod, we need your advice.

– ABATE member

A.  Most insurance companies allow its insureds to “buy” the salvage, so buying the salvage is normal. This means that when a company totals your motorcycle, they are obligated to pay you the “value” of the motorcycle. At that point, the insurance company owns the wrecked and totaled motorcycle (salvage). You then can negotiate with your insurance company as to the value of the salvage. If you are mechanically inclined, this may be an opportunity to get a “good deal” if the motorcycle is repairable. They will deduct this salvage amount from the value of your motorcycle and send you a check for the balance.

As to your other question, you can cancel your policy and it will not affect your motorcycle settlement, or the other obligations of the policy that are in effect, at the time of the crash. The greater portion of the premium you pay on your policy goes toward liability coverage for the other person if you are involved in a crash. Since your bike is not road-worthy, that part of the coverage is a waste. However, your policy does have theft coverage and you will lose that coverage when you cancel. Check with your homeowners/renters’ insurance company to see if they will provide theft coverage for the bike since it may be considered personal property and not a “vehicle.” Some policies provide coverage for a stored bike in damaged condition – some don’t. If you do not have theft coverage, get a big chain and a bad dog because your kind of bike is a theft target.

 

ABATE – SHOULD WE EAT OUR OWN?

  1. Our ABATE Chapter has been ripped off by one of our own. I have heard of other instances where an officer “borrows” ABATE monies and can’t pay it back. How can we protect ourselves? Should we sue the member? Can we collect? Do we prosecute? What do we do?
  2. Here is what we should do. All money handlers in any ABATE organization should be bonded.It is simple and cost effective. Here is how it works: a bonding company (like an insurance company) agrees to write a bond (an insurance policy for theft) up to a certain amount of theft (or “borrowing”). I recommend that at least 75% of the amount of money that will be handled.

If we have one of our own who “borrows” the money, we simply turn it over to the bonding company. They pay us for the loss just like an insurance company does when you have a fire loss. It is the bonding company that will go after (our hopefully) ex-ABATE member. In that way, ABATE is made whole and we do not have to eat our own.  Life is too short to start hanging our errant members.  Let the bonding company do the eating, and we have better things to do for motorcyclists.

BIKER PROVERBS

 I received the following in an email and need to share with you:

Four wheels move the body. Two wheels move the soul.

Never be afraid to slow down.

A bike on the road is worth two in the shed.

Young riders pick a destination and go… Old riders pick a direction and go.

People are like Motorcycles: each is customized a bit differently.

Everyone crashes. Some get back on. Some don’t. Some can’t.

Don’t argue with an 18-wheeler.

Never be ashamed to unlearn an old habit.

There are drunk riders. There are old riders. There are NO old, drunk riders.

Only a Biker knows why a dog sticks his head out of a car window.

There are two types of people in this world, people who ride motorcycles and people who wish they could.

MOTORCYCLE RUN RULES ILLINOIS, OHIO, INDIANA, MISSOURI

Q.  Is it legal in Illinois for outriders (with reflective vests) to stop traffic at intersections with or without local law enforcements permission during a motorcycle run?   Jon ‘Pilgrim’ Kersey, VP Eastern Il. ABATE chapter.

A.  Most states have statutes similar to the ones in Illinois. Section 11-1416 of Illinois Vehicle Code (625 ILCS 5/11-1416) (from Ch. 95 ½, par. 11-1416) reads:

Sec. 11-1416. Obstructing person in highways. No person shall wilfully and unnecessarily hinder, obstruct or delay, or wilfully and unnecessarily attempt to delay, hinder or obstruct any other person lawfully driving or traveling along or upon any highway within this State or offer for barter or sale merchandise on said highway so as to interfere with the effective movement of traffic.

(Source: P.A. 80-911.)

The “outriders” could be charged with violating this statute as well as a “local ordinance”.

The key word in §11-1416 is “unnecessarily.”  Although the “outriders” might argue that it was necessary for them to obstruct traffic, I doubt if a judge would make such a finding.  After all, the group could have accommodated local traffic if it had chosen to do so.

For some intersections the law is not clear.  If the ride was on a through street with no stop or yield signs or traffic signals and if traffic on intersecting streets were required to yield to traffic on the through street, then it would seem that the outriders did not obstruct traffic.  If this is what happened, then they did not stop vehicles.  Rather, they were protecting through traffic from illegal and dangerous interruption by vehicles that were required by law to stop.  But even this situation is less than clear.

If the ride was running red lights or stop signs, then they should be glad no one was arrested for such violations.  And if there are collisions, they probably will get sued.

The rule of thumb is that only persons with police powers are authorized to control traffic movement.  These persons would include all police officers and most laws allow flagmen to control traffic at construction sites.  Also, it may be necessary (note the key word discussed above) for individuals to guide traffic during emergencies when police are not available.  Other than these very few exceptions, individuals who interfere with traffic are in violation of 11-1416.

