Ask Our Lawyer April 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

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 setup 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. – Christine Boyer, ABATE Officer

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 can hold that vendor responsible so that we are not paying for his sins.

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. – Joe and Edie Irwin, ABATE members

A.  Well, my worse angels would want to tell the officer to go pound sand, but I’m afraid the answer is that you 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 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 cops are like that.

There are a few states 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).

TRADE MARKING 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. Another question is: Should our organization trademark an event and its name? The common law provides for protection if you do nothing more than use the name and were the first to utilize the name of that event. Certainly one is afforded greater legal protection if the name of the event is “trademarked” but that may not be worth the expense, particularly if you can prove the first usage of the name for your organization.

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

 

Q.  I was stopped by a cop 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 the 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 have 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.

TIRED OF AN UNCIVIL CONGRESS? SOLUTION: BRING BACK DUELING

There was a time when politicians were civil. My theory: Dueling was the cause. If you run the possibility of getting shot for your foul mouth and ill ways, it may just make you a little nicer. I say bring it back for to state capitals and Washington, D.C. Who knows? It might even work with lawyers.

In one famous duel, James Shields challenged Abe Lincoln to a duel. As challengee, Abe had the right to choose weapons. Since Shields was diminutive with short limbs, lanky Lincoln chose “long swords.” Apparently, Lincoln’s reach was such that the duel would have been completely unfair. The story goes that the absurdity of the proposed duel was so comical that Shields and Lincoln patched things up and remained friends for life. Interestingly, Lincoln commissioned Shields as Brigadier General, and he later served as a U.S. Senator in 3 different states; which is still a record.

SENATE ADDRESSES MOTORCYCLE CHECKPOINTS

Speaking of lawmakers, I would like to take the rare opportunity to positively acknowledge the efforts of the US Senate to ban federal funding for motorcycle-only checkpoints. As you may have heard, the bipartisan bill was introduced in January by Sens. Jeanne Shaheen (D-N.H.), Ron Johnson (R-Wis.), Kelly Ayotte (R-N.H.), Joe Manchin (D-W.Va.) and Susan Collons (R-Maine). “The Stop Motorcycle Checkpoint Funding Act” would restrict the Secretary of Transportation from granting funds to any government entity for a program to check helmet use or to create checkpoint for an operator of a motorcycle or a passenger on a motorcycle.” Motorcycle checkpoints are clearly discriminatory, and motorcyclists are already subject to various state regulations subjecting them to inspection at the same checkpoints as other motor vehicle operators. Furthermore, I think you’d be hard-pressed to find anyone who actually believes they prevent accidents, which is their supposed raison d’être.

 

 

TIS THE SEASON

 

Potholes, potholes and more potholes. After a lengthy and snow-ridden winter, it’s no surprise if you’ve noticed the absurdity of our roadways. The constant freezing and thawing of snow and ice makes for treacherous driving conditions here in the Midwest. Thankfully we have riders like you that are willing to report these behemoth craters, and the place to do it is RoadHazard.org. We take pride in the fact that we help facilitate the improvement of our streets for motorists and motorcyclists alike. Help us help you, report dangerous roads at RoadHazard.org today!

 

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com.  © 2015

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Ask Our Lawyer February 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

THE DEFINITION OF “BIKER” HAS EVOLVED

Q: People say I’m a biker. What’s a biker?  ABATE member.

A: Depends on your attitude, I suppose. The word “biker,” like many others, has meaning and usage, some of which are positive, and some of which are not. Not even dictionaries can agree on the definition. Webster’s Third New International Dictionary defines a biker as “motorcyclist; especially one who is a member of an organized gang.”  (A member of a gang? What is with that?) The American Heritage Dictionary of the English Language notes a biker is “1. One who rides a bicycle or a motorbike. 2. A motorcyclist, especially a member of a motorcycle gang.” Meanwhile, our British cousins define a biker as “someone who rides a motorcycle or bicycle,” – Cambridge Dictionary of American English. Curiously, the Cambridge International Dictionary of English notes an informal usage of biker as “a member of a gang group of motorcyclists.” The Random House Historical Dictionary of American Slang notes that the meaning of “biker” as “gang member” became current usage in 1968. Of course, the term would have been used informally for some time before that. Prior to 1981, Webster’s had no definition for biker at all, and was added in order to better reflect current trends in popular usage, according to a spokesperson for Webster’s.

How did we get from “motorcycle rider” to “gang member?” The exact route is unclear, but three events seem to have solidified the “gang member” connotation for bikers. The first is the Hollister, CA rally of 1947. Shortly after the end of WWII, large numbers of demobilized troops turned to motorcycling for recreation, camaraderie, and as a way of dealing with the lingering horrors of war ( Today, it is called post traumatic stress syndrome by some). One of the gatherings of riders that caught the attention of the press was a rally held in Hollister, California, about 100 miles south of San Francisco. Life Magazine, in an effort to portray the spirit of motorcycling, staged a picture of a man sitting on top of a motorcycle amid a pile of beer bottles. The myth of the biker was born.

Two other events brought the myth into clear focus for the masses, and both were images from the movies. The 1954 release of Brando’s “The Wild One” and 1969’s “Easy Rider” cemented an image of bikers as marauding, out-of-control gang members. Subsequent movies and books have relied on those associations to the point where the mental image of “biker” becomes Brando or Dennis Hopper (with a football helmet, no less). It’s a shame that a conscientious, hard-working, freedom-loving group of individualists are defined by media image and a some that are not us.

How do we change the image? We keep doing the things we always do: respect others, defend our rights, participate in our communities, help the less fortunate, and ride safely. But  we can do more, like contacting publishers of dictionaries and letting them know that bikers aren’t gang members any more than any other group.  ABATE Legal has taken the lead by writing to the publishers of Webster’s and other dictionaries to ask that they make modifications to the definition to clarify the usage. We will keep you posted on any further responses from the publishers.

THE MEANING OF ABATE

Q: I’ve been traveling, and I always try to hook up with fellow ABATE members in other states. I’ve noticed that ABATE seems to stand for different things in different states. What gives?

A: I’ve learned an ironclad rule in my life: Ask any three ABATE members a question and you’ll get three different opinions. It is even so with our own name. In Ohio, Indiana, Arizona, and New York, it’s “American Bikers Aimed Toward Education.” In Illinois, it was “A Brotherhood Against Totalitarian Enactments,” but it’s now “A Brotherhood Aimed Toward Education.” Michigan and Utah say it’s “American Bikers Aiming Toward Education.” In the Ozarks, it’s “Arkansas Bikers Aiming Towards Education.” The “American Brotherhood Aimed Towards Education” meet in California, while the “American Bikes Aiming Toward Education” meet in Florida. The “Alliance of Bikers Aimed Toward Equity” calls Massachusetts home, “A Brotherhood Aiming Toward Education” meet in Oklahoma, and you’ll find “American Bikers Active Towards Education” in Louisiana. The “Alliance of Bikers Aimed Toward Education” calls Pennsylvania home, while the “American Bikers Active Toward Education” are in Mississippi. You’ll even find the “Association of Bikers for Awareness Training and Education” in Ontario, Canada. Finally, you can find “A Brotherhood Against Totalitarian Enactments” in Maryland, Oregon, South Carolina, and Washington.

The history of ABATE organizations began forty years ago. In the late 1960s, Easyriders Magazine, at the urging of motorcycle clubs, began working on a nationwide effort to protect the rights of bikers. In the process of defining this new movement, they came up with the acronym ABATE, which stood for “A Brotherhood Against Totalitarian Enactments.” Easyriders’ choice of ABATE as an acronym was no accident. Webster defines the word abate as, “to beat down; to put an end to; to nullify; to reduce in degree or intensity.” In the countercultural times of the late sixties, the prevailing mood was, “it is us against them”, with “them” being Big Brother in all his controlling forms. The job at hand was to nullify the intrusion of government into our personal lives, with a major emphasis on eliminating mandatory helmet laws.

In its infancy, ABATE was a loose-knit organization. Memberships were sent in to and managed by Easyriders. State level activists — along with the folks at Easyriders — quickly realized that locally controlled organizations were needed, and the biker’s rights movement began to spread as state motorcyclists’ rights organizations started popping up around the country. Between the early 1970s and the mid-1980s, most of the MROs we know today came into being as independent, autonomous organizations.