 

THIS SIGN HAS TO SAVE LIVES

IMG_3498

I saw this sign as I was riding back from Mt. Vernon.  It was located at a rest stop off of I-57  North of Salem, and South of Effingham, near the intersection with I-70 (just south of the huge cross).  It was placed perfectly for the traffic leaving the rest stop.  I salute the Department of Transportation and encourage all of us in the Midwest to intensify our efforts next Spring when we need to remind our cell phone using cagers that we are out there again.  Ride safe- Rod

 

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 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 © 2019.

 

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Ask Our Lawyer – October 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 KILLER I-70 – BIKERS BEWARE OF I-70 IN INDIANA, ILLINOIS AND OHIO

 Nationwide—Labor Day weekend was one of the busiest on the roads and was the final weekend in the Summer’s 100 Deadliest Days of Driving. Before you hit the road for any other motorcycle trips, check out this list of the deadliest highways in the US.

Indiana’s deadliest highway is I-70 with 17 fatalities (so far) during the summer months. I-70 and I-80 are both top three deadliest highways in six different states. Florida has the road with the highest number of traffic fatalities during this time period. There were 160 deaths on I-10 during summertime in 2015, 2016, and 2017. That’s the most on a single road on the entire list.

Find the nationwide list here: https://www.asecurelife.com/most-dangerous-us-highways-for-summer/ 

I-70 POTHOLES FROM HELL KILLS A MOTORCYCLIST FATHER TO BE

A 28 year-old motorcyclist from Columbus would have liked to have had the above information about I-70 and warnings regarding road conditions before he hit the “potholes from Hell” just East of Indy.  He was riding a nearly new Honda Rebel – not exactly a high-powered motorcycle when he hit a series of potholes in the westbound “slow lane”.  This happened around noon on Aug. 1.  Those ‘hellholes” tore a gigantic gash in his front tire, severely bent his front forks causing loss of control and slamming him to the road.  The crash was so horrific that he lost his life.   A pregnant wife was waiting for him at home.  That slow lane was inherently dangerous for all who traveled it heading west bound toward Indy and clearly should have been closed for traffic, or at least warned about.  Guess what?  Those potholes from hell still have not been fixed over a month later.  Doesn’t anybody care anymore?

WHY IS POWER OF ATTORNEY NEEDED BY MOTORCYCLE DEALERSHIP

Dear ABATE Legal – On August 9th, 2019, my wife traded her (used) 2018 Indian Scout and took delivery of a (new) 2018 Suzuki Burgman from World of Powersports in Springfield, IL (WOPS). With exception of the owner’s manual missing from the new bike, we expected (and received copies) for all relevant documentation necessary to title & register the Burgman. On August 31st, my wife received in the mail from WOPS a blank document titled ‘Illinois Secure Power of Attorney’. There was no explanation and their only requirement was for us to affix signatures next to their ‘post-it’ arrow. We’re not accustomed to signing away power of attorney without explanation (or understanding). Is this something new or required for title and registration on new motorcycles purchased in Illinois? Why didn’t the WOPS business manager have this form completed when taking delivery on August 9th? I’m seeking your counsel and reassurance this step is necessary for a new untitled bike before contacting WOPS. Please note we signed over our lien free title on the Scout, leaving me to now question the title process on the new Burgman. Wouldn’t the manufacturer (Suzuki) provide title whereby the dealer simply submits it to Illinois so as to ultimately affirm our ownership and registration? I don’t recall needing to complete this form for prior vehicles and it caught me by surprise. However, I do have more ‘senior moments’ in my retirement.  I’ve tried to be brief, but will answer or provide documentation for questions you have. Your articles in the Newsletter are the best reading – Thank you for your commitment to motorcycling and ABATE. Sincere regards,  Terri & Duane Ladage.

  1. Suzuki does not provide a title, but merely a certificate of origin for a new vehicle.Traditionally, the dealer will submit that certificate to the Illinois Secretary of State and secure a title for the purchaser.This is the practice in most states and avoids a title being made in the dealer’s name and then being transferred to the purchaser.  The dealer will apply for the title as the purchaser’s agent with a power of attorney.  The cost of two titles is significant; so, the purchaser is better off paying for only one. This is why World of Powersports have requested the executed power of attorney.  They simply failed to have all the paperwork completed at the time of sale.  It was a minor error on their part.  Am uncertain if the purchaser can directly ask the Secretary of State to convert a certificate of origin to a title.  It may require a licensed and bonded dealer to do this, but you do not want or need to go through that hassle.

 

BILLBOARD WAR – ADVERTISING ON A MUNICIPAL BILLBOARD

Mayor Harry Jennings of South Jacksonville refuses to allow ABATE to post a motorcycle awareness message on the village’s billboard because the message constitutes “private use” of public property.  The proposed message identifies the chapter; shows the photos, names, & date of death of two young riders killed; and safety messages. Mayor Jennings apparently believes the proposed message constitutes “private use” for two reasons:

  1. The message advertises a private business.A.B.A.T.E. of Illinois and its chapters are not a private business.  Rather, it is a civic organization recognized as a §501(c)(4) entity by the Internal Revenue Service.  The organization’s primary goals are promoting motorcyclists’ rights and safety. This particular intended message relates solely to motorcycling safety and does not promote either A.B.A.T.E. or any monetary interest of that organization.

The mere fact that Tri-County is mentioned in the message has no more significance than showing Alzheimer’s Association on a specialty license plate.  In fact, Illinois recognizes many organizations on related specialty plates.  Illinois has no problems recognizing D.A.R. on the many monuments it has erected along the old Eighth Judicial Circuit that Abraham Lincoln rode as a lawyer.  These monuments are on public highway rights-of-way.

  1. The message is a memorial.  The State of Illinois and its political subdivisions frequently memorialize individuals whose lives (or deaths) contributed to the public interest.  If this were not so, then Jacksonville should remove the obelisk memorial to Morgan County’s civil war soldiers.  Also, the State should remove the statue of Martin Luther King, Jr by the State Capitol – as well as all the Abraham Lincoln statues and plaques throughout the State.  The proposed message does not memorialize the dead bikers as individuals, but as victims of carelessness that can be prevented if motorists would only be more aware, would look twice, and would “Start Seeing Motorcycles.”  Their images, names, and dates of death are given only to make the safety message more powerful.  This is a legitimate public purpose and use of public property.  The proposed message should be viewed as a “public service announcement” similar to what is required of radio and television broadcasters by the FCC.  Such announcements have long been recognized as serving legitimate public purposes.  The State of Illinois spends millions of dollars annually on traffic safety.  What ABATE (Tri-County) proposes to do with this billboard has the same public (cf., private) goal as that of the State when it comes to saving lives. (Springfield sage, George Tinkham contributed to this response)

 

RED LIGHT CAMERAS – DUE PROCESS CASE AFFECTING MOTORCYCLISTS

In Knutson v. Village of Lakemoor, The U.S. Court of Appeals for the 7th Circuit Affirmed a Federal Court holding that court did not err in dismissing the case for failure to state a valid cause of action.  Plaintiffs alleged that defendant-City violated due process rights by issuing notices of red-light camera violations that failed to cite specific reference to section of municipal code that plaintiff had allegedly violated.  Court held that defendant provided plaintiff with adequate due process, where permitted defenses in code allowed plaintiffs to refute or alleviate their culpability.  The court also rejected plaintiffs’ claim that notices were void due to failure to cite specific code violations, since any requirement for specific reference to code violation was merely directory, as opposed to mandatory. Moreover, plaintiffs had ample information to generate a defense, where notices had multiple pictures of plaintiffs’ registered vehicle, along with time, date and location of violation. Like it or not – Big Brother is here.

 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 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 © 2019.

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Ask Our Lawyer – September 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

 TEN THINGS TO THINK ABOUT IF YOU’RE ARRESTED

 What do you do when the men and women in blue show up? What are your rights and what should happen? We get many inquiries from parents, neighbors, and concerned friends about their rights and what to expect. The following tips should help:

  1. When am I arrested? You are arrested (or considered under arrest) when officers deprive you of your freedom of movement in order to have you answer for an alleged crime.
  2. They want to question me – what are my rights? Just like in those TV shows, you have the right to remain silent. If you don’t keep silent, anything you say can be used in court against you. If you start answering questions, you can stop at any time. You have the right to speak with your lawyer and have them with you during questioning.
  3. The cops won’t let me go, but they haven’t arrested me. Can they do that? An officer can temporarily detain you in order to ask for identification and to get an explanation of your presence at a particular time. You can be subject to a limited pat-down search to ensure that you have no weapons if the officer believes you are armed. You have the right not to answer the questions, but if you refuse to give any identification, the officer may have grounds to arrest you. Once this temporary detention is over, the officer must either arrest you or let you proceed on your way.
  4. They want to arrest me, but don’t have a warrant. Officers can make an arrest without a warrant if they witness the offense being committed. They can also make an arrest if they receive information from a credible person that the suspect committed a felony and is about to escape.
  5. I got hurt when I was arrested. How much force can they use? An officer is entitled to use reasonable and necessary force to overcome resistance. These terms are relative, so the amount of force they can use depends on the situation.
  6. They want to search my house. Do I have to let them? An officer may conduct a limited search of the surroundings without a warrant. If you are in your home, they may seize contraband, stolen property, or evidence of a crime in plain sight. They may also check the residence for accomplices. If you are in your car, they can search for weapons that could be used against them. They may not conduct a broader search without a warrant, unless they reasonably believe that the vehicle has evidence of crime or contraband.
  7. I’ve been arrested. Now what? You are going to be taken to the detention facility, where you will be able to talk to an attorney. They should also tell you the charge being alleged. You can be required to participate in a lineup, give a handwriting sample, give a blood or urine sample, or perform certain other tasks.
  8. I want out! Bail may or may not be set for your case, depending on the seriousness of the charge. If the charge is relatively minor, you may be released on your own recognizance. You can also petition the court to reduce the amount of bail set.
  9. Where can I get a lawyer? If you don’t already know one, you can call your state or county bar association or us for a referral to criminal lawyers. If you can’t afford to hire an attorney, you should tell the judge, who will ask you questions to determine if you qualify for a public defender.
  10. My kid just called from jail. What rights do they have? Children have the same substantive rights as adults. In addition, they have the right to have a parent with them when being questioned. Also, the procedures in juvenile court are generally closed to the public.