Many state groups formed under the name of ABATE, while others chose different acronyms such as the MMA (Modified Motorcycle Association) or NHMRO (New Hampshire Motorcyclist Rights Organization). Likewise, some of the ABATE organizations stuck with Easyriders’ original meaning of A Brotherhood Against Totalitarian Enactments, while others went with variations such as American Bikers Aimed Toward Education, or A Brotherhood Active Toward Education.  As the seventies closed and the eighties opened, a lack of trust and communication between the various state organizations was still hurting the movement. The movement had begun to stagnate, and members needed to understand that they were in fact all on the same team, and that they could do a lot more by working together. In 1985, another attempt was made to bring people together. By this point in time, leaders in the biker’s rights world clearly understood that maintaining the sanctity of the state groups was paramount, and no one was interested in forming a national group that would oversee the activities of the MROs. The idea was to simply offer a forum for open communication between the MROs in a setting where people could get to know each other and start to share ideas. That forum was the first MRF Meeting of the Minds, held in St. Louis in September of 1985, and it proved to be a defining moment in the history of biker’s rights. While many of the attendees were distrustful walking in, by the end of the conference every person in attendance knew that something significant had happened.

The ABATE letters may have different interpretation, but the meaning remains the same.  (A special thanks to the MRF for some of the history provided herein).

CHASERS AND BITERS

Q: Everybody in my family loves Harleys, including our dog.  Sadly she isn’t with us any more because the other day she was running with a motorcycle.  The bike hit her and the rider was tossed over the handle bars. Both the rider and the bike were pretty messed up. Now the rider is suing me.

A: Call your insurance agent asap. The number of riders injured by “chasers” has increased dramatically. Most riders cannot appreciate the devastating effect of a “dog strike.” According to the motorcycle safety professionals, there are usually one of two results. The first, best, result is that you are traveling fast enough and the dog is small enough that you play “Evel Knievel” and ride over the top of the dog. Hopefully, you can keep it shiny side up after contact. The other scenario is not so good for you (both are bad for the dog). Let’s say you hit “Mongo the Ox-Dog.” Your front wheel will instantly snap to full left or full right, and you and your bike will go head over wheels down the road. This type of incident is responsible for many serious injuries.  (Long time ABATE member Gary Byers can tell you all about that).

Our ABATE Motorcycle Safety course teaches us to maintain our scan and be on the alert for dogs. Dogs usually attack in a straight line. Riders wary of dogs should anticipate that line, slow down and then, when the dogs get near, gear down and speed away. Unfortunately, this only works if we have picked up the dog in our rider scan.

Dogs are many things to many people, but to all them, dogs are a responsibility. Many localities have ordinances that require that pets be kept under control, and the common law of most states have holdings similar to this one: “The keeper of an animal has a duty to provide for the restraining and confinement of that animal, … and may become liable for damages the animal causes when the keeper is otherwise negligent in the manner of its keeping and control. In such cases, the person in control of the animal is bound to take note of the natural propensities of the type and breed of the animal in question.” Vetor v. Vetor, 634 N.E.2d 513.

If your dog is a known “chaser,” then you have a duty to protect motorcyclists from the dangers of a “dog-strike.” That means that you are responsible for what your dog does, especially if you are aware of the “natural propensities” of the dog, like chasing motorcycles. If you know your dog likes doing certain things, like chasing Harleys, and somebody gets hurt because your dog was chasing the Harley, then you are likely responsible for the damages.

Of course, your responsibilities don’t end at the property line. One of the most prevalent claims arising from dog ownership involves dog bites. Most claims involving dogs will be covered by your homeowners policy. However, insurance companies report that dog-bite claims are rising. Because of that, some insurance companies are cancelling policies for homeowners whose dog has bitten someone. Some companies have even began cancelling policies (or refusing to write new ones) for owners of particular breeds of dogs, especially Rottweilers and Pit bulls. While few insurance companies admit that they blacklist these types of dogs, those breeds cause insurers to review the file more carefully.

Responsible dog ownership of all breeds is the key to claim prevention. Factors such as whether the dog is spayed or neutered, properly socialized, supervised, humanely trained, and safely confined, play significantly greater roles than the breed of the dog alone. The best way to make sure your home insurance doesn’t get canceled because of your dog is to make sure it won’t bite anyone and to take reasonable precautions to prevent the dog from getting out of the yard.

DOC JONES – REST IN PEACE

Sadly, I report the death of  long time ABATE member, Doctor Rick Jones.  He died of complications from ALS this past Christmas Eve surrounded by his family.  Doc impacted so many as head of A.B.A.T.E. of Illinois, as a MRF charter member and faithful mover and shaker of Heartland Steam.  He was wonderful father, husband, son and friend to all motorcyclists.  He was also the world’s best veterinarian.  No one loved animals, people or the STATE PARTY more than Doctor Jones.   And everytime I see a Wide-Glide Shovel with a zillion miles on it, I will think of Doc.  I miss him.

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com.  © 2015

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Ask Our Lawyer January 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

JUST IN TIME LAWYERS

Q: I just had a traffic accident ? Do I need a lawyer right now?

A: Well, that depends. First, it never hurts to call and talk to someone at your ABATE Legal Services. You can get valuable starting points that way. Most traffic accidents fall into four categories: property damage only, minor injury, moderate injury and major injury. These classifications aren’t exact, but can be useful guidelines. (This discussion presumes that you weren’t at fault and there is some insurance coverage available.)

  1. Property damage only: Almost always, no lawyer needed, except when a special edition or customized bike is involved. The damage to the car or bike is readily evaluated, and the insurance company will make a settlement based on the value of the property and the policy provisions. There may be a little room for negotiations, but generally, the estimates will dictate the settlement. As to value disputes with the insurance company, get on EBAY and get comparative value information. And remember that you paid retail – not wholesale as the adjuster may try to pull one over on you. If you have trouble call us.
  1. Minor injury: Generally, no lawyer needed, so long as your injury is truly minor. Make your doctor sign off on that one before you even think about signing a release and accepting a settlement for your injuries. But, if the insurance company is not responsive, call us. We can help.

In these types of accidents, the injured person has bumps and bruises, and may be a bit sore, but has no symptoms that last more than a week, and will have lost no more than a couple of days off work. Oftentimes, the medical claims will be only for a brief visit to the hospital to be checked out after the accident, a follow up visit to the family doctor, and some pain medication or muscle relaxants. In these cases, the insurance company will make a settlement offer after you have been released from treatment by the doctor. The settlement will generally include the medical bills, lost wages, and an amount to compensate you for your pain and inconvenience. The amount of the settlement will be negotiable, and the insurance company may not make an offer unless you have made a demand first. Make sure that your communications with the claims adjuster are in writing, and keep your demands reasonable. We can assist you with a proper evaluation.

  1. Moderate injury: A lawyer is needed. These injuries are ones that may debilitate for a period of time, or may lead to lifelong impairments of a part of the body, but are not life threatening. The lost wages may be significant, or the calculation of the pain and suffering damages may be complex. Our office will be able to negotiate with the insurance company and secure the best compensation for you. If a suit is necessary, we can represent your interests.
  1. Serious injury: You should always contact a lawyer. These cases involve life changing accidents. There are many complex issues that will have to be evaluated and considered. Without an attorney, you could be at a serious disadvantage.

SIGNS AND FREEDOM OF SPEECH MATTERS

Q: Our local chapter has an ABATE sign that we want to put up on some property we own. We’ve been told by the local authorities that we can’t. Do they have a legal basis to prevent us from placing a sign on our property? ABATE member.

A: Let’s make sure that we’re all on the same page. If the sign is one that is of a commercial nature, then the zoning officials have authority to regulate it. If we’re talking about a sign with an explicitly political message, there may be First Amendment protections. From the question, it looks like we’re talking about a non-political, non-commercial informational sign.

The definitive case on this subject is from the United States Supreme Court. In City of Ladue v. Gilleo (512 US 43, 1994), the U.S. Supreme Court unanimously held that, while municipalities may regulate sign size and location for certain valid reasons. The court essentially used a balancing test and decided that the individual’s right to express her opinion with a sign outweighed the City’s power to prohibit signs.

The question here, then, is whether the zoning authority has expressed any reason why the ABATE sign should not be allowed. Is there is a zoning ordinance prohibiting the sign? If so, has anyone asked for a variance? If not, you should consider that course of action. Often these proceedings are held before the zoning board. The person seeking the variance can present to the board their reasons for the request. Other interested persons can also make presentations, either in support of the variance or against. These interested persons are sometimes referred to in the zoning board minutes as remonstrators. Pursuing the available administrative options may make it easier to win a case in court. Courts are disposed to rule on a case if the plaintiff has exhausted all administrative remedies.

CUSTOM BIKE BLUES

Q: I have a bike that I bought stock five years ago and have made a number of improvements to it since then, including a lot of chrome, custom paint, and other customized equipment. My bike was stolen last month, and the insurance company only wants to offer me book value for the bike. By my estimation, it’s worth about twice the book value of a stock bike. Is there any way I can convince the insurance company to re-evaluate their offer? ABATE MEMBER.