RIDER SAFETY TRAINING EXPERIENCE – AN EYE-WITNESS ACCOUNT

A reader reports: I participated in the ABATE course in Indianapolis. I was hesitant to try something so new and extreme, but found it to be an amazing experience. I would like to share what I gained from this experience that you, so generously, support. Before taking this class, I had no experience riding motorcycles, but sought to become a safe rider. With energy, enthusiasm, and some anxious nerves, I opened myself up for a long and exciting weekend. From the very start, I knew my instructors would make this the best experience I could ask for. They were thorough, patient, and enthusiastic about everything they taught me and my fellow students. With every step we took and skill we practiced, the instructors were by our sides guiding us, but also letting us learn how to do things ourselves. I not only enhanced my skills and knowledge about safe riding, but my confidence grew, too. The instructors saw that growing confidence, and had me lead the group in activities to support it. I had such a wonderful weekend with my ABATE friends. I learned how to be a safe, efficient rider, but developed relationships and met friends, too. I cannot thank you enough for supporting such an amazing cause. Please continue to do whatever you can to keep the ABATE courses running so well. I would hate to see what would happen if the only means of learning safe riding was no longer in existence. Again, I thank you for your continued support!

Sincerely, an ABATE student

ABATE LEGAL is proud to be a sponsor of the ABATE Motorcycle Safety Training course and plan to be involved for many years to come. 

WEIRD WIND – BANE OF MOTORCYCLISTS

 Many bikers go off the road violently and do not make it. Many assume they just lost it. I have another theory – weird wind.  I have a friend who is a member of ABATE, and a biker’s biker – a motorcyclist perfected. He also happens to be a pilot – not just a pilot, but an airline transport commercial pilot. When it comes to wind, he knows all you need to know. Except a while back, Mother Nature threw him a new one – “weird wind.” It was a really hot, gusty day, on the flats of Illinois, just perfect for dust devils, wind shear – all the weird winds. Running with good speed down the state highway, he noticed the violent wind from the left and the front end climb up first, then the rear wheel oscillation, and finally, a violent high side to the right. He may have been shoved to the right and just lost it. Who knows?

Looks like he may be back to walking, riding and flying in a few, if he is lucky. What happened, and how do we learn from his experience?  Some blame the incident on a microburst that nailed

him. Whatever it was – it was invisible. Bikers and pilots suffer the same exposure. Years ago, I was flying with a buddy in a Cessna 140. He too is a hard core biker. I asked him about his greatest fear with flying. He said “weird wind.” What can you do to avoid it? Be aware of weather that causes wind shear and microbursts, but other than that, it is like getting hit by lightning. To avoid that, you have to stay home, but that is not like us, is it?

ANATOMY OF A SLIP AND FALL CASE

Cary Scott stayed at a hotel recently, La Quinta Inn.   He is a good customer and will be returning in a couple of weeks.  His job as a project engineer takes him all over the U.S., an ABATE member, and regularly reads this column.  He is a stand tall, pays his bills, supports his family, votes, never been sued or ever sued anyone kind of guy, and a pretty good pool player.  And he needed some help from ABATE LEGAL.

Here is the problem.  In early December, he was leaving the Inn, minding his own business, watching where he was going and slipped on the wet tile at the exit door all the while wearing Wolverine boots with one of the best non slip soles God ever made.  Partially catching himself in the fall, Scott injured himself and tore a leather coat. The staff at the hotel quickly placed a weather mat at the hotel entry to take care of the slippery nature of the tile. ADMISSION NUMBER ONE. There is also a video camera at this entrance area.  ADMISSION NUMBER TWO.  After the treating doc examined him, a prescription for pain pills was given and he went about his way.  Hopefully he just got shot at and missed and would be ok in a few.   All of this was communicated to the folks at the hotel and they promised that they would get with him regarding his medical bills and damaged coat – over a month ago. ADMISSION NUMBER THREE.

 

After getting no response from La Quinta, Scott called ABATE LEGAL as he suspected they were ignoring him.  In today’s world many companies pass their responsibilities to companies with nefarious names like “risk pool managers, risk assessment evaluators, risk adjustment bureaus” etc.  You get the idea.  Just like in a John Wayne movie – they went that away.  My experience is that delay, avoidance and the like are part of the strategy – “if we don’t call them back maybe THEY will go away and we don’t have to pay THEM.”  “Let’s make it too hard to deal with us.”  Hopefully that will not be the case with La Quinta – but we shall see.

Scott is a straight shooter and only wants to be reimbursed for his losses.  He has read my previous article on signing releases and so he knows that nothing should be signed that would waive any right to claims he may have for permanent injuries.  He needs to continue with his medical treatment to make sure that his problems are not permanent and that he will not need surgery in the future.  Nothing worse than having signed a full and complete release for a few hundred bucks, only find out a couple of months later that you need shoulder surgery and may not be able to do your job – or worse.

In the meantime Scott will copy me on all correspondence to La Quinta and their “risk pool manager.”  Hopefully that will help; and hopefully his injuries are temporary; and hopefully the hotel will do the right thing and that I will not be needed.  But if I am needed, we are prepared to help him to the next step because it is the right thing to do.  And he wants his experience published so that others can benefit from his efforts.  We will keep you posted as his case develops.  Remember that America is one of the safest countries in the world according to my theory.  First, we don’t want to get hurt ourselves, Second, we don’t want to hurt others, and finally, if you have to pay for what you break you are that much more careful.  It is that simple.

Postscript — Scott had to sue to get the matter resolved.

CAN I CUT THE BITCH/BASTARD OUT OF MY WILL? (LET’S TRY THAT AGAIN) CAN I DISINHERIT MY SPOUSE?

Q: I have been married for 22 years, but we are no longer getting along. She is my sole beneficiary under my Last Will and Testament – CAN I CUT HER OUT OF MY WILL?

A: Most states let you do what you want with your stuff [personal property and real estate] when you die. However, most states will not let you cut out your spouse completely unless they agree. In many states, including Ohio, Indiana and Illinois, a surviving spouse can renounce your Will if you have cut her out and elect to receive a percentage of your assets, regardless of what you provide for in your Will. And you thought you got rid of him/her!

WHERE THERE’S A WAY, THERE SHOULD BE A WILL

 Q: I want to do my will, but I’m not sure what I should put in it or what I need to consider when I’m doing my will.

A: Anybody who’s ever heard me speak at one of the state seminars  knows that I think everybody should have a will. They don’t have to be complex, and they don’t have to be expensive. We do wills for ABATE members for free!

When you are ready to make a will, there are several things you will need to think about and come to a decision on:

  • Who should receive my property?
  • Who should take care of my minor children?
  • Do I need to create a trust for my spouse or minor/adult children?
  • Do I want to make any charitable gifts?
  • Should my life insurance go to a trustee or directly to the beneficiaries?
  • Who do I want to administer my will?
  • What about taxes?

If you already have a will, you should review it to make sure it is up to date and reflects changes in your marital status or changes in the beneficiaries you named.

And by the way, there are several requirements that have to be met to ensure that the will is valid. In general, the will has to be made by some over 18 and of sound mind and memory. Also, it must be in writing, signed by the maker, and witnessed (with signatures) of two disinterested persons (not anyone who would benefit from or is named in the will). Upon the death of the person who made the will, it is presented to the court, who will make sure it is valid and provide appropriate orders to make sure the instructions are carried out.

If you don’t have a will, or want to make changes to your will, call ABATE  LEGAL SERVICES. We will do your will for you, free of charge!

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 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 © 2019.

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Ask Our Lawyer – August 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

CHRISTOPHER BLACKBURN NEEDS TO WEAR A ST. CHRISTOPHER MEDAL FOR THE REST OF HIS DAYS

Fourth of July is a “best day” of the year to ride to Attica, Indiana. After all this is Jay Jackson country and he picked to live in a good riding spot. And so thought Christopher.  He and his buddy John Montgomery chose U.S. 41 to ride north. Being from Rockville they know good riding country.  U.S.41 was a two lane lane road allowing great riding in the Wabash Valley, and riding a V Star Yamaha 1100 must be joy on that road.

U.S. 41 was designed in a day when traffic was intense, but no longer.

Christopher was point man and John was his wingman -perfectly staggered. All was good until it wasn’t. As they say, speed doesn’t kill, it is the sudden stop, so we watch out for the sudden stops.