A: There may be a way to do that, but it depends on how good your records are. Most insurance contracts/policies cover customization and items added to bikes, but the insurance company has to assure itself that the customizations that you claim you added were actually added to the bike and became a part of the bike. Some insurance companies will agree to a value up front and charge a premium based on that value.

The easiest and best way to make your claim is to document all the customizations done to the bike. This means keeping records of the modifications done to the bike, who did them, when they were done, how much they cost, and what effect those customizations had on the value of the bike. And don’t forget the photos; you can’t have too many. Oftentimes you need to hire the services of an appraiser to evaluate the bike with and without the modifications.

Let’s assume you did a custom job with three distinct components: First of all, you did some body work – you put on a new fork, new handlebars, and new wheels. You did that during the course of one season and didn’t plan on doing any more work that season. It would be a good idea once that work was completed, to take pictures of the bike, put them together with all the receipts from the work done to the bike and send copies of all that information to your insurance company, asking them to add that to your file and explaining that those modifications have been done to the bike since you purchased it. You may at that point want to get an appraised value for the bike from an appraiser. Often, appraisers will work at a motorcycle shop or dealer. You would want to get an appraisal if the value of the bike in total with the additions is more than the value of the bike plus the value of the additions. For example, you bought the bike for $5,000.00; you added $5,000.00 worth of additions, but those additions caused the bike to be worth $15,000.00 rather than the value of the bike plus the parts, which was $10,000.00. In that event, getting an appraisal would be in your best interest because you could prove to the insurance company that the bike is worth more than the sum of its parts.

Now let’s assume it’s the next season, and you have added a lot of chrome to the bike. Again, you would want to take pictures of the bike, keep copies of the receipts, description of the work done, and submit it to the insurance company for their files so you can maintain the value of the bike. Let’s assume now that you have decided to complete the customization and get a custom paint job on it. Once you finish all the customization that you plan on doing, at that point you almost always have to get an appraisal of the value of the bike to show the insurance company what it’s worth with all the customizations. With all those documents and evidence of the customizations, you will be in a good position to prove the value of the bike to the insurance company should you need to make a claim. And always send the insurance company copies of your latest appraisals.

Some insurance companies offer special insurance deal for customizations bikes or those with historic or antique value. If your bike has value for collectors beyond the book value of a stock bike, check with your insurance agent about modifying your insurance policy to make sure your investment is covered.

PLAYING RUSSIAN ROULETTE

Russian Roulette – that’s what you’re doing if you don’t buy uninsured/underinsured motorist coverage for your motor vehicle/motorcycle insurance policy.

Studies by the Insurance Research Council indicate that more than 10 to 14 percent of drivers do not carry any sort of coverage. Let’s say you go down to Daytona for Bike Week and cruise through Florida. Even if they have some coverage, in most accidents with a motorcycle, the coverage is inadequate. Remember the blue-hair you saw driving that 1979 Buick Electra? She hasn’t had insurance since 1980, and she’s going to run into you. What can you do to get the bike fixed, not to mention paying your medical bills? How about mortgage or rent payments and living expenses?

The answer is uninsured/underinsured motorist coverages. Without it, you may be out of luck. Most people who don’t have insurance do so because they don’t think they can afford it or don’t want to pay for it. The odds of them having sufficient resources to pay off a personal injury claim are slim and none. Without coverage of your own, there’s no compensation. You might be able to get a 1979 Buick Electra, but that doesn’t pay the bills.

If you don’t have uninsured motorist/underinsured motorist coverages (UM/UIM coverage), you are underinsured. If you carry the legal minimum coverage, you are in compliance with the law. Unfortunately, that coverage only protects the other guy, not you. And when was the last time you heard of a motorcyclist that caused personal injury to the driver of a car/truck? Where you made the mistake was in declining the uninsured motorist/underinsured motorist coverages (UM/UIM coverage.) Why? Well, my guess is that you wanted to save a few bucks, and figured that since the law required everyone to have coverage, you didn’t need to pay for additional coverages.

Unfortunately , not everybody complies with the financial responsibility laws. Some people simply never get insurance and give a bogus policy number when the register their cars. Others may have coverage, but they cancel it after getting the car registered. That means you are left holding the bag when you gets injured in an accident with one of the scofflaws.

You ask, but how would that get my bike fixed? Simple. Remember that even if you have medical insurance that will cover your medical bills, you would still be entitled to compensation for your lost wages, impairment and pain and suffering. That’s YOUR money, to spend or pay bills as you please. If you want to fix your bike, you can.

Don’t forget that when you get your insurance that you may be asked if you want to have your UM/UIM coverage at the same limits as your own personal injury coverage. For example, you can have liability coverage of $50,000/$100,000 (that $50,000 per person and $100,000 total per accident) and have UM/UIM coverage in the same amount, or elect to have only $25,000/$50,000 UM/UIM coverage. The cost difference is very small, and the added coverage you would have could make all of the difference to you and your family. The best advice is to have the highest limits (both liability and UM/UIM) that you can afford. The reason for this two-fold. One, higher limits protect your assets (your house, car, boat, vacation cabin, bike, etc.) if you get sued after an accident. Two, higher UM/UIM protects you if you get injured in accident, even if the other guy carries basic coverage. Let’s say you get injured in an accident that is the other guy’s fault. You have damages from the accident (medical bills, bike repairs, and pain and suffering) of $200,000.00. The other guys has basic coverage, $25,000/$50,000. His insurance coverage pays you the $25,000.00, leaving you with $175,000.00 of uncompensated damages. You can make a claim for the additional damages from your carrier under your UM/UIM coverage. However, you can only make a claim for coverage to the extent that your UM/UIM coverage exceeds the other guys basic coverage. For example, if you have $25,000/$50,000 UM/UIM coverage, then you can’t make a claim because your coverage doesn’t exceed his coverage. If you have $50,000/$100,000, you can claim $25,000 of coverage from your UM/UIM coverage. The higher your coverage is, the better your protection is.

Other writers in this magazine and others devoted to the rider’s lifestyle have encouraged the reader to carry UM/UIM coverage. Let me add my voice. There is no excuse for ANYONE to decline UM/UIM coverage. It can be your resource of last resort. Don’t be caught on the wrong side of being injured – protect yourself and your bike, and carry UM/UIM coverage. You can’t afford to play Russian Roulette.

If you have any questions you would like to ask the lawyer, please submit them to: ASK OUR LAWYER, P.O. Box 2850, Indianapolis, Indiana 46206-2850, or email to brianshadiow@abatelegal.com.

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. © 2015

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Ask Our Lawyer February 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

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., but he is originally from Flora, Illinois, 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 entry of the hotel 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.

SCOOTERS, MOTORCYCLE COPS, WILLIAM MIDDLETON AND TRAFFIC COURT

William Middleton is a wonderful success story, but it did not start out that way. Twenty years ago he had it all. He was married with a wonderful family and a good job. But he was also in a serious relationship with DEMON RUM. He was an alcoholic doing what many alcoholics do – drinking and driving his way through life. He did this so much that the law threw the book at him and took his driving privileges for a decade. It was then that the light bulb came on. He quit drinking and started appreciating life – booze free. He became a wonderfully changed man. And about that time he started riding a scooter as his way to work. You know one of the 49cc jobs made in China or somewhere, with a foot pad, no requirement for insurance, registration, or a drivers license (or so we thought). Life was good, real good. He reconnected with his responsibilities and never had another drink.

The scooter worked for him. When he asked how he got to work when the rest of us were snowed or iced in, he would demonstrate the scooter “V” with his legs spread as far as they would go astride an imaginary scooter. He claimed it was a “hell of a two wheeler”, which got him to work no matter the weather, and for cheap. But then he was stopped by a motorcycle cop for going 40 in a 35 (what?); slapped with an “eight pack of charges” designed to get him off the road and derail his new life of meeting his obligations. After being charged with eight traffic violations (speeding, no license, no license in possession, no registration, no registration in possession, no motorcycle endorsement, no insurance, and exceeding speed for a motorized bicycle) William gave us a call to see how it was possible they could give him all those tickets, and if there was anything we could do about it. It’s been 20 plus years since I stepped foot in traffic court, but the thought of him getting stuck with over a $1,000 fine for going 40 in 35 was a bridge too far. I felt like the guy in No Country for Old Men – agua. I did not want to get involved, but I couldn’t help it.