Per the crash report, the adverse driver “advised she seen the motorcycle driving northbound and did not know why she turned into it.” AFTER YOU HAVE SWALLOWED THAT- here is more of what happened. Adverse driver drove into Christopher as she was making a left turn.  The speed limit is 55mph. At that speed Christopher was traveling almost 81 feet per second (80.667 to be exact).

Let’s talk about the sound of a V Star Yamaha 1100 coming apart at 55 mph.  And what about Christopher – just suspended in the air after being ejected from his bike and traveling around 55 mph?  The engine case had disintegrated from the g-forces – oil everywhere. Loose fenders and other parts are traveling with Christopher and Christopher is alongside John – but John is riding a motorcycle. Christopher is not. Must have been a curious feeling for Christopher watching John slowly pass him by as he was suspended in air but still going riding speed.

At some point Isaac Newton takes over and Christopher slows for the landing.  He recalls doing a complete flip in the air, but now is following John.  The landing is soon to follow – on his rear. Burning skin off the old fashion way by fire hurts enough, but rubbing skin off by road maybe worse.  After the road rashing is complete, Christopher lies there testing what works, what moves, any vehicles coming, and looking at the debris of the V Star scattered like granulated seed. Never was a thought that the bike was not totaled – or him for that matter.

The emergency folks did their thing. The trip to the hospital seemed long. Wondering what would become of him? Could he work?  What was busted? Legs? Hips? Rehab? How long? Would work still be there? Bills – how to pay?

Quick work with the diagnostic process at the hospital in Williamsport. Result- nothing broken. What the hell? How is that possible.

From here on out his patron saint should be St. Christopher or Evel Knievel. And I have on order a St. Christopher medal for him to wear for the rest of his days.

ALL BIKERS SHOULD BE “ROADS” SCHOLARS

ROADS SCHOLAR Lesson No. 1 – It was bikers that returned glory to the Old National Road that cuts across the country, also known as U.S. 40.  Its heyday was 1840, but by the middle of that century, the railroads had put it out of business. The traffic/business was so bad that the Feds turned the highway back to the counties to maintain their portion. That is until some unknown designed and built a new form of transportation – the safety bicycle.  And it was Harley Davidson that made a myriad of those, before they figured out how to put a motor on that cycle and become part of transportation history and lore.

ROADS SCHOLAR Lesson No. 2 –   The outcry of cyclists (without motors) in 1891 gave rise to better roads.  Cycling clubs sprang up all over the U.S. resulting in the creation of state highway departments in the 1890’s.

ROADS SCHOLAR Lesson No. 3 – Roads started simply – with ditches on the side and with varying sizes of gravel laid down with a “high” portion in the middle.  The new style road was called a “high-way.” When concrete and asphalt came along, there also came a new road name, “the hard road.”

ROADS SCHOLAR Lesson No. 4 – Farmers joined “cyclists” with a get the farmer out of the mud mantra.” Organizations such as the “Good Roads” movement joined with the legislators responsible for the U.S. Post Office.  Post Roads were created, and so on it goes, but let’s never forget that it was us “two wheel” riders that started it all. So if you are ever asked “if you motorcyclists think you own the roads,” you might think to yourself, “yeah, as a matter of fact.”

 

SHOT AT AND MISSED

When I lived in Wayne county Illinois about a thousand years ago I thought of riding the Pyrenees Mountains. That is generally where Hannibal traveled to fight the Romans – with elephants no less. No more thinking about it because I did it, and I would never ever think of doing it again.  And knowing what I know now I would have paid criminal amounts of money not to do it. And I would tell every friend of mine to never even think about especially with a passenger.

I went with two friends and Ann.  The bonds that formed as a result of surviving the ride can almost be described as like that of combatants having survived a battle. Here is why.  I am a motorcycle cruiser, not A MotoGP kind of rider. Ann and I have ridden nearly every major mountain range in the U.S. and we love it, especially the safety attention usually afforded roads in our country. But that experience did not come close to preparing us for the Pyrenees mountain pass from hell – Col de Au bisque – roads that only elephants feel good about. The motorcycle rental place only rented BMW’s – great motorcycle, but I had never ridden one. Am a Harley guy and that is the bike that I know well. It was a big mistake to take an unfamiliar bike to that pass, and with a passenger no less. I am a farm boy with a “how hard can it be attitude”.  I found out.

Here is what happened. In taking the roads up to the pass from hell, we encountered narrow roads – no big deal. That is until you take away guard rails, quit leveling them at about a 13 percent grade and throw in a menagerie of farm animals, all lose roaming around looking for handouts like a panhandler. Then there were the French tourists driving mini campers coming down the mountain seemingly always looking the wrong way and driving on your FIVE FEET of road.  Not sure if the middle finger was a universal sign before I rode there, but I am pretty sure it is now.

Cows with bells, sheep with bells, goats with bells and did I mention bulls with horns? And course throw in a horse with a cowbell – seen an embarrassed horse before.  In this open barnyard, I learned all about the coefficient of friction of manure, which is everywhere. Crudely put, cow shit is slicker than goat shit, which is slicker than sheep shit and horse shit is slicker than all of them. Am not sure about the bull shit. This is very important information to know with a two wheeler on steep roads.  We had just gone through Col de Portlet – get that portlet. Call me crazy, but I think the sheep, cow, goat and horse stuff on that mountain pass gave us a modern term, but I could not find anyone around there to own up to it.

A smarter man would have turned around at Col du Tourmalet – the famous point of the Tour de France- and gone back home to Indiana.  Forrest was right, stupid is as stupid does. While there among the animals, I looked over towards the pass from hell. I said to my companions that surely that was not the road. It was chiseled into the side of the mountain which was maybe 16 feet wide in some places, and it was at least 2000 feet straight down – a sheer cliff – remember no guardrails. When I had passed the point of no return, I was thinking that my riding gear with state of the art body armor was not going to be much help with a slip and a wrong move . And what a horrible time to discover that you are a closet –  height fearer. Nothing scared me more than when Ann leaned over and whispered, ” whatever you do, don’t look down.” I and my stomach knew she meant it and I didn’t, even when we got to a safe point. Going up a steep grade in first gear wishing you had and even lower one and facing a 180 switch back on a blind turn was more than I could stomach (remember the French tourists in the mini campers looking in all the wrong directions and usually driving on my part of the road). The view of just sky ahead and not knowing if the road continued straight or hung a left out of sight was paralyzing, or was it a 13 percent grade, or a 180 degree switchback on a blind curve?  And by the way when does a BMW 1200 stall out ? I had never ridden so much in first or second gear in my life.

Here is how I put this ride up the pass from hell into perspective – hind sight of course.  Most large cities have a building that is 600 feet high. Pretend some idiot builds a ramp at a conservative 6-7 percent grade, three times higher than that; next he builds a wall on one side and makes the ramp 16 feet wide; then he leaves the other side wide open- not even a dandelion on the edge; then puts a herd of sheep, cattle, horses and goats spread along the way.  And don’t forget the French guys in the minivan he has invited to start down from the opposite direction, driving a lot on the not-their-side. Then he invites you to ride your Harley up the ramp so you can enjoy yourself and the view.  What do you say?

If someone ever tries to talk you into riding up through the pass from hell, call me and I will give you some of the best advice you will ever get.  As for me and Ann, we are left with the best feeling ever – the one of being shot at and missed.

 

DEAD MAN TALKING?

Q:  My father just died, and as 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:  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 divorced 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 & 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 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 © 2019.

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Ask Our Lawyer – July 2019

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

BOGUS SUBPOENA FOR NYC FAILS AND ABATE MEMBER RELIEVED

Last month I wrote about ABATE Member Deanna Smith-Whittaker who received a bogus subpoena from the government trying to pull a fast one.  That ABATE member sent me this.  “So glad ABATE has you to help us out.  Thank you again for helping me!!!! PEO TAZ Chapter.  And I love article.” Deanna

After ABATE printed the article advising Deanna that the subpoena served on her by the government was ineffective, that office quickly withdrew its ineffective subpoena. (see the language of its letter below) That subpoena served no purpose as it was only good for 100 miles from downtown NYC – a long way from Peoria Il. And the government knew that when it sent it.  Ev Dirkson said it best, “if it won’t play in Peoria, it won’t play”.

Dear Mrs. Deanna Smith-Whitaker,

By this letter, the United States hereby withdraws the subpoena for your trial testimony in United States v. Novartis Pharmaceuticals Corporation that was previously served upon you.  To be clear, you are no longer under any obligation to testify, and should not report to the United States Courthouse on May 20, 2019.

 

Please do not hesitate to contact me if you have any questions.

Sincerely,

GEOFFREY S. BERMAN

United States Attorney

ABATE MEMBER AND LEADER OF A MOTORCYCLE CHURCH GROUP HAS A QUESTION

  1. Rod, I have a legal question. I am a leader of a motorcycle group at our church. Am I liable for the others safety and well-being on a group ride? – Barry Hines

 

  1. Barry. I have written extensively about this issue in our ABATE publications. If you are the organizer, get insurance and use my waivers. Check with your home insurer to see if you have coverage for the ride as you are a volunteer. Also, check with the church as to its insurance coverage for charity events off premises. If you or the church do not have insurance, then it is a matter of, how lucky do you feel?

At the very least, have only one rule for those on the ride – follow the state’s rules of the road and all laws relating to motorcycles.  Resist the temptation to become a ride expert and add extra rules of your making as the law will hold you to it if you screw it up.  And by all means use my waivers.

To protect yourself and the church, think about starting a non-profit to shoulder any potential liability that might come from the ride event. That entity could shield the church and organizers from personal liability.  Our office can assist you with that.