So I became a traffic court lawyer for a day – been a while since I have been there. Turns out, Indiana law on scooters/mopeds is about as clear as the roads after this year’s blizzard. Since the law is so muddled – local law enforcement has come up with their own rule to determine whether your scooter is a “motorcycle” requiring a license, registration, insurance, and an endorsement. Here is the rule: if the manufacturer’s identification tag on your scooter lists the vehicle type as a “motorcycle” then you will be subject to the laws for operating a motorcycle. You know that old adage, “looks like a duck, walks like a duck, etc.”, well apparently even though it looks like a scooter, rides like a scooter, and is defined as a scooter by Indiana law – it is not a scooter (per the higher ups). And it seems that every two wheeled vehicle made for street use, in Indiana at least, happens to be labeled a “motorcycle” on the manufacturer’s identification tag, even if it is under 50cc, has a floor pad, and is really a scooter.

In the end, the prosecutor agreed to drop 7 out of the 8 charges – except for the speeding. C’mon, 40 in a 35 – who gives a ticket for that? But my guy says that the cop nailed him right on the speed. It wasn’t a complete victory – but it was a hell of lot better than where we started. Moral of the story – if you ride a scooter in Indiana without having all of the requirements for riding a motorcycle – you might end up with an eight-pack of charges (even if you kicked the habit years ago).

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 meetings 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 will, or want to make changes to your will, call ABATE LEGAL SERVICES. We will do your will for you, free of charge!

ROADHAZARD.ORG IN RECORD TIME

On Monday, December 30th we received notification of a cluster of potholes that needed attention on 21st Street in Indianapolis (at 10:58 AM).   We promptly reported this area to the Mayor’s Action Center, which is the go-to for road issues within the city limits. After reporting this area, we sent an email to Josh Cornell (the gentleman who made us aware of this issue) advising him to let us know when the potholes had been fixed. We were astonished to receive an email from him at 2:58 PM (the same day) that a majority of these had already been filled! Thanks to Josh and the MAC for your help in keeping our roadways safe! We report ‘em – they fix ‘em.

Ride Safe and Free,

Rod Taylor


ABATE Legal Services

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com. © 2014.

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Ask Our Lawyer January 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

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. 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 usually 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.

ENCOURAGEMENT FROM IMRE

Rod, it was great to see you last month at the ABATE of Indiana state seminar in Indianapolis. I hope to see you again in Springfield for the ABATE of Illinois seminar next month. 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, Government Affairs Manager – On-Highway

American Motorcyclist Association

GUNS, AMMO AND LAWYERS ARE FINE, BUT DON’T FORGET THE WAIVERS

Q.  Hi Rod, My wife Tony and I have a 10 acre farm on the Tippecanoe river and are getting more and more visitors. Per your advice at the Seminar, we need a waiver for accidents /lost or stolen items/ and if possible requiring litigants against us to be responsible for all our attorney fees – just like you discussed at the seminar. Thanks, Harold Kleckner

A.  Waivers are on the way, good luck and thanks for all you do for ABATE. Rod

STONEY LONESOME MOTORCYCLE CLUB – HOW TO LIVE ANOTHER 60

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

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

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

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

Stoney Lonesome’s responsibility should be limited to the leasing of the facility and the complete delegation of the AMA event activities to this new leasing entity. That company should endeavor to obtained the signatures of the custodial parents of the minor’s involved in the AMA event. This should be done on site at registration, or in advance if possible. In a pinch, a waiver could be sent to the custodial parent by email (iPhone and the like) with a text consent and acknowledgment. This would be better than nothing and I believe the courts would uphold such a waiver.

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

A SWEET RIDE FOR YOUR BIKE AND FOOD FOR YOUR SOUL

Q.  Hello Mr. Taylor, I have been looking at the back of the ABATE magazine (Hoosier Motorcyclist Magazine) and was wondering where that road is located. If you know, please tell me the location? Thank you, Todd Stipp

A.  Todd, Marc Falsetti, Editor Supreme of Hoosier Motorcyclist Magazine, tells us this photo was taken by Michael Farabaugh on Highway 42, Dorr County, Wisconsin – a wonderful place to ride. Michael Farabaugh, as you may know, is renowned for his incredible photography. His work can be seen in most motorcycle magazines, including Easy Rider, Super Cycle, American Iron etc. Thank you for noticing and the next time I ride that way I will give you the GPS coordinates. It is a sweet ride for your bike and food for your soul. Rod

ROADHAZARD.ORG SAFETY

RoadHazard.org promotes safety, encourages governmental agencies to make road improvements and holds them accountable when they fail to do what is required for the safety of all motorists. In Indiana, Kentucky, Ohio, Illinois, Missouri and most other states, governmental agencies are not usually responsible for an accident, even if the accident resulted from their faulty roads, unless they were put on notice. So keep those reports coming and help prevent motorcycle crash victims.

Ride Safe and Free,

Rod Taylor


ABATE Legal Services

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegalcom. © 2014.

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Ask Our Lawyer November 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

IN DELAWARE YOU NEED A HELMET FOR “HARVEY” THE RABBIT

AND SIZE DOESN’T MATTER

Q.  Mr. Taylor. Yesterday while riding on a limited access highway in Delaware in heavy shore traffic a stationary state trooper entered the road behind me. He navigated through many cars and positioned himself behind me he immediately illuminated his lights and pulled me over. I was at a loss for a reason as I had broken no laws and my bike was in order.

Upon encountering me, he immediately stated that he wanted to make sure I was in possession of an approved helmet. I stated that my helmet was stowed in my luggage and and he demanded to see it. I produced a helmet, he in turn inspected it and told me it was not approved. He issued me a $94 ticket and drove off.

Is this legal? I had no passenger so … he had no reasonable suspicion to stop me. Was I profiled? Does the law mandate that I display a helmet? I am thinking of fighting this spot check helmet possession thing. They say I can drive to Delaware with a DOT helmet and get out of it, but I think that really sucks. They shouldn’t be able to stop you and make you open your luggage for no good reason. Thanks Bill Burke. Quakertown, Pa.

A.  Bill. I agree. We have reviewed many helmet laws in our time, but I think that the Delaware law leads the unusual. Even though Delaware is helmet free for those 19 and older, oddly the law there requires you to always carry a helmet – even when you have no passenger.   I guess just in case you pick up a passenger under 19. But what size helmet do you carry? One size fits all? Do you have to carry all sizes just in case? How many helmets? 5? 10? 20? Silly, but that would follow logically. Maybe it is ok if the helmet doesn’t fit correctly – you just have to have one and size doesn’t matter? Here is the text of the law:

Every person operating or riding on a motorcycle shall have in that person’s possession a safety helmet approved by the Secretary of Safety and Homeland Security (hereinafter “Secretary”) through the Office of Highway Safety and shall wear eye protection approved by the Secretary; provided, however, that every person up to 19 years of age operating or riding on a motorcycle shall wear a safety helmet and eye protection approved by the Secretary.

I say the officer did not have probable cause to stop you and search your luggage, and certainly did not have reason to search for a helmet when you had no passenger. Sadly, you will now have to invest a lot of your time to fight this improper citation. I applaud your efforts. Keep us posted. I would like to write a follow up as to your experience in court.

ABATE LEGAL WINS CLASS ACTION FOR RETIREES IN THE ILLINOIS SUPREME COURT

Q.  Mr. Taylor, I would like to thank you for bringing your class action lawsuit in regard to Illinois SB1313 (Diminishes retirees benefits).     Greg Ronsse – ABATE MEMBER.

A.  We are pleased that the Illinois Supreme Court ruled in favor of state retirees. The Court decided that the Illinois Constitution does not allow anyone, including the State of Illinois to diminish or impair retirement benefits. We argued that it is unfair to induce a person to work for decades on promises and then take those promises away at retirement. Not much chance of making up for lost benefits at age 70 or so. We did a good thing here.

THEY WON’T LET YOU DO WHAT YOU WANT IN JAIL – ARGUING WITH COPS

Q.  I was stopped by a cop 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 (and many other states) has reaffirmed our basic right to argue our position with an investigating police officer. One needs to be mindful that an errant cop has the ability to charge you with resisting and obstructing.

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. Obviously, when you have made your point, it’s wise to clam up.

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.

According to the Court, nothing in the law suggest 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 you are being arrested. Some of us found out the hard way when we were young and inexperienced, that jail is not good – they won’t let you do what you want in jail.

INSURANCE COMPANY MISAPPLYING “NO CONTACT RULE”

Q.  Hello, My husband was in a wreck on Sunday. Someone pulled out in front of him and he could not stop in time, so he choose to lay the bike down instead of hitting an SUV. Now everyone, including our insurance, says we have to pay for the damages to our bike because we did not hit the other vehicle. We even had a witness saying it was the other car’s fault. It’s all in the police report. So I was wanting to know is there any law that would help us so we don’t have to pay the $500 deductible and the days of work he missed? Thank you, Becky W.