Always remember this:  You don’t need a waiver until you need a waiver.

Ride safe. Rod

  1. Rodney, Thank you for the response. That is what I was afraid of, and yes, I will follow up on your suggestions.
  2. PS from Rod – only my mother called me Rodney.

 

MIRACLE RIDE 26 – A QUARTER OF A MILLION TO RILEY HOSPITAL FOR CHILDREN

Perfect weather, wonderful volunteers and good-hearted bikers is all it took to make for a fabulous ride.

They were all there: radio talk show host Tom of Bob & Tom, Jay Jackson of ABATE of Indiana, Dennis Byron State Coordinator of ABATE of Illinois, and thousands of others. They all came together to support Riley Hospital for Children. Riley provides care for kids from all over the country and, in many instances, the world.  The hospital sets the bar for research on diseases that uniquely affect children. That Riley is located in the heart of the country is poetic, and says something wonderful about us mid-westerners. Many of you have heard me say that the measure of a society is how those in it – treat their children. By that definition, heartland citizens go to the head of the line.

The Ride would not be possible without scores of volunteers. I will highlight some, recognizing that many others need acknowledgment and I will catch up with the missed ones later. At the head of the list is Gino Johnson. Gino, the world’s best CPA and former IRS agent, keeps us all honest and straight as our money counter-in-chief. We could not do it without him. Kathy Schulteti and her whole wonderful family and South-Side Harley employees have been there from the beginning. Marc Falsetti, our advertising guru, gets thousands to participate every year. I am not sure how he does it, but he does.  John Barto feeds us and feeds us well. The McAtees, first family of law enforcement, do the impossible and lead 4-6,000 bikers through numerous intersections safely.  And ABATE LEGAL is very proud that the planning for this ride started in our office in 1993.  I knew this year would be good when Ann and I rode in and saw the Allison Transmission lot nearly full, so early.  Celebration was the mood and ABATE LEGAL once again served “Long’s” famous donuts and coffee – free.  In years past we have had donuts left over – not this year.  Brian ran out an hour before the Ride started.  But we’ll have that fixed for next year, so come join us on the 27th annual Miracle Ride, May 31, 2020 – same time – same place.

 

WEARY OF FAILING TO GET MY POINT ACROSS – AFTER 40 YEARS OF PREACHING, YOU WOULD THINK.

Uninsured/Underinsured motorcyclist coverage – how does it work?  The perfect explanation – I hope.

If the guy that runs over you HAS NO liability insurance, then the uninsured coverage under YOUR policy kicks in to cover your hospital bills, pain and suffering and other losses to the extent of the limits in your policy – THAT IS IF YOU BOUGHT UNINSURED MOTORIST COVERAGE.  SHAME ON YOU IF YOU DIDN’T.  AND GET THE HIGHEST LIABILITY LIMITS YOU CAN – as you will need them if you get hit by a Mack truck on your motorcycle.  (some states limit Um/UIM to be no higher than the liability limits of your policy)

If the other guy that runs over you has minimal limits (some state’s limits are stupid low) and your losses exceed those limits, the underinsured part of your insurance policy takes over and covers the losses above the bad guys minimal limits up to the underinsured limits of your policy.  And get the highest limits you can for this coverage – your family may need it.

At the risk of sounding redundant here is an example:  a biker is riding when a driver turns in front of him.  The biker suffers a fractured leg and a head injury from the crash.  He is air-lifted to the nearest hospital.  The driver of the automobile has minimal insurance.   As a result the biker is unable to work for several months.   The injured biker may be stuck with huge medical bills as a result if he does not have adequate health insurance.  We will talk about the other losses later..

That is where the biker’s underinsured coverage kicks in.  The few extra dollars a month for your higher uninsured/underinsured coverage (get the highest level you can afford), are a small drop in the bucket when talking about a couple hundred thousand dollars you may owe in medical bills, if you don’t have health insurance.  Even then you need it for your lost wages, pain, suffering and other losses.

Some estimate that over 25% of motorists on the road are without insurance – uninsured.  That means they usually have nothing to help pay your losses – zip, zero.   Folks that don’t have insurance usually don’t have money; that is the reason they don’t have insurance, so the no- blood- from-turnip-rule applies.  That means that if you have no uninsured motorist coverage on your motorcycle, you are out of luck!

And just because the bad guy says he has insurance does not mean he really has insurance.  I remember a case where the adverse driver told a Member (who had lost a leg), “I have insurance”.  She had 25k which complied with the law.  Some states allow you to drive with only 10k of liability insurance.  MY FRIENDS AND FELLOW RIDERS – THAT IS NOT INSURANCE, even though the law calls it insurance.  So the rule is – make sure you have as much underinsured insurance coverage you can for the other guy, just in case he only carries 10k.  Understood?!

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 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  © 2019.

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