A.  Becky, the insurance companies are confused or are trying to pull a fast one. If the SUV driver caused your husband to take reasonable steps to avoid a crash and injury, the insurance company for the SUV should pay for damage to your bike and other losses. Call me and I will talk with you about your options. The no contact rule usually comes into play when you lay the bike down, get run off the road, and the adverse party leaves the scene and is never identified. Insurance companies say they have that rule in order to prevent fraud. Some enlightened and biker friendly insurance companies will at least let you try to prove the crash and run in “‘no contact” situations. In many cases there are independent witnesses who can confirm the cause of the crash and eliminate the insurance company’s fraud concerns.

Below I have reprinted the article I wrote regarding the origin of the “no contact rule.” Hopefully this will help you with your claim.

THE INSURANCE COMPANY’S UNFAIR WEAPON – NO CONTACT RULE

Here is how the insurance company’s no contact rule works and why it was created. In general terms, the motorcycle insurance coverage you have meets the state legal requirements on the other guy in case you are at fault. You may also have uninsured/underinsured coverage when the other guy is at fault, but either does not have insurance or not enough insurance to take care of your losses. In the fine print of your insurance policy is language that says “if you do not make contact with the other vehicle that was at fault, and that unidentified vehicle leaves the scene, you do not have coverage for that loss.” In other words, if you lay your bike down to avoid the accident and injury, and do not make contact with the other vehicle–close but no cigar. The insurance company with that language in its policy will not pay, even if you have ten neutral witnesses and a minister confirming your story. However, if you make contact with the vehicle at fault, your policy provides for payment of your losses.

Here is what the insurance companies have to say for themselves. They worry that if there is no contact with the adverse vehicle, they could be subject to fraudulent claims and they do not want to take the time to look into your story.

For example, if we are riding on gravel and lose it through our own fault, the insurance companies worry that we could contrive a claim for damages and say that a mysterious vehicle driven by an old lady with blue hair caused the accident and left the scene. But that would be fraud. Criminal penalties and the facts should deter this kind of claim. What about when there are neutral, independent witnesses who observe the adverse vehicle driving erratically so as to cause us to lay our bike down, and that adverse vehicle leaves the scene? No fraud here. How do you suppose the leading motorcycle insurance companies apply the rule in that case? They deny the claim every chance they get and point out the “no contact rule language”. There are some biker friendly insurance companies will give you the benefit of the doubt and let you supply witnesses and facts that prove your claim. I will publish the names of those companies in a future column. You should buy from them and fire the others.

RIDER BEWARE – ROADHAZARD.ORG’S GUIDE TO DANGEROUS INTERSECTIONS

Each year since 1990 there have been more than 10,000,000 (ten million) crashes in the United States. While distracted driving and driver error account for a majority of these incidents, poorly designed and maintained intersections add to the problem.   Each month we will be highlighting these dangerous intersections from around the country based on fatalities and injuries and recommend you proceed through them with caution, or avoid altogether:

NUMBER 1. Indianapolis, Indiana – 79th & Michigan Road

NUMBER 2. Chicago, Illinois – Stony Island Ave. & 79th St.

NUMBER 3. Columbus, Ohio – Cleveland Avenue & Morse Road

Email us dangerous intersections in your area (brianshadiow@abatelegal.com) so that we can spread the news to get them fixed and help us all ride safer.

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com. © 2014

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Ask Our Lawyer December 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

MOST DANGEROUS INTERSECTIONS TO BIKERS/OTHERS AND WHY – ROAD HAZARD.ORG

From time to time, we will feature some of the country’s most dangerous intersections. This month we highlight a rural intersection in Ohio, and urban intersections in Indiana and Illinois. Many of the intersections that we will highlight have a crash per week with resulting serious injury.

In Ohio, Ridge Road and Medina Road near Granger, Ohio tops our list there.   While this area is slightly rolling and visibility is somewhat limited, it is tough to gauge why so many crashes happen here. Many times the crash numbers are a consequence of intense use, but much of the time the road engineers were wrong headed; so there is a fix that could save lives. For those of you who live nearby, give us your thoughts so we can spread the word.

In Indiana, the top place to get run over and killed/injured is any of the new intersections with I-465 on the west side of Indy. It seems that many road users have not figured them out as of yet. And it may be that IDOT needs helpful comments from RoadHazard.org reports. Hopefully with time and use, those crashes will diminish.

In Illinois, if you want to get run over, go to Chicago and get off any interstate/limited access road. The wider the intersection the more in harms way you are. And in Chicago, they don’t just run over motorcyclists and the like, pedestrians are on the hit list as well. Twenty three pedestrians have been nailed (permanently) so far this year. I guess the rule there is “run like hell”.

If you have a report of a dangerous intersection, send it to RoadHazard.org. We would like your thoughts.

BLOW IT OUT YOUR PIPES? CAN THEY REALLY IMPOUND MY BIKE?

Q: I was riding my bike the other day, when a local cop stopped me for not having a muffler on my bike. I have an expensive custom bike, and it has pipes, but no baffles. The cop and I got into it a little bit, and he threatened to have my bike impounded.

I was afraid that if they impound my bike, it would have been damaged, so I backed down. I’m still mad about it, though. Can they do that? A.B.A.T.E of Illinois member.

A: As with most legal questions, the answer is, it depends. Mostly, it depends on where you live and what the law is there. In Indiana and Ohio, inappropriate mufflers are subject to citation and fine as misdemeanors.

The officer can stop you and give you a ticket, and you will more than likely be allowed to roll on down the road. In Illinois, however, the law is much more strictly written.

Under Illinois law, “ It is unlawful for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle . . . which is equipped in any manner in violation of this Code.” See the details of the circumstance where you can be towed in Illinois Vehicle Code 625 ILCS 5/11-1302.

The Illinois vehicle code requires that “Every motor vehicle driven or operated upon the highways of this State shall at all times be equipped with an adequate muffler or exhaust system in constant operation and properly maintained to prevent any excessive or unusual noise. No such muffler or exhaust system shall be equipped with a cutout, bypass or similar device.

No person shall modify the exhaust system of a motor vehicle in a manner which will amplify or increase the noise of such vehicle above that emitted by the muffler originally installed on the vehicle, and such original muffler shall comply with all the requirements of this Section.”

Since the statute declares that a vehicle in violation of the vehicle code shall not “be driven or moved on any highway,” the officer would be within his authority to impound the bike and have it towed.

Neither Indiana or Ohio have the same sort of language. Both of those states make it an infraction (Indiana) or minor misdemeanor (Ohio),but neither statute authorizes the officer to impound the bike.

CAN MY EMPLOYER DO THAT? BIKE SHOP BLUES.

Q: I’m a mechanic in a local bike shop, and my employer recently told me I need to sign an agreement that I won’t work for another shop within a ten mile radius if I leave my current job. I don’t think that’s fair. There are a number of bike shops around here, and almost all of them are within ten miles from my current employer. Can they really enforce that agreement against me?

A: Probably. What they have asked you to sign is called a non-compete agreement. It used to be that non-compete agreements were used only with managers or sales personnel. However, they are becoming more common with service personnel who develop relationships with customers and entice customers to follow them if they move to a new employer.

Even though non-compete agreements are not favored by the law, if they follow the rules, those agreements are generally enforceable, provided the employer can show a reasonable belief that a departing employee could create unfair competition. However, non-compete agreements have to be reasonable in their restrictions. They can restrict a person from working in the same field, but only for a reasonable time period or within a reasonable distance from the employer’s service area.

If your employer makes it a condition of your employment and you work in an “employment-at-will” state, you may have no choice but to sign the agreement if you want to keep working there. If you sign the agreement and leave the job later, the employer can ask a court to prevent you from working for a competitor. If the court finds that the agreement contains reasonable restrictions, and doesn’t unfairly limit your rights to find a new job, the court could enter an order preventing you from working for the competitor or assess damages against you.

WHERE THERE’S A WILL, THERE’S A WAY

Want to remember your favorite motorcycle rights organization? When you make out your will, you can include some support for your favorite MRO. Whether it’s your state ABATE organization, the MRF, or some other MRO, your support in your will ensures that your love of motorcycling is carried on. Whether you leave $100.00 or $1,000.00 or just your favorite bike, you help ensure the future of motorcycling. Your ABATE Legal Services team can help you. Remember, one of the services for ABATE members is a free will from ABATE Legal Services. Call or email today to get started.

ROADHAZARD.ORG – JUST LIKE LUCY AND ETHEL IN THE BON-BON LINE

Q: How is the RoadHazard site doing? Do you get any responses from the agencies you contact?

A: You would be surprised. I’d have to say that RoadHazard.org is an unqualified success. We receive many follow-up letters and comments from both local government offices and from the person who made the original notification.

Many times, the government representatives thank us for bringing the problems to their attention so that they can fix it. RoadHazard.org is a valuable service to both riders and road crews!

Sometimes its like that scene when Lucy and Ethel are working in the candy factory putting bon-bons in boxes. Recall that when they can’t keep up, they start eating them. That’s us at RoadHazard.org sometimes.

It seems to me that it’s time to bring RoadHazard.org to next level. I have always envisioned RoadHazard as being a national program, coordinating information and notifying the proper authorities

across the US. As proof of concept, RoadHazard.org has worked well in Illinois, Indiana and Ohio, and there is no reason to think that it would not work nationally.

Many other states are already contacting us. What is needed, however, is some group that has the manpower and resources to make it work on a national level. We are in the process of identifying and contacting national organizations who would be interested in staffing and running an expanded RoadHazard.org.

I’ll keep you advised of any developments as they occur. As always, keep those notices coming!

The following has been submitted through the RoadHazard.org
From Rodney Diercks, Randolph County, Chester, Illinois
I was traveling west on a state road or highway and the name of the road I was on is Rt. 150/State St. The nearest crossroad is Stacey St. The hazard I encountered is uneven pavement. Details – there’s excessive coal truck traffic in Randolph County, resulting in extreme road destruction! I feel the state of IL. is negligent about proper repairs. The hazard is that the whole lane is very dangerous Westbound!!! I pulled or tore right hamstring requiring ER visit at Chester hospital and Dr. visit at Red Bud, IL. I also have photo of my leg. The majority of Rt.150 & Rt.3 in Randoplh County is an extreme public safety issue for all bikers! PLEASE HELP -THANK YOU!
This is an example of a report that we received today and that we are working on to get fixed:

IS IT A-BATE, a-BATE OR UH-BATE?

Q: We were at a region meeting the other day and the conversation turned to ABATE. Specifically, we were trying to figure out the correct pronunciation of “ABATE.” Do you have any thoughts?

A: To tell the truth, I’ve always wondered about that myself. As I found out when I did the column on what the letters of ABATE stand for, there appear to be as many “official” pronunciations as there are ways to say ABATE. I heard three different pronunciations: A-bate, aBATE, and UH-bate.

However, no matter how you pronounce it, it means brotherhood and community. Take your choice – it’s a Mason-Dixon/north-south kind of thing. My poll says that if you’re south of I-70, you say A-bate; if you are north of I-70, you say uh-BATE, and if you are a pure Yankee blue blood, you say a-BATE.

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com. © 2014

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Ask Our Lawyer March 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

GEORGE TINKHAM, THE THOMAS JEFFERSON OF MROs

I met George T. over a quarter of a century ago and we have practised law together that many years.  Brutally honest and brilliant, no lawyer was better equipped to create the organizational elements of the modern MROs.  He was a founder and creator of what we see at A.B.A.T.E. OF ILLINOIS and has advised and nurtured scores of motorcycle organizations throughout his life. He invented the chapter basis that many MROs use today (he was worried about lawyers suing us and decided he would make them pick off a Chapter at a time). He has been decorated with just about every motorcycle award possible, including the highest award presented by A.B.A.T.E. OF ILLINOIS. And he has served as the de facto general counsel to scores of ABATE organizations.

George bleeds motorcycle fuel and knows just about every biker song, movie and the words/lines thereto.  He even put together a listing of each of the above.  He is the real thing when it comes to riding.  His garage is full of just about every motorcycle on anyone’s top ten list, including a Honda 160 (with original tires) which sits next to an WWII Indian drive shaft propelled model, which is next to the Italian collection.  His favorites – the Harleys – are out front.  When he gets bored with his own collection, he retreats to the Tinkham family farm and motorcycle shop owned by his brother.  The world of motorcyclist rights would not be the same without him.   If your motorcycle broke down miles from anywhere, George T. is the man you want to be there with you. What a lucky day it was, when he came the motorcyclists way.

MAKING THE MOST OF YOUR MINUTES – ABATE SECRETARIES TAKE A LOOK

(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 organization 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.  What should we do?

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 two possibilties a board secretary can make regarding minutes.  They can either record every word, or prepare summaries of the conversations.  Each has its benefits and drawbacks.

Roberts Rules generally favors a show-all, tell-all approach to Board Minutes.  Certainly that makes life easy when all that is required 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, race or politically sensitive remarks, etc. are recorded with no way to edit or redact the comments?  Those type 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 for ABATE 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 –  if not mostly political – this may be the best route, unless we want to run the risk of causing divisions within the organization.

Since the summary approach does not record perfectly the words and expressions occurring 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 solution for ABATE boards and their members, as well as the organization as a whole.

ABATE RIDER INSTRUCTORS SAVED THIS TOWN!

I attended ABATE of Indiana’s Motorcycle Safety Division Annual Awards Banquet. At that banquet, we  thank those instructors for all they do for the motorcycle safety program. Prior to these programs, most states had no affective motorcycle safety training program. In short,  beginning riders were given a pink slip and told to practice on the highways and byways of this country. If they survived thirty (30) days or so, someone would examine their riding skills learned the hard way. The resulting plan was – if they die, they die. ABATE and its cadre of dedicated safety instructors and supporters of state funded programs changed all that.

Over the years, I have wondered how many lives have been saved by ABATE supported safety instructors. With that in mind, I asked John Bodeker, a motorcycle safety expert, if he could statistically calculate the number of lives saved in Indiana since that program was started. His answer, yes, around 1000 lives since the program was started in 1986. And even if it were only one, the effort would have been worth it.  If you accept the Indiana statistic as an average for each state (Indiana is average in population), it can be argued that over 50,000 lives have been saved because of the influence of an MRO in each state.  That is the size of  the average town in this country, so it is very cool for us to be able to say that “ABATE saved (the equivalent of ) that town”.

EVERYTHING YOU NEED TO KNOW [ALMOST] ABOUT GETTING ON SOCIAL SECURITY DISABILITY

Even though the Social Security regulations on eligibility for disability payments cover thousands of pages, we can reduce them to these simple rules/questions:

  1.  Start with – do we meet guidelines for a defined impairment? If so, go to the next rule.
  1. Are we working? If so, do we meet the definition of “substantial gainful activity?” Even if we are forcing ourselves and injuring our health even more – tough bananas if we earn more than the threshold amount [that amount goes up every year.] Even if you are not doing the work and have an employer who wants to keep you on for old times’ sake, and even if you and your work are worthless – you are not eligible. This is decision time. To quit or not to quit is the question – for health’s sake.
  1. Did we pay enough money into Soc. Sec.?? The S.S. folks look at payments by you for a period of years. Remember for every dollar you put in, your employer puts in a dollar. All that money is sent to the Federales in Baltimore Md., where they keep it in a big bag until they decide who gets it. Guess how much the Government puts in? Zero – that’s right, zero.

This money is put in by you and your employer – only. Look at the pay stub portion that talks about FICA. There is no line for contributions by anyone else but you and your work effort – so much for the argument that this payment is a welfare payment.

  1. Are we impaired and meet a listing? You should not walk but run to the nearest rehabilitation specialists that can help you sort through all the regulations defining impairment and whether you meet a defined listing.
  1. Can you do anything else? For those of us that have reached 50 we get off the hook a little on the retraining requirement. I think the theory is we will be dead by the time we get retrained, so why not let up on the over-50 crowd. Remember, in the meantime, they are holding your money in that bag in Baltimore.

The good news is after 2 years on disability, you get Medicare, the bad news is that you will wait 13 months to get on disability – even if you started today. So what do you do for that time period. Congress forgot to answer that one for you.

p.s. In a future article, we will cover how to avoid being labeled a sandbagger by the Federales, and other helpful rules of S.S. experience.

REMEMBER THE SONG “I AM MY OWN GRANDPA?”

Q: My husband and I have wonderful grandchildren, which we are raising because our daughter is not blessed with good mothering skills at this stage in her life. Now that my husband has cancer, we are concerned for our grandchildren’s future. What can we do? ABATE MEMBERS.

A: I have received this question many times from concerned parents. Usually, a life threatening disease causes them to question “what will happen to our grand kids if we are not around to raise them?” Many grandparents have only Social Security for themselves and certainly have not been in a position to save significant assets for the benefit of their grandchildren. As we all know, Social Security goes to the benefit of the worker, the worker’s spouse, and their unemancipated children.

The big question becomes what do you do to help safeguard the future lives of grandchildren when the only asset of the grandparents is typically their home, meager savings, and the Social Security benefits they have earned and are receiving. It was then that it came to me when I thought of that old country song “I’m My Own Grandpa.” What if the grandparents adopted their own grandkids? Would those grandchildren get Social Security benefits if something happened to the grandparents? The answer to that question is yes, if the grandparents legally adopt their own grandchildren. That solution will work; and will insure that the grandchildren will have a good and decent life through their college years. One possible hitch – consent of the parents is required.

ABATE HAS A NYC TAXI DRIVER FOR A FRIEND

There is an ABATE sticker on at least one New York City taxi cab and I have an admission to make – I’ve never met an NYC taxi driver that I didn’t like. Yes, I have heard all the stories, but here is what I know: they are all citizens or are on work permits legally in the U.S. as part of their taxi license requirements. Most work 60 to 80 hours a week like the one I met. J. Motobustsu [he said call me Mike] was darker that night.

Originally from Senegal, Africa, he spoke English better than I do, along with French and German and some Senegalese dialects. You would think we would have nothing in common – not so. We have motorcycles and Johnny Cash in common.  His country is full of Kawasaki 100s – the same bike a lot of motorcycle safety programs use for motorcycle safety instruction. After our two-wheel discussion, he looked at me in the mirror and asked [I must have had the look] “do you like Johnny Cash”? I replied that JC was a patron saint of my home county. With that he pulled down his sun visor and revealed about 6 CDs of JC’s greatest hits. Next scene is me, a guy from Senegal, crossing the Tri-Borough Bridge, windows rolled down and “Ring of Fire” playing as loud as he could play it.

If you happen to be in NYC and notice a taxi with an ABATE sticker on the bumper, wave – he is one of us.

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com.  © 2015

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Ask Our Lawyer May 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

GOING TO A JURY

I get a lot of calls from people who have been summoned to jury service. Here are some thoughts on what to expect.

Why is jury service so important?

When you are called to be a juror, you become the most important person in our legal system. In the United States, our justice system is based on the belief that a just and fair result in court comes from having disputes settled by our fellow citizens. We have an obligation to our fellow citizens to honor the summons and appear at court. Some cases may be more important than others, but to the parties involved, their case is very important, and they deserve to have it decided by honest and impartial jurors.

How are jurors selected?

Usually, persons are called at random for jury service from the list of registered voters in a court’s geographical area. In some counties and in federal courts, the list of registered automobile drivers also may be used. Jury trials are held in the United States district courts, the county circuit or superior courts, common pleas court, the municipal courts, or county courts.

What are the different types of juries?

Most jurors will be selected to serve on a petit jury, one that is selected to hear and decide a particular case. If the case is a criminal trial involving a felony (a more serious type of crime), the law requires 12 jurors. In a civil case, a smaller number of jurors (usually six or eight jurors) are selected.

Unlike the petit jury, a grand jury hears evidence about alleged crimes, usually felonies, and only decides whether or not a person should be indicted and tried for committing a crime. Also, unlike the petit jury, the grand jury does not decide guilt or innocence. If you are summoned to court to be selected for service on a grand jury, you will probably serve for a longer period of time than if you serve on a petit jury, although in most smaller counties, grand jury duty may only be once or twice a month for a three or four-month period.

What happens when I appear for jury service?

When you arrive at the court, you are directed to a particular courtroom or to an assembly area. Some courts provide a brief orientation talk or video to help acquaint you with the system. All prospective jurors take an oath or affirm that they will answer truthfully and fully questions posed to them by the judge and the attorneys during the selection process.

You are also told a little bit about case so that it can be determined if any past experience or bias might make it hard for you to be fair. You also have an opportunity to tell the court about anything else that might impact your ability to sit as a juror, including health problems, employment situations, and other obligations in your life. You have the right to respond to questions confidentially to the judge and attorneys, if you wish.

Generally, each side in a case has the right to ask that a certain limited number of jurors be excused without giving a reason. This is called a peremptory challenge. Each side also can make an unlimited number of challenges for cause, or for good reason. When attorneys make these challenges, it is not their intent to personally embarrass potential jurors, but to ensure that they engage jurors they believe will evaluate the case as fairly as possible for their clients.

Can I get out of jury service?

Where there is a will, there is a way, as they say. However, serving will give you an “up close and personal” view of the judicial system. Most states provide exemptions for certain occupations or conditions that would interfere with a juror’s ability to serve. If you don’t meet one of the exemptions, you will have to show up for duty and participate in the process.

It should be noted that serving on a jury will be one of the most patriotic events of your life and with representative participation in jury service by the populace having declined over the last several decades, jury service is more important than ever.

CRAZY IS AS CRAZY DOES – LOANING YOUR MOTORCYCLE

Q: My buddy wants to borrow my bike for a ride to Florida. He lost his license a couple of years ago and says he just got it back. Although he’s been riding for years, he’s never gotten his motorcycle endorsement and has had several accidents. He told me his insurance would cover the bike, but I’m kind of nervous about letting him on my bike.

A: And you should be, too. As we all know, most riders are extremely safety conscious, taking care to make sure that their bikes are in tip-top shape and that their skills remain sharp and focused. Unfortunately, there are those who don’t take those responsibilities seriously. While we are generally not our brother’s keeper, if we allow someone who shouldn’t be riding on our bike, his problem becomes our problem.

Generally, a vehicle owner is not responsible for the actions a person who is operating the vehicle. However, most states also recognize cases of negligent entrustment, which happens when an owner allows someone to operate the owner’s vehicle when that person is not qualified to do so. Allowing your buddy to take your bike may make you responsible for any accident he causes, if it turns out that he was unqualified and that we should have known that he was unqualified.

REVENGE FIRING  – IS IT LEGAL?

Q: I work at a local manufacturing shop. I got hurt on the job recently, and filed a worker’s comp claim. Shortly after I returned to work, I got fired, and I don’t think they had any reason. Also, when they fired me, they didn’t pay me my accrued vacation pay. What can I do?

A: Maybe quite a lot. One of the first issues to consider is the reason or reasons you were fired. Generally, employers will give some explanation as to why an employee was being fired. Most states, including Ohio, Indiana, and Illinois, have provisions in their statutes that forbid so-called “retaliatory discharge,” or being fired for filing a worker’s compensation claim. While it may be obvious to us to make the connection between the worker’s comp claim and the firing, the employers will often attempt to justify the discharge with evidence that there were other reasons for the discharge. Good record-keeping and sympathetic witnesses can help overcome this hurdle. Penalties for retaliatory discharge can include back pay, reinstatement, and attorney’s fees. In addition, the wage claim statutes in Indiana and Illinois also require that, upon discharge, employees are compensated for accrued vacation time, usually by the next scheduled payday. Failure to do so may lead to additional penalties and an award of attorney’s fees. The answer is much less clear under Ohio law and may depend on whether the employee is covered by a collective bargaining agreement or employed by a state or municipal agency. There may be disagreements, however, over whether the time has been accrued or not, or how much has been accrued. It is important that you speak to someone about these issues as soon as possible to determine your rights and remedies.

LITIGATION FUNDING, OR HOW DOES AN INJURED BIKER PAY THE MORTGAGE WHILE THE CASE IS PENDING?

Everyone knows that litigation can be expensive… very expensive. Often, plaintiffs with a strapped budget have a much harder time riding out the storm until a settlement is reached, potentially causing them to settle for less than their case is really worth. Plaintiffs that have sustained injuries and are now disabled may very well need money to live on during the interim period before they receive their settlement. Moreover, an insurance company, or other wealthy litigant, will probably be in no hurry to settle until they reach an agreement more in their favor, regardless of how long that may take. Regretfully, this is where litigation funding may be of service.

Litigation funding companies may advance a plaintiff money for living expenses, medical care, or for whatever else the money is needed, for a stake in the final settlement. This type of lending is non-recourse, meaning that in the case the plaintiff loses, they owe nothing to the funding company. They are only liable for repayment from the settlement money they receive. Of course, this is not all bliss, and should only be used as a LAST RESORT. The interest a client will owe on the advancement will reach what feels like adding insult to injury,  as the interest rate can exceed 100% with no cap.

These companies decide interest rates and the amount they are willing to advance based on the merits of the case. So the stronger the case, the better deal the plaintiff will receive. The longer the case takes to settle, the higher the effective interest rate is going reach, which begs the question, “does this really level the playing field?” Well, maybe in some cases, and maybe not in others. The industry now lends plaintiffs over $100 million a year and remains unregulated in most states. Litigation funding companies are free to ignore laws that protect consumers who borrow from lenders and assert that they are not lenders, but investors. This argument seems to have persuaded regulators in many states. The biggest issue with legal financing is a general lack of transparency in transactions and providing full disclosure to plaintiffs. The industry has recently taken steps to demystify their respective businesses by volunteering to be regulated—albeit on their own terms.

For now, we think the verdict is still out on litigation funding. In the meantime, here are a few pointers if this seems like an option you might want to pursue:

  •   Talk with your attorney and discuss options before making any decisions.
  •   Exhaust all other means of financing first, as this should be a last resort.
  •   Make sure the lender is a licensed financial institution.

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 and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com  © 2015.

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Ask Our Lawyer – October 2014

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

B.S.  DELAY TACTICS BY THE INSURANCE COMPANY

 

  1.  Rod, I have a question: Last Thursday afternoon around 4:15 p.m. my neighbor parked her car and went into the house.  Unknowingly she left it in gear and running. My son’s car was parked across the street….  I looked outside to see what was going on … and saw my neighbors car had hit my son’s parked car. There was significant damage.  Apparently the neighbor’s car drove itself across the street and hit my son’s car. The neighbor’s car was still running and in gear with no one around it.  We called the East Alton PD and they inspected the damage and left after we exchanged insurance information. Now they tell us they don’t make out accident reports for accidents like this.  (Here is the problem.) The neighbors insurance company wants an accident report before they will pay the claim, my question is shouldn’t the EAPD make out a accident report?  Dennis Kinnikin, ABATE MEMBER.
  2.  Dennis, the East Alton PD were not witnesses to the event – just the damage.  All they could do is report on all that was said by each person.  I believe they should have made a report, but probably just did not want to go thru the paperwork thing for a property damage case only.


Your son should press on with his claim against the neighbor’s insurance company as their insured – your neighbor – was clearly at fault. He (you) should not be deterred by the insurance company’s insistence on a report that was not done. That simply delays payment for the damage to your son’s car, and maybe that is part of their plan.  That insurance company is clearly blowing you off, so your son should be persistent with presenting this claim.  Confirm every conversation with the insurance company in writing (email) and feel free to show a cc to me as your lawyer.  That could encourage them to do the right thing.  Give the insurance company the names of the investigating police officers so they can get the investigation information direct.  Help them help you. That way they have a report – a verbal report from the officers counts.  Then they should pay promptly for the damage caused by your neighbor.  By the way, what is the name of the insurance company?  I would like to expose their delay tactics.  Rod

 

Postscript: Dennis just reported that the Chief of Police is preparing an official report in light of the insurance company insistence.  Now the insurance company is left without any excuse to avoid/delay payment for damages cause by the neighbor’s failures, and which are clearly owed.

BREAKING AND ENTERING BY MY LANDLORD

 

  1. I live in an apartment complex that has a lockable garage where I store my custom motorcycle.  The other day, I saw the manager leaving my garage and I confronted him about trespassing.  He said he had the right to “inspect the premises” and make sure all was well.  I said it was my rental space and he had no right to come into my locked garage area unless there was a problem.  Can I keep the manager away or at least require him to give me notice of the dates and times he intends to inspect my garage?  ABATE MEMBER.
  2.  Review your written lease if you have one.  Most leases allow inspections for emergencies only.  If the landlord is violating the lease, you may have grounds for trespass/invasion of privacy.  Probably a threat of this will cause him to at least provide you notice in advance of the need for an inspection if he has a right to make one under the lease.  If there is no lease, tell him to stay out of your garage.


CHECKING ON THE LAWYERS

 

  1.  I have called a lawyer from a motorcycle publication about my motorcycle crash.  I am not sure where his offices are located and I am not sure he is licensed in my state.  How can I be sure that he is a licensed lawyer in my state?
  2.  Most states have an Attorney Registration and Disciplinary Commission that makes book on lawyers.  That commission compiles an annual list of lawyers authorized to practice law in your state.  You can also view records of any disciplinary actions that have been taken against that lawyer.  If the lawyer in not licensed to practice in your state, that information should be reported to the Attorney Registration and Disciplinary Commission.  And for good reason, that lawyer may not be a lawyer in any state.


RADAR GUNS THAT SHOOT 2 AT A TIME – WHEN TO PULL OVER – HOW LONG TO WAIT?

 

  1. If I am in my truck and law enforcement “hits the rollers” behind me, I pull over. However, if the cop pulls over the guy behind me (or two or three), I would not expect to stop. If I am on my bike riding in a group, if the same situation occurs, who is expected to stop? Is there code or policy that covers this?  (A previous question by Jay Jackson, ABATE of Indiana with an update).
  2. I’ve spoken with law enforcement friends of mine about this. In general, if you believe an officer is trying to pull you over, you should stop and let the officer tell you whether he was intending to stop you or not. Since the question is what the officer intended to do, it would be difficult to convince a judge that you weren’t expected to pull over. Besides, most bikers want to stop and help their fellow riders in any event, even if only to be a witness? Of course, you should take care not to interfere with the officer, so you don’t end up with an obstruction of justice charge.

 

My law enforcement buddies tell me that it is highly unusual for an officer to stop multiple vehicles at the same time because it is dangerous, difficult to manage, and invariably leads to a ton of paperwork that the officer will not want to do. However, some of the newer radar guns can track speeds of multiple vehicles.  If the gun only tracks one vehicle, the officer usually tracks the slower vehicle and tickets the faster vehicle as traveling in excess of the speed of the slower vehicle.  Dan Jeffries, former Director of Alcohol Countermeasures for the Indiana Criminal Justice Institute and a former police officer, said “Honest mistakes happen when the officer is not as clear as he should be about “Who” he wants stopped out of a group.” Stopping a group of bikes is a little more commonplace. Generally, it is hard to single out one bike from the pack. Basically, there is no statute or code that covers this other than the one requiring you to pullover if directed.

 

Honest mistakes happen when the officer is not as clear as he should be about who he wants stopped out of a group. It may be better to be safe rather than sorry.  If the officer signals you to pull over and wait while he chases another vehicle, how long do you wait?  Ten minutes? Twenty minutes? Half an hour? That is a tough one to answer and is compounded by being in harms way along an interstate. Keep track of the time by a cell phone photo of the officer going after the other vehicle if you are safely stopped on the side of the road and can still see the officer.  If you decide to leave after a reasonable time, you can prove that it was reasonable.  You can explain that perhaps you misinterpreted the officer’s direction and that twenty minutes was long enough to be in a dangerous spot.  But I will leave that to you to explain to the judge, and smile a lot.

 

Most states require you to pull over to the right and stop when indicated by an officer’s flashing lights. Of course, if you are with a group of riders and everyone is over the speed limit, so be it. But if the last guy on the ride has a problem with his tail light, it’s hard to see how the officer had probable cause to stop anyone but the guy with his light out. To do otherwise is to violate the non-offender’s Fourth Amendment rights. If you have an abusive cop in your area that is consistently stopping groups of riders without probable cause for the group, you should call our office immediately. This is an important issue that needs to be addressed with the chief of police as soon as possible.

 

One of our ABATE lawyers actually has some experience with this situation. Many years ago, when he worked for the State, he and some friends were heading down US 41 to do some camping. There were two cars in their caravan heading down 41 with an exuberance that was perhaps in excess of the posted limits. Of course, a trooper in an unmarked car hits the lights behind him and motioned him off the roadway, along with his buddy, and a third vehicle that was traveling in front of them. The trooper came back to our lawyer’s car and asked for ID, whereon our intrepid traveler produced his state ID and badge. The officer took a couple of looks at the badge, asked which of the other cars he had stopped were part of the camping party, and sent them on their way with an admonishment to keep the speed down. As he drove away, he could see the trooper begin writing a ticket for the poor guy who wasn’t going camping. The moral? It’s helpful to travel with someone who has a badge.

 

  

GETTING SUED FOR A BIKE I DON’T OWN?

 

  1.  My ex-wife and I both ride.  In the divorce she was awarded the motorcycle and the court required her to pay the loan.  She has fallen behind on the payments and the bank is calling me.  Can they hold me responsible for paying for a motorcycle I no longer own?
  2. It’s possible. It depends on what happened in the divorce and if the loan you took out for the motorcycle was redone to remove you.  If you were not removed then you may still have liability. Check the loan documents carefully to see what obligations you have on the loan agreement. If you are still obligated, you should talk to your divorce lawyer about what can be done.   I am sure he will address this issue with your ex and the court that granted your divorce.



Ride Safe & Free,

 

Rod Taylor


ABATE Legal Services

abatelegal.com

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